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Sisters of St. Joseph of Texas3/29/2001
Cheek, in reasonable medical probability, would have survived.
Logically, there must have been a difference between the causal relationship intended to be expressed by Dr. Veasey's testimony that the alleged negligence "caused" the death and the causal relationship intended to be expressed by testimony that the alleged negligence "contributed to" the death. Otherwise, the two expressions would not have been used in the alternative. The testimony, however, left the jury to speculate whether the proof was that the alleged negligence caused the death, or whether the proof was that the alleged negligence contributed to the death. Accordingly, the jury could only speculate as to the meaning of the testimony. Causation may not be established by guess, conjecture or speculation; it must be proved by competent evidence. See Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 463 (Tex. 1992).
Furthermore, neither choice given the jury by the testimony, that the alleged negligence "caused" the death or that the alleged negligence "contributed to" the death, sufficed as evidence that the alleged negligence was a proximate cause of the death. The jury was instructed that "proximate cause" as used in the court's charge with respect to conduct of a hospital nurse, meant "that cause, which in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred." Doctor Veasey's testimony was not evidence that, within reasonable medical probability, one or more of the allegedly negligent acts or omissions of the hospital nurses was (1) a substantial factor in Mr. Cheek's death, or (2) such that but for the act or omission Mr. Cheek would have survived. Without evidence that the injury complained of probably would not have occurred "but for" one or more of the allegedly negligent acts or omissions, recovery on a medical negligence cause of action may not be sustained. See Estate of Milo, 909 S.W.2d at 511.
CONCLUSION
Evidence that negligence of appellant proximately caused the death of Mr. Cheek is legally insufficient to support the jury verdict and the judgment. Appellant's second issue is sustained. Because our ruling on appellant's second issue is dispositive of the appeal, we need not and do not address any of appellant's other issues. Tex. R. App. P. 47.1.
The judgment of the trial court is reversed. Judgment is rendered that appellees take nothing.
Publish.
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