     Case: 12-40057       Document: 00512051261         Page: 1     Date Filed: 11/13/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 13, 2012

                                       No. 12-40057                        Lyle W. Cayce
                                                                                Clerk

MAURICE SMITH, As personal representative of the estate of Austin F.
Smith; MAURICE SMITH, Individually; PERRY SMITH; STAN SMITH,

                                                  Plaintiffs-Appellants
v.

CHRISTUS SAINT MICHAELS HEALTH SYSTEM,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 5:10-CV-34


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants in this healthcare liability case appeal from the
district court’s grant of summary judgment in favor of Defendant-Appellee
Christus St. Michaels Health System (“Christus” or “hospital”) in their suit
alleging the wrongful death of Austin F. Smith. The primary issue on appeal is
whether Plaintiffs provided evidence that Christus’s negligence was the
proximate cause of Smith’s death.            As explained below, we hold that the


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                 No. 12-40057

Plaintiffs’ evidence was sufficient to create an issue of fact on the causation
question, and we therefore REVERSE the district court’s judgment.
                                       I.
      Austin Smith was a 71-year old man suffering from recurrent colorectal
cancer.   Smith was also diagnosed with a rare blood disorder, known as
thrombotic thrombocytopenic purpura (“TTP”), for which he was admitted to
Christus for treatment in November 2008. In order to treat the TTP, Smith’s
doctors implanted a Quinton catheter in his right internal jugular vein. During
his hospitalization, Smith was also given pain medication and sedatives.
      Viewed in the light most favorable to Plaintiffs, the record shows that
Smith was a patient with a high risk for falls due to his age, medication, and
physical condition. The hospital’s protocols for handling such high-risk patients
required, among other things, that a bed alarm be activated. Once activated, the
alarm makes a beeping noise if the patient gets out of bed, which alerts the
nurse to check on the patient.
      On the night of November 24, 2008, Smith was given a sedative to help
him sleep. His bed alarm was not activated. At approximately 1:20 a.m.
hospital staff also gave Smith a laxative because he had been suffering from
constipation. It is unclear from the evidence whether the laxative, which can act
quickly and cause cramping, was supposed to be administered earlier. In any
event, the nursing notes at that time indicated that the staff would monitor
Smith.    No monitoring took place, however, for over three hours.            At
approximately 4:40 a.m., nurses discovered Smith lying in a pool of blood on his
bathroom floor with his pants pulled down. The Quinton catheter, which had
been in Smith’s neck, had been removed and was found on the table at the foot
of Smith’s bed. At 4:55 a.m. Smith was pronounced dead, having bled to death
from the hole in his neck where the catheter had been.



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                                  No. 12-40057

      Smith’s wife, individually and as representative of his estate, as well as his
two sons, filed the instant wrongful death suit against Christus, alleging that
Christus was negligent by, inter alia, failing to follow the proper standard of care
for patients with a high risk of falls. Specifically, Plaintiffs alleged that the
nursing staff was negligent in failing to activate Smith’s bed alarm and in failing
to monitor Smith more frequently.
      Plaintiffs relied in part on the opinion of their expert, Dr. Brian Camazine,
who testified that the most logical explanation for the sequence of events leading
to Smith’s death was that Smith, either accidentally or in a state of confusion,
removed his own catheter when he got out of bed sometime after 1:20 a.m. Dr.
Camazine opined that if “Smith’s bed alarm had been activated, as per hospital
protocol, then the nursing staff would have been alerted and responded by going
to Mr. Smith’s room. It would have been a simple procedure to stop the bleeding
from the Quinton catheter site and Mr. Smith would certainly have survived.”
Dr. Camazine also opined that if Smith “had been monitored more frequently,
then, again, his bleeding would have been observed and corrected and it is
unlikely that he would have expired.”
      The parties proceeded by consent before the magistrate judge. Christus
moved for summary judgment, arguing that Plaintiffs failed to produce sufficient
evidence of causation on their negligence claim. Christus argued that because
Plaintiffs failed to show that Smith would have survived his underlying cancer
and TTP, they could not, as a matter of law, show that the alleged negligence of
the nursing staff was a proximate cause of Smith’s injuries and death. The
magistrate judge agreed with Christus and granted summary judgment.
Plaintiffs now appeal.
                                        II.
      We review a grant of summary judgment de novo, applying the same
standards as the district court. Poole v. City of Shreveport, 691 F.3d 624, 627

