HCLC: Dismissal of medical malpractice claim based on limitations reversed

Milton Hill v. Kimberly Ann Russell, CRNA, No. (Tex.App. - Austin Feb. 14, 2008) (Opinion by Justice Puryear)(health care liability suit, sufficiency and timeliness of notice and other requirements, tolling of limitations, abatement)

Holding: We conclude that a plaintiff's failure to include the required but separate authorization form when he provides notice of his claim to a defendant health care provider within the two-year limitations period does not bar the tolling of limitations but instead allows the provider to obtain an abatement until sixty days after she receives the authorization form. We therefore reverse the trial court's granting of summary judgment in Russell's favor and remand the cause to the court for further proceedings.

Before Justices Patterson, Puryear and Pemberton)
Milton Hill, Individually and on behalf of The Heirs of Andrea K. Hill v. Kimberly Ann Russell, CRNA
Appeal from 200th District Court of Travis County
Disposition: Summary Judgment for Defendant reversed and case remanded

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-07-000564, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

O P I N I O N

Appellant Milton Hill, individually and on behalf of the heirs of Andrea K. Hill, filed a health care liability claim against appellee Kimberly Ann Russell, CRNA. Russell sought summary judgment, arguing that Mr. Hill's suit was barred by limitations. The trial court agreed, granting summary judgment in Russell's favor. Mr. Hill appeals, and we reverse and remand.

Factual background

Andrea K. Hill, Mr. Hill's daughter, died during surgery for removal of a cyst on September 23, 2004. Russell, a nurse anesthetist, provided anesthesia services to Ms. Hill during surgery. On September 21, 2006, Mr. Hill sent Russell a notice of claim pursuant to section 74.051 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.051 (West 2005). Mr. Hill neglected to enclose with the notice the form authorizing the release of Ms. Hill's health information, which is required by section 74.052. See id. § 74.052 (West 2005). Mr. Hill corrected that omission four days later, sending the authorization form to Russell on September 25, 2006. On December 6, 2006, Mr. Hill filed suit against Russell, (1) asserting that she had breached the standard of care in her treatment of Ms. Hill, resulting in Ms. Hill's death. (2)

Russell moved for summary judgment, arguing that Mr. Hill's claims were barred by the two-year statute of limitations on health care liability claims. See id. § 74.251 (West 2005). Mr. Hill responded that his suit was timely under section 74.051(c), which tolls the running of limitations for seventy-five days if a claimant provides the defendant with notice of a claim under chapter 74. See id. § 74.051(c). Russell argued that because Mr. Hill did not provide the authorization form with his notice and within two years of Ms. Hill's death, Mr. Hill did not provide Russell proper notice that would toll the running of limitations. The trial court granted summary judgment in Russell's favor. Mr. Hill moved for a new trial, which was overruled as a matter of law. See Tex. R. Civ. P. 329b(c).

Discussion

It is undisputed that Mr. Hill did not file his suit within two years of Ms. Hill's death. Therefore, his suit is barred by limitations unless he can rely on a tolling provision that makes his suit--filed on December 6, 2006, approximately two years and two months after the cause of action accrued--timely. The issue before us, then, is whether Mr. Hill's failure to include the authorization form with his notice of claim, which was provided to Russell within two years of Ms. Hill's death, means that the notice did not toll the running of limitations until suit was filed. Russell insists that proper notice that allows a plaintiff to rely on section 74.051(c) for tolling requires three elements--the notice itself, the medical authorization form, and service by certified mail. See Tex. Civ. Prac. & Rem. Code Ann. § 74.051(a). Because the notice timely sent by Mr. Hill lacked the authorization form, she argues, the notice was insufficient to trigger the seventy-five day tolling of limitations. Mr. Hill, on the other hand, contends that his failure to include the form did not invalidate his timely notice and that Russell was at most entitled to a four-day abatement under section 74.052(a). See id. § 74.052(a) (failure to include authorization with notice abates proceedings against defendant "until 60 days following receipt" of authorization form).

Because we agree with Mr. Hill that the authorization form is a separate document from the required "notice" that triggers tolling under section 74.05(c), we reverse the trial court's granting of summary judgment and remand the cause for further proceedings.

We review the granting of summary judgment de novo and under well-established standards of review. See Tex. R. Civ. P. 166a(c); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). "A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense, including the accrual date of the cause of action. If the movant establishes that the statute of limitations bars the action, the nonmovant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations." Diversicare Gen. Partner, 185 S.W.3d at 846 (citations omitted).
Section 74.051 requires a health care liability claimant to give written notice of such claim . . . to each physician or health care provider against whom such claim is being made at least 60 days before the filing of a suit . . . . The notice must be accompanied by the authorization form for release of protected health information as required under Section 74.052.
. . . .
(c) Notice given as provided in this chapter shall toll the applicable statute of limitations to and including a period of 75 days following the giving of the notice.
Tex. Civ. Prac. & Rem. Code § 74.051(a), (c). Section 74.052 provides that
Notice of a health care claim under Section 74.051 must be accompanied by a medical authorization in the form specified by this section. Failure to provide this authorization along with the notice of health care claim shall abate all further proceedings against the physician or health care provider receiving the notice until 60 days following receipt by the physician or health care provider of the required authorization. Id. § 74.052(a).

Russell contends that because the authorization form is required by section 74.051(a), its absence rendered Mr. Hill's notice ineffective to trigger the seventy-five day tolling period. Russell's argument, however, requires us to read the statute more strictly than necessary and requires us to imply language that the legislature chose not to insert into the statute. When interpreting a statute, we attempt to discern the legislature's intent and we begin our inquiry with the plain language of the statute. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999). We assume that the legislature "tries to say what it means" and keep in mind that "ordinary citizens should be able to rely on the plain language of a statute to mean what it says." Id. at 866. If in our interpretation we stray from the statute's plain language, "we risk encroaching on the Legislature's function to decide what the law should be." Id. If the statute is unambiguous, we generally adopt the interpretation supported by the plain meaning of the statute's language. Id. at 865. We consider the whole statute, as well as other contextual information, not a single section in isolation. Id. at 866.

In enacting sections 74.051 and 74.052, the legislature unambiguously referred to the required "notice," which triggers tolling, as a separate document from the authorization form. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.051, .052. Indeed, in section 74.052(a), the legislature provided that failure to include the authorization "along with the notice" would result in a sixty-day abatement of the proceedings against the health care provider "receiving the notice" until the authorization was received by the provider. Id. § 74.052(a). The legislature did not state that the authorization was a part of the notice document or that tolling was not triggered in the absence of the authorization. Instead, it treated notice as a separate and distinct document from the authorization form, which should be included with the notice. Id. § 74.051. It is the provision of "notice," not the authorization form that triggers tolling under section 74.051(a).

Had the legislature intended Russell's proposed interpretation, it easily could have written that intention into the statute, and we will not read such language into the statute, which would require us to ignore the legislature's use of "notice" in the statute as distinct from the "authorization form." The purpose of the notice requirement in a health care liability case is to encourage pre-suit negotiations and settlement and to reduce litigation costs. De Checa v. Diagnostic Ctr. Hosp., Inc., 852 S.W.2d 935, 938 (Tex. 1993) (quoting Schepps v. Presbyterian Hosp., 652 S.W.2d 934, 938 (Tex. 1983)); see also Hines v. Hash, 843 S.W.2d 464, 468 (Tex. 1992) (referring to former health care liability notice provision in interpreting deceptive trade practices notice provision, and stating that purpose of notice requirement statutes "is better served by abating an action filed without notice for the duration of the statutory notice period to allow the parties to negotiate, than by dismissing the action altogether"). Abatement of a suit brought by a plaintiff who fails to provide pre-suit notice, rather than immediate dismissal, also furthers negotiation and settlement. See De Checa, 852 S.W.2d at 938; Schepps, 652 S.W.2d at 938. Similarly, allowing tolling when a plaintiff sends notice without the authorization form gives the health care provider fair warning of an imminent claim and then allows the provider to obtain an abatement for negotiations and evaluation of the claim. We will not read an overly strict and unfounded requirement into section 74.051 when the plain language of the statute provides us with an unambiguous and reasonable meaning. See Fitzgerald, 996 S.W.2d at 865-66.

We conclude that a plaintiff's failure to include the required but separate authorization form when he provides notice of his claim to a defendant health care provider within the two-year limitations period does not bar the tolling of limitations but instead allows the provider to obtain an abatement until sixty days after she receives the authorization form. We therefore reverse the trial court's granting of summary judgment in Russell's favor and remand the cause to the court for further proceedings.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Pemberton
Reversed and Remanded
Filed: February 14, 2008

1. Mr. Hill also sued the hospital where the surgery took place. After the trial court granted summary judgment in favor of Russell, it severed Mr. Hill's claims against Russell from those against the hospital. Claims related to the hospital are not before us in this cause.
2. In his original petition, Mr. Hill mistakenly referred to the notice requirements of "Article 4590i, Section 4.01(a) of the Medical Liability and Insurance Improvement Act." However, article 4590i, which included a notice requirement and allowed for the tolling of limitations upon proper notice, was repealed effective September 1, 2003, and replaced by section 74.051 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.051 (West 2005). This minor error in pleading is not an issue on appeal.

