the Medical Center of Southeast Texas, L.P. v. Rachel Ann Melancon ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
_______________________
NO. 09-16-00449-CV
_______________________
THE MEDICAL CENTER OF SOUTHEAST TEXAS, L.P., Appellant
V.
RACHEL ANN MELANCON, Appellee
On Appeal from the 60th District Court
Jefferson County, Texas
Trial Cause No. B-195,944
MEMORANDUM OPINION
The Medical Center of Southeast Texas, L.P. (Medical Center or Appellant)
appeals from the trial court’s First Amended Order of Judgment rendering judgment
in favor of Appellee Rachel Ann Melancon and denying the Medical Center’s
Judgment Notwithstanding the Verdict (JNOV). We affirm.
The appellate record includes a partial reporter’s record, as requested by the
Appellant, which we summarize below. If an Appellant only requests a partial
reporter’s record, the Appellant must include in the request a statement of the points
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or issues on appeal. See Tex. R. App. P. 34.6(c)(1). The appellate court “must
presume that the partial reporter’s record designated by the parties constitutes the
entire record for purposes of reviewing the stated points or issues.” Tex. R. App. P.
34.6(c)(4).
Background
Infant, Olivia Marie Coats (Olivia), died shortly after birth. Olivia’s parents,
Rachel Ann Melancon and Trent Allen Coats, individually and as representatives of
the estate of Olivia, brought wrongful death claims of negligence and gross
negligence against Dr. George Backardjiev, Melancon’s obstetrician, and against the
Medical Center, the hospital where Olivia was born. Trent Coats died after the
initiation of this lawsuit, and Rachel Melancon proceeded as the sole plaintiff.
The jury found that Dr. Backardjiev’s and the Medical Center’s negligence
proximately caused Olivia’s death, and assigned 95% responsibility to Dr.
Backardjiev and 5% responsibility to the Medical Center. The jury awarded $575 in
damages for funeral and burial expenses and $10,000,000 in damages for past and
future loss of companionship and society and past mental anguish. 1
1
The jury awarded additional damages to Melancon for her own personal
injuries and mental anguish. The parties did not challenge the damages awarded to
Melancon.
2
The Medical Center moved for JNOV arguing that there was no competent
evidence that any act or omission of any Medical Center employee proximately
caused Olivia’s death. According to the motion, Melancon’s only expert witness was
Dr. Mark Akin, and as an obstetrician and gynecologist (ob-gyn), he was not
qualified to express an opinion on neurologic causation.2 The trial court denied the
motion for JNOV, explaining that “[t]he Court finds that Dr. Akin is qualified to
express causation opinions and that there is competent evidence of causation.” The
trial court entered a First Amended Order of Judgment that explained that Dr.
Backardjiev had settled with Melancon and the trial court awarded damages in the
amount of $250,000 against the Medical Center plus interest and costs. The Medical
Center appealed.
Issues
In its first issue on appeal, Appellant argues that Dr. Akin was not qualified
to opine as to neurologic damage and the cause of alleged hypoxic ischemic
encephalopathy (HIE) in an infant. Appellant’s second issue argues that Dr. Akin’s
expert medical testimony was not based on reasonable probability and did not
2
The defendants challenged the expert testimony and qualifications of Dr.
Akin before trial by objection and the Medical Center filed a motion for summary
judgment. The appellate record does not include any rulings relating to such matters.
Dr. Akin testified at trial. Based upon the record now before us, we assume the
objections and motions were overruled by the trial court.
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sufficiently establish a traceable chain of causation based on general scientific
principles or a probable causal relationship between the Medical Center’s
employees’ administration of Pitocin and Olivia’s death. Appellant’s third issue
argues that the trial court erred in concluding there was legally and factually
sufficient evidence regarding the Medical Center’s standard of care, breach, and
proximate cause when the testimony of Melancon’s expert conflicted with the
statutory prohibition against nurses performing a medical diagnosis.
Appellant seeks to have the jury’s answer to Question No. 1 as to Appellant
(whether the Medical Center’s negligence proximately caused the death of Olivia)
set aside and asks this Court to reverse the judgment against Appellant. According
to Appellant, without expert testimony of causation, Appellant was entitled to a
JNOV and a reversal of the jury’s verdict.
Background Information
During the labor and delivery of Olivia, Pitocin was administered to Melancon
at the Medical Center. Pitocin is a medication commonly used to stimulate labor by
making the uterus contract more forcefully causing stronger and longer contractions.
Dr. Backardjiev, Melancon’s obstetrician, testified that he ordered Pitocin to be
administered to Melancon during her labor and delivery. It appears to be undisputed
that Dr. Backardjiev made the decisions about the use of Pitocin and dosage amounts
4
thereof. According to the testimony and exhibits presented at trial, at some point
during the delivery the nurses at the Medical Center asked Dr. Backardjiev whether
they should prepare Melancon for a C-section and spoke with him about the Pitocin.
Testimony of Nurse Haley Cupit
Nurse Haley Cupit, a registered nurse who works at the Medical Center,
testified that at the time in question she had worked in labor and delivery for about
a year. Nurse Cupit explained that a fetus receives blood and oxygen through the
mother’s placenta and that when the mother has contractions, blood vessels can
become constricted and blood flow and oxygen are restricted. Cupit testified that
hypoxia injury is generally tissue injury resulting from a lack of oxygen and she
agreed that if a fetus is deprived of oxygen for a long enough time period, permanent
hypoxic injury can result and that HIE is a type of permanent brain injury that can
result from a lack of oxygen. Nurse Cupit explained that during labor and delivery,
external or internal monitoring is used to monitor the threat of fetal hypoxia and the
mother’s contractions. According to Cupit, the fetal heart monitor does not
necessarily tell how much oxygen the baby is receiving, but she agreed that looking
at how the baby’s heart rate reacts to the mother’s contractions indicates whether the
baby is at risk of hypoxic injury. Cupit explained that a late deceleration is a drop of
the fetal heart rate that occurs after a contraction and it is a nonreassuring sign
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because “it can tell you if there’s a lack of blood going to the placenta to get to the
baby after the contraction.”
Nurse Cupit agreed that a nonreassuring fetal heart rate suggests that the baby
is not being properly oxygenated. Cupit explained that the Medical Center’s policy
states that when there is a nonreassuring fetal heart status, the first thing a nurse
should do is to stop Pitocin therapy. Plaintiff’s Exhibit 209 was admitted into
evidence and according to Nurse Cupit it was styled “Care of the Pregnant Patient.”
Exhibit 214 was admitted into evidence and it was entitled “Fetal Evaluation
Nonreassuring Status,” and Nurse Cupit agreed that it was the Medical Center’s
policy and procedure for evaluating fetal heart rates. And, Cupit agreed that the
policies and procedures outlined in Exhibit 214 are consistent with the standard of
care she was expected to follow. Similarly, plaintiff’s Exhibit 211 was admitted into
the record, and according to Nurse Cupit, it was the Medical Center’s policy and
procedure regarding the use of Pitocin.
Cupit agreed that the Medical Center’s policy and procedures discuss the
initial assessment of the patient, nursing interventions, including giving the mother
oxygen, increasing IV therapy, repositioning the mother, performing a vaginal exam,
and notifying the physician. Cupit testified that she would “definitely” stop Pitocin
if the contractions are too close together and the physician is not available at the
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time. According to Cupit, the doctor determines whether the Pitocin is causing the
nonreassuring fetal heart rate.
Nurse Cupit agreed that nurses have a duty to protect patients from harm,
including rejecting specific assignments based on their education and experience and
their assessment of risk to the patient and saying “no” to a doctor’s order that the
nurse believes would put a patient in danger. Cupit testified that nurses should try to
resolve disagreements directly with the physician, but if the nurse cannot do so, then
a nurse should invoke the chain of command to take the issue to the charge nurse or
higher up to the department director or house supervisor until the issue is resolved.
Nurse Cupit testified that her shift started at 7:00 p.m. on the evening of
December 27, 2013, and that Dr. Backardjiev was Melancon’s obstetrician. Cupit
recalled the nurse she relieved that night told her that Melancon had a fever and that
Melancon had been on and off Pitocin. According to Cupit, Pitocin was turned off,
turned back on, increased, and reduced throughout the day and finally turned off
about 5:00 p.m. Cupit testified that Pitocin was started again at about 8:00 p.m. and
increased at 8:20 per Dr. Backardjiev’s orders and that Dr. Backardjiev never left
the hospital from then on.
Nurse Cupit agreed that she observed minimal to moderate variable
deceleration, that she would have reported signs of nonreassuring fetal heart rate to
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Dr. Backardjiev, and if the doctor had not been there, she would not have increased
the Pitocin without a doctor’s order. Cupit explained:
We are supposed to let the doctor assess the strip and look at it
when we think it’s nonreassuring. And then based on that -- they have
more training in this stuff than we do. And then they give us orders
from there, after assessing it themselves.