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(5th Cir. 2012). Summary judgment is proper “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). We view all evidence in the
light most favorable to the non-movant. Bishop v. Arcuri, 674 F.3d 456, 460 (5th
Cir. 2012).
      When the district court exercises diversity jurisdiction over a dispute, we
apply the substantive law of the forum state, which in this case is Texas. See
Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010). In a
medical malpractice case in Texas, plaintiffs are required to present evidence
establishing a “reasonable medical probability” or a “reasonable probability” that
their injuries were caused by the defendants, “meaning simply that it is more
likely than not that the ultimate harm or condition resulted from such
negligence.” Jelinek v. Casas, 328 S.W.3d 526, 532–33 (Tex. 2010) (internal
quotation marks and citation omitted). The more-likely-than-not requirement
means that there is “a more than 50% probability that a defendant’s wrongful
conduct caused the harm or injury.” Young v. Mem’l Hermann Hosp. Sys., 573
F.3d 233, 235 (5th Cir. 2009) (citing Merrell Dow Pharms., Inc. v. Havner, 953
S.W.2d 706, 715–17 (Tex. 1997)).
      Causation has two components: cause-in-fact and foreseeability. Travis
v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). Cause-in-fact is shown when,
“by a preponderance of the evidence, the negligent act or omission is shown to
be a substantial factor in bringing about the harm and without which the harm
would not have occurred.” Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397,
399–400 (Tex. 1993); see also Travis, 830 S.W.2d at 98. “‘Foreseeability’ means
that the actor, as a person of ordinary intelligence, should have anticipated the
dangers that his negligent act created for others.” Travis, 830 S.W.2d at 98. “In
medical malpractice cases, expert testimony regarding causation is the norm.”
Jelinek, 328 S.W. 3d at 533; see also Guevara v. Ferrer, 247 S.W.3d 662, 665

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(Tex. 2007) (“The general rule has long been that expert testimony is necessary
to establish causation as to medical conditions outside the common knowledge
and experience of jurors.”).
      Plaintiffs here presented expert evidence on causation in the form of Dr.
Camazine’s opinion.     The magistrate judge held, however, that summary
judgment should be granted to Christus because of the “lost chance” doctrine,
which can affect recovery in a medical malpractice case when the tort victim
suffers from pre-existing conditions.       Under this rule, “where preexisting
illnesses or injuries have made a patient’s chance of avoiding the ultimate harm
improbable even before the allegedly negligent conduct occurs—i.e., the patient
would die or suffer impairment anyway—the application of these traditional
causation principles will totally bar recovery, even if such negligence has
deprived the patient of a chance of avoiding the harm.” Kramer, 858 S.W.2d at
400. In Kramer, the Texas Supreme Court declined to recognize a separate,
compensable cause of action for a mere reduction in a plaintiff’s chance of
surviving a pre-existing condition. Id. at 403–07.
      In the instant case, Christus argues, and the magistrate judge held, that
Plaintiffs cannot prevail because they did not present evidence that Smith had
a greater than fifty percent chance of surviving his cancer or TTP. Under this
reasoning, Plaintiffs cannot show, as a matter of law, that Christus’s alleged
negligence was a cause of Smith’s death because Smith would have eventually
died of cancer and/or TTP anyway. The lost chance doctrine is not applicable
here because Christus’s alleged negligence was unrelated to Smith’s underlying
condition and there was evidence that his death was caused by that negligence.
The underlying condition could be material to Smith’s life expectancy and to
damages recoverable by Plaintiffs, but that does not bar recovery.
      In the cases where the lost chance rule was relevant, there was a direct
connection or association between the underlying pre-existing condition and the

