Holland Services, Inc., Richard Mickelson and Margaret Mickelson v. D. D. Tanks and Baker Tanks--Appeal from 345th District Court of Travis County

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Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 1991 » Holland Services, Inc., Richard Mickelson and Margaret Mickelson v. D. D. Tanks and Baker Tanks--Appeal from 345th District Court of Travis County

State: Texas

Court: Texas Northern District Court

Docket No: 03-90-00228-CV

Case Date: 10/30/1991

Plaintiff: Holland Services, Inc., Richard Mickelson and Margaret Mickelson

Defendant: D. D. Tanks and Baker Tanks--Appeal from 345th District Court of Travis County

Preview:Mary MacDonald, David MacDonald, and John
MacDonald, Individually, as Administrator of the
Estate of Eileen MacDonald, Deceased, as Surviving
Children of Eileen MacDonald, Deceased, and on behalf
of John MacDonald, and Incompetent Adult v. Horizon-
CMS Healthcare Corp. d/b/a IHS Hospital at Dallas,
f/k/a Horizon Speciality Hospital-Dallas; IHS
Acquistion NO. 173, Inc. d/b/a IHS Hospital at Dallas;
Integrated Health Services; Alan Rubin, M.D. and
Charles W. Prochera, M.D.--Appeal from 192nd
District Court of Dallas County
IN THE
TENTH COURT OF APPEALS
No. 10-00-155-CV
MARY MACDONALD, ET AL.,
Appellants
v.
HORIZON-CMS HEALTHCARE CORP.
D/B/A IHS HOSPITAL AT DALLAS, ET AL.,
Appellees
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From the 192nd District Court
of Dallas County, Texas
Trial Court # DV98-05187-K
O P I N I O N
This is an appeal from take-nothing summary judgment orders entered in the district court in favor of appellees
Horizon-CMS Healthcare Corporation, D/B/A/ IHS Hospital at Dallas, F/K/A Horizon Specialty Hospital-Dallas; IHS
Acquisition No. 173, Inc., D/B/A IHS Hospital at Dallas; Integrated Health Services, Inc. (collectively, Horizon ),
Allen Rubin, M.D. ( Dr. Rubin ), and Charles Prochera, M.D. ( Dr. Prochera ) in a medical malpractice case brought
by appellants for alleged negligent medical care and treatment. Appellants sued for damages in connection with the
October 22, 1996 death of Eileen MacDonald, a patient treated by Dr. Rubin and Dr. Prochera in March and April of
1996 following her admission to Horizon Specialty Hospital.
One issue is presented on appeal. Appellants contend the trial court improperly granted the general and no evidence
summary judgment motions // filed by Horizon, Dr. Rubin and Dr. Prochera because genuine issues of material fact
existed as to whether their negligence was a proximate cause of Eileen MacDonald s death. We will reverse and
remand.
A. Background
After suffering a hemorrhage of a stomach ulcer, 83 year-old Eileen MacDonald underwent surgery at Dallas
Methodist Hospital on January 20, 1996. A portion of her stomach was removed and a feeding tube was placed into her
jejunum (hereinafter the j-tube) to allow her to receive nutrition during recovery. Approximately two weeks after the
surgery her physicians drained an abdominal abscess and placed a foley catheter // into her duodenum to allow pus to
drain from her body.
She was admitted to Horizon on March 18, 1996 for the purpose of continuing her recovery and weaning from a
ventilator. Dr. Prochera was her treating physician and Dr. Rubin was a consulting gastroenterologist. During the early
part of her stay, Ms. MacDonald continued to be fed through the j-tube, and the foley catheter was clamped. On April
24, 1996, Ms. MacDonald began vomiting. Dr. Rubin determined that the stitches around the foley had loosened and
that the drain had migrated, causing an intestinal obstruction which resulted in the vomiting. To remedy this condition
Dr. Rubin replaced the original foley catheter with a non-migrating foley catheter. On April 25, 1996 a member of the
hospital staff made a written notation on the daily problem-oriented charting that the j-tube had been accidentally
dislodged by a physical therapy technician. In response, and after consulting with Dr. Rubin to evaluate the catheter,
Dr. Prochera ordered that the nutrition delivery be switched from the j-tube to the foley catheter. Dr. Prochera
indicated he was aware the foley catheter was clamped and was not being utilized at that time as a drain for the
previously made abdominal incision. Under such circumstances both Dr. Rubin and Dr. Prochera stated it was
appropriate to see if the patient would tolerate feedings through the foley catheter rather than subject her to an
additional surgery for reinsertion of a j-tube. The following day, April 26, 1996, notations were made that Ms.
MacDonald was tolerating her tube feedings without difficulty. Eventually, she was weaned off the ventilator. During
the duration of her stay her oral intake remained poor and she was continued on tube feedings. On May 31, 1996, she
was transferred to Methodist Medical Center to receive continued therapy. Neither Dr. Rubin nor Prochera, nor any
employee of Horizon saw Ms. MacDonald after she was transferred from Horizon. Ms. MacDonald died at Methodist
Medical Center on October 22, 1996. The official cause of death was listed as atherosclerotic heart disease; however
appellants offered evidence through their expert, Dr. Arnold Merin, that she died of the dwindles, a general medical
debilitation that appellants contend began with improper feeding by means of the foley catheter rather than the j-tube,