When asked whether she ever said “no” to Dr. Backardjiev that night, Cupit
responded
I went to the charge nurse and asked her her thoughts -- she has
more experience than me, you know -- “He’s ordering this to be
increased. What are your thoughts?”
And there was one point in time where he did order it. I went to
the charge nurse. She was in the room with Dr. Backardjiev in another
patient’s room. They reviewed it and it wasn’t increased at that time
and later on it was ordered. The strip was never bad enough during that
time that I would have gone further than that.
She agreed she was concerned enough to start the chain of command but she did not
go further than to consult with Nurse Bray “because the strip wasn’t so terrible[,]” a
disagreement is not necessarily a reason to go up the chain of command, and reading
the monitoring strips is subjective.
Nurse Cupit agreed that between about 10:10 p.m. and midnight, the fetal
heart rate was mostly nonreassuring. Cupit agreed that Pitocin should be
discontinued when the fetal heart rate is nonreassuring and other nursing
interventions are not working “[i]f the physician is not there[.]” Cupit explained that
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ultimately Dr. Backardjiev used forceps three times, and three times the forceps
slipped off. According to Nurse Cupit, Nurse Bray was also in the room, and each
time the forceps slipped off, Nurse Bray asked Dr. Backardjiev “Can we just go
ahead and do a C-section? This isn’t working.” Cupit testified that after the forceps
slipped off the third time, Dr. Backardjiev agreed to do a C-section. Nurse Cupit was
unable to say with certainty how much force was used by Dr. Backardjiev with the
forceps. Cupit testified that in retrospect, she did not think that increasing the Pitocin
was harming the baby or putting the baby in danger.
Testimony of Nurse Diane Bray
Nurse Diane Bray testified that she has been a labor and delivery nurse at the
Medical Center since she graduated from nursing school in 2005. On the night Olivia
was born, she was the charge nurse on the floor and was Nurse Cupit’s supervisor.
Bray explained that a charge nurse’s duties are “to manage everything that goes on
on the floor, make sure everything is flowing as it needs to be, make the assignments
for the patients. And if there are questions that arise, they can come to me to ask.”
Bray agreed that it would have been appropriate for Nurse Cupit to come to Bray
about issues regarding the monitoring strip, and if the issues could not be resolved,
the next person in the chain of command would be the house supervisor. Nurse Bray
agreed that a mother is under the joint care of the physician and nurses and that
9
nurses should use their own judgment in the best interest of the patient, including
being able to reject specific assignments if the assignment from the doctor is going
to put the patient in danger.
Nurse Bray agreed that she is fully qualified to read fetal heart strips and that
nurses are taught the danger of not treating a nonreassuring fetal status. She agreed
that one of a nurse’s duties is to administer drugs like Pitocin and to know how the
drugs can affect patients, but administering Pitocin is not something a nurse can do
without a doctor’s order. Bray explained that the danger with a nonreassuring status
is that the baby is not getting enough oxygen. Reading from Exhibit 211, the Medical
Center’s policy on what to do if the fetal heart rate is nonreassuring, Bray agreed
that the options include repositioning the mother, discontinuing Pitocin, starting
oxygen, increasing IV rate, performing a vaginal exam, and notifying the physician.
Bray testified that not all the nursing interventions must be tried and if some
interventions do not help, then others should be used. Nurse Bray agreed that
administering Pitocin is a nursing function and not something the doctor does and
that nurses use their independent judgment whether to start, increase, pause, or
decrease Pitocin. Bray agreed that discontinuing Pitocin can decrease contractions
and may decrease fetal stress. Nurse Bray recalled that at some point during the
evening of December 27th, Olivia’s fetal heart status turned nonreassuring. Bray
10
testified that the strip was watched by the nurses and the baby had periods from
10:00 p.m. to midnight where they were watching the strip and “She still had periods
of times that were okay to go with, with moderate -- minimal to moderate
variability.” Bray agreed that she recalled she spoke with Nurse Cupit about nursing
interventions and that Cupit had repositioned Melancon, given oxygen, and
increased the IV rate, and the physician was present at that time. Bray did not agree
that it would have been appropriate to discontinue Pitocin because “[t]he physician
was there, and he was making his assessment on it.” Bray agreed that at one point
she was seeing late decelerations that Dr. Backardjiev did not see and that the
concern with late decelerations is placental insufficiency and the baby not getting
enough oxygen. Nurse Bray recalled that Dr. Backardjiev wanted the nurses to
increase the Pitocin, and the nurses did not increase it, but about thirty minutes later
at 11:25, it was increased. According to Bray, even though she and Nurse Cupit saw
late decelerations, Dr. Backardjiev did not, and at the time she did not believe the
strip was such that it was necessary to go higher in the chain of command and “[i]t
wasn’t anything that I felt any of the other physicians would have done [] any
differently.” The strip had not gotten to a point where she felt like she needed to go
above, or higher in the chain of command.
11
Nurse Bray testified that over her ten-year career she had seen forceps used
by physicians during deliveries, but she had never seen them used in the manner
done by Dr. Backardjiev. She recalled that forceps were first used by Dr. Backardjiev
at midnight and the medical record showed that Nurse Cupit had charted “forceps
slipped off, forceps reapplied.” Bray recalled that after the forceps slipped off the
first time, she asked Dr. Backardjiev if he would consider a C-section, and he said
no. According to Nurse Bray, after the forceps slipped a second time, she asked him
if they could prepare for a C-section, and he said the baby’s head was coming down
and there was some movement. Bray explained that the medical record reflected that
after the forceps slipped off a third time, she “Stated to him ‘We need to do a C-
section. Forceps not being successful[]’” and Dr. Backardjiev agreed. Bray recalled
Dr. Backardjiev put his foot on the wheel cover of the bed twice while he was pulling
with the forceps, and she had not seen anyone do that nor had she seen that type of
pulling effort by anyone during her career.
Nurse Bray also called Eric (her supervisor) when the forceps were not
working and when Dr. Backardjiev agreed to do the C-section. She called Eric
because when they have an unscheduled C-section they let Eric know so the
procedure can be entered into the computer and charted.
12
When asked if she could do it all over again, knowing that Dr. Backardjiev
testified that it was Category 2 on the precipice of Category 3, and that the plaintiff’s
expert testified it was Category 3, did she believe that Pitocin should have been
continued, she replied
Not necessarily. Like I say, if that’s what I felt was what caused
the injury, I guess I could have. But I didn't have -- see anything that
showed toward a Category 3 tracing until after the forceps were used.
Nurse Bray also testified that she did not “ever feel like the strip made it to the point
where I had to go up the chain of command.”
Testimony of Doctor George Backardjiev
Dr. Backardjiev testified that he completed medical school in Bulgaria in 1994
after which he did a five-year residency in obstetrics and gynecology and a one-year
fellowship in infertility. Dr. Backardjiev explained that he then worked as an
assistant professor in Bulgaria at his medical school for about eighteen years. While
working in academia, he authored forty-seven scientific articles published in peer-
reviewed journals and three books, one of which was on operative obstetrics, which
includes the use of forceps, vacuum, and breach deliveries. Following his work in
academia, Dr. Backardjiev came to the United States, where he did another two-year
residency, went to work at Mt. Sinai Hospital in Chicago, and finally started his own
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practice. Dr. Backardjiev explained that he has delivered more than 11,000 babies
and has used forceps 431 times.
Dr. Backardjiev testified that he does not believe the American College of
Obstetrics and Gynecology (ACOG) provides “authoritative guidance” for
obstetricians such as himself, but that he follows the ACOG recommendations that
he thinks apply based on his experience and practice. When asked about the ACOG
recommendation that an anesthesiologist should be informed before an anticipated
complicated delivery, Dr. Backardjiev responded “It depends on the situation.” He
disagreed that an obstetrician cannot proceed to a C-section until an anesthesiologist
arrives, and he explained that here, he waited for an anesthesiologist because “it was
not an emergent situation.” Dr. Backardjiev explained he has concerns about
performing C-sections because they result in uterine scar tissue and increase “the
risk of pathologic placentation[]” and the need for C-sections in future pregnancies.
Dr. Backardjiev testified that “[p]eople can disagree on interpretation of a fetal heart
strip[]” and he agreed that ACOG recognizes that different people can look at a fetal
monitoring strip and see different things.
Dr. Backardjiev testified that he used Pitocin to initiate uterine activity and
contractions that can open the cervix and expel the baby. According to Dr.
Backardjiev, the half-life of Pitocin is about four minutes; when administered
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intravenously, it has an immediate effect; and about eight minutes after receiving
Pitocin, it would not be in the blood. Dr. Backardjiev testified that Pitocin has only
an indirect effect on the heart of the fetus by increasing uterine contractivity and it
has no direct effect on the heart of either the mother or the fetus. He disagreed that
when the monitor shows fetal status is nonreassuring while on Pitocin but then shows
reassuring when Pitocin is discontinued that it means Pitocin is the cause of the
nonreassuring status.
