Defendant physician's expert witnesses give contradictory testimony.

CASE ON POINT: Suniga v. Eyre, 2004 WL 86139 S.W.3d--TX

ISSUE: In the course of reading countless numbers of medical malpractice cases, one never ceases to be amazed at the unexpected verdicts rendered for and against plaintiffs as well as for and against physicians. One never ceases to be amazed at the fact that many of these verdicts are upheld on appeal. This interesting Texas case is an example of one of such cases.

CASE FACTS: Teresa Suniga, an 18-year old paraplegic, was admitted to the hospital in March 1998, for excision and debridement surgery. Dr. Elizabeth Eyre was the anesthesiologist assigned to the case. During surgery, the patient's chest filled with intravenous fluid. Her heart stopped beating. The patient subsequently died. The patient's father, Joe Suniga brought suit against Dr. Eyre alleging, inter alia, that she was negligent in: (1) failing to properly place a catheter and negligently causing an infusion of fluid into the patient's chest cavity; (2) failing to recognize that the catheter was incorrectly placed; (3) failing to properly evaluate the patient's condition to provide proper treatment; (4) failing to adequately manage, monitor, and provide proper medical care to the patient; (5) failing to measure central venous pressure to detect possible problems; and (6) failing to obtain an x-ray prior to inserting another intravenous line without ruling out the possibility of puncture. The Judicial District Court, Bexar County granted Dr. Eyre's motion for summary judgment. The plaintiff appealed.

COURT'S OPINION: The Court of Appeals of Texas affirmed the judgment of the lower court. The court held, inter alia, that Dr. Eyre carried her burden of proof in negating two elements of the plaintiffs claim: breach of the applicable standard of care and proximate cause.

LEGAL COMMENTARY: Dr. Prough, a board certified anesthesiologist, testified in support of Dr. Eyre. According to Dr. Prough, Dr. Eyre's failure to obtain medical records before surgery "did not breach the applicable standard of care." He also testified that Dr. Eyre's placement of the venous catheter and her actions in verifying its position met the standard of care. He further opined that Dr. Eyre did not breach the standard of care by failing to order a chest x-ray or using the venous pressure monitoring during surgery. Another of Dr. Eyre's experts, Dr. Wright, also a board certified anesthesiologist, testified that Dr. Eyre did not breach the standard of care. According to Dr. Wright, it was not a breach of the standard of care not to obtain past medical records. He agreed with both Dr. Eyre and Dr. Prough that the standard of care did not require central venous pressure monitoring and obtaining a chest x-ray. The court rejected the plaintiffs contention that Dr. Wright's testimony that the use of a central venous pressure monitor "could have provided an answer to the tachycardia and hypertension the patient was experiencing and could have been used at any stage of the procedure" as contradictory to other testimony for Dr. Eyre. Further, Dr. Wright testified that a chest x-ray is warranted when a patient experiences immediate and dramatic changes in blood pressure and heart rate. The plaintiff also pointed out that Dr. Toussaint testified that a physician has to monitor a patient when administering fluids and that "one way to ascertain continuous placement of a catheter is through a central venous monitor." According to the plaintiff, Dr. Prough's testimony contradicted the testimony of Dr. Eyre. The plaintiff pointed out that Dr. Prough's opinion that Dr. Eyre did not breach the standard of care was based on the "erroneous assumption" that the patient's body position was not shitted during surgery. In fact, Dr. Eyre testified that the patient changed positions from her side to "almost on her face" due to the hammering and chiseling required in the surgery. The court disagreed with the plaintiffs contention that Dr. Eyre's summary judgment evidence raised a fact issue with regard to whether or not she breached the applicable standard of care. The court noted that with regard to the proximate cause issue, Dr. Eyre, Dr. Prough, and Dr. Wright all testified that nothing that Dr. Eyre did with regard to the patient's treatment caused her death. In an attempt to create a fact issue, the plaintiff pointed to Dr. Wright's testimony wherein he stated that the proximate cause of the patient's death was "two liters of fluid being put into her chest." The plaintiff pointed to Dr. Eyre's own testimony that the patient's death was caused by "the large amount of fluid that was infused into her chest." Dr. Toussaint's testimony that a central venous pressure monitor could have been used to ascertain the catheter's continued placement is troublesome. Also troublesome was the fact that Dr. Eyre's statement that at some point during the surgery, she began to get "very unbelievable blood pressure readings" and that Dr. Eyre continued to run the intravenous lines throughout the surgery. The court ignored Dr. Toussaint's testimony that the whole problem "may have been avoided if Dr. Eyre had pulled the catheter back."

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, and Who's Who in America.