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Morrell v. Finke11/3/2005
and disregarding all evidence and inferences to the contrary because a reasonable juror could, the evidence is legally sufficient to support these findings. Dr. Rice's testimony that Dr. Finke was negligent in failing to decide at 7:27 p.m. to perform a C-section and Dr. Ater's testimony that by 7:27 p.m.--because Madeline had suffered cumulative, increasingly severe, hypoxic ischemic insults for hours; she had lost her fetal reserves to the extent that she could not withstand a vaginal forceps delivery; and the prong of the forceps clamping down on her left temple prevented adequate oxygenation and caused her PVL--constitutes more than a scintilla of evidence supporting the jury's findings. See Lenger, 455 S.W.2d at 706; see also Marvelli, 100 S.W.3d at 470. This evidence establishes by expert testimony that, but for Dr. Finke's negligent failure to perform a C-section, the vaginal forceps delivery and consequently Madeline's brain damage would not have occurred; it establishes by expert testimony a probable causal relationship between Dr. Finke's negligence and the injury Madeline suffered. See Park Place Hosp., 909 S.W.2d at 511; Lenger, 455 S.W.2d at 706; Marvelli, 100 S.W.3d at 469; see also Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995) (recognizing that causation is established by proving defendant's conduct caused event that caused the plaintiff to suffer compensable injuries).
Applying the factual sufficiency standard of review to the evidence, we consider all of the evidence to determine whether the evidence supporting the jury's negligence and proximate cause findings concerning Dr. Finke is so weak or the evidence to the contrary so overwhelming that the answers should be set aside and a new trial ordered. Mar. Overseas Corp., 971 S.W.2d at 406-07; Garza, 395 S.W.2d at 823. During the Plaintiffs' case, an obstetrician/gynecologist, Dr. Rice, testified that Dr. Finke was negligent in failing to timely decide to perform a C-section, in failing to perform a C-section at all, and in proceeding with a vaginal, forceps delivery. A pediatric neuroradiologist, Dr. Jones, reviewed Madeline's MRI and CT scans and testified that Madeline had PVL. And, a pediatric neurologist, Dr. Ater, testified that Madeline's PVL was caused by the traumatic forceps delivery of a baby whose fetal reserves had been depleted and who had suffered repeated hypoxic events, documented by the fetal heart monitor strip. Conversely, during Defendants' case, an obstetrician/gynecologist, Dr. VanDorsten, testified that Dr. Finke was not negligent in failing to perform a C-section. Dr. Finke likewise offered her own testimony that she was not negligent. A pediatric neuroradioligist, Dr. Vezina, reviewed Madeline's MRI and CT scans and testified that Madeline did not have PVL, just immature myleniation, which subsequently resolved to a remaining, small, "non-specific" white spot. He also testified that this white spot would cause no neurological problems for Madeline. And, finally, all experts agreed that tests ruled out genetic metabolic abnormality, meningitis, and encephalitis as potential causes of Madeline's symptoms and that all cultures performed at the hospital for all infections were negative. Thus, here, the jury was presented with strong expert testimony on both sides of the negligence and cause-in-fact issues.
Medical malpractice cases often present "a battle of the experts." Cruz, 44 S.W.3d at 646 (citing Magee v. Ulery, 993 S.W.2d 332, 336 (Tex. App.--Houston [14th Dist.] 1999, no pet.)). In a battle of competing experts, it is the sole obligation of the jury to determine the credibility of the witnesses and to weigh their testimony. See Welch v. McLean, No. 2-02-00237-CV, 2005 WL 1293068, at *7 (
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