Dr. Backardjiev recalled that after about 11:45 p.m., he began to see signs that
the fetal heart status might become Category 3 and it was concerning because he saw
“deep variables, isolated late decelerations [and] long-term variability.” At that time,
Dr. Backardjiev thought the baby had “very little reserve left to continue hours of
labor and pushing.” In his opinion, the difficulty with this fetus descending further
was due in part to the occiput posterior presentation and because Melancon did not
have adequate uterine activity. His assessment at the time was that the fetal heart
tones were not affected by the contractions, but he was concerned that the
contractions were not strong enough to push the baby out. He explained that maternal
fever can cause fetal tachycardia. According to Dr. Backardjiev, “[t]here was no
hypoxic ischemic encephalopathy in this case during labor.”
15
Dr. Backardjiev testified that he decided to use forceps because of maternal
exhaustion, the fetal heart conditions, and lack of hypoxic threat. Dr. Backardjiev
agreed that before using forceps, an assessment of “the maternal pelvis/fetal size
relationship[]” should be done, which can be done during the pregnancy. Dr.
Backardjiev recalled estimating Olivia’s fetal weight at thirty-seven weeks using an
ultrasound, and he had not found fetopelvic disproportion during vaginal exams.
Dr. Backardjiev disagreed that, when using forceps, no force should be used
greater than that used by the arms and shoulders. He explained that he put his left
foot over the plastic cover of the left wheel of the bed because the floor was waxed,
his shoes were slipping, and he was unable to apply twenty pounds of force. Dr.
Backardjiev explained that the most dangerous part of the forceps is the tip and that
he put a towel or sponge between the two spoons of the forceps to minimize damage
to the soft tissues. Dr. Backardjiev agreed that careful use of forceps does not usually
result in fetal injuries unless too much force is used, or the forceps are incorrectly
placed, which he explained was not done, but that abrasions or marks may occur.
Dr. Backardjiev testified that “[t]he forceps never slipped.” Dr. Backardjiev
explained that he ultimately decided to do a C-section because excessive force would
be needed with the forceps.
16
Dr. Backardjiev stated that one of the ACOG criteria for HIE is an Apgar score
less than or equal to 3 on the fifth minute, and because Olivia’s Apgar was 7 on the
fifth minute, this did not meet the ACOG or the American Academy of Pediatrics
criteria for HIE. He also testified that the cord blood pH and base excess values for
Olivia did not meet ACOG or American Academy of Pediatrics criteria. According
to Dr. Backardjiev,
Th[e] diagnosis [of HIE] is incorrect at the time of birth. It does
not meet any of the criteria. There are five criteria that all of them have
to be present in order to make such a diagnosis; and none of them is
present, not even one.
Dr. Backardjiev testified that he believed the fractures to Olivia’s temporal
bones resulted from compression from the mother’s ischial spines—“[c]ompression
from pushing the baby through the birth canal.” Dr. Backardjiev explained that such
fractures are not dangerous, and they do not damage the brain. When asked whether
his use of forceps had anything to do with the multiple skull fractures Olivia
sustained, Dr. Backardjiev replied “I’m not sure. So, I cannot say ‘yes’ or ‘no.’” Dr.
Backardjiev then testified that in his opinion Olivia’s head, skull, or neck injury had
“nothing to do with the forceps.” According to Dr. Backardjiev, over the course of
his career, he has seen at least seven babies with skull fractures when no forceps
were used and one of those instances was a planned C-section. Dr. Backardjiev
testified that the cause of Olivia’s HIE and misshapen head was subgaleal bleeding,
17
which the autopsy report noted, but he does not know what caused the subgaleal
bleed, although he explained it usually occurs when there is some kind of defect in
the blood vessels. At another point, Dr. Backardjiev testified that he believed the
subgaleal hemorrhage occurred during the C-section. In Dr. Backardjiev’s opinion,
the neck subluxation was probably caused by trying to get Olivia’s head out of the
pelvis, but he testified that “subluxation is not an injury.”
Dr. Backardjiev also testified that he would not change anything about the
way in which he ordered Pitocin in this case:
Well, for two years I’ve been thinking should I have done
anything different and the answer is “no.” The best mode of delivery in
this situation was forceps. It didn’t work. We did a cesarean section.
Whatever happened to the baby is really sad but it doesn’t have
anything to do with Pitocin in my opinion and it doesn’t have to do
much with the forceps.
Testimony of Doctor Mark Akin
The plaintiff’s designated expert, Dr. Mark Akin, testified that he is an ob-gyn
physician, board-certified in obstetrics and gynecology, and a member of ACOG.
He obtained a Master’s degree in biomechanical engineering, where he studied fetal
monitoring and the assessment of patients. Dr. Akin testified that, over the course of
his career, he has delivered approximately 11,000 babies, that he has used forceps
hundreds of times or thousands of times, and that he has never used forceps where
the baby suffered a skull fracture or scalp laceration. Dr. Akin agreed he does not
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diagnose or treat neonates, that the diagnosis or treatment of HIE is outside the scope
of his practice, that he is not qualified to read MRIs but that he does know how to
interpret what is written as the result of an MRI, and that he has never diagnosed or
treated a baby with a rotatory cervical subluxation of the cervical spine.
Dr. Akin agreed that he is familiar with an obstetrician’s duties as well as the
duties of labor and delivery nurses. According to Dr. Akin, a nurse’s standard of care
includes observing and assessing a patient’s signs, symptoms, and responses, and
that nursing duties include interventions to ensure the welfare of the mother and
baby, including reporting to the doctor if the nurse is concerned that a baby may be
at risk. Dr. Akin agreed that nurses administer medication, such as Pitocin, and they
should know the effects of Pitocin on the mother and fetus. According to Dr. Akin,
if a nurse disagrees with another medical provider, there is a procedure for going up
the chain of command until the issue is resolved.
Dr. Akin testified that HIE is a form of hypoxic injury that results when parts
of the brain (the basal ganglia and thalami) die because they do not get enough
oxygen. According to Dr. Akin, determining whether HIE has occurred includes
consideration of “a clinical situation in which there is a high probability of the baby
not getting enough oxygen[,]” the baby’s Apgar score at birth, the baby’s behavior
19
at birth, and radiologic tests such as sonograms, CT scans, and MRIs. Dr. Akin
explained that
. . . babies that are born with HIE typically have severe
physiologic changes at birth. They frequently can’t breathe. They don’t
move. They’re flaccid. They have no reflex tone. They have difficulty
with multiple different organ systems: respiratory failure,
cardiovascular collapse, seizures, renal function changes. And when
you see this whole spectrum of change in a baby, these are fairly classic
signs of HIE.
According to Dr. Akin, fetal monitors were placed soon after Melancon’s
admission to the Medical Center, and the fetal heart strips were admitted into
evidence. Dr. Akin testified that studies confirm that not all observers will agree on
the meaning of fetal monitoring strips. Dr. Akin explained that fetal monitoring is a
tool used to guide and manage the delivery as follows:
Q. Will you agree that there’s no peer-reviewed literature that says you
can accurately predict that a baby will be born with hypoxic ischemic
encephalopathy based upon a strip alone before the child is born?
A. Yes. That’s been the problem with electronic fetal monitoring is you
can use it as a guide to help try to manage a patient in labor. But
ultimately we have babies that you might predict that there would be a
bad outcome when there isn’t and vice versa. And, yet, it’s the only tool
we have; and, so, it is used routinely in the United States in almost every
labor.
Q. So, although it’s a tool that you use that’s helpful, it’s not something
that in medicine you rely on to predict hypoxic ischemic
encephalopathy, correct?
20
A. You can have a clinical situation in combination with a fetal monitor
strip that would have a high probability of being reliable. But you can
never be 100 percent sure of trying to interpret the outcome of a baby
solely by looking at the fetal monitor strip.
Dr. Akin testified that Category 1 fetal heart changes are “the safe area,” that
Category 2 changes are “concerning,” and Category 3 changes are the highest risk,
and “[y]ou have to have Category 3 changes for some period of time before you’re
gonna have brain death, before you have HIE.”
Dr. Akin explained the effect of Pitocin on the fetal heart:
. . . during a contraction there’s a reduction in oxygen that goes
to the baby. And, so, Pitocin is a drug that makes the muscle of the
uterus contract more forcefully for a longer window of time. So, as
compared to when she’s not taking Pitocin, not getting Pitocin,
comparing that to when she was getting it the contractions would [be]
stronger. There would be less oxygen transferred during the
contraction. So, as you increase Pitocin you increase the risk that you’re
not going to get enough oxygen to the baby.
According to Dr. Akin, nurses commonly adjust Pitocin up and down to avoid
contractions that will create problems.
