Creech v. Columbia Medical Center of Las Colinas Subsidiary, L.P.

Citations: 411 S.W.3d 1; 2013 WL 1245551; 2013 Tex. App. LEXIS 2087Docket: No. 05-10-01545-CV

Court: Court of Appeals of Texas; February 12, 2013; Texas; State Appellate Court

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A wrongful-death case involving Donald Creech, Jr. resulted in a jury verdict favoring the defendants, leading to a take-nothing judgment by the trial judge. The plaintiffs appealed, asserting that the jury's decision was against the weight of the evidence and that the defendants' expert testimony on causation lacked probative value. The court affirmed the lower court's ruling.

Key facts include that Creech, 41, sought treatment for severe pain due to a kidney stone at Las Colinas Medical Center on October 19, 2001. Dr. Elizabeth Lacy diagnosed him and prescribed Dilaudid after Toradol failed to alleviate his pain. Upon admission, urologist Dr. Ali Shirvani continued the Dilaudid regimen and ordered oxygen support due to low blood-oxygen levels noted by Nurse Layne Wilson-Cox.

On October 20, Dr. Shirvani evaluated Creech, and a respiratory therapist suggested a sleep study. That night, Nurse Anna Mathew administered Dilaudid for Creech's severe pain. Although he was reported to be stable at midnight, he was found unresponsive at 1:30 a.m. A Code was initiated, but resuscitation efforts failed, and he was pronounced dead at 3:10 a.m.

An autopsy concluded that Creech died from hypertensive-type cardiac hypertrophy, with obesity and bronchopneumonia as contributing factors. Dr. David Dolinak, who performed the autopsy, testified that Creech suffered an arrhythmia leading to a heart attack and that Dilaudid was not a contributing factor to his death.

In 2002, the surviving family members of Donald Creech initiated a wrongful-death lawsuit against multiple defendants, including Dr. Shirvani, Dr. Khan, and certain respiratory therapists. At trial in 2004, the plaintiffs contended that Creech died from oxygen deprivation due to obstructive sleep apnea combined with excessive Dilaudid, while the defendants argued his death resulted from an unrelated cardiac event. The jury found no negligence by any defendants, prompting the plaintiffs to seek a new trial, which the trial judge granted concerning Nurse Mathew, Nurse Conner, and the hospital for vicarious liability but denied for the doctors and therapists. A take-nothing judgment was later issued in favor of the doctors and respiratory therapists, and claims against the hospital regarding the nurses were severed for finality. The hospital and nurses sought mandamus relief, which the supreme court partially granted, requiring the trial judge to articulate reasons for disregarding the jury's verdict. Subsequently, a new trial judge recused himself, and the case was transferred, where the new judge denied the plaintiffs’ motion for a new trial and issued a take-nothing judgment for the hospital and nurses. The plaintiffs appealed, arguing that the jury's verdict was against the great weight of the evidence and that the expert testimonies regarding the cause of death were speculative and lacking probative value. The appeal centered on health care liability claims, requiring proof of legal duty, breach, and proximate cause, with proximate cause necessitating expert testimony to establish the standard of care and causation in medical malpractice cases.

An appellant challenging the factual sufficiency of evidence supporting an adverse finding must demonstrate that the finding contradicts the great weight and preponderance of the evidence. The reviewing court assesses all evidence and may only overturn a verdict if it is deemed clearly wrong and unjust. The factfinder retains exclusive authority to judge witness credibility and the weight of their testimony. Inferences and conclusions drawn from evidence that reasonable minds could dispute cannot be substituted by the court's judgment.

When an appellant asserts that a finding is against the great weight and preponderance of the evidence, they must articulate the relevant evidence and explain how opposing evidence significantly outweighs that which supports the verdict. An appellant is also required to address all independent bases that uphold the judgment. In this case, the jury may have answered negatively regarding the breach of standard of care due to a lack of finding on either breach or causation concerning Creech’s death.