Medical Malpractice Judgment resulting from 8-day jury trial affirmed by Austin Court of Appeals

Austin Periodontal Associates, Inc. f/k/a C. Leonard Dolce, D.D.S., M.S., Inc.; and Charles Leonard Dolce, D.D.S., M.S., Individually and d/b/a Periodontal Associates v. Kirsten Husak, No. (Tex.App.- Austin Jan. 25, 2008)(Opinion by Justice Patterson) (Before Justices Patterson, Puryear and Pemberton) (affirmed)
Appeal from 345th District Court of Travis County

M E M O R A N D U M O P I N I O N

This dental malpractice case arises from the bilateral severance of appellee Kirsten Husak's lingual nerve during a procedure to remove her third molars. (1) Appellant Charles Leonard Dolce, D.D.S., M.S., performed the procedure. Husak brought suit alleging negligence against Dr. Dolce and his employer, appellant Austin Periodontal Associates, Inc. f/k/a C. Leonard Dolce, D.D.S., M.S., Inc. (2) After an eight-day jury trial, the jury found Dr. Dolce negligent and awarded Husak damages. The trial court rendered judgment on the verdict. In five issues, appellants contend that the trial court's judgment should be reversed and that they should be granted a new trial. For the reasons that follow, we overrule their issues and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Husak's general dentist Tommy Thomson referred Husak to Dr. Dolce to have crown lengthening done on two of her teeth. (3) During the preoperative appointment, Dr. Dolce and Husak discussed and agreed that Dr. Dolce would remove her third molars at the same time.
The surgery took place in April of 2002. During the removal of her third molars, Dr. Dolce bilaterally severed Husak's lingual nerve. He also broke a burr (4) in her mouth and did not inform Husak after the surgery that he was unable to find the broken piece. From the surgery, Husak suffered infection, dry socket, and total anesthesia of the front two-thirds of her tongue. Dr. Dolce referred Husak to Dr. James Fuselier, an oral surgeon in Austin, for further treatment, including to treat her infection. Dr. Fuselier referred Husak to Dr. Donald Cohen, an oral surgeon in Houston with postsurgical training in oral and maxillofacial surgery. Dr. Cohen attempted microsurgical repair on the left side of Husak's lingual nerve in August and the right side in October, but the repairs were unsuccessful.

Husak sued Austin Periodontal alleging multiple theories of negligence in bilaterally severing her lingual nerve. Husak's theories included that the removal of her third molars was medically unnecessary and that Dr. Dolce negligently removed her third molars by his incisions or, alternatively, by his drilling. Husak alleged that Dr. Dolce's incisions were below the standard of care because they were made in an area of her mouth where the lingual nerve was known to be located and that the incisions caused her injury. (5) Alternatively, Husak alleged that Dr. Dolce improperly drilled into the area of her mouth where the lingual nerve was known to be located and that the drilling was the cause of her injury.

At trial, Husak and her former boyfriend, John McCarthy, testified concerning Husak's physical and mental condition before and after the surgery and the effect the injury has had on her. Husak also presented expert opinion testimony from Dr. Cohen, Dr. Thomson, and Dr. Robert W. Staley, Jr., D.D.S., an oral and maxillofacial surgeon from Oregon. Appellants' defensive theory to the jury was that severance of the lingual nerve was an inherent risk of the procedure, that Dr. Dolce's technique was within the standard of care, and that he severed Husak's lingual nerve during the procedure because the nerve was in anatomically aberrant locations on both sides of her mouth. Dr. James T. Mellonig, D.D.S., a periodontist and professor at the University of Texas Health Science Center in San Antonio, testified as appellants' expert.

The trial court submitted a broad form negligence question to the jury--"Did the negligence, if any, of C. Leonard Dolce, D.D.S., M.S., proximately cause the injury in question?" The jury answered, "Yes." The jury awarded the following amounts in response to the damages question: (i) $45,879.75 for medical care expenses in the past; (ii) $50,000 for physical pain and mental anguish sustained in the past; (iii) $200,000 for mental anguish that, in reasonable probability, Husak will sustain in the future; (iv) $19,500 for physical impairment sustained in the past; (v) $150,000 for physical impairment that, in reasonable probability, Husak will sustain in the future; and (vi) $6,000 for loss of earning capacity sustained in the past. (6) Based on the verdict and the trial court's ruling as a matter of law that Dr. Dolce was acting within the course and scope of his employment, the trial court entered judgment against appellants for $503,923.59, which included the damages found by the jury plus pre-judgment interest. This appeal followed.

ANALYSIS

Austin Periodontal contends that the judgment should be reversed and a new trial granted because (i) the trial court abused its discretion by excluding certain testimony by Dr. Cohen, the subsequent treating periodontist; (ii) the trial court abused its discretion by refusing to provide a "bad result" instruction in the jury charge; (iii) the evidence was legally and factually insufficient to support causation and damages; (iv) the trial court abused its discretion by ruling as a matter of law that Dr. Dolce was acting within his scope of employment when he performed the surgery; and (v) the trial court abused its discretion in redacting informed consent forms and limiting informed consent evidence.

Standard of Review

Appellants' complaints on appeal include that the trial court abused its discretion in excluding evidence and in denying a requested jury instruction. See Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006) (admission or exclusion of expert evidence is a matter within the trial court's discretion); In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000) (error in the jury charge is reviewed under an abuse of discretion standard). A trial court abuses its discretion when it acts without regard to any guiding rules or principles. Downing, 197 S.W.3d at 304-05; City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995).

To reverse a judgment based on a claimed error in either an evidentiary ruling or in the jury charge, a party must show that the error probably resulted in the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1); Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001) (exclusion of evidence); Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002) (error in refusing an instruction); Niemeyer v. Tana Oil & Gas Corp., 39 S.W.3d 380, 387 (Tex. App.--Austin 2001, pet. denied) (error in jury charge). To determine whether excluded evidence probably resulted in an improper judgment, we review the entire record and usually require the complaining party to demonstrate that the judgment turns on the evidence that was excluded. Interstate Northborough, 66 S.W.3d at 220; Alvarado, 897 S.W.2d at 753-54; Perez v. Embree Constr. Group, Inc., 228 S.W.3d 875, 884 (Tex. App.--Austin 2007, pet. filed) (for improper exclusion of evidence to be reversible, "erroneously excluded evidence must have been controlling on a material issue;" quoting Elliott v. Elliott, 21 S.W.3d 913, 922 (Tex. App.--Fort Worth 2000, pet. denied)). "Error in the jury charge is reversible if, when viewed in light of all the circumstances, it amounts 'to such a denial of rights of the complaining party as was reasonably calculated and probably did cause the rendition of an improper judgment.'" Niemeyer, 39 S.W.3d at 387 (quoting Howell Crude Oil Co. v. Donna Refinery Partners, Ltd., 928 S.W.2d 100, 110 (Tex. App.--Houston [14th Dist.] 1996, writ denied)).

Appellants also raise challenges to the legal and factual sufficiency of the evidence. A legal sufficiency challenge may only be sustained when the record discloses one of the following situations:

(a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; [or] (d) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (quoting Robert W. Calvert, "No Evidence" & "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)). In determining whether a finding is supported by legally sufficient evidence, we view the evidence in the light most favorable to the finding, "crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Id. at 807. We indulge every reasonable inference that would support the finding. Id. at 822; Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex. 2004).

In reviewing the factual sufficiency of the evidence, we consider and weigh all the evidence presented at trial, including any evidence contrary to the judgment. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We set aside a finding for factual insufficiency if it is "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain, 709 S.W.2d at 176.

Exclusion of Deposition Excerpts from Dr. Cohen

In the first issue, Austin Periodontal complains that the trial court abused its discretion in excluding two passages from Dr. Cohen's testimony that went to his credibility. (7) Austin Periodontal complains that the jury should have been allowed to hear Dr. Cohen's testimony that he had performed only one other lingual nerve repair as a lead surgeon and that he also testified for the plaintiff in that case. In the first passage, Dr. Cohen testified that he had been involved in surgical repair of the lingual nerve in approximately seven other cases and that he worked with another surgeon on those cases. Austin Periodontal, however, agreed to exclude the first passage after Husak objected to its inclusion. In the second passage, Dr. Cohen testified that he served as the lead surgeon in one other lingual nerve repair case and that he was hired to serve as the plaintiff's expert in that case. In response to Husak's objection to the second passage's inclusion, the trial court overruled the objection except for one question and answer. (8)

Despite the favorable ruling on the second passage, Austin Periodontal did not attempt to offer the passage into evidence but made an offer of proof of both passages later in the trial. Austin Periodontal made the offer of proof during a discussion with the trial court and opposing counsel concerning how the jury would be allowed to view deposition testimony. After the parties agreed that the deposition testimony would be available for the jury to review by DVD but not accompanied by a written transcript, Austin Periodontal made the offer of proof of the two passages:

Appellants' counsel: . . . I want to make another offer of proof on Doctor Cohen's testimony. It's on page 76 line 9 through page 79 line 14 [first passage]. Page 106 line 2, page 107, line 4 [second passage].

