Princess Eaglin, Individually and as Representative of the Estate of Starr Brunson v. Jonathan Purcell, M.D. ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00199-CV
___________________________
PRINCESS EAGLIN, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF STARR BRUNSON, DECEASED, Appellant
V.
JONATHAN PURCELL, M.D., Appellee
On Appeal from the 462nd District Court
Denton County, Texas
Trial Court No. 17-1529-442
Before Sudderth, C.J.; Birdwell and Bassel, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Appellant Princess Eaglin, acting on her own behalf and on behalf of Starr
Brunson’s estate, appeals from the trial court’s summary-judgment order that
dismissed her suit against Starr’s emergency physician, appellee Dr. Jonathan Purcell.
Eaglin asserts that the trial court abused its discretion by sustaining Purcell’s
objections to her proffered summary-judgment evidence and therefore erred by
granting summary judgment because she had raised genuine issues of material fact.
We conclude that even assuming Eaglin’s proffered summary-judgment evidence was
competent and should have been considered by the trial court, Eaglin’s proffered
evidence failed to raise a genuine issue of material fact regarding causation.
Accordingly, we affirm the trial court’s summary judgment.
I. BACKGROUND
A. FACTUAL BACKGROUND
On March 28, 2015, at approximately 3:00 a.m., seven-year-old Starr woke her
mother, Eaglin, and told her that she could not breathe. Starr had a history of
juvenile asthma;1 thus, Eaglin gave her a nebulizer treatment and brought her to a
nearby hospital’s emergency department at 3:48 a.m. Starr presented in respiratory
distress with an elevated respiratory rate, wheezing, and an elevated heart rate. Purcell
examined Starr and determined she was having a mild asthma attack. Starr told
Purcell that she felt like she was having a heart attack. Purcell ordered breathing
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Starr was taken to the hospital monthly for her asthma.
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treatments, a dose of steroids, and a chest x-ray to rule out pneumonia. About one
hour after Starr received the medications, Purcell determined that the medications had
worked, that Starr was breathing comfortably (she was not tachypneic), and that she
was ready for discharge:
[Starr] was okay to go home. . . . She was smiling. She was breathing
comfortably. She had come in with mild accessory muscle use that had
resolved. Her respiratory rate had been 36. When she left, it was 18.
Her heart rate had come down despite getting a medicine that raises her
heart rate, which shows you that she’s more comfortable in general.
And so everything led [Purcell] to believe that she . . . was already stable
for discharge and that she would only continue to get better, and
[Purcell] didn’t think at all that she would ever come back that day.
At approximately 5:30 a.m., Starr was discharged with instructions to take the steroid
for five days, continue the breathing treatments every eight hours, and use her rescue
inhaler every six hours as needed.
Eaglin “immediately” dropped off Starr’s prescriptions at a pharmacy next door
to the hospital, and she and Starr returned home where they slept until approximately
1:00 p.m.—for about six hours. When they woke up, Eaglin drove Starr to get the
prescriptions. Starr began to complain that her chest hurt, started vomiting, and
became decreasingly responsive. Eaglin pulled the car over, determined that Starr had
no pulse, and performed chest compressions for five to ten minutes. Starr was rushed
to the hospital in pulseless asystole and was diagnosed with status asthmaticus—a
severe asthma exacerbation. She died three days later from an anoxic brain injury
after having suffered a cardiopulmonary arrest and acute respiratory failure. Starr’s
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death certificate listed the immediate cause of her death as status asthmaticus; the
certificate also listed hypoxic ischemic encephalopathy as a condition leading to the
immediate cause of death.
B. PROCEDURAL BACKGROUND
On February 23, 2017, Eaglin filed a medical-malpractice suit against Purcell
and claimed that he had breached the applicable standard of care by prematurely
discharging Starr and by failing to recognize the severity of Starr’s initial asthma
exacerbation. Eaglin served Purcell with the expert report and curriculum vitae of Dr.
Brian Camazine who opined that Purcell’s actions had breached the standard of care,
which proximately caused Eaglin’s damages: “The result of Dr. Purcell’s failure to
appreciate Starr’s severe exacerbation and need for further admission and treatment
directly contributed to the cardiac event that caused Starr’s death.” See Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(a). On August 2, Purcell objected to the adequacy of
Camazine’s qualifications and of his report, pointing to his failure to provide a causal
link between Purcell’s actions in the emergency department and her death three days
later:
Camazine [failed to] provide a chain of causation that adequately
describes the asthma exacerbation on the morning of the 28th, how and
why [Starr’s] symptoms several hours after discharge stemmed from the
same exacerbation rather than a new exacerbation, the progression of
her respiratory symptoms to eventual anoxic brain death[,] and how Dr.
