                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                           NO. 02-16-00086-CV


DEBRA KNOX, STEVEN DUNNING,                       APPELLANTS
PAMELA JOHNSON, AND PENNY
ORTIZ, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE
ESTATE OF PATTY DUNNING,
DECEASED

                                    V.

TAHIR RANA, M.D., NORTH TEXAS                      APPELLEES
CANCER CENTER, L.P., AND
GAINESVILLE CANCER CENTER,
LLC

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        FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
                    TRIAL COURT NO. 14-00009



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                      MEMORANDUM OPINION1

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    1
     See Tex. R. App. P. 47.4.
                                  I. INTRODUCTION

      Appellants Debra Knox, Steven Dunning, Pamela Johnson, and Penny

Ortiz, individually and as representatives of the estate of Patty Dunning, filed suit

against Appellees Tahir Rana, M.D.; North Texas Cancer Center, L.P.; and

Gainesville Cancer Center, LLC alleging the wrongful death of their mother, Patty

Dunning, based on Appellees’ medical negligence. The trial court granted partial

summary judgment for Appellees on Appellants’ wrongful death claims, ruling

that Appellants’ wrongful death claims “cannot be maintained against [Appellees]

as a matter of law.” On Appellants’ motion, the trial court then signed an order

granting Appellants’ nonsuit of their survival claims, making the partial summary

judgment for Appellees a final judgment. Appellants perfected this appeal. In

three issues, Appellants assert that the trial court erred by granting the partial

summary judgment because it was not proper as a matter of law, because fact

issues exist, and because Appellants provided summary judgment evidence

establishing their right to have a jury decide their wrongful death claims. For the

reasons set forth below, we will affirm the trial court’s judgment.

                      II. THE SUMMARY JUDGMENT EVIDENCE

      The summary judgment evidence established that Patty Dunning had

survived breast cancer and endometrial cancer. Dunning was receiving radiation

treatment by Dr. Rana—an agent of North Texas Cancer Center, L.P. and

Gainesville Cancer Center, LLC—for a basal cell carcinoma lesion on her nose.

Dr. Rana ordered a PET scan for Dunning based on her prior history of cancer.

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A PET scan was conducted on November 7, 2011, and the radiologist’s report

indicated that a mass in the area of Dunning’s pelvis was “suspicious for

metastatic disease.” Appellants proffered summary judgment evidence that Dr.

Rana never informed Dunning of her metastatic disease or ordered treatment for

her. Appellees, on the other hand, proffered summary judgment evidence that

Dunning was informed that the PET scan finding in her pelvis was “worrisome”

and required a “follow-up” PET scan in about three months. Dunning did not

undergo a follow-up PET scan, and in October 2012, she was diagnosed with

metastatic cancer by Dr. Robin Lacour in Shreveport, Louisiana.         Dunning

ultimately died on July 9, 2013, at the age of seventy-six as a result of her

metastatic cancer.

                           III. STANDARD OF REVIEW

      We review de novo a trial court’s granting of summary judgment. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).            Traditional

summary judgment is proper when the movant establishes that there is no

genuine issue of material fact and that he is entitled to judgment as a matter of

law. Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28

S.W.3d 22, 23 (Tex. 2000). A defendant moving for summary judgment must

conclusively negate at least one essential element of each of the plaintiffs’

causes of action or conclusively establish each element of an affirmative

defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

“Once the defendant produces sufficient evidence to establish the right to

                                       3
summary judgment, the plaintiff must present evidence sufficient to raise a fact

issue.” Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

              IV. THE LAW: NO WRONGFUL DEATH CLAIM EXISTS
         FOR LOSS OF A “LESS-THAN-EVEN CHANCE OF AVOIDING DEATH”

      The Texas Supreme Court has held that Texas’s Wrongful Death Act

“authorizes recovery solely for injuries that cause death, not injuries that cause

the loss of a less-than-even chance of avoiding death.” Kramer v. Lewisville

Mem’l Hosp., 858 S.W.2d 397, 404 (Tex. 1993); see also Tex. Civ. Prac. & Rem.