The court: Objection or --

Appellants' counsel: Offer of proof. This is the testimony regarding that he's been the lead surgeon in two cases. And in both cases he wrote a[n] operative report, both cases hired as expert. I actually just took the [deposition] pages out. Wanted to make an exhibit so it's clear what I am offering. Your Honor I am offering defendant's exhibit 65.
The court: 65 will be admitted in the pile that doesn't go to the jury. . . .

In the discussion with the trial court, Austin Periodontal did not attempt to admit the exhibit of the passages as evidence or request a ruling from the trial court on whether the evidence should be excluded, but requested that the trial court admit the exhibit as an offer of proof. See Tex. R. Evid. 103. The trial court granted Austin Periodontal's request and admitted the exhibit as an offer of proof.

Because the trial court only excluded one question and answer out of the second passage, we limit our review to this one question and answer. See Tex. R. App. P. 33.1(a) (to preserve error for the exclusion of evidence, a party must seek to introduce the evidence during the evidentiary portion of the trial and obtain an adverse ruling); Estate of Veale v. Teledyne, 899 S.W.2d 239, 242-43 (Tex. App.--Houston [14th Dist.] 1995, writ denied). We conclude that appellants have failed to demonstrate that the judgment turned on this narrow portion of testimony. See Tex. R. App. P. 44.1(a); Interstate Northborough, 66 S.W.3d at 220; Alvarado, 897 S.W.2d at 753-54; Perez, 228 S.W.3d at 884. We overrule Austin Periodontal's first issue.

"Bad Result" Jury Instruction

In the second issue, appellants contend that the trial court abused its discretion in refusing to provide the jury their proposed "bad result" instruction:

A finding of negligence may not be based solely on evidence of bad result to the patient in question, but such a bad result may be considered by you, along with other evidence, in determining the issue of negligence; you shall be the sole judge of the weight, if any, to be given any such evidence.

The proposed instruction tracks the pattern jury charge bad result instruction for actions filed before September 1, 2003. See Texas Pattern Jury Charges--Malpractice, Premises, & Products PJC 50.7 (2006 ed.) (Evidence of Bad Result). Pursuant to the applicable statute, however, it was within the trial court's sole discretion to determine whether the instruction was reasonably applicable to the facts and whether to include it. See former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 7.02(c), Act of May 24, 1989, 71st Leg., R.S., ch. 1027, § 28, 1989 Tex. Gen. Laws 4128, 4145 (repealed Sept. 1, 2003) ("Jury Instruction Authorized in Certain Cases"); (9) see also Williams v. Viswanathan, 64 S.W.3d 624, 628-29 (Tex. App.--Amarillo 2001, no pet.) (submission of bad result instruction reviewed under abuse of discretion standard).

Husak contends that the statute does not apply because Dr. Dolce did not present evidence that he was a physician and Austin Periodontal Associates, Inc. did not present evidence that it was a hospital. (10) We agree. The former statute is expressly limited to jury trials "involving a health care liability claim against a physician or hospital." See former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 7.02(a). Dr. Dolce testified that he was a dentist and periodontist and that he practiced his profession through Austin Periodontal Associates, Inc. A physician is defined as a "person licensed to practice medicine in this state" or a professional association or other legal entity organized by an individual physician or group of physicians. See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(23) (West 2005); former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 1.03(8), Act of June 16, 1977, 65th Leg., R.S., ch. 817, § 1.03, 1977 Tex. Gen. Laws 2039, 2041 (repealed Sept. 1, 2003). A hospital is defined as a duly licensed public or private institution as defined in chapter 241 of the health and safety code or licensed under chapter 577 of the health and safety code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(16) (West 2005); former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 1.03(5) (repealed Sept. 1, 2003). In these circumstances, we conclude that the trial court did not abuse its discretion in denying appellants' proposed instruction. See Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998) (trial courts have great latitude and considerable discretion to determine necessary and proper jury instructions). We overrule Austin Periodontal's second issue.

Sufficiency of the Evidence

In the third issue, Austin Periodontal contends that the evidence was legally and factually insufficient to support the jury's judgment and damage award. Specifically, Austin Periodontal contends that the evidence was legally and factually insufficient to support the jury's finding of negligence because there was no evidence or insufficient evidence of (i) cause in fact, and (ii) the jury's findings on damages for physical pain and mental anguish sustained in the past, for future mental anguish, and for future physical impairment. We first consider whether the evidence was legally and factually sufficient to support the jury's finding of cause in fact.

1. Cause In Fact

Cause in fact is a component of proximate cause in a negligence action. See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). (11) Cause in fact is not established "where the defendant's negligence does no more than furnish a condition which makes the injuries possible." Id. at 799. Cause in fact is established "when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred." Id. The "causal connection" must be "based upon 'reasonable medical probability,' not mere conjecture, speculation or possibility." Bradley v. Rogers, 879 S.W.2d 947, 954 (Tex. App.--Houston [14th Dist.] 1994, writ denied) (quoting Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988)). "Reasonable medical probability" means the injury "was more likely than not" a result of the negligent action. Id. at 954. To prove reasonable medical probability, reasonable inferences are permissible, and a plaintiff is not required to exclude every other reasonable hypothesis. Id.

Austin Periodontal contends that there is a lack of evidence of the location of Husak's lingual nerve when it was severed and of what actually caused the nerve's severance. Although Dr. Staley and Dr. Cohen testified Husak's injuries occurred from Dr. Dolce's actions that fell below the standard of care, Austin Periodontal contends that neither expert testified definitively to the actual action that caused the severance--whether it was the incision, the drilling, or some other action--or to the precise location that Husak's lingual nerve was severed on either side of her mouth. We conclude that the record contains more than a scintilla of evidence to support the jury's finding of cause in fact. See City of Keller, 168 S.W.3d at 810; Gragg, 151 S.W.3d at 552.
Dr. Cohen testified that in his opinion, based upon reasonable medical probability, Dr. Dolce's technique caused Husak's permanent damage. Dr. Cohen testified that Husak's injuries were caused by Dr. Dolce's procedures that fell below the standard of care, including the incisions that he made "straight back," his retraction of the lingual flap, the burring and the removal of bone on the lingual side, and traumatizing the tissue. Dr. Cohen testified that the line of scar tissue on the left side of Husak's mouth, the first side that he attempted to repair, was not consistent with a standard lateral incision and that the standard lateral approach should have avoided even the "most odd of anatomical variations." According to Dr. Cohen, the lingual nerve is in the same area in everyone's mouth but there are individual variations within that area and that the standard lateral incision is designed to avoid the known areas. The standard lateral incision is made over bone, goes back from the second molar, and curves toward the cheek or buccal to avoid the known areas. Dr. Cohen also testified that Dr. Dolce's injection of anesthesia made during the procedure and Husak's subsequent infection did not cause Husak's injuries to her lingual nerve.

On cross-examination, Dr. Dolce testified that he caused the severance of the nerve bilaterally during the procedure to remove Husak's third molars:

Q: And in the opening of this case a couple of days ago, your attorney stated that you never disputed that you caused Mrs. Husak's lingual nerve injury; is that correct?
A: Right.
Q: And do you agree?
A: I agree.
Q: And you agree that you did something that caused her injuries, correct?
A: Yes.

Dr. Mellonig also testified that Dr. Dolce's surgical instruments caused Husak's injury and that the lingual nerve was probably severed by the "blade of the knife" in the initial incision. He testified that was the only way to sever the nerve because "the nerve is very--very tough, so it had to be cut." Husak was not required to disprove every reasonable hypothesis of the cause in fact of the severance. See Bradley, 879 S.W.2d at 954. Husak also was not required to choose between alternative theories of how Dr. Dolce severed the nerve. See Webb v. Jorns, 488 S.W.2d 407, 410-11 (Tex. 1972) (plaintiff proved prima facie negligence case by evidence that cardiac arrest caused by overdose or lack of proper oxygenation of the patient). It was for the jury to resolve inconsistencies of any one witness to determine the cause of the injury. See McGilliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); Webb, 488 S.W.2d at 411. We conclude the evidence was legally sufficient to support the jury's finding of cause in fact.

Reviewing all the evidence presented at trial, we also conclude that the evidence on cause in fact was not "so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust." See Cain, 709 S.W.2d at 176. Dr. Dolce testified on cross-examination that his sole defense was that Husak's injury occurred in the absence of negligence because Husak's nerve was in an aberrant location on both sides of her mouth:
Q: Now, you're claiming in this suit, as your only defense to you slicing through her nerves, that her nerves were aberrant on both sides. Correct?
A: Yes.
To support the aberrant location defense, appellants relied on Dr. Dolce's testimony and Dr. Cohen's surgery report from the attempted repair of the left side of Husak's mouth. Dr. Dolce testified that the body generally mirrors itself between the right and left side, and appellants contend that Dr. Cohen in his report found Husak's lingual nerve in an aberrant location on the left side--within the third molar socket. Based on the nerve's location within the third molar socket on the left side then, appellants contend that the location of Husak's lingual nerve on the right side also was in an aberrant location, and that the nerve was severed because it was in an aberrant location on both sides, not because Dr. Dolce was negligent. None of the experts, however, were aware of another case in which a patient's lingual nerve was severed bilaterally. The testimony also was disputed regarding the interpretation and implications of Dr. Cohen's statement in his report regarding the nerve's location in the scar tissue when he performed the subsequent repair. Dr Cohen testified that when he attempted the repair on the left side, he did not find an abnormal course of Husak's lingual nerve:

Q: When you dissected her nerve, did you find any abnormal course of her nerve on the left side?
A: No.