Purcell’s actions were a substantial factor in the progression.
See id. § 74.351(l), (r)(6).
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The trial court apparently never ruled on Purcell’s objection, and the parties
began conducting discovery in earnest. On August 23, 2019, two years after Purcell
had objected to Camazine’s report and ten days before Camazine’s scheduled
deposition, Purcell filed a motion for a traditional or no-evidence summary judgment.
See Tex. R. Civ. P. 166a(b)–(c), (i). In his traditional motion, Purcell argued that
Eaglin had not raised a material fact issue that Purcell had acted with willful and
wanton negligence as required for the provision of emergency medical care. See Tex.
Civ. Prac. & Rem. Code Ann. § 74.153(a). Purcell’s no-evidence motion was based on
his argument that Eaglin had produced no evidence “to support a breach of an
applicable duty, causation, and/or the objective element of wil[l]ful and wanton
negligence.” Purcell notified Eaglin that the motion would be submitted on
September 20, 2019, without an oral hearing.
Eaglin timely responded to the motion and argued that Purcell had not been
providing emergency medical care at the time of discharge and that even if the willful-
and-wanton standard applied, she had raised more than a scintilla of evidence of
causation and of the subjective and objective elements of gross negligence. She
attached Camazine’s “supplemented” expert report2 as summary-judgment evidence
and heavily relied on it in her response. Eaglin additionally relied on her statement of
the general substance of Camazine’s opinion included in her expert-witness
2
Eaglin asserted that Camazine’s report had been previously amended before
the supplemented version, but our record does not contain an amended report.
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designation, which Purcell had attached to his summary-judgment motion. See Tex. R.
Civ. P. 195.2, 195.5(a) (formerly Rule 194.2(f)). Eaglin also attached to her response
her deposition testimony, Starr’s unauthenticated hospital records, and Starr’s death
certificate.
On September 17, three days before the summary-judgment submission date,
Purcell filed a reply in support of his summary-judgment motion and argued that
Camazine’s supplemented report was incompetent summary-judgment evidence
because it was unsworn and conclusory. That same day, Purcell also filed separate
objections to Camazine’s supplemented report on the same bases asserted in his
summary-judgment reply and moved to strike the report under Rule 166a(f). Tex. R.
Civ. P. 166a(f). Purcell additionally objected to the hospital records, the death
certificate, and any evidentiary use of Eaglin’s expert-witness designation. See Tex. R.
Civ. P. 193.6(a); Tex. R. Evid. 802, 902(10). Eaglin did not respond to the objections
or to the motion.
The summary-judgment motion and Purcell’s objections and motion to strike
regarding Camazine’s report languished. On March 5, 2020, Purcell’s counsel
contacted the court coordinator and reported to Eaglin’s counsel that “it does not
appear that we are going to have a ruling any time soon.” However, on March 16, the
trial court sustained Purcell’s objections to Camazine’s supplemented report on the
basis that it was neither sworn nor supported by a sworn affidavit or declaration. The
trial court also sustained Purcell’s evidentiary objection to the medical records but
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overruled the rest of the objections. The supplemented report and the medical
records were stricken. That same day, the trial court granted Purcell’s summary-
judgment motion without specifying the grounds upon which its order was based.
In her motion for new trial, Eaglin argued that the COVID-19 pandemic
should have suspended the trial court’s consideration of Purcell’s motion and
objections, especially because Eaglin’s counsel was in quarantine when the trial court
sustained some of Purcell’s objections and granted summary judgment. Eaglin also
requested a continuance to amend her summary-judgment evidence. The trial court
denied the motion for new trial.
Now on appeal, Eaglin argues that she was not required to raise a fact issue on
willful and wanton negligence and that, even if she were, she met that burden. She
also asserts that summary-judgment was improper because she was not given an
opportunity to address any deficiencies in Camazine’s report before the summary
judgment was granted, partially relying on the COVID-19 pandemic to excuse her
failure to amend. Finally, she argues that genuine issues of material fact precluded the
trial court’s summary judgment.
II. CAUSATION
A. EAGLIN FAIRLY PRESENTED A CHALLENGE TO CAUSATION
Purcell argues that Eaglin has waived any challenge to the trial court’s summary
judgment because she fails to raise on appeal all grounds upon which the judgment
could have been based. He specifically points to Eaglin’s failure to bring a general
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appellate point challenging the summary judgment as a whole and to Eaglin’s
subsequent failure to specifically argue, contrary to Purcell’s summary-judgment
argument, that she had raised genuine issues of material fact regarding causation.