Code Ann. § 71.002(b) (West 2008). As the Texas Supreme Court explained in

Columbia Rio Grande Healthcare, L.P. v. Hawley,

      Recovery in a medical malpractice case requires proof to a
      reasonable medical probability that the injuries complained of were
      proximately caused by the negligence of a defendant. Proximate
      cause includes two components: cause-in-fact and foreseeability.
      Proof that negligence was a cause-in-fact of injury requires proof
      that (1) the negligence was a substantial factor in causing the injury,
      and (2) without the act or omission, the harm would not have
      occurred. These standards bar recovery by a patient if a condition
      preexists the negligence of a health care provider and at the time of
      the negligence, the condition resulted in the patient having a 50% or
      less chance of cure or survival.

284 S.W.3d 851, 860 (Tex. 2009) (emphasis added and citations omitted). When

a health care provider’s alleged negligence is the failure to diagnose or to timely

diagnose a preexisting cancer and the preexisting cancer has made the 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


                                        4
recovery, even if such negligence has deprived the patient of a chance of

avoiding the harm.” Kramer, 858 S.W.2d at 400 (emphasis removed); see also

Parrott v. Caskey, 873 S.W.2d 142, 148–49 (Tex. App.––Beaumont 1994, no

pet.) (upholding instructed verdict for doctors on wrongful death claims premised

on doctors’ failure to diagnose cancer that was terminal at the time of the failure

to diagnose). Because medical expert testimony is typically required to establish

causation as to medical conditions outside the common knowledge and

experience of jurors, see Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex. 2007), a

wrongful death plaintiff asserting medical negligence in the failure to timely

diagnose or treat an underlying preexisting condition that causes death must

proffer medical expert testimony that at the time of the medical negligence, the

patient’s chance of surviving the preexisting condition exceeded 50%.         See

Hawley, 284 S.W.3d at 861–62 (outlining plaintiff’s expert testimony that patient

had 60% or 65% five-year survival rate for her type of cancer at time of medical

negligence); Parrott, 873 S.W.2d at 148–49 (upholding instructed verdict based

on lack of such medical expert testimony).

                        V. SUMMARY JUDGMENT ANALYSIS

      Appellees filed a traditional motion for summary judgment alleging that

their summary judgment evidence conclusively negated the causation element of

Appellants’ wrongful death claims.2 The trial court’s order granting summary


      2
        Appellees’ motion for partial summary judgment alleged that they were
entitled to partial summary judgment because Appellants “are unable to prove at
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judgment for Appellees stated that “the evidence before the Court supports the

Defendants’ Motion, and that the Plaintiffs’ cause of action pursuant to the Texas

Wrongful Death Statute cannot be maintained against the Defendants as a

matter of law.”   Appellees’ summary judgment expert testimony concerning

causation established that Dunning’s endometrial cancer, for which she

underwent a hysterectomy in 2010, had metastasized before her hysterectomy

and before she saw Dr. Rana for treatment of the basal cell carcinoma on her

nose––and that thus, the November 7, 2011 PET scan revealed a pre-existing

mass in the area of Dunning’s pelvis that was “suspicious for metastatic disease.”

Testimony provided via a deposition excerpt from Dr. Samuel Lifshitz, one of

Appellees’ medical experts, explained:

            Now, by the time she saw Dr. Rana, this tumor was already
      metastatic. It was already too late. If prior to that, when she was
      supposed to be followed by Dr. Hancock,[3] if a possibility of this
      could been detected early -- we will never know because she never
      came back.

            But by the time she saw Dr. Rana, the way we say in
      oncology, “the cat was out of the bag.” It was disseminated,
      nonresponsive to therapy. No patient with this cancer that is
      diagnosed in the metastatic condition survives.