Dr. Cohen further provided extensive testimony that the procedure for removing third molars is designed to avoid all known aberrations. Dr. Staley also testified that the procedure is designed to avoid the lingual nerve, that the lingual nerve has never been demonstrated to be in the location Dr. Dolce claimed, and that if Husak's nerve was in that location, Husak would have been aware of the presence of the nerve because she would have experienced pain and discomfort in a manner inconsistent with her actual history. (12)

It was within the jury's province to conclude that Husak's nerve was located in a known area and to credit the expert opinion testimony that it was Dr. Dolce's procedures that fell below the standard of care that caused the injury. See Bronwell v. Williams, 597 S.W.2d 542, 546-47 (Tex. Civ. App.--Amarillo 1980, writ ref'd n.r.e.) (fact issue for jury's resolution whether common duct in normal or abnormal location); see also Grider v. Naaman, 83 S.W.3d 241, 245-46 (Tex. App.--Corpus Christi 2002), rev'd on other grounds, 126 S.W.3d 73, 74-75 (Tex. 2003) (judgment for defense in medical malpractice suit reversed because no evidence to support sole defense that patient had abnormal anatomy). The jury heard a range of expert testimony concerning the cause of Husak's injury. It was within the province of the jury to weigh the expert opinion testimony and to determine which expert witness should be credited. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (jury remains sole judge of witnesses' credibility and the weight to be given their testimony); McGilliard, 722 S.W.2d at 697 (jury can choose to believe one witness over other witnesses or resolve inconsistencies in their testimony). We conclude the evidence was legally and factually sufficient to support a finding of cause in fact. We next consider whether the evidence was legally and factually sufficient to support the jury's findings on damages.

2. Damages

Austin Periodontal contends that the evidence was legally and factually insufficient to support the damages award of $50,000 for physical pain and mental anguish sustained in the past, $200,000 for mental anguish that in reasonable probability Husak will sustain in the future, and $150,000 for physical impairment that in reasonable probability Husak will sustain in the future. Austin Periodontal's theory to the jury was that, although Husak suffered a severe injury, she has recovered and is now maintaining a lifestyle similar to that before her injury. Austin Periodontal contends that Husak does not intend to seek counseling for the injury, that she has regained some sensation and taste in her tongue after the surgery, that her eating habits are back to normal, that she took a course in conversational Japanese, and that she has decided to pursue a graduate degree. We conclude that the evidence is legally and factually sufficient to support the damages awarded.

As to the award of damages for physical pain, a jury is given considerable discretion in awarding amounts appropriate for such damages; there are no objective guidelines to assess the monetary equivalent of pain and suffering resulting from physical injury. See Living Ctrs. of Tex., Inc. v. Penalver, 217 S.W.3d 44, 54 (Tex. App.--San Antonio 2006, pet. dism'd). As to the award of damages for mental anguish, evidence of "'the nature, duration, and severity'" of a plaintiff's mental anguish and the substantial disruption of a plaintiff's daily routine support an award of damages for mental anguish. See Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 797 (Tex. 2006) (evidence found legally sufficient to support damages for mental anguish; quoting Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995)).

The award of $50,000 for past pain and mental anguish represents approximately $11,000 per year for the four and one-half years from the surgery to the time of trial. During that period, Husak had two subsequent operations to attempt the repair of her lingual nerve. Husak testified to her depression, pain, and anxiety during this period. She testified that she was unable to eat, sleep or open her mouth for weeks after the surgery and that she could not speak correctly for months despite having a job that required her to make presentations. Husak testified what it was like for her to eat after the surgery (13)--that she has no taste, that she cannot tell hot from cold, and that she has had to avoid many foods because, in trying to chew them, she cannot feel when she bites her tongue. She testified what it has been like for her to talk--that when she gets tired, she has a hard time enunciating words, and she bites her tongue and does not know it, causing blood to pool in her mouth. McCarthy testified about his observations of Husak's physical and mental condition before and after the surgery, and his testimony was consistent with Husak's. Based on this evidence, we conclude there was more than a scintilla of evidence to support the damage finding for past pain and mental anguish. See City of Keller, 168 S.W.3d at 810; Gragg, 151 S.W.3d at 552.

Reviewing all the evidence, we also conclude that the jury's finding is not "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." See Cain, 709 S.W.2d at 176. Austin Periodontal presented evidence that Husak stated during her treatment that she thought that her senses in her tongue were improving and that she has continued to lead an active life. Dr. Cohen, however, explained Husak's sensations during her treatment as "phantom." Husak's activities after her injury, including pursuing a graduate degree and taking conversational Japanese, do not negate the pain and the mental anguish that Husak experienced from her injury. We conclude the evidence was legally and factually sufficient to support the jury's damage award for past pain and mental anguish. (14)

As to the jury award of $200,000 for future mental anguish, the jury heard evidence that at the time of the trial, Husak was expected to live an additional 44.5 years. The amount awarded for future mental anguish represents approximately $4,500 per year for the remainder of her life. Dr. Staley testified that he tested Husak's sense of touch at the time of trial by blindfolding her and then sticking a needle in her tongue and that she did not flinch. Dr. Dolce witnessed the test and confirmed that she did not flinch. Dr. Cohen testified that the attempted repairs were unsuccessful, that Husak's injury was permanent, and what Husak's life will be like:
It's--it's just losing a part of your body. It's like if you don't have any feeling in your hand, and that--which most people could--I mean, like, if--when your hand falls asleep, it's pretty disconcerting that you look over and you touch it and you feel you touch it, but you don't feel that it's there. Well, how would that be if it was like that all the time.

Husak testified to her continued depression and anxiety. Husak testified that she is depressed by the smell of food, miserable and embarrassed and that "it's never going to end."
Because the injury is permanent, there was evidence that Husak's daily routine will remain disrupted and that she will continue to have mental anguish in the future, including from the broken burr that remains in her mouth. On this record, we conclude there is more than a scintilla of evidence to support the damage finding for future mental anguish. See City of Keller, 168 S.W.3d at 810; Gragg, 151 S.W.3d at 552. Although Austin Periodontal provided evidence that Husak does not intend to seek counseling, we conclude that the damage award for future mental anguish from Husak's injury is not "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." See Cain, 709 S.W.2d at 176.

As to the jury's award for future physical impairment of $150,000, this amount represents approximately $3,400 per year for the remainder of Husak's life. To recover damages for physical impairment, a plaintiff must show that the effect of the physical impairment is "substantial and extend[s] beyond any pain, suffering, mental anguish, lost wages, or diminished earning capacity." See Patlyek v. Brittain, 149 S.W.3d 781, 786 (Tex. App.--Austin 2004, pet. denied) (quoting Golden Eagle, 116 S.W.3d at 772). Recoverable damages for physical impairment include damages for the loss of a plaintiff's former lifestyle or "loss of enjoyment of life." See id. at 785 (quoting Golden Eagle, 116 S.W.3d at 764-65, 772). The focus is on a plaintiff's ability to engage in specific non-work related activities--whether the impediments are obvious or whether the plaintiff presented evidence of non-work activities that the plaintiff can no longer perform. Id. at 787.

Husak's impediments are obvious and substantial. After the surgery, Husak lost the ability to use her tongue for cleaning and for taste or to identify things in her mouth. At the time of trial, Husak testified that she continues to have difficulty eating and communicating. Husak also presented evidence that she no longer engages in non-work related activities that she participated in before her injuries. Husak and McCarthy described Husak's life prior to the severance of her lingual nerve as socially active, including her hobbies of going out to eat with friends, gourmet cooking, and strenuous exercise and bicycling. Husak testified that she no longer enjoys or participates in these hobbies. McCarthy testified that Husak's only hobby after the surgery is reading. We conclude that there is more than a scintilla of evidence to support the finding of damages for future physical impairment. See City of Keller, 168 S.W.3d at 810; Gragg, 151 S.W.3d at 552. Although Austin Periodontal provided evidence that Husak is pursuing a graduate degree and taking a conversational class in Japanese, we conclude that the damage award for future physical impairment is not "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." See Cain, 709 S.W.2d at 176.

Having found the evidence legally and factually sufficient to support the jury's finding of cause in fact and the amount of damages awarded, we overrule Austin Periodontal's third issue.
Scope of Employment

In the fourth issue, Austin Periodontal alleges that the trial court abused its discretion by ruling as a matter of law that Dr. Dolce was within the course and scope of his employment when he extracted Husak's third molars.

