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Morrell v. Finke11/3/2005
usions by reasonable minds about the existence of a vital fact. Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).
An assertion that the evidence is "insufficient" to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). We consider all of the evidence in the case in making this determination. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S. 1017 (1998).
In a medical malpractice case, the plaintiff is required to show evidence of a reasonable medical probability that the injury was proximately caused by the negligence of the defendant. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988). There are four elements to be proved: (1) a duty by the physician/nurse/hospital to act according to applicable standards of care; (2) a breach of the applicable standard of care; (3) an injury; and (4) a causal connection between the breach of care and the injury. Denton Reg'l Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950 (Tex. App.--Fort Worth 1997, writ denied).
To establish proximate cause, the plaintiff must prove (1) foreseeability and (2) cause-in-fact. Leitch, 935 S.W.2d at 118-19; Marvelli v. Alston, 100 S.W.3d 460, 469 (Tex. App.--Fort Worth 2003, pet. denied). The ultimate standard of proof on cause-in-fact is whether by a preponderance of the evidence, the negligent act or omission is shown to be a substantial factor in bringing about an injury , without which the harm would not have occurred. Park Place Hosp., 909 S.W.2d at 511 (quoting Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 400 (Tex. 1993)); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995).
The plaintiff must establish a causal connection between the defendant's negligence and the injuries based upon a "reasonable medical probability" and not upon mere conjecture, speculation, or possibility. Park Place Hosp., 909 S.W.2d at 511; Lenger v. Physician's Gen. Hosp., 455 S.W.2d 703, 706 (Tex. 1970); Marvelli, 100 S.W.3d at 470. The plaintiff satisfies the cause-in-fact element of proximate cause by presenting proof establishing a direct causal connection between the damages awarded, the defendant's negligence, and the injury suffered. Texarkana Mem'l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 838 (Tex. 1997).
The issue of causation is usually for the trier of fact in medical malpractice cases when (1) general experience and common sense will enable a layman fairly to determine the causal relationship between the event and the condition, (2) scientific principles, usually proved by expert testimony, establish a traceable chain of causation from the condition back to the event, or (3) a probable causal relationship is shown by expert testimony. Lenger, 455 S.W.2d at 706; see Marvelli, 100 S.W.3d at 470.
2. Expert Testimony
Over the course of the five-week trial, the jury heard from sixteen expert witnesses. Plaintiffs relied upon the testimony of Corrine LaMont, R.N.C, a certified obstetrical nurse, and upon the testimony of the defendant nurses to establish the standard of care and deviations from the standard of care for the nurses. For the standard of care and deviations alleged against Dr. Finke, they relied upon the testimony of Dr. James P. Rice, an obstetrician/gynecologist. Dr. Stewart B. Ater, a pediatric neurologist, was Plaintiffs' expert witness on causation as to Madeline's injuries and on her current condition. Dr. Kendall Jones, a pe
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