We recognize that there are two general ways to challenge a summary judgment
on appeal: (1) list as a separate issue each ground that the movant failed to establish as
a matter of law and upon which the trial court might have based its judgment or (2)
raise one broad issue challenging the summary judgment as a whole—a Malooly
issue—and then brief all possible grounds upon which the judgment could have been
based. See Malooly Bros. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). Purcell contends
that because none of Eaglin’s stated appellate issues plainly state that the trial court
erred by granting summary judgment and because none specifically attacks causation,
we should affirm the judgment on this unchallenged ground.
Clearly, Eaglin does not assert a typical Malooly issue. She frames her appeal in
terms of three specific issues: (1) whether a willful-and-wanton standard applies to
medical treatment provided after a patient is stabilized, (2) whether a fact issue
precluded summary judgment even if the willful-and-wanton standard applied, and (3)
whether the trial court should have given her until after the pandemic passed to cure
any form defects in Camazine’s report and should have made its ruling on the
objections “clear.” But the substance of Eaglin’s brief goes beyond her articulation of
these three narrow issues. In her substantive briefing of her first issue, Eaglin stresses
that she has consistently alleged that Purcell’s actions were a producing cause of
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Starr’s death and argues that Camazine’s supplemented report “certainly created a fact
issue for the jury as to whether Dr. Purcell created the emergency that caused Starr’s
death.”
Although Eaglin’s statement of her first issue is framed in specific language that
would seem to omit a causation argument, the substance of her briefing fairly includes
this subsidiary question. See Tex. R. App. P. 38.1(f); St. John Missionary Baptist Church v.
Flakes, 595 S.W.3d 211, 215 (Tex. 2020) (per curiam); Anderson v. Durant, 550 S.W.3d
605, 617 (Tex. 2018). Because Eaglin fairly included a causation argument in her
briefing, she has preserved this summary-judgment ground for our review. See
Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996). We see no reason
here to find Eaglin’s causation argument waived merely because Eaglin’s stated issue
is not phrased as a standard Malooly issue. See, e.g., St. John, 595 S.W.3d at 215; Hagberg
v. City of Pasadena, 224 S.W.3d 477, 481 (Tex. App.—Houston [1st Dist.] 2007, no
pet.); Reyes v. Storage & Processors, Inc., 86 S.W.3d 344, 348 (Tex. App.—Texarkana
2002) (op. on reh’g), aff’d, 134 S.W.3d 190 (Tex. 2004). See generally Perry v. Cohen, 272
S.W.3d 585, 587 (Tex. 2008) (per curiam) (“[W]e note that disposing of appeals for
harmless procedural defects is disfavored. . . . Appellate briefs are to be construed
reasonably, yet liberally, so that the right to appellate review is not lost by waiver. . . .
Simply stated, appellate courts should reach the merits of an appeal whenever
reasonably possible.”).
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B. EAGLIN DID NOT RAISE A GENUINE ISSUE OF MATERIAL FACT
Purcell sought a no-evidence summary judgment on the basis that Eaglin had
failed to establish a material fact issue regarding causation. In our de novo review of
the summary judgment, we assay the record evidence in the light most favorable to
Eaglin, indulging every reasonable inference and resolving any doubts against the
motion. See Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012) (per curiam); Smith v.
O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009). If Eaglin brought forward more than a
scintilla of probative evidence to raise a genuine issue of material fact, the no-evidence
summary judgment was in error. See Smith, 288 S.W.3d at 424. We must affirm the
summary judgment if any of the theories raised in the trial court and preserved for our
review are meritorious. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,
216 (Tex. 2003); Cates, 927 S.W.2d at 626.
Proximate causation is an essential element of a medical-negligence claim and
requires evidence, to a reasonable degree of medical probability, that (1) the act or
omission was a cause in fact of the injury and (2) the injury was foreseeable. Windrum
v. Kareh, 581 S.W.3d 761, 777–79 (Tex. 2019). A cause in fact is established when the
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); see Windrum, 581 S.W.3d at 778–79. Foreseeability is
shown through evidence that a person of ordinary intelligence should have anticipated
the general danger created by a negligent act or omission. Stanfield v. Neubaum, 494
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S.W.3d 90, 97 (Tex. 2016); Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). Both
cause-in-fact and foreseeability must be established through expert evidence. See
Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex. 2010); Hart v. Van Zandt, 399 S.W.2d 791,
792 (Tex. 1965); Ocomen v. Rubio, 24 S.W.3d 461, 466 (Tex. App.—Houston [1st Dist.]
2000, no pet.).