            ***


least one essential element of their wrongful death causes of action. There is no
competent proof of causation. In fact, as a matter of law the essential causation
element necessary to support the wrongful death claims is negated by the
summary judgment evidence.”
      3
       Dr. Hancock treated Dunning for endometrial cancer and performed her
hysterectomy in 2010.

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             Q. And if I understand correctly, even if on March the 28th[4]
      she had somehow gotten a message from Dr. Rana that she had to
      have a PET scan and that PET scan had been scheduled and she
      had gone to it on March the 28th, it would have made no difference
      in her survival?

            A. Knowing what I know, looking at the entire picture from the
      beginning to the end, yeah, it didn’t wouldn’t make any difference.

             Q. So her supposed failure to follow up or failure to comply
      with doctors’ orders made no difference in her outcome in this case;
      is that true?

            A. From the moment she saw Dr. Rana, no difference.

      Thus, Appellees met their summary judgment burden of coming forward

with summary judgment evidence negating an essential element of Appellants’

wrongful death causes of action––causation.       That is, Appellees proffered

summary judgment evidence that Dunning suffered from metastatic cancer at the

time Dr. Rana saw her and treated the basal cell carcinoma on her nose and that

even if Dunning’s metastatic cancer had been diagnosed and treated right then,

she still would not have survived the terminal disease. See Kramer, 858 S.W.2d

at 398 (holding that under Texas Wrongful Death Act there is no “liability for

negligent treatment that decreases a patient’s chance of avoiding death . . . in

cases where the [death] probably would have occurred anyway”). The summary




      4
        Dr. Rana’s records establish that a nurse practitioner called Dunning on
March 28, 2012, to remind her of the need for a follow-up PET scan; Mr. Dunning
answered his wife’s phone. The message was purportedly provided to him, and
he purportedly responded that his wife would contact the office to schedule the
test after she completed rehabilitation for an arm injury.

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judgment burden then shifted to Appellants to raise a genuine issue of material

fact on causation in their wrongful death claims.

      To raise a genuine issue of material fact on causation, Appellants bore the

burden of producing controverting expert testimony that in reasonable medical

probability, i.e., a greater than 50% probability, Dunning would have survived her

metastatic cancer if she had begun treatment immediately after the November 7,

2011 PET scan. See Hawley, 284 S.W.3d at 861 (explaining that in Kramer, the

supreme court rejected approaches to loss of chance that would allow recovery

without proof that the defendant’s negligence caused more than a 50% loss of

chance of avoiding the injuries above and beyond those that would have

occurred anyway). Appellants argue that

      [t]his is not a case about a possibility of survival. Mrs. Dunning was
      likely to die at some point from her recurrent endometrial cancer.
      She was not, however, going to die on July 9, 2013. Mrs. Dunning
      had a greater than 50% chance of survival past the date of her death
      had her cancer been recognized and treated earlier than it was. . . .
      If it had been timely diagnosed and treated, Mrs. Dunning could
      have survived past July 2013, by months or years, to a reasonable
      medical probability.

Appellants point to the deposition testimony of their expert, Dr. Amer Karam, and

the “Declaration in Amer Karam” attached to Appellants’ summary judgment

response as raising genuine issues of material fact sufficient to defeat Appellees’

motion for partial summary judgment.

      We have carefully reviewed the summary judgment evidence cited by

Appellants. Viewing Dr. Karam’s testimony in the light most favorable to


                                         8
Appellants, he testified that in January 2011, there was more than a 50/50

chance that Dunning would have had a negative Pap smear. He testified that Dr.

Rana’s failure to observe the standard of care in his care for Dunning “delayed

the diagnosis of a recurrence, which then impacted her chances of getting

successfully treated and to control the recurrence, get her more life and less

suffering.” Dr. Karam’s Declaration provides, in pertinent part:

             6. The results of the PET/CT scan from November 7, 2011
      should have been reported to the patient and should have resulted
      in immediate follow up and review by Dr. Rana. The standard of
      care required a more thorough investigation of the reported hyper
      metabolic lymphadenopathy with an image guided biopsy or short
      interval PET/CT scan within a few weeks to confirm or dismiss the
      very suspicious findings. Had this been done, the metastatic
      disease would have been confirmed, in my opinion, in early 2012
      (January or February) and the substantial delay in the treatment and
      diagnosis of Patty Dunning would have been avoided.

