Billie Odell Stone, Individually and as Personal Representative of the Estate of Laquetta Mae Stone v. Texas Home Management, Inc.

heading for memo No. 04-99-00359-CV Billie Odell STONE, Individually and as Personal Representative of the Estate of Laquetta Mae Stone, Appellant v. TEXAS HOME MANAGEMENT, INC., Appellee From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 97-CI-03903 Honorable John J. Specia, Jr., Judge Presiding Opinion by: Paul W. Green, Justice Sitting: Tom Rickhoff, Justice Alma L. López, Justice Paul W. Green, Justice Delivered and Filed: November 22, 2000 AFFIRMED Appellant Billie Odell Stone (Stone) appeals from summary judgment granted in favor of Texas Home Management, Inc. (THM). Stone alleges THM committed numerous acts of negligence that proximately caused the death of Laquetta Mae Stone, Stone's sister and adopted daughter. Stone brought suit against THM seeking damages for wrongful death, mental anguish, and pain and suffering, under the Texas Wrongful Death Act, Tex. Civ. Prac. & Rem. Code Ann. § 17.001, et seq. and the Texas Survival Act, Tex. Civ. Prac. & Rem. Code Ann. § 71.02. In seven points of error, Stone asserts (1) the summary judgment evidence raises a question of fact on the issue of proximate cause and (2) the summary judgment motion failed to address issues of negligence pled separately from the wrongful death and survival claims. Because we hold Stone failed to raise a genuine issue of material fact as to the proximate cause of Laquetta's death, we affirm the trial court's judgment. Background Laquetta Mae Stone was a mildly retarded adult who lived at the Guilford Forge Group Home (Guilford), owned and operated by THM. Stone was Laquetta's brother, and he also legally adopted her; however, Laquetta was her own legal guardian. The staff from THM described her as "very high functioning," meaning she needed little supervision and was encouraged to make most of her own decisions. She was expected to leave the group home and return to her family in June or July of 1996. Laquetta worked in janitorial service at the Transportation Department from mid-afternoon to about 8 p.m. On June 3, 1996, she complained of nausea and vomiting at work, but it was two or three hours before someone came to pick her up. The staff at Guilford gave her Maalox and she felt better. The next morning, she got up early as usual, ate, dressed, and went to another facility, Westbriar, to spend the day as she normally did before going to work. Later in the day, after she arrived at work, she became ill again, this time complaining of shortness of breath and pain in her chest. Brenda Henne, one of the staff of THM, picked her up and took her to the emergency room. Brenda took a list of Laquetta's current medications with her to the emergency room. Laquetta was examined by Dr. Carl Salinas. His chart notes her complaint of nausea and vomiting the day before, as well as her complaints of shortness of breath and chest pain. Brenda overheard Laquetta tell Dr. Salinas she had a problem with bronchitis and sinus. Dr. Salinas noted Laquetta was being treated with drugs for asthma and sinus drainage and she was taking birth control pills. His examination revealed rapid breathing, an elevated heart rate, and lack of oxygen in the blood. Dr. Salinas diagnosed Laquetta with bronchitis. She responded well to treatment of an anti-inflammatory injection for the chest pain and an inhaler for her difficulty breathing. Dr. Salinas did not feel she needed to be admitted and released her after about two hours. Laquetta returned to Guilford, ate dinner, and used her inhaler under Brenda's supervision. The following morning, June 5, 1996, Laquetta got up as usual, took her medicine, felt fine, and got on the bus to go to Westbriar. She suffered what appeared to be a seizure and was rushed to Northeast Methodist Hospital. According to the medical examiner, Dr. Jan Garavaglia, Laquetta suffered a massive bilateral pulmonary emboli, large blood clots in both lungs, and probably would have been past saving by the time she got to the hospital. Dr. Garavaglia explained the clots would have broken off from some other site in the body, commonly the legs, and traveled to the lungs where they blocked the blood vessels. This would have occurred just moments before Laquetta collapsed. In his petition, Stone alleges fourteen acts of negligence by THM that contributed to cause Laquetta's death. These fourteen acts can be grouped as follows: (1) failing to timely obtain adequate medical evaluation and treatment on June 3rd and June 4th, and failure to monitor Laquetta the night prior to her death; (2) failing to maintain adequate medical records and provide those records to Dr. Salinas; (3) failing to provide proper staffing so that Laquetta did not have to get up early and go to Westbriar during the day; (4) failing to properly hire competent staff; (5) failing to inform Stone of Laquetta's illness; (6) failing to comply with Department of Human Services rules and regulations; and (7) failing to properly maintain and manage Laquetta's records and trust account. Standard and Scope of Review We review a summary judgment de novo. Valores Corporativos, S.A. de C.V. v. McLane Co., 945 S.W.2d 160, 162 (Tex. App.