The appellees claim that the appellants did not adequately argue the sufficiency of evidence regarding the breach of standard of care, and therefore, the judgment should be affirmed. However, the appellants assert that they have sufficiently addressed the breach issues, citing specific failures by Nurse Mathew and Nurse Conner, such as inadequate training on Dilaudid, non-compliance with physician orders for oxygen use, and failures in monitoring Creech’s blood oxygen levels.

Evidence presented by appellants includes testimonies indicating breaches of care, such as Nurse Mathew's failure to ensure Creech wore an oxygen cannula and Dr. Shirvani's expectation that Creech should have been on oxygen throughout his hospital stay. An expert, Dr. John Seifert, corroborated the necessity of adhering to Dr. Shirvani’s orders for oxygen during Creech’s hospitalization.

James Garriott, Ph.D., a toxicologist, testified that the maximum safe dose of Dilaudid is 2 mg, indicating that the 4 mg dose administered to Creech by Nurse Mathew constituted an overdose. Dr. Todd Swick, a neurologist, identified multiple breaches of the standard of care by the nurses, including inadequate monitoring of Creech, failure to address his low blood-oxygen levels, and insufficient preventative measures. He argued that Nurse Mathew's qualifications did not warrant her determining the Dilaudid dosage, criticized her lack of knowledge regarding the medication and Creech's obstructive sleep apnea, and highlighted the nurses' negligence in not continuously monitoring Creech’s blood oxygen with a pulse oximeter. Dr. Swick also stated that the nurses should have ensured Creech received treatment with a CPAP device.

Conversely, Nurse Mathew defended her actions, asserting her nursing care was appropriate and that she assessed Creech before administering Dilaudid. She noted that she did not change Creech’s nasal cannula, believing it unnecessary due to his stable condition. Nurse Conner corroborated this by stating Creech was compliant with oxygen delivery and that she found Nurse Mathew competent and well-supervised. Both nurses claimed they did not witness any respiratory distress in Creech before he became unresponsive.

Expert testimony from Lynn Patterson, a registered nurse, supported the nurses' adherence to the standard of care, emphasizing that they assessed Creech appropriately. Dr. Douglas Jenkins, an internal medicine specialist, and Dr. Melvyn Anhalt, a urologist, also testified that they found no negligence among the healthcare providers involved in Creech's care, affirming that he was properly monitored and treated during his hospitalization.

Dr. Gregory Carter, a neurology and sleep medicine specialist, testified that the hospital staff acted within the standard of care expected from nurses and respiratory therapists. He supported Nurse Mathew's decision to administer 4 mg of Dilaudid to Creech, stating that it was in line with the physician's order and the previous dose had provided insufficient pain relief. Brigid Byrne, an expert in gerontology, affirmed Mathew's capability to assess the need for increasing the dosage based on Creech's reported pain and the diminishing effectiveness of prior doses. Byrne also noted that Dilaudid is safe for patients with sleep apnea but indicated that Mathew should have conducted a thorough evaluation before administration. Evidence showed Mathew had assessed Creech at 10:05 p.m. and found him breathing adequately, with subsequent evaluations confirming he was doing fine.

The jury's decision not to find a breach of care by the nurses or hospital was supported by conflicting expert testimonies. While Dr. Swick argued Mathew was unqualified to determine the Dilaudid dosage, Nurse Patterson and Byrne asserted she was qualified. Nurse Conner also supported Mathew's competence in administering intravenous narcotics. Dr. Swick claimed there was a lack of proper monitoring and that continuous pulse oximetry and CPAP treatment for sleep apnea were necessary; however, Mathew and other witnesses testified that the care provided was appropriate and that such monitoring was not indicated.

Dr. Garriott and Dr. Swick both testified that the 4 mg dose administered was an overdose, presenting conflicting views regarding the adequacy of care. The jury was tasked with weighing the evidence and expert opinions, ultimately concluding that the evidence did not overwhelmingly support a finding of negligence.