Dr. Akin testified that the dose of Pitocin necessary to create contractions in
this case was low, Melancon was sensitive, and the baby was sensitive to an increase
in contractions. “Every time these contractions got a little too close, we started seeing
signs the baby wasn’t coping very well.” According to Dr. Akin, about 5:00 p.m.,
the Pitocin was stopped a second time due to Category 2 changes in the heart strip,
21
and the concern was “the combination of a very high heart rate, not really seeing
accelerations, not seeing much variability, and beginning to have variable type
decelerations.”
Dr. Akin testified that Pitocin was started again at about 8:00 p.m., but after
stopping Pitocin a second time, the heart rate did not recover much and stayed
between 160 and 180 beats per minute for the next several hours. Dr. Akin testified
that by about 9:00 p.m., the baby’s heart rate was 180, and “Rarely [does one] see
180 with a baby’s heart rate. And it’s either due to fever or it’s due to the baby having
potentially an oxygen problem.” Akin testified that around 9:00 p.m., the heart strip
showed dips in the fetal heart rate that appeared to start during contractions and did
not recover until after the contraction was over, which Akin explained was not
“classic enough to call a late deceleration, but it raises your eyebrow.” According to
Dr. Akin, by 9:15 p.m., the monitoring strip showed a similar repetitive pattern that
he would call a Category 3 change, “strongly suggestive of late decelerations[,]” that
warranted immediate management. Dr. Akin did not believe that increasing Pitocin
after this point was appropriate:
. . . This is -- we’re way past a time where we should have
decreased the Pitocin. We should be doing things to protect this baby,
not to let this pattern continue over and over repetitively like this. And
increasing -- even the plaintiff’s expert says the Pitocin shouldn’t have
been increased here -- I’m sorry, the defense expert for the defense said
that.
22
Dr. Akin described the pattern of late decelerations that developed at about 9:00 p.m.
and continued for almost two hours showing what he described as “an alarming
pattern[]” and a sign that the baby was having trouble. When asked about the nurses’
response when Dr. Backardjiev ordered Pitocin increased at about 10:55 p.m., Dr.
Akin explained it was appropriate for the nurses to institute the chain of command:
“It was late in coming, but it needed to be brought up.” According to Dr. Akin, when
Pitocin was again increased at about 11:25 p.m., the monitoring strip showed
“almost immediately [] we start seeing these bigger dips in the baby’s heart rate with
every contraction.” Dr. Akin testified that the mother was asked to start pushing, but
that it was “absolutely[]” unadvisable to push when there were already distressing
signs:
. . . Not only should the Pitocin have not been increased but with
this severe of a problem going on the Pitocin should have been turned
off, this baby should have been resuscitated, should not have been
pushing, should have given this baby a chance to get a breath here and
try to recover. Instead, they’re pounding this baby with more Pitocin
with contractions; and it’s escalating the problem.
Dr. Akin described the monitoring strip late in the delivery as “an incredibly
alarming section of the strip . . . that give[s] great concern and great credence to the
fact that this baby [was] injured at this point.” In Dr. Akin’s opinion, “[t]his is in the
top one percent of bad strips.”
23
According to Dr. Akin, he is familiar with the standard of care on the use of
forceps, and in 2003 he participated in research about reducing birth injuries from
the use of forceps. Dr. Akin testified that the goal of using forceps is “not to use
great strength” but to get the baby’s head at the most favorable angles and positions.
Dr. Akin explained that he was instructed “never to use your back muscles or use
your legs in the process of [using forceps] because inevitably you have the potential
to use way too much force on the baby’s head when you do that.” Dr. Akin testified
that sometimes forceps may be faster than a C-section, but that “[t]his baby was in
serious trouble here and [there was a] low probability of success with forceps.” In
Dr. Akin’s opinion, Olivia had HIE or brain damage even before forceps were used
and she also incurred serious injury from the use of forceps with parietal bones
broken on both sides and her neck was twisted:
The forceps were on the baby’s head but he pulled with enough
force that they literally raked past the baby’s parietal bones. And those
curves, those tips of the forceps are, in my opinion, what fractured both
of those bones as they slipped and raked past the baby’s head. The baby
also had lacerations on the scalp from where those forceps slipped past
the baby’s head.
Dr. Akin testified that the more than thirty-minute delay in delivering by C-section
was below the standard of care, and that “[i]n most hospitals you should be able to
get that C-section going in 10 minutes.”
In Dr. Akin’s opinion,
24
[w]hen the baby was born it had the classic findings of hypoxic
ischemic encephalopathy. It had a heart rate over a hundred but that was
really its only signs of life. It was flaccid, meaning it wasn’t moving.
Had no reflex activity. It wasn’t breathing. It was pale blue. It[]s initial
Apgar score was 2. It had no ability to survive without immediate
assistance. It had a breathing tube put down into its lungs and was
artificially given oxygen. And at five minutes this baby still had very
little signs of life. It was still blue. It still had no reflexes. It still was
flaccid. And it was like that because its brain was damaged.
According to Dr. Akin, the neonatologist knew Olivia had HIE within the first
twenty minutes of life and called for a transfer to Houston to begin cooling therapy.
After five minutes, Olivia’s Apgar score was 7, which Dr. Akin testified was “a gross
misrepresentation of the health of the baby at five minutes.” Dr. Akin explained that
there was a thirty-five-minute delay from when the forceps and Pitocin were
discontinued until the baby was delivered, which allowed the baby to recover
somewhat and for pH levels to rise.
Dr. Akin agreed that Olivia showed signs of organ failure:
The baby struggled with cardiovascular problems because it was
having a hard time maintaining its blood pressure. That’s evidence of
the heart not functioning well because of the strain of the condition. The
baby had evidence of renal -- of kidney dysfunction. Its ability to
eliminate waste products was impaired. So, the baby’s waste products
over the first several hours of birth built up in its blood system.
Neurologically the baby was flaccid. It had severe neurologic injury.
And, on top of that, it had seizures which are a classic sign of brain
damage, of HIE. So, it had multisystem organ failure, which is one of
the diagnostic factors for HIE.
25
In Dr. Akin’s opinion, the symmetric injury in the brain suggested it was not a
problem with just one blood vessel and “HIE is symmetric most of the time.” Dr.
Akin did not disagree with the neuropathologist’s anatomic findings in the autopsy,
but he disagreed that the MRI evidence of symmetric injury occurred from a single
blood vessel. Dr. Akin explained that there was no evidence of significant bleeding
into the brain that caused serious harm to Olivia.
Dr. Akin explained
[] my opinion is there were two problems in this case. The baby
didn’t get enough oxygen late in the course of labor and had brain death
from that; and then during the delivery process it had skull fractures and
a neck subluxation as a consequence of inappropriate use of forceps.
According to Dr. Akin, the research on the use of forceps in which he had
participated showed that babies with skull fractures from forceps did not die and did
not have HIE.
According to Dr. Akin, the nurses breached their standard of care and violated
the hospital policy which they were trained to follow and the nurse’s breach was a
cause of the HIE sustained by Olivia Coats. Dr. Akin testified that the nurses failed
to say “no” when they should have to Dr. Backardjiev’s Pitocin orders, and that was
a cause of the development of HIE. Although Dr. Akin believed the nurses monitored
the fetal heart rate appropriately and accurately identified what the problem was, he
26
believed “their failure was to act upon that to help protect the baby’s life.” Dr. Akin
also explained:
Q. Let me ask you a question about going up the chain of command.
Do you believe that the nurses failed to meet the standard of care by not
continuing past the charge nurse level when they saw the danger to
Olivia?
A. I do. I think that most of the time when we have questions about this
with nurses we’re looking at late decelerations that are going on for
maybe three or four contractions. But for three hours for her not to go
up the chain in a case that is so obvious, I think that was way below the
standard of care.
....
Had they gone to the supervisor I think there’s a reasonable chance that
a decision would have been made to discontinue Pitocin.
....
Q. And all of these negligent acts that you just talked about and the
nurses’ and the doctor’s failures to follow the standard of care, do you
believe that they were all substantial factors in bringing about this HIE?
A. I do.
Q. And do you believe that their acts were -- or at least the injury caused
by their acts was reasonably foreseeable at the time that they were doing
the act?
A. I do.
....
Q. And just to be clear, do you believe that this baby had sustained HIE
to some degree before forceps were ever applied?
27
A. Yes. And we saw evidence of that not only with recurrent lates but
with the sinusoidal pattern and the severe tachycardia.
In Dr. Akin’s opinion, the use of forceps did not cause the HIE, but the use of forceps
did cause the traumatic skull fracture and neck dislocation injury to Olivia.
Testimony of Joellen Klohn
Joellen Klohn testified as a witness for the Medical Center. Klohn has worked
as a registered nurse since graduating from nursing school in 1983, mostly in labor
and delivery. She has taught classes on electronic fetal monitoring, she has been
involved in forceps deliveries, and at the time of trial, she was working at a
community hospital in Kerrville. Klohn understood Dr. Akin’s criticism of the
nurses to pertain to the period between 10:00 p.m. and midnight, during which time
there were intermittent late decelerations and variable decelerations. In Klohn’s
opinion, the interventions the nurses used seemed to resolve the late decelerations.