-San Antonio 1997, writ denied). To prevail on a traditional summary judgment, the movant must show there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law on a ground set forth in the motion. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Mgmt Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When a defendant moves for summary judgment, it must negate at least one element of the plaintiff's cause of action or conclusively establish an affirmative defense. See Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975). When a party moves for a no-evidence summary judgment under Tex. R. Civ. P. 166a(i), alleging the non-movant lacks any evidence to carry its burden of proof, the non-movant must produce some evidence that raises a fact issue on the challenged elements. Tex. R. Civ. P. 166a(i) cmt.; Weiss v. Mechanical Associated Serv., Inc., 989 S.W.2d 120, 123 (Tex. App.-San Antonio 1999, pet. denied). A no-evidence summary judgment is properly granted if "(a) there is a complete absence of proof of a vital fact; (b) the court is barred by rules of law or evidence from giving weight to the only proof offered to prove a vital fact; (c) the proof offered to prove a vital fact is no more than a mere scintilla; or (d) the proof conclusively establishes the opposite of the vital fact." Blan v. Ali, 7 S.W.3d 741, 747 (Tex. App.-Houston [14th Dist.] 1999, no pet.); see also Weiss, 989 S.W.2d at 124. We review the evidence in the light most favorable to the non-movant while disregarding all contrary evidence and inferences. Weiss, 989 S.W.2d at 124. Discussion THM asserts there is no evidence of proximate cause to support Stone's contentions. Proximate cause encompasses the two elements of cause-in-fact and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). These elements cannot be established by mere conjecture, guess, or speculation. Doe, 907 S.W.2d at 477; McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex.1980). The test for cause-in-fact is whether the negligent "act or omission was a substantial factor in bringing about injury," without which the harm would not have occurred. Doe, 907 S.W.2d at 477; Prudential Ins. Co. v. Jefferson Assoc., Inc., 896 S.W.2d 156, 161 (Tex. 1995). Although proximate cause is often a jury question, it becomes a question of law when reasonable minds cannot differ on the conclusion to be reached. Boyd v. Fuel Distribs., Inc.,795 S.W.2d 266, 272 (Tex. App.-Austin 1990, writ denied). Because Stone alleges Laquetta died due to a lack of adequate medical care, he must establish, by expert medical testimony based on a reasonable degree of medical probability, that THM's negligence was a proximate cause of Laquetta's death. See Roarke v. Allen, 633 S.W.2d 804, 809 (Tex. 1982); Martin v. Durden, 965 S.W.2d 562, 567 (Tex. App.-Houston [14th Dist.] 1997, writ denied); see also Ponder v. Texarkana Mem'l Hosp., Inc., 840 S.W.2d 476, 478 (Tex. App.-Houston [14th Dist.] 1991, writ denied) (professor of neuroscience at medical school possessing same degree of expertise as doctors allowed to testify to causation). If the evidence shows that none of THM's acts or omissions proximately caused Laquetta's death, summary judgment is proper. See Hernandez v. Calle, 963 S.W.2d 918, 921 (Tex. App.-San Antonio 1998, no pet.). 1. Stone's evidence (a) The medical experts In an effort to raise an issue of fact on the element of causation, Stone presented affidavits from two nurses and four doctors. Two of the physicians, Dr. Howard Eisenberg and the medical examiner, Dr. Garavaglia, do not address the alleged negligence of THM. The nurses' affidavits are conclusory. Both nurses outline numerous alleged negligent acts by THM, but neither witness explains how that conduct contributed to cause Laquetta's death. Conclusory affidavits are insufficient to raise an issue of fact on the element of proximate cause. See Blan, 7 S.W.3d at 748; Jones v. Miller, 966 S.W.2d 851, 854 (Tex. App.-Houston [1st Dist.] 1998, no pet.). The testimony of Dr. Salinas, who treated Laquetta in the emergency room, does not support an inference that THM's conduct contributed to cause Laquetta's death. Dr. Salinas testified Laquetta improved with treatment and her symptoms normalized, so he saw no need to keep her overnight. The admission of a patient to the hospital is a decision he makes, not the patient. He also testified patients do not normally bring medical records to the emergency room. Dr. Salinas testified he missed the diagnosis. He did not identify any information he did or did not receive from THM that would have influenced or changed his diagnosis. Dr. Gary Wright, Stone's primary expert witness, furnished two affidavits as well as deposition testimony. In his first affidavit, Dr. Wright