Chau v. Riddle, MD (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(Hanks) (opinion on remand)
(botched intubation of newborn, brain damage,
Good Samaritan defense rejected by Supreme Court)
(
appellate opinions in health care liability claims medical malpractice suits)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by
Justice George C. Hanks, Jr.  

We reverse the order of the trial court granting summary judgment and remand this case
to the trial court for further proceedings in accordance with this opinion.

Before Justices Nuchia, Keyes and Hanks
01-04-00551-CV Thao Chau and Ha Dien Do, Individually and as next friend of their minor child, Steven Dien
Do v. Jefferson Riddle, M.D., and Greater Houston Anesthesiology, P.A.
Appeal from 55th District Court of Harris County
Trial Court
Judge: Hon. Jeffrey Brown

TEXAS SUPREME COURT OPINION: Chau v. Riddle, MD, No. 07-0035 (Tex. May 16, 2008)(health care
liability, Good Samaritan defense fails, substituted per curiam opinion on motion for rehearing)

MEMORANDUM OPINION ON REMAND

Thao Chau and Ha Dien Do, individually and as next friend of their minor children, S.D. and H.D.
(collectively referred to as “the Dos”), appealed the trial court’s order granting Jefferson Riddle, M.
D. and Greater Houston Anesthesiology, P.A.’s (“GHA”) motion for summary judgment and
dismissing the Dos’ claims against them. In five issues, the Dos argued that (1) the trial court erred
in striking their expert’s affidavit and their second supplemental designation of expert witnesses; (2)
the trial court erred in striking two paragraphs from another expert’s affidavit; (3) the trial court erred
in overruling their objections to the affidavits filed by two defense experts; and (4) the trial court
erred in granting Riddle and GHA’s motion for summary judgment and dismissing the Dos’ claims.

We affirmed the trial court’s order, based in part on our holding that Riddle was entitled to assert the
Good Samaritan defense, and the Dos petitioned the Texas Supreme Court for review.

The Texas Supreme Court granted the Dos’ petition for review and reversed our judgment as to
whether Riddle had established his entitlement to the Good Samaritan defense as a matter of law.
The Texas Supreme Court remanded the case for us to consider whether the summary judgment
should be affirmed on alternate grounds.  
   
We reverse the trial court’s grant of summary judgment in Riddle and GHA’s favor.

Background
   
On October 29, 2001, Dr. Jefferson Riddle was an on-call anesthesiologist at Memorial Southwest
Hospital. On this same day, Thao Chau, pregnant with twins, went into labor at Memorial Southwest
and remained in labor until the morning of October 30, 2001. Ms. Chau’s obstetrician, Dr. Le,
decided to perform an emergency cesarean section, and Dr. Riddle was called to provide
anesthesia for Ms. Chau during the surgery. After an unsuccessful attempt to use epidural
anesthesia, Dr. Riddle administered general anesthesia to Ms. Chau.
   
At 2:46 a.m. on October 30, 2001, S.D. was delivered “floppy,” without any tone and very pale. The
neonatal team took over S.D.’s care, but, after failing to resuscitate him, Dr. Le asked Dr. Riddle to
assist. Dr. Riddle proceeded to intubate S.D. Afterwards, Dr. Riddle, using a stethoscope, listened
and reported hearing breath sounds in S.D.’s chest. He also reported seeing S.D.’s chest rise. At
this time, the neonatal team proceeded with the resuscitation, and Dr. Riddle returned to Ms. Chau,
who was experiencing bleeding from a uterine atony. Footnote
   
S.D.’s endotracheal tube was secured by a nurse on the neonatal team. Two members of S.D.’s
neonatal team reported hearing breath sounds in S.D.’s chest, although one other member reported
not hearing breath sounds. The neonatal team started chest compressions as S.D. remained
unresponsive. Dr. Ruiz-Puyana, an on-call neonatologist, arrived in the operating room
approximately 13 to 15 minutes after S.D. was delivered and took over efforts to resuscitate him.
Dr. Ruiz-Puyana reported not hearing breath sounds and found that the intubation tube was lodged
in S.D.’s esophagus. Dr. Ruiz-Puyana extubated and re-intubated S.D., at which time his color
improved, but he still did not have a heart rate. Dr. Ruiz-Puyana then administered medications and
afterwards detected a heart rate. S.D. suffered permanent brain damage due to a lack of oxygen.
   
