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Morrell v. Finke11/3/2005
very, combined with cumulative hypoxic-ischemic insults that had been occurring throughout the afternoon.
Despite the majority's efforts to interweave the opinions of Plaintiffs' experts on standard of care and causation into a consistent theory, those experts were "ships that passed in the night" that never spoke in passing. it is not our role as a reviewing court to "borrow from each expert pieces of opinion that seem to match, tie them together in an ill-fitting theory . . . and then argue that this is some evidence to support the verdict." Gen. Motors Corp. v. Iracheta, 161 S.W.3d 462, 472 (Tex. 2005). I believe the majority has done just that.
Neither Dr. Rice nor Dr. Ater testified that, if Dr. Finke had delivered Madeline by C-section in the time frame of 7:27 p.m. to 7:35 p.m., all or even some of Madeline's injuries would have been prevented. Dr. Ater only said that he believed Madeline "would have done a lot better if they could have delivered her by a C-section right then." That opinion does not tell us whether a C-section would have avoided all or some or any of Madeline's injuries. Dr. Ater's speculative and conclusory opinion is not competent evidence that Dr. Finke's negligence was a substantial factor without which Madeline would not have suffered the neurological injuries and damages that she ultimately sustained. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995) (holding medical testimony failing to establish more than fifty percent chance of recovery but for negligence not legally sufficient to establish causation); Bradley v. Rogers, 879 S.W.2d 947, 955-56 (Tex. App.--Houston [14th Dist.] 1994, writ denied) (characterizing opinion that a patient presenting as claimants did generally will be "be better off" if surgery is not delayed as speculation and no evidence of proximate cause).
The majority also incorrectly characterizes Dr. Rice's opinion testimony. According to the majority, Dr. Rice opined that "from 7:27 onward, Madeline was so >stressed' that the standard of care from that point forward >absolutely' required a C-section to avoid further stressing her through a vaginal delivery." This is not what he said. Instead, he agreed only generally that stress related to a problem with the umbilical cord is a reason for a physician to avoid a forceps delivery and that a forceps delivery would not have been appropriate at 7:27 p.m., while Madeline was at "zero" station. Dr. Rice explained that there "would be a very high chance at this high station" that Madeline would not be able to tolerate "this difficult of a forceps delivery." [Emphasis added.] He never addressed whether the forceps delivery was appropriate at the plus two station, where Dr. Finke testified the baby's head had descended when she proceeded with the forceps delivery at 7:50 p.m.
The experts agreed that the cause of variable and late decels such as those noted on the fetal monitor strip was compression of the umbilical cord, indicating reduction in the supply of oxygen to the baby or "hypoxia." Additionally, it was undisputed that the forceps delivery was "traumatic," with the baby in the difficult OP (face-up) position and the sudden development of the life-threatening condition of shoulder dystocia. None of those conditions was attributed by any expert to any negligence of any of the defendants. And while Dr. Ater testified that all of Madeline's injuries occurred during the "traumatic forceps delivery," he did not say nor did any other expert testify that Madeline's injuries were caused by a breach of the standard of care in the forceps delivery.
To summarize, while there is evidence that Dr. Finke deviated from the applicable standard of care
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