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TX Supreme Court rejects medical expert report, reverses $225K verdict

By Steve Korris | Dec 9, 2010


AUSTIN – Hidalgo County jurors who returned a $225,000 verdict against Rio Grande Regional Hospital for a patient's pain and anguish shouldn't have relied on testimony of expert witness Dr. John Daller, the Supreme Court of Texas ruled on Dec. 3.

All nine justices found his testimony legally insufficient to support a verdict for the family of the late Eloisa Casas.

"It is not enough for an expert simply to opine that the defendant's negligence caused the plaintiff's injury," Justice Eva Guzman wrote.

"When the only evidence of a vital fact is circumstantial, the expert cannot merely draw possible inferences from the evidence and state that 'in medical probability' the injury was caused by the defendant's negligence."

"The expert must explain why the inferences drawn are medically preferable to competing inferences that are equally consistent with the known facts," she wrote.

Doctors diagnosed colon cancer in Casas in 2000, and she underwent surgery, radiation and chemotherapy.

In 2001, she arrived at Rio Grande Regional with abdominal pains and fever. Her white blood cell count indicated an infection.

Her surgeon, Dr. Carlos Garcia-Cantu, consulted with infectious disease specialist Dr. Michael Jelinek, who prescribed two medicines.

In surgery three days later, Garcia-Cantu found that cancer had perforated her colon. He drained an abscess, repaired the colon, and inserted a drain.

Casas continued taking the medicines for five days, but the prescriptions lapsed because someone failed to clip a renewal form to her chart.

Meanwhile, doctors also detected a fungus infection and a staph infection.

Ten days after surgery, Garcia-Cantu drained another abscess.

That day, Jelinek learned the prescriptions had lapsed. He told Casas about the mistake and prescribed two other medicines.

Casas died three months later.

In 2003, husband Francisco Casas and son Alfredo DeLeon Jr. sued the hospital, Dr. Garcia-Cantu and Dr. Jelinek.

Dr. Daller filed their expert report, stating the doctors negligently failed to discover that Casas wasn't getting antibiotics.

He wrote that within reasonable medical probability, their negligence resulted in a longer hospital stay and increased pain and suffering.

Jelinek moved for sanctions and dismissal, claiming Daller failed to explain any connection between the negligence and the injury.

District Judge Juan Partida denied the motion.

Before trial began, the family nonsuited both doctors.

At trial, Daller said that in medical probability, there was an abdominal infection.

He admitted on cross examination there was no objective evidence present to demonstrate that infection.

Francisco Casas told jurors his wife didn't trust the doctors or the nurses after she learned the prescriptions lapsed.

DeLeon told jurors his mother was upset.

He said, "What really upset her more was when they had to take out the staples out of her incision and they had to open her incision up again."

The jury awarded the family $250,000 in damages, apportioning 90 percent to Rio Grande Regional and five percent to each doctor.

The 13th District appeals court in Corpus Christi affirmed the verdict, but the Supreme Court rejected it.

"There is no direct evidence that she suffered from an infection treatable by the omitted antibiotics, but there is evidence that she had two other infections that accounted for all of her symptoms during that time," Guzman wrote.

"The testimony of Casas's husband and son is evidence of her suffering, but not of its cause," she wrote.

"We understand the Casas family's predicament and frustration at the hospital's conduct, and we recognize the difficulty of proving that the lapsed prescriptions caused a painful infection."

"But the Casases shouldered that burden and must prove the causal link with reasonable certainty," she wrote.

In addition to wiping out the verdict, the Court directed Judge Partida to grant Jelinek's motion for sanctions, fees and costs.

Guzman and Justices Nathan Hecht, Dale Wainwright, David Medina, Phil Johnson and Don Willett found Daller's initial report as weak as his trial testimony.

"It offers no more than a bare assertion that Dr. Jelinek's breach resulted in increased pain and suffering and a prolonged hospital stay," Guzman wrote.

"Beyond that statement, the report offers no explanation of how the breach caused the injury," she wrote.

Three Justices would have denied Jelinek's motion.

Chief Justice Wallace Jefferson wrote in a partial dissent that Daller's report gave fair notice of a meritorious claim.

Justices Paul Green and Debra Lehrmann joined Jefferson.

Mike Hatchell, Sarah Duncan, Elissa Underwood, Raul Guerra and Susan Kidwell of Locke Lord Bissell & Liddell LLP in Austin represented Rio Grande Regional Hospital.

John Mastin of Carabin & Shaw in San Antonio and Francisco Rodriguez of McAllen represented the family.

Ronald Hole and Ida Garza of Hole & Alvarez in McAllen represented Dr. Jelinek.

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