Klohn explained that at 10:55 p.m., there were still some late decelerations and Dr.
Backardjiev ordered the Pitocin to be increased. Klohn explained that Nurse Cupit
had some concerns about increasing the Pitocin, and after Cupit talked with Nurse
Bray, they talked with Dr. Backardjiev and the Pitocin was not increased because
there were “some very subtle recurrent late decelerations.” According to Klohn, at
11:10 p.m., Melancon was completely dilated and the monitoring strip was “nothing
to be terribly concerned about because there’s still baseline variability.” Klohn
28
explained that Dr. Backardjiev ordered the Pitocin increased at 11:35 p.m., and she
believed it was within the standard of care for the nurses to carry that order through
because the doctor was present evaluating the situation and there was no indication
that Melancon would not be able to deliver vaginally. Klohn also explained that
when Dr. Backardjiev ordered an increase in Pitocin at 11:51 p.m., the late
decelerations had resolved after Melancon stopped pushing and “at that point there
was no reason not to follow the order.” Klohn believed that the nurses acted
prudently, and she agreed it was “a known thing” in her field that interpreting fetal
heart strips is subjective.
Testimony of Doctor Timothy Bohan
Dr. Timothy Bohan, a physician who specializes in pediatric neurology and
developmental pediatrics, testified as a witness for the Medical Center. Dr. Bohan
received his medical degree at the University of Miami, received a Ph.D. in
neuropharmacology, and has worked alternately in private practice and academia
since 1985. He is board-certified in neurology with special qualifications in child
neurology, and he has published about fifty papers in peer-reviewed medical journals
in pharmacology and neurology and the treatment of children with neurological
disorders.
29
Dr. Bohan agreed that the autopsy report lists the immediate cause of death
for Olivia as hypoxic ischemic injury from trauma and fracture of the neonatal skull
and that there is no reasonable basis to disagree with that. Dr. Bohan concluded that
Olivia’s HIE was not because of Pitocin and prolonged labor. He did not agree that
Olivia had multiorgan failure and he did not believe the laboratory results were
consistent with multiorgan failure. In Dr. Bohan’s opinion, the blood tests did not
show damage to the heart; the autopsy showed that the liver, kidneys, and heart
looked fine; and the basal ganglia and thalamus regions in the brain “were hardly
damaged”—and Dr. Bohan explained that these observations were “not what you
expect with lack of oxygen to the fetus before delivery.”
Dr. Bohan explained that the CT showed skull fractures and blood inside and
outside the skull, but he stated that “[t]he CT scan is really not very good at showing
early strokes.” He also explained that the MRI of the brain and cervical spinal cord
showed strokes and some blood where the spinal cord attaches to the brain.
According to Dr. Bohan, the damage in the brain was asymmetrical, but hypoxia
would show even damage to both the right and left sides of the brain. Dr. Bohan
opined that the strokes were not caused by Pitocin but were mechanically caused by
“pull[ing] on the head in an asymmetric manner[.]” Dr. Bohan concluded “I’m not
saying that labor was normal. I’m just saying that the laboratory studies and the
30
autopsy did not show the diffuse damage all over the baby and in certain parts of the
brain that you see with lack of oxygen.” In his opinion and based on reasonable
medical probability, the HIE resulted from “a lack of blood flow from the carotid
and vertebral injuries which was caused by the trauma[]” and the traumatic fractures
to Olivia’s skull were caused by the use of forceps. According to Dr. Bohan, Dr.
Backardjiev’s explanation that Melancon’s ischial spines caused skull fractures to
Olivia was “not consistent with the degree of the depressed skull fracture on the
right.”
Testimony of Doctor Ferdinand Plavidal
Dr. Ferdinand Plavidal, an ob-gyn who practices in the Texas Medical Center,
testified as a witness for Dr. Backardjiev. In Dr. Plavidal’s opinion, Dr. Backardjiev
acted within the reasonable standard of care for a healthcare provider and was not
careless or neglectful at any time.
According to Dr. Plavidal, the fetal monitoring strip was “essentially a normal
strip all the way[]” except for the last hour of labor. In Dr. Plavidal’s opinion, Dr.
Backardjiev’s use of forceps was reasonable considering the situation at the time,
“with the need for urgent delivery[.]” Dr. Plavidal explained that there is “a lot of
documentation” that the natural expulsive forces of labor and pushing by the mother
can result in fractures to a baby’s skull, and skull fractures can also occur during a
31
C-section. Dr. Plavidal agreed that the subgaleal bleed could happen at the time of a
C-section or with any delivery. Dr. Plavidal explained that he did not believe that
the Pitocin was causing the fetal heart rate to go up when the Pitocin was
administered and in his opinion the fetal heart rate became elevated during labor
when Melancon was experiencing fever.
Testimony of Doctor Stephen Nelson
Dr. Stephen Nelson, a pediatric neurologist who has a Ph.D. in biomedical
sciences, also testified as a witness for Dr. Backardjiev. In Dr. Nelson’s opinion,
Olivia did not meet the criteria for HIE, specifically with the criteria for pH and
multiorgan failure. According to Dr. Nelson, Olivia’s decline was “multifactorial[]”:
she had subgaleal bleeding, bleeding at numerous locations inside the brain, and
evidence of anoxic or hypoxic injury to the brain, but not in a pattern observed with
HIE. Dr. Nelson explained that a baby can die if subgaleal bleeding is untreated. Dr.
Nelson testified that when Olivia was admitted at Memorial Hermann, she had
evidence of coagulopathy, or improper clotting, and clots could explain some of the
strokes. According to Dr. Nelson, the cooling Olivia received at Memorial Hermann
may make clotting worse. Dr. Nelson explained that “[a]ny manipulation of the neck
theoretically can damage vertebral arteries[]” including chiropractic manipulation,
pulling a baby out during a C-section, or hyperextending the neck while trying to
32
put in an endotracheal tube. Dr. Nelson testified that the subgaleal hemorrhage
caused Olivia to have poor blood volume, to be anemic, and to be hypotensive, which
affected blood flow to the brain and could have contributed to anoxic injury or
stroke. He agreed that subgaleal hemorrhages are caused by trauma during the birth
process.
Dr. Nelson could not identify anything in the medical records that indicated
Olivia was dying before Dr. Backardjiev tried to deliver her with forceps and as far
as he knew, Pitocin did not kill Olivia. Dr. Nelson explained that because he is not
an obstetrician, he could not say whether the traumatic injuries Olivia experienced
were linked to anything Dr. Backardjiev did. In his opinion, the cause of death was
withdrawal of care, and life support was eventually withdrawn because of “[a]
combination of what happened to [Olivia] in delivery and then perhaps some of what
happened to her during resuscitation or even in the ongoing care in the NICU.” Dr.
Nelson did not believe that Olivia had HIE.
Exhibits
The appellate record also includes additional exhibits including: medical
records for Melancon’s prenatal care visits to Dr. Backardjiev; medical records for
Melancon’s labor and delivery at the Medical Center; medical records for Olivia’s
treatment at Memorial Hermann Children’s Hospital; tracing report (the “monitoring
33
strip”) from the Medical Center; curriculum vitae for Mark Akin, M.D., F.A.C.O.G.;
brain diagrams; Autopsy Final Report from Memorial Hermann Children’s Hospital;
perioperative and intraoperative labor and delivery records from the Medical Center;
curriculum vitae for Timothy Bohan, Ph.D., M.D., F.A.A.P.; curriculum vitae for
Ferdinand Plavidal, M.D.; and a July 10, 2014 report by Mark Akin, M.D.
Expert Qualifications and Reliability of Expert Testimony
In its first issue on appeal, Appellant argues that Dr. Akin was not qualified
to opine as to neurologic damage and the cause of alleged HIE in an infant. In its
second issue, Appellant argues that the trial court erred in admitting the testimony
of Dr. Akin because his medical testimony was not based on reasonable probability
and did not sufficiently establish a traceable chain of causation based on general
scientific principles or a probable causal relationship between the Medical Center’s
employees’ administration of Pitocin and Olivia’s death.
A trial court functions as a gatekeeper in deciding whether to admit or exclude
expert opinion. See In re Commitment of Gollihar, 224 S.W.3d 843, 853 (Tex.
App.—Beaumont 2007, no pet.) (citing Harvey Brown, Procedural Issues Under
Daubert, 36 Hous. L. Rev. 1133, 1158-59 (1999)). Absent an abuse of discretion, an
appellate court will not disturb a trial court’s ruling on reliability unless the record
shows that the court acted without reference to the pertinent guiding rules or
34
principles. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.
1995).
