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Cruz v. Paso Del Norte Health3/29/2001
te cause. This analysis ignores the fact that many experts testified about the process involved and then tried to pinpoint when the injury became irreversible. The process may have been ongoing during labor and became irreversible later at a time when the doctor had primary care of Cruz.
Providence also suggests that even assuming for the sake of argument that Cruz's experts were correct in their criticisms of Graham and Avila and in their opinions about the timing of Sergio's injuries, Cruz's argument on appeal must still fail because she failed to establish a causal connection between the conduct of the nurses and the injuries to Sergio. Cruz counters that Dr. Coney testified that the nurses' failure to get Dr. Tomasino into the hospital to perform "a timely indicated cesarean section, allowed the progression of the hypoxia to Sergio's brain to the point that irreversible brain damage occurred, so it did cause what happened to Sergio." Providence further posits that the jury could have disbelieved Dr. Coney because he based his opinion on assumed facts that proved to be inaccurate, namely, that Dr. Tomasino did not examine the fetal monitoring strip when he arrived at the hospital. Additionally, Dr. Harlass and Dr. Tomasino both contradicted Dr. Coney's opinion on causation.
Medical malpractice cases often present "a battle of the experts." In Magee v. Ulery, 993 S.W.2d 332 (Tex.App.--Houston [14th Dist.] 1999, no pet.), the Court affirmed the jury's failure to find negligence. The plaintiff's expert claimed the defendant was negligent; the defense expert said he was not. "Dr. Lambert testified that the diagnosis was `erroneous' but he also testified that Dr. Goldberg was not negligent. The jury could have believed Dr. Lambert instead of Dr. George." Id. at 336.
Because the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony, we may not substitute our judgment for that of the jury's simply because we may disagree with the jury's findings. Id.
Justice Wittig in his concurring opinion noted the defensive strategy: "Clearly the defense of this malpractice case involved the time worn strategy of pointing the finger away from the named defendant toward a non-party, here Dr. Conte (aka the empty chair defense)." Id. at 339. Dueling experts were also at the center of Warner v. Hurt, 834 S.W.2d 404 (Tex.App.--Houston [14th Dist.] 1992, no writ).
Even if we as a reviewing court might view the circumstances of this tragic case contrary to the way the jury did, we cannot become a thirteenth juror and substitute our judgment for theirs. In a battle of competing evidence, it is the sole obligation of the jury to determine the credibility of the witnesses and to weigh their testimony. It is the obligation of the respective advocates to persuade them in their decision. And it is our obligation to see that the process was fair and carried out according to the rules. We cannot under any circumstances re-try the case. Id. at 409.
More factually analogous is Kirkpatrick v. Memorial Hosp. of Garland, 862 S.W.2d 762 (Tex.App.--Dallas 1993, writ denied). There, the plaintiffs' son, born at the defendant hospital, was afflicted with cerebral palsy. They contended that an hypoxic ischemic insult to the brain occurred during the active labor or delivery as a result of negligently rendered medical services. The hospital's theory was that the child's cerebral palsy did not result from any negligent acts of the hospital during delivery but existed long before Mrs. Kirkpatrick went into active labor. In other words, the hospital contended that the child's neurological deficits resulted from a congenital brain malformati
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