


 


 
NUMBER 13-08-281-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

 
 
WINSTON COOPER,	  					          	 Appellant,
	v. 

R. BRYAN GULLEY, D.D.S.,			  		           Appellee.
 

On appeal from the 28th District Court 
of Nueces County, Texas.

 

MEMORANDUM OPINION


Before Justices Rodriguez, Garza, and Vela

Memorandum Opinion by Justice Vela

	This is an appeal from a directed verdict in a dental malpractice case granted in
favor of appellee, R. Bryan Gulley, D.D.S., and against appellant, Winston.  By one issue,
Cooper complains that the trial court erred in granting the directed verdict on the issue of
causation because he produced evidence that Dr. Gulley's treatment was below the
standard of care and proximately caused his injuries.  We reverse and remand for a new
trial.
 I. Background	
	On April 5, 2005, Cooper saw  Dr. Britt  Barwise, the owner of Apple Dental Center,
for a toothache.  Cooper testified that he was in severe pain and that the area around the
tooth was "red and . . . swollen," and "started bleeding" when he moved the tooth.  Dr.
Barwise took some x-rays, but they were inconclusive.   During his clinical examination, Dr.
Barwise discovered that tooth five was cracked. (1)  The x-ray showed some bone loss and
a dark mark across the mid-section of tooth four.  Tooth four was adjacent to tooth five, the
cracked tooth.  The crack in tooth five was not visible on the x-ray because it ran vertically. 
Dr. Barwise found that tooth five was "clinically mobile," that the tooth was separated into
two pieces and that it moved "in two different directions."   The tooth was split from the top
to the bottom but looked "perfectly normal . . . until you actually [applied] force" at which
point it separated. 
	Dr. Barwise referred Cooper to Dr. Gulley, an oral surgeon, that afternoon to have
tooth five extracted.  He sent a referral card and an x-ray with Cooper to give to Dr. Gulley. 
The testimony showed that the referral card was like a "prescription" to have the oral
surgeon perform a service.  Due to a clerical error by Dr. Barwise's staff, the referral card
mistakenly indicated that tooth four was to be extracted.  Based on the referral card's
reference in two different places to remove tooth four and the x-ray showing possible
problems with tooth four, Dr. Gulley extracted tooth four.  Cooper testified that Dr. Gulley
appeared to be very busy and Cooper felt like he removed the tooth "as fast as he could
do it."  Cooper further testified that he did not believe that Dr. Gulley ever tapped or felt any
of Cooper's teeth prior to the extraction of tooth four.
	Cooper was initially concerned that the wrong tooth had been extracted when he
saw that the extracted tooth was a whole tooth.  His suspicion was realized later that
evening when the anaesthetic wore off and the severe pain returned.  The next morning,
Cooper contacted Dr. Barwise, who, upon examining Cooper, confirmed that tooth four had
been pulled and that tooth five was still present.  Cooper was then referred to a different
oral surgeon who extracted tooth five that same afternoon.
	Cooper filed suit against both Dr. Gulley and Apple Dental Center.  He settled with
Apple Dental Center; and it is not a party to this appeal.  Cooper's primary claim in the trial
court was that because both tooth four and tooth five were removed, he is no longer
eligible for a permanent bridge, but instead has to wear a partial denture.  During the initial
visit, Dr. Barwise and Cooper discussed using a "five-unit-permanent bridge" to replace
Cooper's missing teeth. (2)  The plan was to use tooth four as an "abutment" tooth and to use
a "five-unit-permanent bridge" to fill the empty spaces where teeth three and five should
have been.  Dr. Barwise testified that although tooth four was not an "ideal abutment," he
"did plan on using it as an abutment."  Because tooth four was mistakenly extracted, a
permanent bridge is no longer a suitable option for Cooper unless he were to get two
implants at an approximate cost of $1,800 per implant; he could then get a "three-unit
bridge" for "$850" per tooth.  Dr. Barwise further testified that whether or not implants were
a viable option would need to be determined by an oral surgeon.  
	Harold James Seiler, D.D.S., Cooper's expert witness, testified that, "[b]ased upon
the length of the span that we now have to cover, a "fixed bridge" "would not be a very
good choice."  He further opined, based on the x-ray, that tooth four was a "perfectly sound
tooth . . . [with] no obvious decay on either side of the tooth" and appeared treatable.  Dr.
Seiler stated:  "there is nothing on the x-ray that I can see that would condemn that tooth
needing to be removed."  When asked whether tooth four could have served as a proper
abutment for a five-unit-permanent bridge, Dr. Seiler replied:  "It very well could have"; "it's
entirely probable that a bridge could have been placed there;" and "[t]here was no reason
why that tooth had to be extracted."  Dr. Seiler also testified that Cooper's options after the
removal of tooth four include a removable partial denture or a permanent bridge if Cooper
were to get implants.  Dr. Seiler could not testify to the viability of implants because more
information was necessary, but did testify that a permanent bridge with three missing teeth
in a row was not a good choice.
	Cooper testified that he was thereafter fitted with a removable-partial bridge to fill
the vacant spaces of teeth three, four, and five.  He said that he has had the bridge for
over three years and that it remains uncomfortable, that it makes it difficult for him to speak
fast and clear, and that he cannot eat with it in place.
	At the close of all of the evidence, while the parties were preparing the jury charge,
Dr. Gulley moved for directed verdict on the issue of causation.  The trial court granted the
motion, and this appeal ensued.