When reviewing a directed verdict on a material question presented, we determine whether there is any evidence of probative force that raises a fact issue. See Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994). We consider all the evidence in the light most favorable to the party against whom the verdict was directed, disregarding all contrary evidence and inferences and giving the party the benefit of all reasonable inferences created by the evidence. Id. If there is any conflicting evidence of probative value, the directed verdict is improper and the case must be reversed and remanded for jury determination of that issue. Id.
Husak sued Austin Periodontal Associates, Inc. as the legal entity vicariously liable for Dr. Dolce's negligent acts. Under the theory of respondeat superior, an employer may be vicariously liable for the negligent acts of its employee if the employee's actions are within the course and scope of employment. See Baptist Mem. Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). During cross-examination, Dr. Dolce testified that he was employed by C. Leonard Dolce, D.D.S., Inc., at the time he performed the procedure on Husak, and that he was acting within the scope of his employment:

Q: Were you within the scope and employment of the corporation at the time?
A: Scope and employment? Yes. The corporation--I mean, I'm practicing my profession in the corporation.
Q: Right. And what I'm trying to get at is that you weren't doing something that you weren't supposed to be as an employee of the corporation at the time that you removed her teeth.
A: No.

Appellants did not offer contradictory evidence that Dr. Dolce was doing something other than practicing dentistry in the furtherance of his employer's business when he performed the procedure on Husak. (15) We conclude that the trial court did not abuse its discretion in ruling as a matter of law that Austin Periodontal Associates, Inc. was vicariously liable for Dr. Dolce's negligence. We overrule Austin Periodontal's fourth issue.

Informed Consent

In the fifth issue, Austin Periodontal contends that the trial court abused its discretion in refusing to admit the informed consent forms of Dr. Cohen and Dr. Dolce and evidence that Dr. Dolce provided Husak with an informed consent form before the procedure to extract her third molars. The consent forms included damage to nerves and numbness as inherent and potential risks. Austin Periodontal contends that this evidence was relevant to the issue of whether Husak's injury could have occurred in the absence of negligence.

But, Austin Periodontal was allowed to offer evidence of Husak's informed consent and the consent forms. The jury heard testimony from Dr. Dolce that Husak signed his consent form. The redacted consent forms of Dr. Cohen and Dr. Dolce were also admitted as exhibits, and the admitted portions of the forms included the listed risks. Dr. Dolce's redacted form included in the listed "Principle Risks and Complications" that the patient could have "transient but occasional permanent numbness of the . . . tongue." Similarly, Dr. Cohen's redacted form provided:
Dr. Cohen has explained to me that there are certain inherent and potential risks in any treatment plan or procedure, that may include, but not necessarily be limited to . . . [i]njury to the nerves of the jaw resulting in numbness or tingling of the lip, chin, gums, cheek, teeth and/or tongue on the operated side; this may persist for several weeks, months, or in remote instances permanently.

The record confirms that appellants were allowed to present this evidence (16) on informed consent and inherent risks to the jury to support their defensive theory that the injury could have occurred in the absence of negligence. (17)

We also cannot conclude that the trial court abused its discretion by redacting the consent forms of Dr. Dolce and Dr. Cohen or that any excluded evidence on informed consent was controlling on a material issue to support a finding that the exclusion probably resulted in an improper judgment. See Perez, 228 S.W.3d at 884. Husak's theories of recovery did not include that Dr. Dolce failed to inform her of the risks of the procedure. The controlling issue was not whether she received information about the risks of the procedure, but whether Dr. Dolce's negligence caused the severance of her lingual nerve. Austin Periodontal was allowed to present to the jury the language from both consent forms that a possible risk was permanent numbness to the tongue. We overrule Austin Periodontal's fifth issue.

CONCLUSION

Having overruled appellants' issues, we affirm the judgment.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: January 25, 2008

1. According to the testimony at trial, the lingual nerve provides the sense of taste and touch to the anterior two-thirds of the tongue and is located on the tongue side of the lower third molars on both sides of the mouth. Third molars are commonly referred to as wisdom teeth and are the last tooth of the full set on each half of the jaw. Unless otherwise specified, we draw on trial testimony for technical/medical definitions and explanations.
2. We refer to appellants Austin Periodontal Associates, Inc. f/k/a C. Leonard Dolce, D.D.S., M.S., Inc. and Charles Leonard Dolce, D.D.S., M.S., individually and d/b/a Periodontal Associates collectively as "Austin Periodontal" or "appellants." We refer to appellant Charles Leonard Dolce, D.D.S., M.S., as "Dr. Dolce."
3. The crown lengthening did not involve Husak's third molars but two of her other teeth. Crown lengthening is a procedure that is designed to provide more tooth structure above the gum line before placing a crown on a tooth.
4. A burr is the rotary cutting portion of the drill.
5. The lingual nerve's location varies from person to person, but there are areas in the mouth where the lingual nerve is known to be located. The experts at trial agreed that the procedure for removing third molars is specifically designed to avoid the known areas.
6. The jury did not award any amount for disfigurement sustained in the past.
7. Dr. Cohen's testimony was presented by video deposition.
8. The question and answer that the trial court excluded concerned the other lingual nerve damage case in which Dr. Cohen was the lead surgeon:
Q: And you went further and said that you believe that the original treating, whether it be dentist or oral surgeon, was actually negligent in--
A: From what I--you know, from what I recall--because I know that case was involved in litigation also. I can't specifically tell you what I dictated into the operative report at that time or what my findings were or my records because it was quite a while ago.
9. The former statute read:
Sec. 7.02. JURY INSTRUCTION AUTHORIZED IN CERTAIN CASES.
(a) In a jury trial involving a health care liability claim against a physician or hospital for injury to or death of a patient in which the court determines that the following instruction is reasonably applicable to the facts, the court shall provide the following instruction in the court's charge to the jury:
"A finding of negligence may not be based solely on evidence of a bad result to the patient in question, but such a bad result may be considered by you, along with other evidence, in determining the issue of negligence; you shall be the sole judges of the weight, if any, to be given to any such evidence."
(b) Nothing in Subsection (a) of this section shall affect the existing law regarding the applicability or nonapplicability of the doctrine of res ipsa loquitur to a health care liability claim.
(c) The determination of whether the instruction authorized by Subsection (a) of this section is reasonably applicable to the facts shall be made by the trial court in its sole discretion, and such determination by the trial court shall be reviewable by an appellate court only for an abuse of such discretion.
Act of May 24, 1989, 71st Leg., R.S., ch. 1027, § 28, 1989 Tex. Gen. Laws 4128, 4145 (repealed Sept. 1, 2003) ("Jury Instruction Authorized in Certain Cases").
Because Husak filed suit prior to September 1, 2003, former article 4590i of the Medical Liability and Insurance Improvement Act governs. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 847, 899 (prior law remains in effect for actions filed before September 1, 2003). Under the current statute, a trial court on "any action on a health care liability claim that is tried by a jury" must include a "bad result" instruction. See Tex. Civ. Prac. & Rem. Code Ann. § 74.303(e)(2) (West 2005).
10. Husak also argued to the trial court that a bad result instruction should not be given because the court had refused her requested res ipsa locutor instruction. She does not make this same argument on appeal.
11. The elements of a negligence cause of action are the existence of a legal duty, breach of that duty, and damages proximately caused by the breach. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). The two elements of proximate cause are cause in fact and foreseeability. Id. The proximate cause instruction to the jury read:
"Proximate cause," when used with respect to the conduct of C. Leonard Dolce, D.D.S., M.S., means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a dentist using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
12. Dr. Staley testified:
And the nerve is not a small nerve. It's about the size of a piece of spaghetti. It's not like it's a fine hair of a nerve. If it happened to be in that area the patient would know it. Every time they chewed something hard back there; piece a crust, or something. And they happen to push on that they would feel a[n] electric shock on the tongue. The patient would know that. . . . The nerve has never been demonstrated to loop back there. It can be high. It can be low. Or it can be out this way, but it never comes up here. That's specifically the reason why the surgery for the incision part of it, has been designed to make the incision out there.
13. Husak testified as to her diet after the surgery:
Q: This may sound strange, but some people may think this is a neat diet. Can you tell me what kind of diet you think this is?
A: This is a forced diet for the rest of my life. I didn't need to lose any weight, and I have. And I don't have a choice now. I can't go off this diet. It's going to last forever.
Q: Can you tell me what tomatoes taste like?
A: They taste wet.
Q: What about bread?
A: Well, I can't even eat chunky bread, like French bread, because I run the risk of chomping on my tongue. But, in any case, there's no taste to it. It's just lumps.
Q: What about milk?
A: Milk tastes exactly the same as water.
Q: What about Diet Coke?
A: Tastes like bubbles.
Q: What about carrots?
A: Well, I have to chop them up very small, again, to make sure I'm not chomping on my tongue. I get some sort of a muted memory of a taste of them, but not--nothing like what it used to be.
* * *
Q: Do you order pizza anymore?
A: No.
Q: Why not?
A: There's a possibility of burning myself with the hot cheese, and I can't taste the cheese anyway. I can't taste the toppings properly. There's--there's just--it's too depressing. It's--there's no point.
* * *
Q: Would you tell the jury what it's like to live with a numb tongue, not able to tell hot or cold with your tongue, and not ever able to taste your food normally?
A: It's really miserable because I know that when I get older and my other senses aren't working so well, I'll get no pleasure out of my food. I get no pleasure out of it now. It's embarrassing to talk to people about, and it's never going to end.
14. In closing arguments, appellants' counsel suggested to the jury an award of $50,000 for past pain and mental anguish assuming a finding of negligence.
15. Dr. Dolce testified that he changed the entity that he practiced his profession through from C. Leonard Dolce, D.D.S., Inc. to Austin Periodontal Associates, Inc. shortly after Husak's operation. From his testimony, the entity at the time the procedure was performed was C. Leonard Dolce, D.D.S., Inc., and, at the time of trial, the entity was Austin Periodontal Associates, Inc. Appellees do not contend that Husak sued the incorrect employer.
16. To the extent appellants complain about the exclusion of other evidence on informed consent, we conclude that they failed to preserve error. See Tex. R. App. P. 33.1(a). During the motion in limine hearing, the trial court granted Husak's motion regarding evidence of informed consent, but rulings on motions in limine do not preserve error for appellate review. See Acord v. General Motors Corp., 669 S.W.2d 111, 116 (Tex. 1984). To preserve error, appellants were required to seek to admit the evidence during the evidentiary portion of the trial and to obtain an adverse ruling. See Tex. R. App. P. 33.1(a). This appellants did not do.
17. Appellants contend the trial court compounded its error on informed consent evidence during Dr. Cohen's testimony. Because Dr. Cohen referred to informed consent, appellants contend that the trial court erred by not allowing their request to introduce evidence that would have explained Dr. Cohen's references. But, the trial court stated that it would allow appellants to provide evidence to prevent the jury from being "left with the impression that Dr. Dolce did something wrong in not giving a consent form."