             7. Earlier treatment of Patty Dunning in the form or surgery,
      radiation, or chemotherapy, to a reasonable medical probability,
      would have prolonged her life, and obviated or greatly lessened
      most all of the suffering she underwent as a result of her metastatic
      disease and the fact that it could no longer be treated successfully
      by the time she was diagnosed in October 2012.

             8. It is my opinion that Patty Dunning would have survived for
      several months, probably at least a year, and, with proper early
      treatment, up to two to three years on the date of her death had her
      current metastatic endometrial cancer been treated promptly as set
      forth above. This is based on the more limited nature of her disease
      when it was first noted and could have been more successfully
      controlled with a possible combination of surgery, radiation therapy
      and chemotherapy.

      Viewing all of the summary judgment evidence in the light most favorable

to Appellants, no evidence exists that but for Appellees’ alleged medical


                                         9
negligence Dunning would not have died from her metastatic cancer. That is, no

evidence exists that in reasonable medical probability the medical negligence of

Appellees (as opposed to preexisting metastatic cancer) deprived Dunning of a

greater than 50% chance of surviving her cancer. See, e.g., Hawley, 284 S.W.3d

at 861 (“proof that a patient lost some chance of . . . surviving the cancer

because of a defendant’s negligence is not enough for recovery of damages”)

(emphasis removed); Kramer, 858 S.W.2d at 404 (“We therefore hold the

Kramers are not entitled to recover under the Texas Wrongful Death Act for their

claims of pecuniary losses, losses of companionship and society, and mental

anguish sustained as a result of the Hospital’s negligent deprivation of Ms.

Kramer’s less-than-even chance of survival [of her cancer]”); Parrott, 873 S.W.2d

at 149 (“There is no evidence in the case before us to rebut the fact that Mrs.

Parrott, in spite of the failure by the defendant doctors to properly diagnos[e] her

terminal illness, would not have died had that illness been properly diagnosed.”).

Appellants’ summary judgment evidence from Dr. Karam that Dunning could

have lived longer and more pain-free but for the medical negligence of Appellees

may be sufficient to raise genuine issues of material fact concerning damage

elements recoverable in a survival action,5 but such evidence does not raise a

genuine issue of material fact concerning causation in a wrongful death action.

      5
       See, e.g., Parrott, 873 S.W.2d at 150–51 (explaining that Kramer does not
foreclose a decedent’s survival cause of action for damages resulting during the
period between when the condition should have been diagnosed and was
diagnosed).

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See Kramer, 858 S.W.2d at 404 (“Under the Wrongful Death Act, liability may be

predicated only on ‘an injury that causes an individual’s death.’”); Parott, 873

S.W.2d at 149 (“In Wrongful Death Act actions, the negligent conduct complained

of must bring about the result, i.e., the death of the person through which those

statutorily defined beneficiaries may seek redress. We find no evidence that the

alleged negligent conduct of Drs. Caskey and Read deprived Mrs. Parrott of

anything more than a less-than-even chance of survival.”).          Because the

summary judgment evidence, when viewed in the light most favorable to

Appellants and after indulging every reasonable inference in Appellants’ favor,

conclusively establishes that Dunning’s death in reasonable medical probability

was not caused by Appellees’ medical negligence and that, accordingly,

Appellees conclusively negated the causation element of Appellants’ wrongful

death claims, we hold that the trial court correctly granted summary judgment for

Appellees. We overrule Appellants’ three issues.

                                VI. CONCLUSION

      Having overruled Appellants’ three issues, we affirm the trial court’s

judgment.

                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE


PANEL: WALKER, MEIER, and FITZGERALD, JJ. (Senior Justice, Retired,
Sitting by Assignment.

DELIVERED: November 17, 2016

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