which lead to a fistula and a weakened condition that in turn lead to a nutritional deficiency which caused MacDonald
to lose weight and ultimately die.
B. The Standard of Review
After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move
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for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant's
claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no
evidence. Id.; In re Mohawk Rubber Co., 982 S.W.2d 494, 497-98 (Tex. App. Texarkana 1998, orig. proceeding). The
trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine
issue of material fact. See Tex. R. Civ. P. 166a(i) cmt.; Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App. San
Antonio 1998, pet. denied); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 71 (Tex. App. Austin 1998, no pet.).
A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency
standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Frazier v. Yu, 987
S.W.2d 607, 610 (Tex. App. Fort Worth 1999, pet. denied); Moore, 981 S.W.2d at 269. We review the evidence in the
light most favorable to the party against whom the no-evidence summary judgment was rendered, disregarding all
contrary evidence and inferences. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994). If the nonmovant
brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-
evidence summary judgment is not proper. Moore, 981 S.W.2d at 269. Where, as here, the trial court grants summary
judgment in a general order without specifying the ground or grounds relied on for its ruling, summary judgment will
be affirmed on appeal if any of the theories advanced are meritorious. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471,
473 (Tex. 1995).
3 however, they strongly urge us to conclude appellants failed to produce evidence that their treatment was a proximate
cause of Ms. MacDonald s death.
To establish causation in a personal injury case, a plaintiff must prove that the conduct of the defendant caused an
event and that this event caused the plaintiff to suffer compensable injuries. Burroughs Wellcome Co. v. Crye, 907
S.W.2d 497 (Tex. 1995). The evidence concerning the issue of proximate cause in the instant record is very much in
dispute. Dr. Merin opined that the actions of Dr. Rubin and Dr. Prochera were the proximate cause of Ms. MacDonald
s death. More specifically Merin stated that as a result of using the wrong tube for feeding, a fistula developed which
extended from Ms. MacDonald s intestine to the skin in the site of the foley catheter. This fistula developed as a result
of pressure from the feedings through the foley catheter tube, which opened up a tract that allowed bacteria to set in,
causing an infection. According to Dr. Merin this fistula did not become manifest until approximately seven weeks
after Ms. MacDonald was transferred from Horizon. Merin further stated that Ms. MacDonald died of the dwindles, a
generalized medical debilitation that was proximately caused by her receiving nutrition through the foley catheter.
Similarly, Dr. Rubin and Dr. Prochera provided summary judgment evidence indicating it was reasonable to provide
nutrition through the foley catheter and that such action was preferable to risks posed by surgical intervention to
replace the j-tube. They also provided summary judgment evidence that Ms. MacDonald tolerated the foley catheter
feedings well and subsequently gained weight. In contrast, Dr. Merin stated that it is a delusion to believe a patient
might be tolerating well a feeding through the foley catheter. The fistula that developed some two months later,
according to Dr. Merin, was caused by the foley catheter feeding. Dr. Rubin and Dr. Prochera presented evidence that
Ms. MacDonald could have received adequate nutrition subsequent to her transfer from Horizon had her family not
refused to allow her nasogastric feeding. Dr. Merin, in contrast, stated that nasogastric feeding was not a viable option
because Ms. MacDonald could not have received oral feedings and would have lived in a vegetative state. It was not
explained by Dr. Merin how his earlier testimony that nasogastric feeding was a preferable option to feeding through
the foley catheter after the j-tube became dislodged, but was not a viable feeding option after Ms. MacDonald was
transferred from Horizon. However, viewing the evidence in the light most favorable to the appellants, the non-
movants, we find appellants produced more than a scintilla of probative evidence establishing a causal connection
between the feeding through the foley catheter and Ms. MacDonald s subsequent death. We hold that because there
exists disputed issues of material fact concerning the issues of negligence and proximate cause, summary judgment
was not proper as to appellants claims against Dr. Rubin and Dr. Prochera.
The orders granting summary judgment in favor of Horizon, Dr. Rubin, and Dr. Prochera are reversed and the case
remanded to the trial court for further proceedings consistent with this opinion.
DAVID L. RICHARDS
Justice
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Before Chief Justice Davis,
Justice Vance, and
Justice Richards (Sitting by Assignment)
Reversed and remanded
Opinion delivered and filed December 18, 2002
Do not publish
[CV06]
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