Nurse Mathew testified that administering Dilaudid to Creech was safe, and Dr. Carter supported that it was within Mathew’s professional judgment to increase the dosage due to insufficient pain relief from a previous lower dose. The jury's decision to reject the negligence theory was not against the great weight of the evidence. Regarding the standard of care, the appellants claimed that the nurses failed to ensure Creech wore his oxygen cannula when not walking. This claim had no merit concerning Nurse Conner, as there was no evidence she was aware of Creech's cannula usage, and she confirmed he was wearing it at midnight on October 20. 

Nurse Mathew’s case was more complex; she did not see Creech with the cannula that night and did not instruct him to replace it, which could be perceived as a violation of Dr. Shirvani’s order requiring oxygen use at all times while hospitalized. Expert testimony indicated that Creech should have been on oxygen continuously. However, Mathew justified her actions by noting Creech's good breathing and lack of distress, supported by Nurse Conner’s statement that Creech had the cannula on when needed. Both nurses’ testimonies suggested that Mathew did not breach the standard of care, and Nurse Patterson also affirmed that both met the standard.

The jury’s findings in favor of the nurses were not against the great weight of the evidence regarding the breach of care. Even if there were grounds to question the breach, the jury's potential refusal to find proximate cause was also supported by evidence. The appellants argued that Creech's death resulted from respiratory failure due to obstructive sleep apnea, exacerbated by excessive Dilaudid, leading to cardiac arrest. Conversely, the appellees posited that Creech's death was due to an unrelated spontaneous cardiac event. The document notes a subsidiary issue regarding the probative value of the defense’s expert testimony on the cardiac event being unrelated to Dilaudid.

Appellants' ability to challenge expert testimony on appeal is constrained due to their failure to object to its reliability during trial. To preserve a challenge regarding an expert's methodology, an objection must be made, allowing the opposing party to address any deficiencies, thus preventing surprise at trial. However, challenges asserting that testimony is conclusory or speculative do not require prior objection. Appellants may only pursue arguments asserting that the defense expert's testimony was conclusory, speculative, or based on erroneous factual assumptions.

Appellants specifically question Dr. Dolinak's deposition testimony, arguing that his conclusion attributing Creech’s death to a sudden cardiac event rather than Dilaudid effects is based on incorrect assumptions. They identify three main points of contention: 1) Dr. Dolinak's presumed absence of Dilaudid in Creech’s blood, 2) his assumption that Creech was breathing at 1:20 a.m. when checked by a nurse, and 3) his rejection of the hypothesis that observed pulseless electrical activity indicated death from hypoxia rather than cardiac causes. Appellants assert that other experts' agreement with Dr. Dolinak's opinion lacks evidentiary support as they relied on his conclusions.

Dr. Dolinak's opinion about the cardiac nature of Creech's death was supported by several factors, primarily the significant heart disease indicated by an unusually large heart and thickened walls, likely resulting from hypertension. He noted obesity as a contributing factor, referencing a negative drug screen as evidence against drug-related death. Furthermore, he described the rapid progression of Creech’s demise as consistent with a cardiac event, though he conceded that such a progression could also align with an acute hypoxic event, which appellants advocate. Appellants argue that Dr. Dolinak's opinion is flawed because he inaccurately stated that no Dilaudid was present in Creech’s blood, as the autopsy report only confirmed the presence of atropine.

The toxicology report indicated Dilaudid at 8.9 nanograms per milliliter in Creech's blood, which is below the reportable limit of 20 nanograms per milliliter, thus not communicated to the medical examiner's office. Dr. Dolinak acknowledged that while the drug screen report could be incorrect, it did not significantly influence his opinion regarding Creech's death, as he understood that the negative report allowed for the possibility of unreportable drug levels. Other evidence suggested that even if Dilaudid were present, it would be at “functionally insignificant” levels by the time of death. An additional expert, Dr. Shepherd, concurred that Dilaudid was not the proximate cause of death. The court found no incompetence in Dr. Dolinak’s opinion based on his knowledge of the toxicology report and the understanding that even assuming Dilaudid was absent, the levels could still be inconsequential. 