To raise a fact issue on causation, Eaglin relies on Camazine’s supplemented
expert report, which she attached to her summary-judgment response, and specifically
on Camazine’s assertion that Purcell’s premature discharge of Starr with instructions
“not to take any medication for an extended period of time unsupervised” caused
Starr’s cardiac event and eventual death:
Dr. Purcell instructed the patient to take oral Orapred once per day
rather than in two divided doses, which meant she was given instructions
not to take any further steroids for the remainder of March 28th. She
was additionally instructed to utilize albuterol once every 8 hours, and in
reviewing the timeline of her readmission to the hospital at
approximately 2:22 p.m. that same day, in conjunction with the
instructions given by Dr. Purcell and the travel time to the hospital, it is
relatively obvious that Starr likely had no steroids nor any breathing
treatments of any kind prior to the cardiac event directly caused by her
final asthma exacerbation. Thus, Dr. Purcell’s instructions basically
resulted in a situation where a patient with an acute asthma exacerbation,
who required continuous treatment, was instructed not to treat it at all
....
....
. . . If [Starr] had been admitted and given additional systemic
steroids (to ensure absorption) as well as additional beta agonists,
including continuous nebs, I have no doubt that she would have
survived this “mild asthma exacerbation”.
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....
. . . During a severe asthma attack, the way the body normally
processes respiratory gases in the alveoli is impaired. This leads to lower
oxygen levels and higher carbon dioxide levels in the blood, which, in
extreme cases, can cause coma and death. Asthma also creates air
trapping in the lungs, a condition that causes increased pressure in the
chest. This can cause lung collapse and even cardiac arrest. This is likely
the medical explanation as to how Starr went into arrest after Dr.
Purcell’s discharge.
....
. . . I have personal experience with treating patients in situations
that [are] virtually exact to Starr’s, and I find the medical causation,
supported by the medical records and death certificate signed by her
attending physician (also an emergency room practitioner) to support the
obvious fact that Starr’s untreated severe asthma resulted in a cardiac
arrest that directly led to brain death.
In his conclusion, Camazine opined that the proximate cause of Starr’s death was
Purcell’s decision to prematurely discharge Starr and that his opinion was “based
upon reasonable medical probability.”
We conclude that Camazine’s report, even assuming its form defects were not
fatal, was conclusory as to causation and did not raise a genuine issue of material fact.
See IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 803 (Tex.
2004). Although Camazine attempted to tie Starr’s death to Purcell’s earlier decision
to discharge Starr and to his discharge instructions, he failed to explain how these
alleged breaches caused Starr’s subsequent exacerbation and cardiac event. He merely
states that they did, which does not establish a causal link. See Windrum, 581 S.W.3d at
769. Indeed, the summary-judgment evidence showed that Starr was stable when she
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was discharged and that she went home and slept without incident for approximately
six hours before suffering a second, separate exacerbation and a cardiac event on the
way to the pharmacy. Further, Camazine’s opinion is based on his supposition of the
“likely” medical events that led to Starr’s death, which is mere guesswork that cannot
raise a genuine issue of material fact. See IHS Cedars, 143 S.W.3d at 803; Thomas v.
Farris, 175 S.W.3d 896, 900–01 (Tex. App.—Texarkana 2005, pet. denied); Steinkamp
v. Caremark, 3 S.W.3d 191, 199 (Tex. App.—El Paso 1999, pet. denied). Camazine’s
report was no evidence of a substantial cause-in-fact or of foreseeability; thus, the trial
court did not err by granting Purcell judgment as a matter of law on this basis. See,
e.g., Knox v. Rana, No. 02-16-00086-CV, 2016 WL 6803189, at *4 (Tex. App.—Fort
Worth Nov. 17, 2016, no pet.) (mem. op.); DeLarosa v. Stokes, No. 03-12-00125-CV,
2012 WL 3600874, at *7 (Tex. App.—Austin Aug. 17, 2012, no pet.) (mem. op.);
Thomas, 175 S.W.3d at 899–901; Steinkamp, 3 S.W.3d at 199.
III. CONCLUSION
Although Eaglin has fairly presented her argument that genuine issues of
material fact regarding causation prevented the trial court’s no-evidence summary
judgment on her medical-negligence claim, the evidence she relies on is conclusory
and, thus, is no evidence. We do not address Eaglin’s arguments directed to her
inability to address the form defects in Camazine’s report based on the pandemic
because even if the trial court erred by striking the report based on Purcell’s form
objection, the report did not raise a genuine issue of material fact on an essential
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element of her claim. We also need not address Eaglin’s attacks to the applicable
standard of care because no matter what standard applies, Eaglin has failed to proffer
any evidence of causation. Thus, we overrule Eaglin’s issues and affirm the trial
court’s summary-judgment order. See Tex. R. App. P. 43.2(a).
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: January 14, 2021
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