On July 22, 2002, the Dos brought a healthcare liability suit against Dr. Riddle alleging medical
malpractice in his care of S.D. The suit also named GHA, Riddle’s employer, as being vicariously
liable for the alleged negligence. Footnote
   
The trial court granted Riddle and GHA’s motion to limit expert testimony to one witness in each
area of expertise. The Dos designated Dr. Ronald Katz as their sole testifying anesthesiology
expert.
   
Riddle and GHA moved for both traditional and no-evidence summary judgments. The motion
asserted that there was no evidence that Dr. Riddle was negligent in his care of S.D. and, in the
alternative, if there was a fact issue on this claim, Dr. Riddle should prevail under a traditional
summary judgment because he proved his Good Samaritan affirmative defense.
   
The trial court granted summary judgment to Dr. Riddle and GHA, without specifying particular
grounds, and dismissed the case with prejudice. On remand, we consider whether the trial court
erred in granting Dr. Riddle and GHA’s no-evidence summary judgment motion. Standard of Review
   
Because the propriety of granting a summary judgment is a question of law, we review the trial court’
s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).
   
In reviewing a no-evidence summary judgment, we “must examine the entire record in the light most
favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against
the motion” to determine whether more than a scintilla of evidence was presented on the challenged
elements of the nonmovant’s claim. City of Keller v. Wilson, 168 S.W.3d 802, 825 (Tex. 2005). More
than a scintilla of supporting evidence exists if the evidence would allow reasonable and fair-minded
people to differ in their conclusions. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.
2003). “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than
create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d
61, 63 (Tex. 1983)).        
  
The summary judgment rule provides that summary judgment proof must contain facts that would be
admissible in evidence. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997); see also
Tex. R. Civ. P. 166a(f). To prove facts through an interested witness, the testimony must be
uncontroverted, clear, positive, direct, credible, free from contradiction, and susceptible to being
readily controverted. McIntyre, 109 S.W.3d at 749.    “The relevant standard for an expert’s affidavit
opposing a motion for summary judgment is whether it presents some probative evidence of the
facts at issue.” Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). A conclusory
statement of an expert witness is insufficient to create a question of fact to defeat summary
judgment. McIntyre, 109 S.W.3d at 749. A party offering an expert’s affidavit must demonstrate that
the witness “possesses special knowledge as to the very matter on which he proposes to give an
opinion.” Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998). Analysis
   
To prevail at trial on their claim of medical malpractice, the Dos would have been required to
establish a “reasonable medical probability” that Riddle’s acts or omissions proximately caused S.
D.’s alleged injuries. See Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995);
Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988). Meeting that burden requires proof of the following
elements: (1) that Riddle had a duty to comply with a specific standard of care; (2) that Riddle
breached that standard of care; (3) that S.D. was injured; and (4) that there was a causal connection
between the breach of the standard of care and the injury. See Tex. Rev. Civ. Stat. Ann. art. 4590i, §
1.03(a)(4) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.001(13) (Vernon 2005))
(including a cause of action against a physician within definition of “health care liability claim”); Price
v. Divita, 224 S.W.3d 331, 336 (Tex. App.—Houston [1st Dist.] 2006, pet. denied); Day v. Harkins &
Munoz, 961 S.W.2d 278, 280 (Tex. App.—Houston [1st Dist.] 1997, no writ); see also IHS Cedars
Treatment Ctr. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004) (generally stating elements of
negligence claim).
  
The causation element of a negligence claim comprises the two following components: the cause in
fact, or “substantial factor,” component and the foreseeability component. IHS Cedars Treatment
Ctr., 143 S.W.3d at 798; Leitch v. Hornsby, 935 S.W.2d 114, 118–19 (Tex. 1996); Travis v. City of
Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). Foreseeability requires that a person of ordinary
intelligence would have anticipated the danger caused by the negligent act or omission. Doe v.
Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995). Because both elements are
required, a party who establishes only that an injury was foreseeable cannot prevail. Grider v. Mike
O'Brien, P.C., 260 S.W.3d 49, 57 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).
   