Expert testimony is admissible when (1) the expert is qualified, and (2) the
testimony is relevant and based on a reliable foundation. See Cooper Tire & Rubber
Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006). If the expert’s scientific evidence
is not reliable, it is not evidence. Id. Courts must determine reliability from all the
evidence. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997);
see also In the Interest of J.B., 93 S.W.3d 609, 620 (Tex. App.—Waco 2002, pet.
denied). Expert testimony must be based on a reliable foundation of scientific or
professional technique or principle. Wiggs v. All Saints Health Sys., 124 S.W.3d 407,
410 (Tex. App.—Fort Worth 2003, pet. denied) (citing Robinson, 923 S.W.2d at
557). “When the expert’s underlying scientific technique or principle is unreliable,
the expert’s opinion is no more than subjective belief or unsupported speculation
and is inadmissible.” Id. Causation opinions predicated on possibility, speculation,
and surmise are no evidence. See Havner, 953 S.W.2d at 711-12.
The qualification of a witness as an expert is within the trial court’s discretion.
See Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996); see also Mendez, 204
S.W.3d at 800. Admission of expert testimony that does not meet the reliability
requirement is an abuse of discretion. Id. “‘If scientific, technical, or other
35
specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the form of an opinion or
otherwise.’” Mendez, 204 S.W.3d at 800 (quoting Tex. R. Evid. 702); see also
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588-89 (1993).
If a licensed doctor has sufficient familiarity with the specific subject matter
at issue in a medical malpractice suit, he is qualified to testify as an expert. Broders,
924 S.W.2d at 152-53. Not every licensed physician is qualified to testify on every
medical question. See id. at 152. “Credentials are important, but credentials alone do
not qualify an expert to testify.” See In re Bohannan, 388 S.W.3d 296, 304 (Tex.
2012). “The expert’s experience, knowledge, and training are crucial in determining
whether the expert’s opinions are admissible.” Id. at 306. Thus, a medical expert
from one specialty may be qualified to testify if he has practical knowledge of what
is customarily done by practitioners of a different specialty under circumstances
similar to those at issue in the suit. See Tenet Hosps., Ltd. v. De La Riva, 351 S.W.3d
398, 406 (Tex. App.—El Paso 2011, no pet.).
Dr. Akin’s expert report stated that he is a board-certified ob-gyn, with thirty-
one years of practice, qualified to attest to standards of care for prenatal care and the
management of labor and delivery. His report also explained that he has “extensive
36
experience with prenatal office evaluation, labor induction with Cytotec and Pitocin,
physician management of labor, forceps deliveries, and emergency cesarean
section.” At trial, Dr. Akin testified that he is board-certified in obstetrics and
gynecology and has practiced as an ob-gyn for more than thirty years. He stated that,
over the course of his career, he has delivered approximately 11,000 babies, and he
is familiar with the duties of an obstetrician and labor and delivery nurse. Dr. Akin
explained that he is a member of ACOG, and he has participated in research about
reducing birth injuries from the use of forceps. Dr. Akin explained that he uses
Pitocin frequently with the management of labor and he is familiar with the standards
of care about when and how forceps should be used. Dr. Akin has testified as an
expert on fetal injury in cases since 1986. Dr. Akin obtained a Master’s degree in
biomechanical engineering, where he studied fetal monitoring and the assessment of
patients. Dr. Akin agreed that he had reviewed the medical records and depositions
in this case. He also testified that he understood HIE, what causes HIE, how to
prevent HIE, what the signs of HIE are, what the complications are of HIE for babies,
and what HIE looks like on an MRI scan.
Appellant argues that Dr. Akin, as an ob-gyn with no special training or
experience on neurologic causation, is not qualified to render an expert opinion as
to neurologic damage and the cause of HIE in Olivia. The Texas Supreme Court has
37
rejected the notion “that only a neurosurgeon can testify about the cause in fact of
death from an injury to the brain[.]” See Broders, 924 S.W.2d at 153. In Roberts v.
Williamson, the Texas Supreme Court found that a board-certified pediatrician was
qualified to give expert testimony on a child’s neurological injuries sustained shortly
after birth because the pediatrician had experience and expertise regarding the
specific causes and effects of the child’s injuries. See 111 S.W.3d 113, 120-22 (Tex.
2003).
In Cornejo v. Hilgers, the Houston First Court of Appeals explained that an
ob-gyn was qualified to give an expert opinion on HIE in an infant because
[his] report demonstrates that he has specific expertise in the
areas of obstetrical complications in pregnancy, management of labor,
interpretation of electronic fetal monitoring, abnormal fetal heart rate
patterns, and evidence of fetal hypoxia as predicted by fetal heart rate
patterns. And he specifically notes that he is familiar, based on his
education, training, and experience, with the probable causes of
hypoxic-ischemic injuries in babies generally and with the probable
causes of the injuries to [the] baby in this case.
446 S.W.3d 113, 122 (Tex. App.—Houston [1st Dist.] 2014, pet. denied.); see also
Abilene Reg’l Med. Ctr. v. Allen, 387 S.W.3d 914, 923 (Tex. App.—Eastland 2012,
pet. denied) (concluding that an obstetrician was qualified to give an expert opinion
on the causal relationship between complications during labor and delivery and a
newborn’s neurological injuries due to his knowledge and experience with fetal
brain injury following oxygen deprivation); Livingston v. Montgomery, 279 S.W.3d
38
868, 869 (Tex. App.—Dallas 2009, no pet.) (concluding an ob-gyn was qualified to
offer expert testimony on the causal relationship between complications during labor
and delivery and the development of a newborn’s neurological injuries).3
On cross-examination, Dr. Akin testified that he does not diagnose or treat
neonates and that he does not diagnose or treat HIE. According to Appellant, “Dr.
Akin does not treat babies post-delivery, understand or interpret the lab values for
neonates, or otherwise diagnose infants post-delivery.” It was Dr. Akin’s opinion
that the continued use of Pitocin during labor caused HIE to develop and he
expressed no opinions on events that occurred post-delivery. On the record before
us here, we cannot say that the trial court abused its discretion in determining that
3
See also Comstock v. Clark, No. 09-07-00300-CV, 2007 Tex. App. LEXIS
8447, at **10-11 (Tex. App.—Beaumont Oct. 25, 2007, pet. denied) (mem. op.)
(concluding an anesthesiologist was qualified to give an expert opinion on a patient’s
permanent brain damage that resulted from an overdose of sedation medication
during dental surgery); Sloman-Moll v. Chavez, No. 04-06-00589-CV, 2007 Tex.
App. LEXIS 1619, at **8-12 (Tex. App.—San Antonio Feb. 28, 2007, pet. denied)
(mem. op.) (concluding that a physician who was an otolaryngologist and facial and
plastic reconstructive surgeon was qualified to give an expert opinion on a child’s
neurological injuries resulting from infections caused by inadequate care after the
child’s endoscopic sinus surgery); but see Alonzo v. Lampkin, No. 07-12-00030-CV,
2013 Tex. App. LEXIS 13932, at *12 (Tex. App.—Amarillo Nov. 13, 2013, no pet.)
(mem. op.) (where plaintiff’s bowel was pricked during a hysterectomy and patient
alleged that she suffered a hypoxic event and brain damage as the result of being
prematurely discharged from the hospital, the trial court did not abuse its discretion
in excluding ob-gyn’s testimony as to causation because there was no showing he
had “any experience, training or education in the field of neurology or, more
specifically, brain injuries”).
39
Dr. Akin was qualified to opine on the causal connection between Olivia’s injuries
and the conduct of the nurses and of Dr. Backardjiev.
The record reflects that Dr. Akin is a board-certified ob-gyn who has delivered
approximately 11,000 babies, with experience, knowledge, and training about labor
and delivery, the use of Pitocin and of forceps, and fetal heart monitoring. The law
does not require him to be certified in neonatology or neurology to render an expert
opinion on the use of and administration of Pitocin, the interpretation of fetal
monitoring strips, the signs of distress during delivery, the standard of care for nurses
and obstetricians, or the use of forceps, and the events occurring during labor and
delivery. See Cornejo, 446 S.W.3d at 123. The trial court could have reasonably
concluded that Dr. Akin’s experience, knowledge, and training in managing labor
and delivery qualified him to opine on the causal relationship between the labor and
delivery and the resulting complications, including Olivia’s neurological injuries.
See Livingston, 279 S.W.3d at 877. We overrule Appellant’s first issue.
In Robinson, the Texas Supreme Court set forth six factors courts “may
consider” in determining whether expert testimony is admissible:
(1) the extent to which the theory has been or can be tested;
(2) the extent to which the technique relies upon the subjective
interpretation of the expert;
40
(3) whether the theory has been subjected to peer review and/or
publication;
(4) the technique’s potential rate of error;
(5) whether the underlying theory or technique has been generally
accepted as valid by the relevant scientific community; and
(6) the non-judicial uses which have been made of the theory or
technique.