summarized Laquetta's treatment and discussed some of the characteristic symptoms and risk factors for pulmonary embolism. He noted she had certain very significant symptoms, including shortness of breath, pleuritic chest pain, rapid breathing, rapid heart rate and lack of oxygen in the blood. (emphasis in the original). He felt Dr. Salinas made a typical misdiagnosis and the standard of emergency care had not been met. In his second affidavit, Dr. Wright concluded the failure to provide a complete medical history to the emergency room doctor was a proximate cause of Laquetta's death, however, he did not specify what information was missing or incorrect. (1) He also acknowledged that patients do not and should not bring their complete records to the emergency room. "A legal conclusion in an affidavit is insufficient to raise an issue of fact in response to a motion for summary judgment or to establish the existence of a fact in support of a motion for summary judgment." Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984) (emphasis added). Dr. Wright's affidavits do not provide any summary judgment evidence on the issue of causation as it relates to THM. He makes conclusory statements about missing records but does not say what was lacking or what might have been inaccurate. He does not detail how a lack of records caused a misdiagnosis or explain what information in the records would have led to a correct diagnosis. Therefore, both affidavits are conclusory and insufficient to create a fact issue on the element of causation. In his deposition testimony given after the affidavits were produced, Dr. Wright states the following opinion, "If the medical records from [THM] had been given to Dr. Salinas, there is a --there's a chance that he would have been able to make an appropriate diagnosis and to be able to save Ms. Stone's life by administering the appropriate treatment." However, Dr. Wright was not able to identify any specific medical information THM should have provided to Dr. Salinas that would have significantly aided Dr. Salinas in making a diagnosis of pulmonary embolism. (2) Dr. Wright's opinion is no more than "mere possibility, speculation, and surmise and could not be evidence of causation." Weiss, 989 S.W.2d at 125-26 (citing Schaefer v. Tex. Employers' Ins. Ass'n, 612 S.W.2d 199, 204 (Tex. 1980)). More importantly, Dr. Wright's testimony conclusively established that Dr. Salinas had all the medical information necessary to suspect a diagnosis of pulmonary embolism. Dr. Wright identified the two primary risk factors for pulmonary embolism as obesity and birth control and admitted Dr. Salinas knew both these factors were present in Laquetta. Dr. Wright then identified the shortness of breath and chest pain, Laquetta's complaints, as two very significant symptoms of pulmonary embolism. Dr. Wright testified, several times, that those two symptoms, combined with the rapid breathing, rapid heart rate and low oxygen saturation noted by Dr. Salinas, were the primary indicators to suspect pulmonary embolism. Dr. Wright testified Dr. Salinas should have checked Laquetta for pulmonary embolism without any other information. He stated, several times, Dr. Salinas had all the information he needed to suspect pulmonary embolism. With this testimony from the only plaintiff's expert to directly address the issue of causation, summary judgment was appropriate. (3) (b) THM staff and the state investigator Stone presented testimony from several THM staff members and from Belinda Watson, the Texas Department of Human Services investigator. This testimony was intended to raise issues of fact regarding the lack of staff during the day, (4) THM's violations of the Department's regulations, mishandling of Laquetta's trust account, and the loss of Laquetta's medical records. Not one of the medical experts testified that failure of supervision during the day or any of the alleged rules violations contributed to cause Laquetta's death. Not one of the medical experts testified failure to take Laquetta to the hospital on June 3 for her nausea and vomiting was a cause of her death. Nor did any of the experts suggest the staff could have been alerted to a potential problem if they had supervised Laquetta more closely the night before her death. The evidence only shows Laquetta felt better after treatment at the emergency room and felt fine the morning of her death. Clearly, the trust account had nothing to do with her death. Nothing in the record evidence suggests that Laquetta's medical records were not available at the time of her death. (5) The testimony of the THM staff and Brenda Watson does not raise an issue of material fact on the element of causation. (c) Billie Stone's testimony Finally, Stone testified that he should have been notified of Laquetta's illness. He says if he had known of her condition, he would have "taken her to the hospital and acquired for her care which would have resulted in saving her life." This testimony is obviously