Merely showing that S.D.’s injuries would not have occurred but for Riddle’s alleged negligence is
not sufficient. Riddle’s alleged negligence must have been a substantial factor in bringing about S.
D.’s claimed harm. See IHS Cedars Treatment Ctr., 143 S.W.3d at 799 (citing Lear Siegler, 819 S.
W.2d at 472); see also Boys Clubs, 907 S.W.2d at 477 (explaining that defendant’s conduct may be
too attenuated to constitute legal cause of alleged injury “even if the injury would not have happened
but for the defendant's conduct”) (citing Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.
1995); Lear Siegler, 819 S.W.2d at 472). Accordingly, evidence that shows only that the defendant’
s alleged negligence did no more than furnish a condition that made the alleged injuries possible
will not suffice to establish the substantial-factor, or cause-in-fact, component of proximate cause.
See IHS Cedars Treatment Ctr., 143 S.W.3d at 799 (citing Boys Clubs, 907 S.W.2d at 477; Union
Pump, 898 S.W.2d at 776; Lear Siegler, 819 S.W.2d at 472).
  
Further, the ultimate standard of proof on the causation issue “is whether, by a preponderance of the
evidence, the negligent act or omission is shown to be a substantial factor in bringing about the
harm and without which the harm would not have occurred.” Kramer v. Lewisville Mem’l Hosp., 858
S.W.2d 397, 400 (Tex. 1993) (stating that the test is whether it is “more likely than not” that the
ultimate harm or condition resulted from the alleged negligence). “Hence, where pre-existing
illnesses or injuries have made a patient’s chance of avoiding the ultimate harm improbable even
before the allegedly negligent conduct occurs—i.e., the patient would die or suffer impairment
anyway—the application of traditional causation principles will totally bar recovery, even if such
negligence has deprived the patient of a chance of avoiding the harm.” Id.
  
Duty
   
The Dos argue that the summary judgment evidence raised at least a scintilla of evidence from
which the trial court could conclude that Dr. Riddle had a duty to comply with a specific standard of
care in treating S.D. We agree. In his affidavit and deposition testimony, Dr. Katz, the Dos’ expert,
states that, in his expert opinion as a board-certified anaesthesiologist, Riddle had a duty to S.D.,
and that duty included intubating S.D. within the standard of reasonably prudent anesthesia care, i.
e., properly intubating S.D., personally securing the tube, checking for breath sounds, and personally
checking the end-tidal CO2 to ensure proper placement of the tube.
   
The record reveals that the evidence before the trial court on summary judgment, coupled with the
Texas Supreme Court’s holding that questions of fact precluded summary judgment in Riddle’s
favor on his Good Samaritan defense, amount to at least a scintilla of evidence precluding a no-
evidence summary judgment in Riddle and GHA’s favor on the issue of whether Riddle had a duty to
comply with a specific standard of care in treating S.D.

Breach

Riddle and GHA contend that the trial court’s entry of summary judgment was correct because there
is no evidence that Dr. Riddle breached any duty he owed to S.D. Specifically, they point to the
testimony of the Dos’ sole expert, Dr. Katz, and claim that, while Dr. Katz was critical of other
aspects of Dr. Riddle’s performance, Dr. Katz never offered the specific opinion that Dr. Riddle
misplaced S.D.’s intubation tube. Riddle and GHA point to Katz’s testimony regarding a number of
possible scenarios regarding S.D.’s intubation, which included the possibility that Riddle properly
intubated S.D. and the tube was dislodged during the taping process, or sometime afterwards. Katz
also admitted in his deposition that he could not be certain the tube was indeed inserted properly in
the first place, and then became dislodged, or whether it was never placed properly at all.
   
Dr. Katz’s testimony, however, when taken as a whole and in conjunction with his affidavit, reveals
that it was his opinion that Dr. Riddle breached the standard of care by failing to properly intubate S.
D., and that Riddle further compounded this error by failing to personally secure the tube and check
for breath sounds, and by failing to check the end-tidal CO2, which would have confirmed the tube
was placed properly. Katz stated that these errors breached the standard of care and, “in all
medical probability, contributed to the baby’s hypoxia, which caused and resulted in the adverse
outcome and brain damage of [S.D.].” Katz’s testimony was clear that, even if Riddle had properly
inserted the tube, Katz believed that Riddle’s failure to personally secure the tube and to check the
end-tidal CO2 were breaches of the applicable standard of care.
   
Under the standard we are bound to apply in reviewing a no-evidence summary judgment, we find
this statement was sufficient to defeat Riddle and GHA’s no-evidence motion as to breach because
it raises at least a scintilla of evidence in support of the Dos’ claims that Riddle’s acts and
omissions breached the applicable standard of care. See, e.g., King Ranch, Inc., 118 at 751.
   
Causation
   
Riddle and GHA also contend that summary judgment in their favor was proper because Dr. Katz’s
testimony on the issues of causation and damages was speculative and mere conjecture.
   
