As a Houston, Texas medical malpractice lawyer, I continually review new Texas appellate opinions that may impact lawsuits that I have filed or cases that I am handling.
Today, the Texas Supreme Court entered a ground-breaking opinion that is favorable to medical malpractice plaintiffs in several areas. The case is styled Debra Gunn, Obstetrical and Gynecological Associates, P.A., and Obstetrical and Gynecological Associates, P.L.L.C. v. Andre McCoy, As Permanent Guardian of Shannon Miles McCoy, an Incapacitated Person; No. 16-0125, Texas Supreme Court (June 15, 2018).
In my opinion, it is unusual to have a Texas appellate court enter an opinion favorable to a medical malpractice plaintiff in any way, let alone to have the Texas Supreme Court to make a ruling with such breadth and scope.
Starting with this installment, I will devote three articles to discussing the key points of this important new case.
1. What were the key factors in the Texas Supreme Court’s groundbreaking opinion on medical malpractice in the Gunn case?
The underlying medical care
Shannon McCoy was a pregnant 35-year-old woman who received her prenatal and obstetrical care from Debra Gunn, M.D., who was affiliated with the Obstetrical and Gynecological Associates, P.A.
McCoy had a generally normal pregnancy until the 37th week of gestation. At a routine prenatal visit with Dr. Gunn, lab tests showed that her hemoglobin level was 9.5, which is abnormally low.
The same evening, she went to Woman’s Hospital of Texas with severe abdominal pain. A different OB/GYN was on call and ordered an ultrasound, finding that her unborn baby had died because of a placental abruption. Further testing showed that McCoy had developed disseminated intravascular coagulation (DIC), which is a potentially-dangerous blood-clotting disorder that can cause extreme bleeding.
The next morning, Dr. Gunn arrived at the hospital and assumed care of her patient. She decided to deliver the deceased baby vaginally because of McCoy’s DIC. She hoped that the DIC would self-correct, as is often the case with placental abruption.
After the delivery, McCoy’s condition continued to destabilize and the medical records record that there was a large amount of bleeding and clotting. She subsequently developed uterine atony, which is a loss of muscle tone in the uterus that allows excessive blood loss. Dr. Gunn proceeded with a hysterectomy and ordered a blood emergency.
When McCoy was transferred to the operating room, she was responsive, but continuing to hemorrhage. After anesthesia was administered, she went into ventricular fibrillation and her heart stopped pumping blood. After stabilizing her with blood products, Dr. Gunn performed a hysterectomy.
Later the same evening, McCoy the experienced seizure activity, which a neurologist felt was likely because of hypoxic encephalopathy (decreased oxygen to the brain). A blood gas test showed that she was acidotic, meaning that she had a dangerously low pH level in her blood from a lack of oxygen.
After that point, she was assessed as being in a persistent state of vegetation and would require lifetime 24/7 care.
2. How did the trial court assess the causation arguments presented by Dr. Gunn and her practice group in the medical malpractice case?
Trial court jury verdict
Prior to the trial, the on-call OB/GYN, Mark Jacobs, M.D., and Woman’s Hospital settled for a total payment of $1.2 million. The plaintiff proceeded to trial against Dr. Gunn and her practice group, Obstetrical and Gynecological Associates, P.A.
The jury ultimately returned an 11 to 1 verdict in favor of the plaintiff and awarded $10.6 million in damages, including $7.2 million for future medical expenses.
The defendants appealed the case to the 14th Court of Appeals, in Houston, which affirmed the judgment. The defendants then appealed that decision to the Texas Supreme Court, where they once again lost.
3. What role did the expert testimony play in establishing causation in the Gunn case, and how did the Texas Supreme Court evaluate its reliability?
Competing causation arguments
On appeal, Dr. Gunn and her practice group argued that the evidence admitted at trial was legally insufficient to support the jury’s finding that Dr. Gunn’s alleged negligence caused McCoy’s brain damage.
As a Houston, Texas medical malpractice lawyer, I frequently have discussions with my clients to explain the legal requirements that Texas law imposes on patients bringing lawsuits against their former physicians and healthcare providers. Experienced medical malpractice attorneys give careful attention to the time-consuming task of working with medical experts to meet these strict standards.
One such requirement is that plaintiffs must prove through medical expert testimony that, to a reasonable medical probability, the injuries complained of were proximately caused by the negligence of the defendant.
In short, adequate causation testimony from a medical expert connects the dots between alleged negligence and injury to a patient.
At trial, the plaintiff presented testimony from a dual board-certified physician in obstetrics and gynecology, and gynecological oncology.
The expert testified that DIC impacts the body’s ability to clot, which places patients at risk of bleeding. According to the plaintiff’s expert, “for every one point that the hemoglobin goes down, that is approximately equal to one unit of blood” lost. The expert then connected the dots by testifying that the decreased hemoglobin level shown in McCoy’s lab results indicated that she was losing blood and should have put the physicians into “almost panic mode.”
