Bustamonte v. Ponte Texas Supreme Court, No. 15-0509 (September 29, 2017) Opinion by Justice Green (linked here)
The Texas Supreme Court revived a large jury verdict in this medical malpractice case, holding the Dallas Court of Appeals erred in holding the Plaintiffs’ expert did not sufficiently establish causation. The minor Plaintiff, D.B., was born premature and was at risk to develop retinopathy of prematurity (ROP), a retinal disorder that afflicts premature infants with low birth weights. Plaintiffs alleged that the negligence of the baby’s two doctors in failing to timely schedule follow-up appointments and corrective surgery caused lost vision in one eye and severely diminished vision in the other. The jury found for the Plaintiffs and awarded damages of just over $2.1 million. The Dallas Court of Appeals reversed, holding the physician experts had not established causation to a reasonable degree of medical certainty.
The Texas Supreme Court disagreed. It held that, given the joint responsibility of the two doctors in scheduling follow-up appointments and caring for the child, the court of appeals improperly applied a stringent but-for causation requirement when it should have applied the substantial-factor test. The Court noted that “essentially all of the evidence at trial was that the screening, diagnosis, and treatment of ROP is a collaborative effort between the neonatologist and the ophthalmologist, implicating the substantial-factor test.”
In addition to applying the wrong standard, the appellate court erred in ignoring the statistical evidence presented by Plaintiffs based on the standards in Merrell Dow Pharmaceuticals, Inc. v. Havner. The Court found that, unlike in Havner, where a statistical survey was used to establish “general causation,” i.e., that a toxic substance generally has the ability to cause a certain outcome, the statistical survey in this case was just one factor relied on by the physician experts in concluding what the likely outcome would have been for this particular patient in the absence of negligence. The experts also relied on their own clinical experience and their examination of the patient and her medical records.
The Court also disagreed with the Court of Appeals’ conclusion that the experts’ testimony was conclusory. The Court reiterated the long-standing rule in Texas that a physician expert cannot simply opine that the alleged negligence caused the patient’s injury but must also, to a reasonable degree of medical probability, explain how and why the negligence caused the injury. The Court then went through the experts’ testimony in great detail and concluded they did, in fact, adequately explain the “how and why.” The experts testified that, if the defendant physicians had not delayed the screening examinations for four weeks, Dr. Llamas would have identified the baby’s ROP at a time when it was less aggressive and would have treated it earlier, and D.B. would have enjoyed a sighted life. The Court’s analysis was highly fact-specific and should not be read as a loosening of the standards for expert testimony in medical malpractice cases.