conclusory, as well as speculative. Dr. Salinas and Dr. Wright testified the physician makes the decision to admit a patient to the hospital. Given Dr. Salinas's testimony that Laquetta responded well to his treatment, there is no reason to infer that Stone would have insisted Laquetta be admitted or that Dr. Salinas would have admitted her. 2. THM's evidence Because Stone failed to offer any competent summary judgment evidence that raised an issue of fact on the element of proximate cause, we need not examine THM's proffered evidence. However, we note THM's expert, Dr. Michael Wooley, concurred with Dr. Wright on the risk factors and significant symptoms of pulmonary embolism. Dr. Wooley concluded, as did Dr. Wright, that Dr. Salinas had all the information necessary to suggest a diagnosis of pulmonary embolism. There is no evidence in the record to suggest that THM's acts or omissions proximately caused Laquetta Stone's death. We overrule Stone's first six issues. 3. Additional allegations of negligence In his last point of error, Stone claims the trial court erred in dismissing the entire case because there were allegations of negligence separate from the wrongful death and survival claims. Stone's brief does not specify what allegations are separate from the wrongful death and survival claims, therefore, we can only speculate that he is referring to the alleged violation of regulations and mishandling of the trust account. However, a careful reading of the petition reveals these allegations are part of the list of allegations that Stone claims caused Laquetta's death. Stone did not seek any fiduciary damages or any damages based on anything other than Laquetta's death. The trial court was correct to find the lack of proximate cause negated all claims. We overrule Stone's seventh issue. Conclusion Because Stone failed to raise a genuine issue of material fact as to each of his claims, we affirm the judgment of the trial court. PAUL W. GREEN, JUSTICE DO NOT PUBLISH 1. Dr. Wright mentioned that prior treatment by Laquetta's regular physician may have been in error, so it is possible he was referring to that misinformation, rather than anything said or done by employees of THM. 2. Dr. Wright identified 3 entries in the records that he believed may have helped Dr. Salinas with a diagnosis; (1) Laquetta was on birth control, (2) she had complained at some unspecified time of pain in her left calf, and (3) she had been treated in the past primarily for allergic rhinitis, that is, her prior problems regarded her nose and sinus rather than pulmonary, the lungs. However, during the course of the deposition, when he looked again at the ER record, Dr. Wright admitted Dr. Salinas knew Laquetta was on birth control and would have known Laquetta was being treated for allergy problems with her nose and sinus from the current medications Dr. Salinas noted on his chart. Further, her medical records clearly revealed she had been treated for chronic bronchitis in the past. As to the pain in the calf, Dr. Wright said only that most often, the emboli come from the legs and sometimes pain in the leg can be another symptom of a potential problem. However, he does not say if Laquetta's doctor discovered the cause of the pain, when this occurred or when it was resolved. 3. Stone argues that the inconsistencies between Dr. Wright's affidavits and his deposition testimony set up a credibility issue that must be resolved by a jury. We disagree. Dr. Wright was questioned about the affidavits during his deposition. He resolved any inconsistencies. That resolution, unfortunately, did not work to Stone's benefit. 4. Laquetta normally got up early, before 6:00a.m., and transferred to the Westbriar facility, where she spent the day prior to going to work. Stone says this is because there was no staff at her home during the day. No one from the staff stayed at Guilford at all times because the residents were not home during the day. If Laquetta had wanted to stay home, a staff member would have been scheduled to stay with her. Laquetta preferred to go to Westbriar because that facility housed residents who needed more constant supervision; therefore, it provided programs and activities throughout the day. 5. There were two or three initial investigations shortly after Laquetta's death. All requested medical records were provided to the investigator. In October, after Stone complained about the previous investigations, another investigation was started by Watson. This time Watson requested the entire medical record. The staff at Laquetta's home did not know where it was. The evidence reveals this is because after the first investigations were finished, Lisa Tullbane packed the entire medical record and sent it to storage in THM's Austin office. Lisa was later transferred to another position and the new staff was unaware of where the records had been stored. The evidence shows only that the medical records were no longer at Laquetta's former home some four months after her death.