Summary judgment for doctor in medical malpractice case affirmed

Charles Ly v. Rodney Schmidt, M.D, No. (Tex.App.- Austin, Aug. 28, 2007)(Opinion by Justice Pemberton)(HCLC, medical malpractice)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 200th District Court of Travis County

M E M O R A N D U M O P I N I O N

Charles Ly appeals from the district court's grant of summary judgment in favor of Rodney Schmidt, M.D. Ly asserts that the evidence presents fact issues regarding standard of care and causation. We affirm the judgment.

BACKGROUND

On June 1, 2001, Ly sued Seton Medical Center, Albert Horn, M.D., Sam S. Roberts, M.D., Sara Austin, M.D., Kent Ellington, M.D., and Rodney Schmidt, M.D., alleging negligence "during the course of medical treatment provided by the above named Defendants . . . beginning on or about March 8, 1999 through March 14, 1999" after Ly suffered a stroke. Dr. Schmidt is a board-certified neuroradiologist who interpreted a CT scan of Ly's head taken on March 8. Ly alleged that Dr. Schmidt misinterpreted the results of this scan and/or failed to properly communicate his interpretation of the scan to Ly's emergency room physicians. Ly contended that Dr. Schmidt's acts or omissions resulted in the administration of anti-coagulation medicine that Ly alleges caused him to suffer a brain hemorrhage on March 14, 1999.

On October 3, 2005, Dr. Schmidt filed a motion for summary judgment under rule 166a(c), alleging that the evidence conclusively establishes that Dr. Schmidt did not breach the applicable standard of care in his interpretation of or communications regarding Ly's CT scan and that any alleged breach of the standard of care was not a proximate cause of Ly's injuries. On January 19, 2006, the district court granted Dr. Schmidt summary judgment without specifying the grounds (1) and subsequently overruled a motion for rehearing. The court later severed out Ly's claims against Dr. Schmidt, making the judgment final. Ly appeals from this summary judgment. (2)

DISCUSSION

Standard of review

We review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). When reviewing a summary judgment, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Valence Operating Co., 164 S.W.3d at 661; Knott, 128 S.W.3d at 215. Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 n.4 (Tex. 2004) (citing Knott, 128 S.W.3d at 215-16). A movant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim. Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). Because the district court's order does not specify the grounds for its summary judgment, we must affirm the summary judgment if any of the theories presented to the district court are meritorious. Knott, 128 S.W.3d at 216.

Summary judgment grounds

To establish negligence in a medical malpractice case, a plaintiff must show (1) a legal duty, (2) a breach of that duty, and (3) damages proximately caused by the breach. IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 798 (Tex. 2003); Columbia Med. Ctr. Subsidiary, L.P. v. Meier, 198 S.W.3d 408, 414 (Tex. App.--Dallas 2006, pet. denied). In his motion for summary judgment, Dr. Schmidt contended that the evidence conclusively established that he did not breach the applicable standard of care and that, even if he did, such breach was not the proximate cause of Ly's hemorrhage. We agree with the district court that Dr. Schmidt is entitled to summary judgment as to both elements.

Standard of care

The threshold question in a medical malpractice case is the standard of care. Jones v. Miller, 966 S.W.2d 851, 854 (Tex. App.--Houston [1st Dist.] 1998, no pet.). In determining that standard, the court must be guided solely by expert opinion. Armbruster v. Memorial Sw. Hosp., 857 S.W.2d 938, 941 (Tex. App.--Houston [1st Dist.] 1993, no writ). A summary judgment may be based on the uncontroverted affidavit of an interested witness if the testimony is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and capable of being readily controverted. Tex. R. Civ. P. 166a(c); Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997); Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986); First Nat'l Bank v. Lubbock Feeders, L.P., 183 S.W.3d 875, 881 (Tex. App.--Eastland 2006, pet. denied). In Dr. Schmidt's affidavit, which he attached as evidence to his motion for summary judgment, Dr. Schmidt explained the standard of care applicable to a neuroradiologist interpreting CT studies of the head:

Specifically, in reviewing a head CT scan such as that performed upon Charles Ly on March 8, 1999, the standard of care required a neuroradiologist to evaluate the entire film study for imaging abnormalities which may represent a possible cerebral vascular accident (i.e. stroke), and to timely report such findings to the patient's treating physician. . . . The standard of care also requires the neuroradiologist to evaluate the entire film study for any signs of acute or ongoing hemorrhages or bleeds in the patient's brain, and to timely report such findings to the patient's treating physician.

In diagnosing a potential hemorrhage, the standard of care requires a neuroradiologist to differentiate a potential hemorrhage in the patient's brain from other benign findings such as dystrophic calcification which also shows up as a high brain density or white area on the head CT scan.

To summarize, Dr. Schmidt averred that the standard of care requires a neuroradiologist to evaluate the entire CT scan, identify and investigate imaging abnormalities which might represent a stroke or hemorrhage, and timely communicate any relevant findings to the patient's treating physicians. Ly does not dispute that this is the applicable standard of care for neuroradiologists.

Dr. Schmidt's affidavit shows that he followed this standard of care. Dr. Schmidt stated that he examined the entire film, noted on his report the "absence of edema, mass effect, or sulcal effacement," and focused the computer onto an area of high density, performing measurements on that critical area. Dr. Schmidt concluded:
Based upon my review of the entire March 8, 1999 head CT film series . . . I made a determination and timely communicated to the emergency room physicians the following: "[s]ome high density in the basal ganglia favors dystrophic type calcification over petechial hemorrhage." It is thus my expert opinion that my review and interpretation of Charles Ly's head CT scan from March 8, 1999 met all applicable standards of care, and that I was not negligent in my care of Charles Ly.

It is this interpretation, "favor[ing] dystrophic type calcification over petechial hemorrhage," that serves as the basis of Ly's complaint against Dr. Schmidt. Ly asserts that the results of the scan actually favored a hemorrhage, and that if Dr. Schmidt had properly interpreted and/or communicated the results to Ly's treating physicians, they would not have prescribed Ly the anti-coagulation medication that Ly alleges caused him to suffer a hemorrhage.
However, Dr. Schmidt provided summary judgment evidence conclusively establishing that his interpretation was proper. During his deposition, Dr. Albert Horn, M.D., a board-certified neurologist who was also a defendant in the original action, was asked if he believed that the area of high density favored calcification over hemorrhage. Dr. Horn testified that he was "absolutely 100 percent certain" that it did. Furthermore, Dr. Sara Austin, M.D., another board-certified neurologist and also a defendant, testified during her deposition that the area of high density identified by Dr. Schmidt was consistent with what she had visualized in Ly's previous radiological films. (3) Dr. Austin also testified that she agreed that the area of high density was not an acute hemorrhage and "would have had to have been there for at least two more years."
Additionally, Ly's own neuroradiological expert, Dr. Philip Shalen, M.D., testified during his deposition that although he disagreed with Dr. Schmidt's interpretation of the CT scan, he thought that Dr. Schmidt's interpretation was reasonable and satisfied the applicable standard of care:

Q: Do you disagree with the interpretation that Dr. Schmidt made in that March 8, 1999 CT scan?
A: Yes. (4)
Q: Okay. Do you think his interpretation was reasonable and met the standard of care?
A: Yes.
Q: And that's for a neuroradiologist practicing in Austin, Texas in 1999; would that be correct?
A: Yes.
. . . .
Q: Let me back up to a few things you've said. One is you said there's more on these images than he's put in the report.
A: Correct.
Q: But you do not feel that it was a breach of the standard of care, correct?
A: No, because people disagree as to what's on a scan.
. . . .
Q: My question to you, though, is are you going to say at the time of trial or at the time of the hearing in this case that it was a breach of the standard of care for Dr. Schmidt to have not included additional information that you feel exists on those images in the report?
A: I don't think it's the breach of the standards of care [sic].