923 S.W.2d at 557 (internal citation omitted). Rule 702 contemplates a flexible
inquiry. See Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 215 n.2 (Tex. 2010)
(citing Mendez, 204 S.W.3d at 801).
In determining whether expert testimony is reliable, the expert’s experience,
knowledge, and training are crucial, in addition to a consideration of the Robinson
factors. See Bohannan, 388 S.W.3d at 306; Crump, 330 S.W.3d at 215-16 (citing
Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726-27 (Tex. 1998)).
The Texas Supreme Court has explained that the Robinson factors “may be difficult
to apply to an opinion that is based heavily on an expert’s individual skill,
experience, or training.” See Bohannan, 388 S.W.3d at 305. Indeed, in some cases,
experience alone may provide a sufficient basis for an expert’s testimony. See
Gammill, 972 S.W.2d at 726. The Court has explained that although the Robinson
factors cannot always be used in assessing an expert’s reliability, there must be some
41
basis for the opinion offered to show its reliability. See Mendez, 204 S.W.3d at 801
(citing Gammill, 972 S.W.2d at 726).
Appellant argues that Dr. Akin’s testimony fails to satisfy three of the
Robinson factors. According to Appellant, Dr. Akin’s testimony about hypoxia
would fail the second Robinson factor because the basis for his opinions rest “almost
entirely” upon his subjective interpretation of the fetal heart monitoring strip; fail
the third Robinson factor because he admitted there is no peer-reviewed literature
stating that one can accurately predict whether a baby will be born with HIE “based
upon a strip alone” and he admitted his opinions at trial would not be published
because he is not qualified; and, fail the fifth Robinson factor because Dr. Akin’s
testimony about hypoxia was contrary to the criteria for HIE as set forth by the
ACOG and the American Academy of Pediatrics.
“Examination of an expert’s underlying methodology is ‘a task for the trial
court in its role as gatekeeper, and [is] not an analysis that should be undertaken for
the first time on appeal.’” Gunn v. McCoy, 554 S.W.3d 645, 661-62 (Tex. 2018)
(quoting Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233
(Tex. 2004)); In re Bohannan, 379 S.W.3d 293, 297 n.2 (Tex. App.—Beaumont
2010) (explaining that trial court’s preliminary assessment determines whether the
reasoning or methodology underlying an expert’s testimony is scientifically valid
42
and relevant), aff’d, 388 S.W.3d 296. Our role is not to determine reliability but to
determine whether the trial court abused its discretion in finding Dr. Akin’s
testimony reliable. See Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591,
605 n.25 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).
Dr. Akin’s expert report which was attached to the Motion to Exclude and the
Response to the Motion, and then later admitted into the record as Exhibit 1 during
the pretrial hearing, acknowledged that fetal heart monitoring, while “an inexact
science[,]” was “a useful tool for assessing the placental supply of oxygen to the
fetus[.]” At the hearing on the motion to exclude Dr. Akin’s testimony which
occurred outside the presence of the jury and on the first day of trial, the trial court
heard arguments from all parties.
In exercising its gatekeeper function, the trial court could have reasonably
concluded that Dr. Akin’s opinions related to the Medical Center and the cause of
injury to Olivia and her subsequent death were not predicated solely upon the fetal
monitoring strip. Dr. Akin’s expert report explained that the fetal hypoxia and
acidosis observed in Olivia soon after her birth was “evidenced by the fetal monitor
strip and the fetal blood gases at delivery, as well as the clinical manifestations of
HIE post-delivery.” At trial, Dr. Akin also acknowledged other ACOG criteria for
HIE, including pH and base excess levels for cord blood gas samples, Apgar scores,
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and multisystem organ failure. Dr. Akin explained he disagreed with the documented
Apgar score for Olivia and that the blood gas pH was taken thirty-five minutes
following delivery, which would have provided time for it to improve.
On this record, we cannot say that the trial court erred in exercising its
gatekeeper function and determining that the reasoning or methodology underlying
Dr. Akin’s opinions was scientifically valid and relevant, grounded in methods and
procedures of science, and that his opinions were more than a subjective belief or
unsupported speculation. See Robinson, 923 S.W.2d at 557 (citing Daubert, 509 U.S.
at 589-90). Moreover, based on his experience practicing as an ob-gyn, the trial court
could have reasonably determined that Dr. Akin had sufficient skill, experience, and
training to render expert opinions related to this case. See Bohannan, 388 S.W.3d at
306; Crump, 330 S.W.3d at 215-16; Gammill, 972 S.W.2d at 726.4
Appellant argues that there was “evidence of trauma/ischemia” that Dr. Akin
could not and did not exclude as a cause of death with reasonable certainty.
Appellant explains that Dr. Bohan testified that the cause of injury to Olivia was
4
While not determinative of our analysis, we note that other Texas opinions
have involved the development of brain injury in an infant with expert opinions
based at least in part on fetal heart monitoring. See generally, e.g., Cornejo v.
Hilgers, 446 S.W.3d 113 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); Quiroz
v. Covenant Health Sys., 234 S.W.3d 74 (Tex. App.—El Paso 2007, pet. denied);
Morrell v. Finke, 184 S.W.3d 257 (Tex. App.—Fort Worth 2005, pet. denied).
44
mechanical and not the result of Pitocin, and that the defense physician experts also
agreed that no injury resulted from Pitocin. We understand Appellant to argue that
the failure to rule out alternative causes (in addition to Dr. Akin’s lack of
qualifications) renders Dr. Akin’s opinions unreliable, and that without reliable
expert testimony on causation, Appellant is entitled to JNOV and a reversal of the
jury’s verdict.
In medical malpractice cases, the general rule is that “‘expert testimony is
necessary to establish causation as to medical conditions outside the common
knowledge and experience of jurors.’” Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex.
2010) (quoting Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex. 2007)). Such cases
may present a battle of the experts, and at trial it is the sole obligation of the
factfinder to determine credibility and weigh testimony, particularly opinion
evidence. See Morrell v. Finke, 184 S.W.3d 257, 282 (Tex. App.—Fort Worth 2005,
pet. denied). There may be more than one proximate cause, including more than one
cause-in-fact. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex.
2001); Hall v. Huff, 957 S.W.2d 90, 96-98 (Tex. App.—Texarkana 1997, pet.
denied); Harvey v. Stanley, 803 S.W.2d 721, 725-26 (Tex. App.—Fort Worth 1990,
writ denied). While an expert medical opinion must rest in reasonable medical
probability, a medical causation expert need not disprove or discredit every other
45
possible cause than the cause he advances. See Crump, 330 S.W.3d at 217-19 (citing
Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987); Burroughs Wellcome
Co. v. Crye, 907 S.W.2d 497, 500 (Tex. 1995)). There can be concurrent proximate
causes; all persons whose negligent conduct contributes to the injury, proximately
causing it are liable. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992) (op.
on reh’g). Faced with competing expert opinions, it was the obligation of the jury to
determine the credibility and weight to give the testimony of the competing experts,
and to resolve conflicts in the evidence. See Gunn, 554 S.W.3d at 665 (citing City of
Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005)).
Here, the appellate record reflects multiple experts testified and each had
different causation theories. In Dr. Akin’s opinion, Olivia suffered from HIE and a
lack of oxygen late during labor, which resulted in brain death and related to the
alleged breaches of care by all the defendants and the use of Pitocin. Dr. Akin also
believed that Olivia received skull fractures and a neck subluxation from the
inappropriate use of forceps, but he did not believe the HIE resulted from the use of
forceps. Dr. Backardjiev testified that the cause of Olivia’s HIE was a subgaleal
bleed, which he explained usually occurs when there is a defect in the blood vessels.
Dr. Bohan testified that Olivia’s HIE resulted from a “lack of blood flow from the
carotid and vertebral injuries which was caused by the trauma.” Dr. Nelson testified
46
that Olivia did not meet the criteria for HIE and that life support was eventually
withdrawn because of a combination of what occurred during delivery, resuscitation,
and care in the NICU. The autopsy report stated that the primary cause of death was
“[h]ypoxic ischemic injury as a result of trauma and fracture of the neonate skull.”
The jury charge included the following instruction: “There may be more than
one proximate cause of death.” The record before us does not suggest the Medical
Center objected to the charge or to this instruction, nor does the Appellant challenge
any aspect of the jury charge on appeal. The jury found Dr. Backardjiev 95%
responsible and the Medical Center 5% responsible. The jury in this case heard
conflicting expert opinions. The jury was responsible for resolving any conflict
between the evidence and opinions. See Gunn, 554 S.W.3d at 665-66.
To the extent that we liberally construe Appellant’s first and second stated
issues as no evidence challenges, we consider only the evidence that tends to support
the jury’s finding. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 903
(Tex. 2004) (“A party may raise a properly preserved complaint on appeal that
scientific evidence is unreliable and thus no evidence to support a judgment.”)