The expert testified that other lab values, including increased creatinine levels and low urinary output, indicated that she had inadequate blood flow through the kidneys. The medical records also reflect that McCoy had decreased oxygen saturation levels and an increased heart rate, which the expert described as compensation mechanisms to deal with low blood volume.
The expert was critical of Dr. Gunn for failing to make calculations based on hemoglobin levels to justify blood transfusions, meaning how much blood needed to be replaced because of bleeding. In addition, the expert testified that Dr. Gunn should have replaced McCoy’s clotting factors by administering fresh frozen plasma (FFP).
The expert explained how McCoy’s brain injury occurred. The lack of blood led to ventricular fibrillation in the operating room, meaning that her heart stopped pumping blood and she was unable to get oxygen to the brain. The expert explained that an electroencephalogram (EEG) test showed a global injury to the brain. The plaintiff introduced further evidence that, at St. Luke’s, each neurologist who saw McCoy over the course of 17 neurologic consults agreed that she had anoxic encephalopathy (global damage to the brain caused by a lack of oxygen).
Dr. Gunn and her practice group argued that this significant mound of causation evidence was insufficient to support a jury verdict. Their retained medical experts offered an alternative theory that the placental abruption led to exposure of a substance called thromboplastin that activated the clotting system inside blood vessels, creating clots or thrombi that block those blood vessels. They contended that such clots prevented blood flow to the surrounding tissues.
4. What legal standards did the Texas Supreme Court emphasize regarding medical expert testimony and the scientific basis in the context of medical malpractice cases?
Texas Supreme Court decision on causation
The Gunn opinion contains an excellent primer on medical malpractice expert standards.
Texas law is well-settled that medical expert testimony must have a proper scientific basis. Merely conclusory statements, not backed up with an appropriate basis, are not evidence.
Further, an expert’s opinion may be considered unreliable if it is based on assumed facts that vary materially from the actual facts, or if it is based on tests or data that do not support the conclusions reached. In other words, a physician cannot appear on the witness stand and just say, “This is what I think” without anything to support that opinion.
Our justice system empowers jurors to listen to competing expert testimony and determine which evidence to credit. Appellate courts should consider only whether the evidence at trial would enable a reasonable and fair-minded fact-finder to reach the verdict under review.
The court observed that an expert’s factual assumptions do not have to be uncontested or established as a matter of law, and if the evidence is in conflict, it is normally the province of the jury to decide which evidence to credit. The opinion stated that, when reasonable jurors could resolve conflicting evidence either way, appellate courts must presume that they did so in accordance with the verdict.
5. What factors did the Texas Supreme Court consider in determining the sufficiency of evidence on causation in the Gunn case, and how did it address the competing theories presented by the plaintiff and the defense?
In finding that the Gunn plaintiff’s evidence on causation was sufficient, Texas Supreme Court considered several factors.
First, the court examined the testimony of the plaintiff’s expert regarding the hemoglobin test. The plaintiff’s expert testified that physicians must use lab results, including hemoglobin, to measure blood loss because it is not always possible to look at a patient and know that she is bleeding. The expert also testified that it was not appropriate for a physician managing a DIC case to consider just one outlying lab result, such as hemoglobin, and ignore all other markers, including the presence of quantifiable external bleeding.
Second, the court considered the expert testimony on the quantity of blood products transfused. On this point, the two sides presented differing expert opinions on the amount of blood that was transfused. The court noted that this inconsistency reflects the confusion of “blood” versus “blood products.” The plaintiff’s expert operated under the apparent presumption that blood volume is primarily increased by transfusions of packed red blood cells, whereas transfusions of FFP and platelets have less effect on volume, but instead are administered to promote clotting. The court determined that it was the province of the jury to determine which of the competing theories to credit.
The final causation issue before the court was the so-called superiority requirement. This starts with the necessity of an expert to explain, within reasonable medical probability how and why negligence caused the injury. When there is evidence of other plausible causes of the injury or condition that could be negated, the plaintiff must offer evidence excluding those causes with reasonable certainty.
From a practical perspective, plaintiffs must give careful attention to this requirement. Of course, all plaintiffs bear the burden of proof, which must be based on reasonable medical probability (a standard equivalent to more likely than not). On the other hand, defendants do not have any burden of proof and, therefore, are free to spout off with numerous other possible causes that do not require expert testimony of reasonable medical probability. Under existing case precedent, plaintiffs must rebut other plausible causes of an injury or condition.
The court noted that, at trial, McCoy’s attorney specifically asked the expert questions to explain why her theory was medically superior to the theory advanced by the defense experts. Noting that many medical malpractice cases involve a battle of the experts, the Texas Supreme Court decided that the evidence on this point was also sufficient.
Next week, I will continue with two more articles about the Gunn case.
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