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Morrell v. Finke11/3/2005
in failing to perform a timely C-section by 7:27 p.m., there is no evidence that her failure to perform a timely C-section was a cause-in-fact of Madeline's injuries. The only competent expert testimony establishing the cause of Madeline's injuries is the opinion of Dr. Ater that they were caused during the forceps delivery. Yet, no expert testified that Dr. Finke breached the standard of care for performing a forceps delivery.
Consequently, there is no evidence supporting the essential "link" in the causal chain between any conduct of Dr. Finke for which there is evidence of negligence and the injuries suffered by Madeline. See, e.g., Roark v. Allen, 633 S.W.2d 804, 811 (Tex. 1982) (holding that, although there was evidence of breach of the standard of care by defendant physician in delivering the baby by forceps, there was no evidence of proximate cause where plaintiffs' expert testified only that baby's skull was fractured "as a result of the forceps slipping" but no expert testified that improper application of the forceps caused them to slip, so that a jury could not infer, from that evidence alone, the cause of the forceps slipping); see also Arlington Mem'l Hosp. Found., Inc. v. Baird, 991 S.W.2d 918, 922-23 (Tex. App.--Fort Worth1999, pet. denied) (reversing judgment against hospital based on negligence in allowing reuse of "phaco tip" absent expert testimony that negligence in allowing such reuse was cause of corneal burn); Duff v. Yelin, 751 S.W.2d 175, 177 (Tex. 1988) (holding evidence patient suffered nerve injury insufficient absent proof injury caused by improper positioning during surgery). Therefore, I would hold that there is no evidence of cause-in-fact as to Dr. Finke.
THE NURSES
Contrary to the majority's conclusion that there was "direct" medical testimony of causation as to the nurses' negligence, the trial court sustained defense objections to testimony on causation from Nurse LaMont, the only expert Plaintiffs offered on causation as to negligence of the nurses. While I agree with the majority that Dr. Ater could have testified regarding cause-in-fact as to the nurses' negligence, the fact is that he did not. The only expert testimony was to the contrary, from Dr. VanDorsten and Dr. Finke -- that the nurses' conduct was not a proximate cause of Madeline's injuries.
The majority opinion combines Nurse LaMont's testimony regarding numerous breaches of the nursing standard of care with Dr. Ater's testimony that continued, worsening hypoxic-ischemic insults throughout the day "set up" Madeline for PVL. But there was no expert opinion connecting the continued, worsening hypoxic-ischemic insults to any breaches of the nurses' standard of care.
The majority's holding that the jury could find causation from the nurses' negligence absent expert opinion or a traceable chain of causation is necessarily a holding that the lay jury could infer the essential causal link on the basis of general experience and common sense. See Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 708 (Tex. 1970) (limiting instances where lay inference may properly be allowed to determine causation). I disagree that this is such a case where the causal link may be established absent direct expert opinion or guiding scientific principles established by expert testimony. The onlytestimony of the experts was contrary to any such inference.
Plaintiffs have not even argued the theory advanced by the majority. Their argument on appeal is that the nurses caused Madeline's injuries, not by allowing hypoxia to develop during labor so as to cause Madeline to be "set up," but by failing to prevent the forceps delivery. Plaintiffs contend that the nurses should
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