(citing Havner, 953 S.W.2d at 711-12; Coastal Transp. Co., 136 S.W.3d at 232-33).
“A no evidence point will be sustained when (a) there is a complete absence of
evidence of a vital fact, (b) the court is barred by rules of law or of evidence from
47
giving weight to the only evidence offered to prove a vital fact, (c) the evidence
offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence
conclusively establishes the opposite of the vital fact.” Havner, 953 S.W.2d at 711.
Dr. Akin testified that “the only way” for the nurses and doctors to know
whether a baby is getting enough oxygen during labor is by the use of electronic fetal
heart monitoring and that an increase in fetal heart rate typically results when there
is reduced oxygen going to the baby. He explained that when oxygen deficiency
occurs, usually “the first change we usually see is a rise in the baby’s heart rate[.]”
Dr. Akin testified that during Melancon’s labor,
. . . as the Pitocin was increased, the force of the contraction was
increased, the pressure in the uterus increased, [and] we had less oxygen
going to the baby. And over time the baby wasn’t handling that well[.]
. . . And during that time it was under that much stress, we saw these
changes that occurred in the fetal monitor where there was no longer all
of that variability of heart rate. It became very flat, and we began to see
a very alarming change in the fetal heart rate.
According to Dr. Akin, over time, if parts of the baby’s brain do not get enough
oxygen, cells die and HIE occurs. Akin testified that for HIE to occur, several
conditions must be present, one of which is “a clinical situation in which there is a
high probability of the baby not getting enough oxygen.” Dr. Akin expressed the
opinion that giving more Pitocin when the fetal monitoring strip was showing
Category 2 changes risked going into Category 3. Dr. Akin concluded that Olivia
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did not get enough oxygen late during labor, which resulted in brain death, and that
Olivia also sustained skull fractures and a neck subluxation from the inappropriate
use of forceps:
During the labor process this baby had a prolonged window of
time it was not getting enough oxygen based on the fetal monitoring
record. And as a consequence even before the forceps were applied, in
my opinion more likely than not, this baby had hypoxic ischemic
encephalopathy. It had brain damage. The baby did end up with some
fairly horrendous injuries from the forceps. Both the parietal bones on
body sides were broken. The neck was twisted out of joint. And, yet,
this baby, its primary cause of death in my opinion was due to injury to
its brain.
The defendants presented expert witnesses with different interpretations of the
fetal monitoring strip and medical records, as well as different conclusions and
theories of causation. The defense experts criticized Dr. Akin’s testimony.
Nevertheless, it was the province of the jury to decide the credibility of the expert
witnesses. See Gunn, 489 S.W.3d at 84. On this record, we cannot say that Dr. Akin’s
testimony presents a case in which there is too great of an analytic gap between the
data and the opinion proffered or that the expert’s testimony amounted to nothing
more than a subjective opinion or mere ipse dixit. See Ford Motor Co. v. Ledesma,
242 S.W.3d 32, 40 (Tex. 2007). We cannot say that Dr. Akin’s testimony amounted
to no evidence. Id.; Crump, 330 S.W.3d at 217-19. We conclude that the Medical
Center’s complaints about Dr. Akin’s testimony go to its weight, not its
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admissibility. See Ledesma, 242 S.W.3d at 40-41. We find no error, and we overrule
Appellant’s second issue.
Standard of Care for Nurses
Appellant states its third issue as follows:
[w]hether the trial court correctly held that there was legally and
factually sufficient evidence regarding: (1) Appellant’s proposed
standard of care, (2) breach, and (3) proximate cause when: the
testimony of Appellee’s expert conflicted with the statutory
requirements for nursing practice including the Texas Nursing Practice
Act’s prohibition on nurses performing medical diagnoses.
Citing to section 301.002(2) of the Texas Occupational Code, Appellant explains
that making a medical diagnosis is outside the scope of a nurse’s authority. See Tex.
Occ. Code Ann. § 301.002(2) (West Supp. 2018). 5 Appellant argues that nurses in
Texas have “no legal duty to draw any conclusion from their observations about the
patient’s signs, symptoms, and responses that would require a medical diagnosis.”
See Methodist Hosp. v. German, 369 S.W.3d 333, 343 (Tex. App.—Houston [1st
Dist.] 2011, pet. denied.) Appellant argues that Dr. Akin sought to hold the nurses—
and by extension, the Medical Center—to a standard that is beyond the scope of
nursing practice.
5
We cite the current version of the statute because subsequent amendments
do not affect our disposition.
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Appellee argues that Appellant has waived any error regarding the nursing
standard of care by failing to raise the issue prior to appeal. In its reply brief,
Appellant explains that it made this argument in a pretrial motion for summary
judgment. We have examined the clerk’s record and the reporter’s record that
contain the Medical Center’s motion to exclude Dr. Akin’s testimony and the
hearing thereon. The Medical Center did not make this objection in its pretrial
motion to exclude Dr. Akin’s testimony. Additionally, the reporter’s record does not
suggest that the Medical Center made this objection during Dr. Akin’s trial
testimony. In its motion for directed verdict, the Medical Center only challenged
whether Dr. Akin was qualified and not whether he applied the appropriate standard
of care for the nurses. The Medical Center’s motion for JNOV also did not challenge
or argue that Dr. Akin applied the wrong standard of care or that nurses cannot
practice medicine or that Dr. Akin had misapplied the standard of care for nurses.
Additionally, in its statement requesting a partial reporter’s record, the Medical
Center did not state that the doctor had applied an improper standard of care for
nurses or that the standard of care applied by Dr. Akin would be an issue on appeal.
After a trial on the merits, the denial of a motion for summary judgment may
not be reviewed on appeal. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex.
1966); Tricon Tool & Supply, Inc. v. Thumann, 226 S.W.3d 494, 509 (Tex. App.—
51
Houston [1st Dist.] 2006, pet. denied) (holding that when a party moves
unsuccessfully for summary judgment and subsequently loses in a conventional trial
on the merits, the denial of that motion generally is not subject to review on appeal).
Consequently, the trial court’s denial of the Medical Center’s motion for summary
judgment is not reviewable on appeal and does not preserve a challenge to the
standard of care for nurses.
Additionally, where an appellant requests a partial reporter’s record, it must
include in the request “a statement of the points or issues to be presented on appeal
and then will be limited to those points or issues.” See Tex. R. App. P. 34.6(c)(1);
Coleman v. Carpentier, 132 S.W.3d 108, 110 (Tex. App.—Beaumont 2004, no pet.).
Error is preserved only if the opponent of the evidence makes a timely, specific
objection and obtains a ruling. See Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 234
(Tex. 2011) (citing Tex. R. App. P. 33.1; Tex. R. Evid. 103; Bay Area Healthcare
Grp., Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007)). Additionally, any error
in the admission of testimony is deemed harmless and is waived if the testimony is
subsequently presented without objection. See Ramirez, 159 S.W.3d at 907; Breof
BNK Tex., L.P. v. D.H. Hill Advisors, Inc., 370 S.W.3d 58, 67 (Tex. App.—Houston
[14th Dist.] 2012, no pet.). Furthermore, a party’s argument on appeal must comport
52
with its argument at trial. See Wohlfahrt v. Holloway, 172 S.W.3d 630, 639-40 (Tex.
App.—Houston [14th Dist.] 2005, pet. denied).
The appellate record before us does not contain this argument by the Medical
Center in its pretrial motion to exclude, at trial, or in its motion for JNOV. Nor does
the record indicate that the Medical Center made a timely objection and obtained a
ruling thereon. The issue has not been preserved for our review. See Guerra, 348
S.W.3d at 234. Appellant has also presented an issue in its brief that it did not include
in its statement of points or issues requesting a partial reporter’s record. See Tex. R.
App. P. 34.6(c)(1); Coleman, 132 S.W.3d at 110. This argument was not preserved
for appeal.6 We overrule Appellant’s third issue.
6
Even if the Medical Center had preserved error on this point, the appellate
record provides no indication that Dr. Akin was holding the nurses to a standard of
care contrary to the Nursing Practice Act. See Tex. Occ. Code Ann. § 301.002(2)
(West Supp. 2018). Dr. Akin testified that the nurses breached their duties in
administering Pitocin, by not refusing the doctor’s orders, and failing to go further
up the chain of command, and that the nurses’ breaches were a cause of the HIE and
death of Olivia. The nurses testified that Medical Center policy provides that nurses
should stop Pitocin therapy when fetal heart status becomes nonreassuring and that
nurses should initiate the chain of command to resolve disagreements between
medical providers. Nurse Bray testified that administering Pitocin is a nursing
function and that nurses may use their independent judgment whether to start,
increase, pause, or decrease Pitocin.
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Having overruled all the Appellant’s issues, we affirm the judgment of the
trial court.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on September 5, 2018
Opinion Delivered November 29, 2018
Before McKeithen, C.J., Horton and Johnson, JJ.
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