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Morrell v. Finke11/3/2005
have notified Dr. Finke of the 7:15 p.m. decel under the theory that Dr. Finke would then have decided to perform a C-section by 7:27 p.m., so that there would have been no forceps delivery and, consequently, no permanent neurological injuries. But there is no evidence that the nurses' failure to notify Dr. Finke of the 7:15 p.m. decel caused or contributed to her decision by 7:27 p.m. not to perform a C-section. In fact, Dr. Finke's testimony to the contrary, that she would not have made the decision to perform a C-section at 7:27 p.m., is undisputed.
Any negligence of the nurses in failing to recognize and take action on the baby's hypoxic events or to notify Dr. Finke of the critical 7:15 p.m decel was too remote and attenuated by Dr. Finke's independent decision. See, e.g., Wyeth-Ayerst Labs. v. Medrano, 28 S.W.3d 87, 95 (Tex. App.--Texarkana 2000, no pet.) (holding plaintiff failed, as matter of law, to prove lack of adequate information from manufacturer of Norplant caused her injuries where nurse practitioner testified that information would not have affected her decision to prescribe contraceptive to plaintiff); Thomas v. Hoffman-LaRoche, Inc., 949 F.2d 806, 817-18 (5th Cir. 1992) (applying Mississippi law) (holding regardless of plaintiff's expert's opinion that reasonable physician would not have prescribed drug if earlier adequate warning had been given, "undisputed historical evidence" that no physician changed his or her practice after adequate information was released by manufacturer precluded reasonable possibility that adequate warning would have prevented plaintiff's injury , and possibility that defendant physician would not have prescribed drug too remote to raise issue of fact as to causation).
The overarching question with respect to the nurses' liability is whether some evidence establishes a reasonable medical probability that one or more specific breaches of the standard of care by the nurses alleged and proved was a "substantial factor" in bringing about Madeline's injuries, and "without which her injuries would not have occurred." See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex. 1991); see also Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Any negligence of the nurses was too attenuated from the resulting injuries to be a substantial factor without which the injuries would not have occurred.
Plaintiffs' theory, as accepted by the majority, is that if there had been a C-section delivery then there would have been no forceps delivery and, hence, no birth trauma. This is not enough. "In order to be [the proximate cause] of another's harm, it is not enough that the harm would not have occurred had the actor not been negligent. . . . his is necessary, but is not of itself sufficient. The negligence must also be a substantial factor in bringing about the plaintiff's harm." (emphasis added.) IHS Cedars Treatment Ctr. of DeSoto v. Mason, 143 S.W.3d 794, 799 (Tex. 2004) (quotingRESTATEMENT (SECOND) OF TORTS ยง 431, cmt. a (1965)); see also Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995); Lear Siegler, Inc., 819 S.W.2d at 472.
To sum up, there is no evidence in this case that if the nurses had acted differently, the result would have been different. See Lenger, 455 S.W.2d at 706. Absent such evidence, the jury was left to speculate that the nurses' conduct caused Madeline's injuries. See id. I would hold, therefore, that there is legally insufficient evidence that any negligence of the nurses was a cause-in-fact of Madeline's injuries and damages.
CONCLUSION
Our sympathies are naturally with this family who must live with the tragedy and burdens of a child with cerebral pal
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