A 91-year-old nursing facility resident with a history of dementia, hypertension, and transient ischemic attack had to be hospitalized shortly after an increase in her Coumadin dosage. She was diagnosed with a urinary tract infection and subsequently suffered nasal bleeding, sending her to the ICU with respiratory distress. She recovered sufficiently to be discharged back to the resident facility, but her Coumadin was discontinued. As she was still experiencing lethargy with decreased cognition, her attending physician ordered a number of tests and prescribed an anti-biotic. He further ordered an infectious disease consult to check for C-diff and followed up by prescribing an additional antibiotic and lactobacillus. A few days later, however, she returned to the hospital with acute respiratory distress and upon her arrival suffered a fatal cardiopulmonary arrest.
These are the facts of Marcus Smith, Individually and as Representative of the Estate of Celia B. Smith, Deceased v. Nexion Health at McKinney, Inc. d/b/a McKinney Healthcare and Rehabilitation Center and Menur Beshir, LVN (No. 05-22-01140-CV; filed August 11, 2023). Plaintiff, the decedent’s son, sued the nursing facility and Beshir, one of his mother’s nurses, alleging medical negligence. He also asserted wrongful death and survivor actions. Plaintiff’s expert, a geriatrician and wound care doctor, prepared an expert report and testified by deposition. Defendants subsequently filed a motion to exclude the expert’s testimony, as well as no-evidence and summary judgment motions, asserting that the expert’s opinions were speculative and unreliable on the basis that he could not give an opinion “to a reasonable degree of medical certainty” that decedent suffered from either urosepsis or fulminant colitis and therefore did not provide any evidence of proximate cause. The trial court agreed and dismissed plaintiff’s claims.
The Dallas Court of Appeals affirmed in part and reversed and remanded in part. On the first issue, the exclusion of the expert’s testimony, the court determined that the trial court did not abuse its discretion in granting the motion to exclude. As “[e]stablishing proximate cause requires evidence, to a reasonable degree of medical probability, that (1) the act or omission was a cause in fact of the injury and (2) the injury was foreseeable” (citations omitted), which can only be supplied in a medical negligence action by expert testimony, the court reviewed the transcript of the expert’s testimony. The expert opined that, although the decedent had been tested for infection at the hospital and her blood cultures were negative for all bacteria, he nevertheless attributed her death to uroseptis or fulminant colitis based on on the types of test ordered by her physician and the medications he prescribed here. Nevertheless, on cross examination, the expert had to admit that “he could not testify to a reasonable degree of medical probability that decedent had a urinary tract infection or C. diff or that they had progressed into urosepsis or fulminant colitis.” He also failed to rule out other potential causes of death identified by the decedent’s attending physician at the hospital, which included cardiac arrest, dementia without behavioral disturbance, essential hypertension, hypotension, hypolipidemia, anemia, and a personal history of transient ischemic attack. Based on this review, the court concluded that the trial court did not abuse its discretion in excluding the expert’s opinions as to cause of death as unreliable. Nevertheless, as the expert likewise opined regarding the facility’s standard of care, breach, and causation related to the decedent’s initialhospitalization, and defendants motion to exclude did not address those opinions, the court found that the trial court did abuse its discretion in excluding the expert’s testimony “for all purposes.”
Without the expert’s testimony as to the causation of decedent’s death, plaintiff lacked any evidence of an essential element of its wrongful death claim. The trial court thus properly granted no-evidence summary judgment on that one. The court found further that the trial court properly dismissed plaintiff’s claims against Beshir, the nurse, because the expert’s testimony as to the standard of care, breach, and causation refers to the facility’s acts or omissions, not Beshir’s. Defendants thus conclusively disproved an essential element of plaintiff’s claims against the nurse, justifying summary judgment. The only cause of action left standing by the court of appeals was the survival action, not because the evidence was any different, but because defendants in its summary judgment motion “argued only that [plaintiff] failed to establish that [defendants’] negligence proximately caused [decedent’s] death.” Thus, plaintiff’s survival claim against the facility related to decedent’s initial hospitalization should not have been swept up in the trial court’s final judgment on “all claims.”
This is an interesting case from a couple of perspectives. Perhaps more than anything, it reveals the critical importance, from a defense standpoint, of making sure you ask the trial court for everything you want just in case you get more than you actually requested. From the plaintiff’s side, it looks like too much was asked of the expert. As expensive as it is for plaintiffs to successfully mount a medical malpractice case in the first place, one cannot be too critical of a decision to have one expert cover all the claims. At the same time, we wonder if it would have made any difference to have one expert focus on cause of death for purposes of the wrongful death claim and another to address the facility’s alleged negligence in relation to the decedent’s first hospitalization following the increase in her Coumadin dosage for purposes of the malpractice and survival claims. It seems that there are really two distinct lawsuits here. The court of appeals, however, sorted it out and produced, in our view, a just result.