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                                  No. 12-40057

defendants’ negligence and resulting injury. For example, in Kramer, a patient
was misdiagnosed as not having cancer, and there was conflicting evidence as
to the likelihood that a proper diagnosis would have made a difference in
preventing the patient’s death from that condition. Id. at 399. The plaintiffs
sought a jury instruction permitting damages for the diminution in the
opportunity for successful care, whatever the percentage of loss might be, but the
Texas Supreme Court held that there was no separate cause of action to recover
merely for the lost chance of survival. See id. at 399, 403–07.
      Similarly, in Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d
851 (Tex. 2009), another patient’s cancer was misdiagnosed due to alleged
negligence, and there was competing evidence as to the plaintiff’s chance of
avoiding her terminal condition had she received immediate treatment. The
court held that the trial court should have instructed the jury that the plaintiff
must have had a greater than fifty percent chance of surviving the cancer for the
negligence to be a proximate cause of injury. Id. at 859–62. And in Park Place
Hosp. v. Milo, 909 S.W.2d 508, 509 (Tex. 1995), the patient developed sepsis
after surgery and had to be placed on a respirator. When the plaintiff was
negligently removed from the respirator, he went into cardiac arrest, suffered
brain damage, and died, but the evidence showed that the patient had only a
forty-percent chance of surviving the sepsis even if he had remained on the
respirator. Id. at 509–10. The Texas Supreme Court held that recovery was
barred for the substandard care that merely reduced the patient’s less than even
chance of survival from the underlying condition. Id. at 511.
      The Texas cases applying the lost chance doctrine are not analogous to the
instant case. “[T]his is not a case in which the patient was already suffering
from the injury or illness which ultimately led to her death.” Renaissance
Healthcare Sys. v. Swan, 343 S.W.3d 571, 588 (Tex. App.—Beaumont 2011, no
pet.). Furthermore, there is no reason to believe that Smith’s cancer or TTP

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                                 No. 12-40057

made Smith’s chance of avoiding injury on the day he died improbable even
before the defendants’ negligence. See Marvelli v. Alston, 100 S.W.3d 460, 481
(Tex. App.—Fort Worth 2003, pet. denied) (distinguishing loss of chance cases
because “no evidence was adduced at trial demonstrating that preexisting
illnesses or injuries made [plaintiff’s] chance of avoiding the ultimate harm
improbable even before [defendant’s] negligent conduct occurred”). Smith was
not injured because his pre-existing condition was misdiagnosed or because he
received substandard care for the condition that would have killed him anyway,
and Plaintiffs are not seeking recovery for an alleged loss of chance to be cured
from cancer. Smith died because he bled to death as a result of Christus’s
alleged negligent failure to provide a safe environment through the use of a bed
alarm or more frequent monitoring. This alleged negligence had nothing to do
with Smith’s cancer or his chance of survival from cancer. Smith may have
eventually died from cancer and/or TTP, but we do not believe that the Texas lost
chance rule is applicable merely because a tort victim happens to have a
terminal illness absent some relationship between that illness and the alleged
malpractice that results in injury or death. If that were the case, medical
practitioners would be immunized from any negligence in every instance where
a patient has a more than even chance of dying, regardless of the degree or kind
of negligence or how and when the patient dies.
      Christus argues that the lost chance rule does apply because Christus’s
alleged negligence “directly relates to Mr. Smith’s treatment for his preexisting
medical conditions,” i.e., his colorectal cancer and TTP. We are unpersuaded.
Although Smith was certainly in the hospital for treatment of his TTP, and the
Quinton catheter was implanted for that purpose, the Plaintiffs’ allegations
simply do not implicate such treatment. The Plaintiffs do not allege that Smith
died because of his doctors’ or nurses’ malfeasance in the specific care for TTP
or cancer, or because of complications from the treatment of those conditions.

