Gregory Shawn Bryant and Linsey Kay Bryant, Individually and as Representatives of the Estate of Kennalee D'Lin Bryant a Minor v. Eric Nicholas Levy, M.D., Amarillo Area Healthcare Specialists, L.L.P. and Northwest Texas Healthcare System, Inc.

Citation: Not availableDocket: 07-04-00058-CV

Court: Court of Appeals of Texas; June 22, 2006; Texas; State Appellate Court

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The court is addressing two motions for rehearing regarding a negligence case brought by Gregory and Linsey Bryant, representing the estate of their deceased infant daughter, Kennalee D’Lin Bryant, against Dr. Eric Nicholas Levy and related healthcare entities. The claims center on two alleged failures: Dr. Levy's duty to insert chest tubes at 7:45 p.m. on the day of Kennalee's death and the failure to perform a chest x-ray at 4:20 p.m. to check for pneumothorax. The Bryants concede that their expert testified that inserting chest tubes at the alleged time would not have prevented the infant's death, and they provided no evidence to suggest otherwise, indicating a lack of material fact regarding causation for this claim.

As for the chest x-ray claim, the necessity of such an action hinges on whether Kennalee had a pneumothorax at 4:20 p.m. The Bryants argued that an x-ray would have revealed this condition, potentially preventing the infant's death. However, the court found no competent evidence supporting that a pneumothorax existed at that earlier time. The Bryants' expert acknowledged the possibility that the pneumothorax may have developed after 4:20 p.m. and failed to adequately explain the connection between the child's condition at 7:20 p.m. and the earlier time. Consequently, the court concluded that there was insufficient evidence to establish a direct link between the alleged omissions and the infant's death, leading to the affirmation of the trial court's summary judgment in favor of the defendants.

The trial court's judgment is affirmed based on the lack of competent evidence linking the alleged negligence of Northwest's employees to the death of Kennalee. The expert's testimony was deemed insufficient as it failed to explain the connection between his conclusions and the facts, rendering it merely an ipse dixit. Specifically, the expert stated that a pneumothorax might have occurred after 4:20 p.m. without providing evidence that it had occurred by that time, resulting in no competent evidence of a pneumothorax at 4:20 p.m. Consequently, the Bryants could not establish a connection between their child's death and Northwest's alleged failure to conduct an x-ray.

Furthermore, the Bryants' attempt to prove causation through expert testimony and statistics regarding RSV and bronchiolitis was inadequate, particularly since Kennalee also had a pneumothorax. The court emphasized that statistical evidence must reflect similar conditions to be relevant, indicating that the presented statistics were not applicable. The expert's conditional assertion that Kennalee would not have experienced cardiac arrest had the pneumothorax been diagnosed at 4:20 p.m. was also insufficient, as it relied on the assumption of a diagnosis that lacked supporting evidence. Thus, the motion for rehearing by Northwest is granted, affirming the summary judgment.