Appellants also claimed Dr. Dolinak incorrectly assumed Creech was alive and breathing ten minutes before being found unresponsive at 1:30 a.m. This claim arose from a deposition exchange regarding the nature of Creech’s rapid decline, which Dr. Dolinak attributed to a cardiac event. However, evidence presented at trial indicated that a nurse observed Creech breathing at 1:20 a.m. before he was found unresponsive shortly thereafter.

Dr. Dolinak's testimony regarding the ten-minute timeframe in which Creech was observed breathing at 1:20 a.m. lacked corroboration from trial witnesses, as no nurses confirmed seeing him at that time. Nurse Mathew and Nurse Conner reported seeing him at midnight, while Nurse Betty Lloyd noted he was walking and requesting a drink between midnight and 12:30 a.m. The appellants' argument was rejected, as weaknesses in the underlying facts of an expert’s opinion affect its weight rather than its admissibility. Although the report to the medical examiner that supported Dr. Dolinak's assumption about Creech’s condition at 1:20 a.m. was weak and uncorroborated, it was not based solely on speculation. Additional evidence indicated that Creech's death was sudden; Dr. Shepherd observed that Creech was not cyanotic at 1:30 a.m., suggesting a recent fatal event, and Nurse Wilson-Cox noted that he had good color and warmth at the start of the Code.

The appellants disputed Dr. Dolinak's causation opinion, claiming he incorrectly dismissed the theory that pulseless electrical activity (PEA) during the Code excluded sudden cardiac death. Dr. Norton, the appellants’ expert, explained that PEA indicates electrical activity without effective heartbeats due to oxygen deprivation and is not associated with sudden cardiac death, which typically involves ventricular tachycardia or fibrillation. In contrast, Dr. Dolinak asserted that various cardiac dysrhythmias, including PEA, can occur with hypoxia, and he questioned the reliability of PEA as an indicator of hypoxic death. He maintained that PEA does not exclude sudden cardiac death and that it could appear during resuscitation efforts in a cardiac non-respiratory event. The disagreement regarding the significance of PEA reflects a broader medical debate rather than a factual dispute about Dr. Dolinak's assumptions. The appellants did not challenge the reliability of Dr. Dolinak's scientific perspective on PEA during the trial, limiting the opportunity to develop a reliable record for the trial judge’s consideration.

Appellants are barred from challenging Dr. Dolinak’s conclusion that the presence of pulseless electrical activity (PEA) did not negate his finding of sudden cardiac death or necessitate a finding of hypoxic death. Dr. Dolinak's opinion aligned with Dr. Jenkins, who previously stated that PEA was “an unimportant part of the puzzle.” The court found Dr. Dolinak's testimony to be competent and that the jury was entitled to consider it without it being deemed conclusory or speculative. As a result, appellants’ claim that other defense expert testimonies were compromised by reliance on Dr. Dolinak's opinions was rejected.

Regarding the sufficiency of the evidence, the jury's decision that the appellees’ negligence did not proximately cause the death was supported by evidence. Appellants presented a case linking Creech’s sleep apnea and Dilaudid administration to hypoxic death, while conflicting evidence suggested that his death likely resulted from sudden cardiac arrest, unrelated to Dilaudid. Dr. Dolinak indicated that a cardiac arrhythmia was probable and not connected to Dilaudid, supported by anatomical findings. Dr. Jenkins dismissed the possibility of death from a combination of Dilaudid and sleep apnea, stating that Dilaudid did not contribute to Creech’s death. Dr. Shepherd corroborated this, noting that Creech was not cyanotic when found, indicating a sudden cause of death. The case exemplified a “battle of the experts,” where the jury assessed conflicting opinions and favored the defense's experts. The court concluded that reasonable interpretations of the evidence existed, upholding the jury's findings in favor of the appellees regarding proximate cause.

Ultimately, both of appellants' issues on appeal were rejected, affirming the trial court's judgment. The court did not agree with the appellants’ view that all other defense experts merely adopted Dr. Dolinak's causation opinions, but since Dr. Dolinak's opinions were deemed competent, further examination of the other experts’ reliance was unnecessary.