Ly further asserts that even if Dr. Schmidt's interpretation of the scan did not breach the standard of care, Dr. Schmidt's failure to communicate the possibility of a hemorrhage to Ly's treating physicians did. However, Dr. Schmidt provided summary judgment evidence that he communicated that possibility to the emergency room doctors. Again, Ly's own expert, Dr. Shalen, provided testimony that actually supports Dr. Schmidt's position:

A: My only issue with this case is the reporting of the possibility that hemorrhage might exist.
Q: And you agree that was reported in the dictated report?
A: It was in the dictated report.
Q: And if normal practice had been followed - or strike that. You don't have any evidence to contradict Dr. Schmidt's testimony that that's also what he would have communicated to the emergency room doctor?
A: No, I don't have any evidence that, you know, he wouldn't communicate the same thing that he typed.
Q: That's - that's normally the way it goes?
A: That's normally the way we do it.
Dr. Shalen further testified that oral communication of the findings was important:
Q: . . . [Y]ou've testified earlier you feel the standard would have been met if Dr. Schmidt had reported the findings on his radiology report to the emergency room physician?
A: Right. And I'd - if you'd allow me. You know, I put that in writing and said if a determined attempt was made by the neuroradiologist to orally communicate the CT findings, then no breach in the standard of medical care occurred.
Q: And do you still agree with that?
A: I still agree with that.
Dr . Shalen concluded that if Dr. Schmidt made a telephone call and communicated with the ER doctor, there would be no breach:
Q: Okay. But we can agree, can we not, that what's important is that the call was made?
A: It is important that the call was made.
Q: Well, that - No. That's everything because if Dr. Schmidt made that call and spoke to an ER doctor, then you've told me he has met his standard of care.
A: If Dr. Schmidt made the call and spoke to the ER doctor, then he's, you know, he's done the right thing as far as I'm concerned.

The evidence further established that Dr. Schmidt indeed made that call and spoke to an emergency room physician. In his affidavit, Dr. Schmidt testified:
Following my interpretation of Charles Ly's head CT scan on March 8, 1999, and prior to dictating my report herein, I made a contemporaneous telephone call to the emergency room to discuss the pertinent findings on Charles Ly's head CT scan. In reference to Charles Ly's March 8, 1999 head CT scan, I communicated the pertinent findings to either Dr. Roberts or another emergency room physician. Specifically, my communications to such physician included all pertinent portions of my dictated report including, but not limited to the following: (a) I communicated my differential diagnosis favoring dystrophic calcification over hemorrhage; (b) I communicated the fact I could not absolutely rule out a hemorrhage in Charles Ly; and (c) I recommended further MRI imaging to follow up on this patient.

Dr. Shalen's testimony confirms that Dr. Schmidt made the call:
Q: The report specifically says "Preliminary results of this study were telephoned to the ER upon its completion contemporaneously," correct?
A: That's what it says.
. . . .
Q: Okay. Can you point to any evidence in this case that indicates the statement "Preliminary results of this study were telephoned to the ER" was incorrect?
A: No.

Ly provided no competent summary judgment evidence to controvert the above evidence establishing that Dr. Schmidt satisfied the applicable standard of care. Ly attached to his response to the motion for summary judgment Dr. Shalen's affidavit. The affidavit identifies the applicable standard of care for a neuroradiologist, but it does not state that the standard of care was breached. Dr. Shalen states that "there is no indication in the ER notes that either doctors Roberts or Austin were aware that the CT findings included the possibility of hemorrhage," but this is not evidence of Dr. Schmidt's negligence. In fact, Dr. Shalen does not even refer to Dr. Schmidt in the affidavit.

Ly also attached to his response to the motion for summary judgment (and to his appellate brief) copies of his CT scans and medical articles, essentially asking the district court and now this Court to independently determine that Dr. Schmidt's interpretation of the results of the CT scan was incorrect. However, we are judges, not doctors, and we cannot make such a determination in the absence of expert testimony. See Williams v. Huber, 964 S.W.2d 84, 86 (Tex. App.--Houston [14th Dist.] 1997, no pet.) ("In a medical malpractice case, both the establishment and preclusion of summary judgment are dependent upon expert testimony.").
Ly also attached to his response an affidavit by Ralph Lilly, M.D., a board-certified neurologist. (5) However, rule 166a requires affidavits to conform to section 312.011(1) of the government code. Hall v. Rutherford, 911 S.W.2d 422, 425 (Tex. App.--San Antonio 1995, writ denied). Section 312.011(1) defines an affidavit as "a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office." Tex. Gov't Code Ann. § 312.011(1) (West 2005). Dr. Lilly's affidavit is unsworn. Thus, it is not proper summary judgment evidence and is not to be considered. See Bernsen v. Live Oak Ins. Agency, Inc., 52 S.W.3d 306, 310 (Tex. App.--Corpus Christi 2001, no pet.) (holding that "an unsworn statement that purports to be an affidavit" will not support summary judgment); Coastal Cement Sand v. First Interstate Credit Alliance, 956 S.W.2d 562, 567 (Tex. App.--Houston [14th Dist.] 1997, pet. denied) ("Without the notarization or jurat, the unsworn statement is not an affidavit, and it is not proper summary judgment evidence."). (6)

In the absence of any controverting evidence, we hold that Dr. Schmidt's evidence conclusively establishes that he did not breach the applicable standard of care. Accordingly, Dr. Schmidt was entitled to summary judgment on that ground.

Proximate cause

The evidence also conclusively establishes that Dr. Schmidt's actions were not the proximate cause of Ly's injury. The two elements of proximate cause are cause in fact and foreseeability. IHS Cedars Treatment Ctr., 143 S.W.3d at 798. These elements cannot be satisfied by mere conjecture, guess, or speculation. Id. at 799. Cause in fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred. Id. In a medical malpractice case, plaintiffs are required to show evidence of a "reasonable medical probability" or "reasonable probability" that their injuries were proximately caused by the negligence of one or more defendants. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995).

Furthermore, "[t]o raise a fact issue on causation . . . . if there are other plausible causes of the injury or condition that could be negated, the plaintiff must offer evidence excluding those causes with reasonable certainty." Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997); see Lette v. Baptist Health Sys., 82 S.W.3d 600, 601-02 (Tex. App.--San Antonio 2002, no pet.); Gillie v. Boulas, 65 S.W.3d 219, 224 (Tex. App.--Dallas 2001, pet. denied). In other words, if Schmidt's evidence established that there were other plausible causes of Ly's brain hemorrhage, or that Ly was simply "one of the unlucky patients" who was going to suffer a hemorrhage no matter what his treating physicians did, in order to survive summary judgment, Ly needed to offer controverting evidence that excluded with reasonable certainty Dr. Schmidt's alternative theories of causation. See Helm v. Swan, 61 S.W.3d 493, 497-98 (Tex. App.--San Antonio 2001, pet. denied).

Ly alleges that he suffered a brain hemorrhage because his treating physicians administered anti-coagulation medicine to him based on Dr. Schmidt's interpretation of Ly's CT scan. However, Dr. Schmidt produced summary judgment evidence establishing that the hemorrhage could have occurred whether or not Ly was prescribed anti-coagulation medicine. The defendants deposed Ly's neurology expert, Michael Katz, M.D. In his deposition, Dr. Katz testified as follows:

Q: An ischemic stroke can transform into a hemorrhagic process, can it not?
A: A very well-known phenomena [sic].
Q: And typically it transforms into that and bleeds into generally the area that there were ischemic problems originally. Right, sir?
A: Not all the time, but in general that's true.
. . . .
Q: We already established a person with an ischemic stroke can develop a hemorrhage or hemorrhagic component to that stroke. Is that right, sir?
A: That is correct.
Q: And that can happen whether or not a patient is on anticoagulants. Right, sir?
A: Yes, that is true.

The defendants also obtained similar testimony from Dr. Shalen:

Q: In other words, a patient can come in and have an ischemic infarct [a stroke] and can have studies, a CT study done which shows no evidence of hemorrhage or anything else that would contraindicate the giving of Heparin; Heparin can be given to the patient appropriately under those circumstances, but the patient can have this hemorrhagic transformation where the blood brain barrier breaks down over time and you end up with a bleed four, five, six days later, correct?
A: Okay.
Q: Do you agree or not?
A: Yes.
Q: Okay. And there is just an unfortunate set of patients that, regardless of what the physicians do, that this hemorrhagic transformation is going to occur; would you agree with that?
A: I'd agree.
Q: And Heparin can be given or Heparin cannot be given, but the hemorrhagic transformation can still happen?
A: Correct.
Q: And would you agree with me that in this case, based on the evidence that we have and everything we know about it today, that Mr. Ly could have been one of those unfortunate individuals that even if he had ischemic infarct beginning or even if he had hemorrhagic infarct at the beginning, that this hemorrhagic transformation could have occurred and he would have had the same injury he had on the 14th, regardless of what the doctors did?
A: It's possible.
Q: In other words, everything could have been done by the book as - under your opinion in this case when Mr. Ly came in, and Heparin would have been withheld or MRI studies would have been done, and on the basis of those Heparin would have been withheld and the result still could have been the same?
A: It's possible.
Q: Yes, sir. And there's no way for you to rule that out sitting here today, is there?
A: No.
Ly offered no summary judgment evidence controverting this testimony. Thus, this evidence conclusively establishes that Ly's injury plausibly could have occurred regardless of whether or not he was prescribed anti-coagulation medicine as a result of Dr. Schmidt's interpretation of Ly's CT scan.