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Nor do they allege that Christus failed to follow the proper standard of care
applicable to cancer or TTP patients. The Plaintiffs allege that Smith died
because the Defendant failed to take proper safety measures that were
applicable to all similarly-situated patients—i.e., elderly, heavily sedated, and
at a high risk for falls—and that would have allowed the hospital staff to
respond when Smith unfortunately ended up out of bed, bleeding on the floor of
his bathroom. Smith’s death was therefore allegedly related to negligent acts
wholly apart from Smith’s cancer and TTP treatment.
      Christus argues in the alternative that, apart from the lost chance rule,
we should affirm the summary judgment because Plaintiffs failed to establish
the cause-in-fact and foreseeability elements of causation. We may affirm a
summary judgment on any ground raised below and supported by the record.
Ballard v. Devon Energy Prod. Co., 678 F.3d 360, 365 (5th Cir. 2012). Christus
argues that the causation opinion of Plaintiffs’ expert, Dr. Camazine, was
conclusory and unreliable. In addressing this argument below, the magistrate
judge focused on Dr. Camazine’s failure to opine that Smith had a greater than
fifty percent chance to survive his cancer or TTP, which as we explained above
was not required.    The magistrate judge also concluded that Dr. Camazine’s
opinion that Smith would likely have survived the dislodged catheter was
conclusory and unsupported by facts or studies. Plaintiffs argue that the
magistrate judge erred by disregarding Dr. Camazine’s opinion. We agree.
      An expert must “‘explain the how and why the negligence caused the
injury’” rather than simply opine that causation is present. Ellis v. United
States, 673 F.3d 367, 373 (5th Cir. 2012) (quoting Jelinek, 328 S.W.3d at 536);
see also Marvelli, 100 S.W.3d at 478 (“the expert must explain the basis of his
statement to link his conclusions to the facts”) (internal quotation marks and
citation omitted). Here, Dr. Camazine provided sufficient reasons for his opinion
through his affidavits and deposition testimony.

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                                       No. 12-40057

       Dr. Camazine explained that Smith was an elderly, debilitated patient,
with a high risk for falls and a low platelet count, which made him a high risk
for bleeding. Dr. Camazine testified that Smith’s age and sedation also made
Smith the type of patient that might become confused at night. He noted that,
only hours before death, in addition to receiving a sleep aid, Smith had been
given a laxative, which might make Smith not only have to get out of bed but
also have to get out of bed in a hurry, thereby increasing his chances of a fall.
In light of Smith’s condition, a bed alarm and frequent monitoring of Smith were
necessary, in Dr. Camazine’s opinion.
       According to Dr. Camazine, if the bed alarm had been activated, Smith
likely would have been discovered by the nursing staff while still alive and his
bleeding could have been stopped through simple procedures.1 Dr. Camazine
estimated that Smith could have been alive and bleeding for as long as thirty
minutes. Christus argues that Dr. Camazine’s opinion is unreliable because he
did not opine to a reasonable medical probability on the exact length of time it
would have taken Smith to bleed to death. But Dr. Camazine testified to his
knowledge about Quinton catheters, having personally implanted them in
patients, and he further testified that he has seen patients bleed from dislodged
catheters but none ever bled out. In explaining why he believed the nurses
would have had time to save Smith, Dr. Camazine compared the rate of bleeding
to how long it takes a person to give blood through a large bore needle, and he


       1
         The magistrate judge faulted Dr. Camazine for failing to consider the possibility that
Smith could have bled to death after removing his own catheter without ever having left the
bed, in which case a bed alarm would not have mattered. It is undisputed, however, that no
blood was found in Smith’s bed or anywhere else in the hospital room other than underneath
Smith’s body in the bathroom. Because the known facts do not support the possibility that
Smith might have died in his bed, we see no reason to discount Dr. Camazine’s opinion for not
considering that scenario. See Ellis, 673 F.3d at 373 (“‘The expert must explain why the
inferences drawn are medically preferable to competing inferences that are equally consistent
with the known facts.’” (emphasis added) (quoting Jelinek, 328 S.W.3d at 536)).


