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Morrell v. Finke11/3/2005
cifically failing to page or call for another physician when Dr. Finke was not available; and failing to properly resuscitate Madeline after birth.
During his three days of trial testimony, Dr. Ater used slides to explain to the jury the physical impact of the continuing, worsening, hypoxic ischemic insults documented on Madeline's fetal heart monitor strip. Dr. Ater explained that although Madeline's permanent brain injuries actually occurred during the forceps delivery, she had been "set up" for the injuries by her course of care throughout the day, specifically her continued lack of adequate oxygenation from about 5:10 p.m. through her birth.
The nurses argue that their negligence could not be a cause-in-fact of any injury to Madeline because all of Madeline's injuries occurred during the vaginal forceps delivery and the decision to perform a vaginal forceps delivery instead of a C-section was a medical decision that only Dr. Finke could make. Thus, the nurses essentially argue that Dr. Finke's conduct and medical decisions were a new and independent cause of Madeline's injury. See, e.g., Dillard, 157 S.W.3d at 432 & n.3 (recognizing "new and independent cause means the act or omission of a separate and independent agency, not reasonably foreseeable, that destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question and thereby becomes the immediate cause of the occurrence"). But a new and independent cause instruction was submitted to the jury; the jury rejected it and nonetheless found that the nurses' negligence was a proximate cause of Madeline's injuries.
More than one proximate cause, including more than one cause-in-fact, may exist. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001)("More than one act may be the proximate cause of the same injury ."); see also Hall v. Huff, 957 S.W.2d 90, 96-98 (Tex. App.--Texarkana 1997, pet. denied) (reversing causation summary judgment for first doctor where second doctor perforated patient's heart); Harvey v. Stanley, 803 S.W.2d 721, 725-26 (Tex. App.--Fort Worth 1990, writ denied) (holding first doctor liable for failure to diagnose heart condition where patient died during subsequent stress test conducted under supervision of second doctor). There can be concurrent proximate causes; all persons whose negligent conduct contributes to the injury, proximately causing it are liable. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992) (op. on reh'g). 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; Doe, 907 S.W.2d at 477.
Considering the evidence and inferences that a reasonable juror could credit and that tend to support the jury's cause-in-fact findings concerning the nurses breaches of the standard of care--failure to accurately assess the fetal heart monitor strip to recognize Madeline's increasing stress and inadequate oxygenation, failure to accurately intervene based on the problems documented on the strip to ensure Madeline's adequate oxygenation, and the failure to provide timely care to Donna to ensure Madeline's oxygenation, including the failure to prepare Donna for a C-section--and disregarding all evidence and inferences to the contrary because a reasonable juror could, the evidence is legally sufficient to permit the jury to conclude that the nurses' breaches of the standard of care were a substantial factor in bringing about Madeline's brain injury and without which Madeline's brain injury would not have occurred.
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