Additionally, Dr. Schmidt offered summary judgment evidence indicating that even if the anti-coagulation medicine was the cause of Ly's hemorrhage, one of Ly's treating physicians would have prescribed the medicine regardless of what information Dr. Schmidt may have communicated about the results of the CT scan. The neurologist who ordered the anti-coagulation therapy was board-certified neurologist Dr. Sara Austin, M.D., another one of the doctors whom Ly sued. Dr. Austin was also deposed and testified that it was her standard practice to independently review the results of a patient's CT scan prior to ordering anti-coagulation therapy:
Q: Okay. What was the routine practice back in March or so of 1999 . . . . for communicating the information and results of a CT scan?
A: You know, often when the emergency room doctor would call me to admit a patient, they would say, you know, we have a patient with a stroke. The CT scan shows this; you know would you come see him. That was part of it. But my routine practice is to go find the scan and look at it, and I do that 90 or 95 percent of the time, look at the scan. Almost always. . . .
Q: So, if I understand you, in terms of getting a communication from the neuroradiologist, you rarely talked directly to the neuroradiologist?
A: Yeah.
. . . .
Q: All right. And so take it one step further than that. . . . Is it your standard practice 90 to 95 percent of the time to personally review a patient's head CT scans before you would prescribe Heparin for that patient?
A: Yes.
Q: And do you have any reason to believe that you deviated from your standard practice in Mr. Ly's case on March 8, 1999?
A: No.
Q: Okay. And kind of as a background, are you qualified to review head CT scans? Is that something you've had training and experience doing?
A: Yes.

Dr. Austin went on to testify that although it was her standard practice to do so, she could not recall if she had examined Dr. Schmidt's report prior to ordering the anti-coagulation therapy. After reviewing the report during the deposition, Dr. Austin acknowledged that Dr. Schmidt had recommended follow-up MRI studies. Dr. Austin further testified that she would have ordered anti-coagulation therapy regardless of Dr. Schmidt's recommendation regarding an MRI:
Q: Okay. So do you understand this [Dr. Schmidt's report] to suggest that an MRI would be helpful?
A: Dr. Schmidt thinks it would be helpful, yes.
. . . .
Q: Going back to the MRI, the recommendation or the suggestion, I suppose, of an MRI in Dr. Schmidt's dictation on Page 70 of these Seton records, if you had known that Dr. Schmidt suggested an MRI, would that have changed at all your decision to go forward with Heparin therapy?
A: No.

Assuming that the anti-coagulation therapy was the cause of Ly's hemorrhage, the above testimony, which was uncontroverted, establishes that Dr. Austin's independent decision to order anti-coagulation therapy was a superseding cause of Ly's injury. See Phan Son Van v. Pena, 990 S.W.2d 751, 754 (Tex. 1999) (listing factors that are to be considered in determining whether intervening force rises to level of superseding cause, including "the fact that the intervening force is operating independently of any situation created by the actor's negligence").
Finally, Dr. Schmidt provided summary judgment evidence indicating that, in his expert opinion, the hemorrhage that Ly suffered was not related to and/or proximately caused by the stroke for which Ly was treated. Instead, the hemorrhage may have been the result of a brain injury suffered two years prior to Ly's stroke. In his affidavit, Dr. Schmidt averred:
In reviewing the head CT scan of Charles Ly dated March 8, 1999, a crescent-shaped area of high density was identified in the putamen of the basal ganglia. . . .
Since the beginning of this litigation, I have had the opportunity to review several previous radiological studies performed upon Charles Ly. Specifically, I have reviewed the films and report of a head CT scan performed upon Charles Ly at Brackenridge Hospital on January 5, 1997. The report from this study indicated "[a] streak of increased attenuation is seen along the right lateral margin of the basal ganglia that could be parenchymal hemorrhage from a shearing type injury. A thick streak of calcium could also produce this appearance." This "streak" of increased density brain matter reported in January 1997 is located in the exact same portion of the brain in which the high density area was noted on Charles Ly's March 8, 1999 head CT scan.
. . . .
Based upon the age of the crescent-shaped high density area of calcification, as well as its far-removed location in the putamen of the patient's basal ganglia, it is my expert opinion that Charles Ly's hemorrhage in the right front intraparenchymal region of his brain on March 14, 1999 was not related to and / or not proximately caused by the aforementioned crescent-shaped high density area of calcification. Specifically, the high density area in the patient's basal ganglia was still present and not contiguous to the area of hemorrhage on March 14, 1999. This would lead me to conclude the crescent-shaped area of high density was not indeed a hemorrhage, and was not a proximate cause of Charles Ly's eventual hemorrhage on March 14, 1999.

This evidence establishes a plausible alternative cause of Ly's hemorrhage, and although Ly disputed some of the conclusions in Dr. Schmidt's affidavit, Ly did not provide any summary judgment evidence controverting this alternative theory of causation. (7)
For these reasons, we hold that the summary judgment evidence conclusively negates the essential element of proximate cause. Therefore, Dr. Schmidt was also entitled to summary judgment on that ground.

CONCLUSION

We affirm the judgment of the district court.
____________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: August 28, 2007

1. The district court initially granted Dr. Schmidt's summary judgment motion on January 16. At the time, Ly, who was acting pro se, had not filed a response, although Dr. Schmidt's motion had been pending since October. The record also reflects that the district court had previously denied Ly's motion for continuance of the summary judgment hearing and that Ly had obtained several prior postponements of dispositive proceedings in the litigation due in part to his difficulties in retaining counsel. Following the district court's summary judgment order, Dr. Schmidt's counsel received a copy of Ly's summary-judgment response and motion for extension of time, and furnished a copy to the district court. On January 19, the district court signed a first amended order granting Dr. Schmidt's summary judgment motion in which it acknowledged having considered Ly's response and motion for extension of time.
2. This is Ly's third appeal arising from this litigation. See Ly v. Austin, No. 03-05-00516-CV, 2007 Tex. App. LEXIS 5475 (Tex. App.--Austin July 13, 2007, no pet. h.) (mem. op.) (affirming district court's dismissal of Ly's claims against defendants Austin and Ellington); Ly v. Seton Medical Center, No. 03-05-00515-CV (Tex. App.--Austin Mar. 8, 2007) (granting joint motion to dismiss appeal pursuant to settlement agreement).
3. As will be discussed in more detail below in our discussion of proximate cause, Ly was treated for a brain injury at Brackenridge Hospital in January 1997. The previous films were related to the 1997 injury.
4. In his deposition, Dr. Shalen originally said, "No." However, he amended his deposition to reflect that he did disagree with Dr. Schmidt's interpretation. Dr. Shalen made other amendments to his deposition, none of which are relevant to this appeal. There is some dispute about whether Dr. Shalen's amended deposition answers were admissible. We need not resolve that dispute, because even if the amended answers were admissible, they do not change Dr. Shalen's ultimate conclusion that, even though he disagreed with Dr. Schmidt's interpretation of the CT scan, he thought that Dr. Schmidt's interpretation was reasonable and met the standard of care.
5. Prior to the summary judgment hearing, Dr. Schmidt objected to the qualifications of Dr. Lilly. The district court sustained Dr. Schmidt's objection and excluded any testimony by Dr. Lilly regarding the standard of care.
6. We also note that in his brief, Ly for the first time makes allegations concerning a conversation between his daughter and Dr. Roberts, one of the emergency room physicians. We will not consider these allegations as they were not raised in the trial court and the alleged conversation is not competent summary judgment evidence. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 676 (Tex. 1979); Four Bros. Boat Works v. S & SF, Inc., 55 S.W.3d 12, 17-18 (Tex. App.--Houston [1st Dist.] 2001, pet. denied); see also Tex. R. Civ. P. 166a(c) ("Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal."). Additionally, any statements made by Dr. Roberts to Ly's daughter are inadmissible hearsay. See Tex. R. Evid. 802.
7. In fact, the only evidence concerning proximate cause that Ly provided in his response to Dr. Schmidt's motion for summary judgment was the statement of Dr. Ralph Lilly, who concluded that "the initial and continued application of [the anti-coagulation medicine] caused the extension of a pre-existing hemorrhagic infarct." However, as we discussed earlier, Dr. Lilly's affidavit is unsworn and is not competent summary judgment evidence. See Coastal Cement Sand v. First Interstate Credit Alliance, 956 S.W.2d 562, 567 (Tex. App.--Houston [14th Dist.] 1997, pet. denied).