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                                  No. 12-40057

explained that the process takes some time. Although Dr. Camazine did not say
precisely how long it would have taken Smith to bleed to death, he explained
that it “would certainly take minutes” and not, for example, “60 seconds.”
Therefore, Dr. Camazine opined that even a nurse engaged in some other chore
would have been able to respond to an activated bed alarm and administer care
to Smith because death would not have been instantaneous.
      Dr. Camazine was required to show that Christus’s negligence “caused, at
least in part,” Smith’s injuries to a reasonable degree of medical probability.
Ellis, 673 F.3d at 373. We conclude that Dr. Camazine satisfied this standard
and sufficiently explained how and why the alleged negligence more likely than
not resulted in Smith’s death. See id. The evidence was therefore sufficient for
Plaintiffs to avoid summary judgment on the cause-in-fact element of causation.
      With respect to foreseeability, Christus argues that Plaintiffs presented
no evidence that a nurse or other healthcare professional could have reasonably
anticipated that a failure to activate the bed alarm or monitor Smith would
result in Smith removing his own catheter and bleeding to death.
Foreseeability, however, “does not require that a person anticipate the precise
manner in which injury will occur once he has created a dangerous situation
through his negligence.” Travis, 830 S.W.2d at 98; see Walker v. Harris, 924
S.W.2d 375, 377 (Tex. 1996) (“Foreseeability requires only that the general
danger, not the exact sequence of events that produced the harm, be
foreseeable.”). The danger that Defendant had to foresee was that a failure to
activate Smith’s bed alarm or to monitor him would create a risk that Smith
could get out of bed and be injured. The evidence here showed that Smith, an
elderly, weak patient with a high risk for falls and susceptibility to bleeding, was
sedated yet given a laxative that could make him have to get out of bed in a
hurry. Evidence in the record also suggested that Smith could become confused.
The medical chart specifically noted that the nurses were to monitor Smith.

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Under these circumstances, a person of ordinary intelligence could have
reasonably foreseen a danger to Smith if left unmonitored or without a bed
alarm. See Travis, 830 S.W.2d at 98. We therefore conclude that summary
judgment may not be affirmed on the alternative basis that Plaintiffs failed to
present evidence on the elements of causation.2
                                             III.
       We conclude that Plaintiffs were not required to show that Austin Smith
had a greater than fifty percent chance of surviving his cancer and TTP in order
to prove causation where Defendant’s alleged negligence caused Smith to bleed
to death and was unrelated to Smith’s pre-existing conditions. We also conclude
that Plaintiffs submitted sufficient evidence on the causation issue to survive the
summary judgment motion. The district court’s judgment is therefore reversed
and the case is remanded for further proceedings.
       REVERSED and REMANDED.




       2
         Plaintiffs raise the additional argument that the magistrate judge erred by excluding
the testimony of their nursing expert about the side effects of the medication administered to
Smith. Nurses in Texas are not permitted to administer drugs without a doctor’s order, see
generally Reed v. Granbury Hosp. Corp., 117 S.W.3d 404, 414–15 (Tex. App.—Fort Worth 2003,
no pet.), and they may not testify about causation. Group v. Vicento, 164 S.W.3d 724, 729
(Tex. App.—Houston 2005, pet. denied). Furthermore, the nurse here admitted that she had
no formal training in pharmacology or toxicology, and she could not recall ever administering
the medication at issue to a patient. Finally, her testimony showed that she considered herself
an expert on side effects only because she had resources available to her from which she could
look up the effects of medication. Under these circumstances, the magistrate judge did not
abuse her discretion in concluding that the nurse was not qualified to testify about the side
effects of the drug. See Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1050 (5th Cir. 1998)
(“Trial courts have ‘wide discretion’ in deciding whether or not a particular witness qualifies
as an expert under the Federal Rules of Evidence.”).

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