To constitute evidence of causation, a medical expert’s opinion must rest in reasonable medical
probability. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex. 1995); Ins. Co. of N. Am.
v. Myers, 411 S.W.2d 710, 713 (Tex. 1966). This rule applies whether the opinion is expressed in
testimony or in a medical record, as the need to avoid opinions based on speculation and
conjecture is identical in both situations. Crye, 907 S.W.2d at 500. Reasonable probability is
determined by the substance and context of the opinion and does not turn on semantics or on the
use of a particular term or phrase. Id.; Myers, 411 S.W.2d at 713.
   
The weakness of facts in support of an expert’s opinion generally goes to the weight of the
testimony rather than the admissibility. Onwuteaka v. Gill, 908 S.W.2d 276, 283 (Tex. App.—
Houston [1st Dist.] 1995, no writ). Nevertheless, an expert’s opinion regarding causation that is
based completely upon speculation and surmise amounts to no evidence. Id.; see also Schaefer v.
Tex. Employers’ Ins. Ass’n, 612 S.W.2d 199, 204–05 (Tex. 1980) (holding that expert’s medical
opinion constituted no evidence because it was based upon speculation and surmise rather than
reasonable medical probability).
   
The expert testimony of Dr. Katz, when taken together with his affidavit, reveals that Dr. Katz’s
expert opinion as a board-certified anaesthesiologist was that Dr. Riddle’s failure to properly insert,
secure and check S.D.’s intubation tube, “in all medical probability, contributed to the baby’s
hypoxia, which caused and resulted in the adverse outcome and brain damage of [S.D.].” Under the
standard we are bound to apply in reviewing a no-evidence summary judgment, we find this
statement was sufficient to defeat Riddle and GHA’s no-evidence motion as to causation because it
raises at least a scintilla of evidence in support of the Dos’ claims that Riddle’s acts and omissions
proximately caused S.D. harm. See, e.g., King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.
2003).
   
Apportionment
   
Riddle and GHA next argue that there was no evidence to establish the amount of harm, if any, that
S.D. may have suffered as a result of Riddle’s alleged negligence. Riddle and GHA point to Katz’s
admission that he could not quantify the amount of additional damage that S.D. (who was already
“floppy” and “unresponsive” at the time of his birth) may have suffered due to oxygen deprivation
caused by Riddle’s failure to properly intubate him. Dr. Katz admitted during his deposition that
there was “no way” for him to determine the amount of brain damage S.D. may have suffered before
and during his delivery versus the amount of brain damage caused by the allegedly improper
intubation. At his deposition, the following exchange occurred:

Q: Is it your belief that anyone, regardless of their specialty, can apportion out the extent of damage
to this child in utero versus any damage which may have occurred extrautero, based upon the
medical information we have?
. . .

A: I’m not an expert, but my reaction is I don’t think so.

Q: It would be pure speculation, wouldn’t it?
. . .

A: I personally think if someone said that they could apportion how much occurred before and
afterwards, I would question them very closely on “How could you say that? How do you know that?”

I don’t think you can do that. However, I have to tell you that in other cases that I have reviewed, I
have seen neurologists who attempted to do that.

Q: Utilizing, in your opinion, sound medical judgment?

A: Well, I’ve wondered how in the world they could do that, and I find it hard to believe, but competent
neurologists whom I respect have given such testimony. I don’t see how you can do it, I don’t think it’
s possible, but that is my view as a nonneurologist.
   
Dr. Katz’s affidavit, however, is clear that it is his opinion that Riddle’s allegedly improper intubation
of S.D. “contributed to the baby’s hypoxia and brain damage” and “there was definitely post-delivery
hypoxia; and the acts and omissions of Dr. Riddle, which were below the standards of reasonably
prudent anesthesia care, caused this post-delivery hypoxia and resulted in brain damage to [S.D.].”
Thus, the state of the summary judgment evidence is that, while Dr. Katz was unable to testify as to
the quantity of damage S.D. may have incurred, it was his opinion that Riddle’s acts and omissions
caused some degree of additional damage. We find this testimony sufficient to defeat Riddle and
GHA’s no-evidence motion for summary judgment on the issue of damages. See, e.g., King Ranch,
Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
                                                  
Conclusion
   
We reverse the order of the trial court granting summary judgment and remand this case to the trial
court for further proceedings in accordance with this opinion.                                                          

                                                                 George C. Hanks, Jr.

                                                                 Justice

Panel consists of Justices Nuchia, Keyes, and Hanks.