II. Discussion
A.	Standard of Review
	In reviewing the trial court's directed verdict or judgment as a matter of law, we
conduct a legal sufficiency analysis of the evidence.  City of Keller v. Wilson, 168 S.W.3d
802, 823 (Tex. 2005).  Evidence is legally sufficient if: the evidence at trial would enable reasonable and fair-minded people to
reach the verdict under review. Whether a reviewing court begins by
considering all the evidence or only the evidence supporting the verdict,
legal-sufficiency review in the proper light must credit favorable evidence if
reasonable jurors could, and disregard contrary evidence unless reasonable
jurors could not.

Id. at 827. 	
	 A court may grant a directed verdict "if no evidence of probative force raises a fact
issue on the material questions in the suit."  Prudential Ins. Co. of Am. v. Fin. Review
Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).  There are two specific situations in which a
defendant should be granted a directed verdict:  (1) when the plaintiff fails to offer evidence
of an essential element of the claim; and (2) when the plaintiff "admits or the evidence
conclusively establishes a defense to the plaintiff's cause of action."  Id.  
B.	Expert Testimony 
	In medical malpractice cases, negligence and causation must be established
through expert testimony, not on mere conjecture, speculation, or possibility.  Columbia
Med. Ctr. of Las Colinas v. Hogue, 271 S.W.3d 238, 246 (Tex. 2008); see Am. Transitional
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 876 (Tex. 2001); Hart v. Van Zandt,
399 S.W.2d 791, 792 (Tex. 1965).  The plaintiff must establish a causal connection
between the defendant's negligence and the injuries based upon a "reasonable medical
probability."  Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Lenger
v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970).  Proximate cause
includes both cause-in-fact and forseeability.  Hogue at 240.  The plaintiff satisfies the
cause-in-fact element of proximate cause by presenting proof establishing a direct causal
connection between the damages awarded, the defendant's negligence, and the injury
suffered.  Texarkana Mem'l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 838 (Tex. 1997).
Cause-in-fact requires that the alleged act or omission be a substantial factor in bringing
about the injury and without which, the harm would not have occurred.  Hogue, 271 S.W.3d
at 246.  In Hogue, the supreme court stated that the words "possibly" and "perhaps"
indicate conjecture and speculation.  Id. at 246.  Likewise, the words "can" and "could" do
not indicate reasonable medical probability.  Id.; see also Gen. Motors Corp. v. Sanchez,
997 S.W.2d 584, 591 (Tex. 1999).  The words "reasonable medical probability" are not
required, but the testimony "must demonstrate conduct that to a reasonable degree of
medical certainty would have occurred."  Hogue, 271 S.W.3d at 247. 
C.  Analysis	
	Dr. Gulley did not move for directed verdict on the lack of expert testimony with
respect to either the standard of care or any breach of the standard. Therefore, in our
analysis, we address only the evidence offered with respect to causation.  Cooper urges
that the trial court erred in granting a directed verdict on causation because there was
probative evidence that the removal of the wrong tooth caused him to no longer be a
candidate for a permanent bridge. (3) Reviewing the evidence under the standards set forth
previously in this opinion, we agree.  See Keller, 168 S.W.3d at 823.  Dr. Seiler testified
that there was nothing on the x-ray that would require the removal of tooth four.  While he
indicated that he would have to know something more about the bone loss and make sure
that it was treated appropriately before a bridge was placed, he also opined that tooth four
"very well could have" served as a proper abutment tooth for a five-unit-permanent bridge. 
He stated that "it's entirely probable" that tooth four could have served as an abutment
tooth.  According to Dr. Seiler, with the extraction of tooth four, a permanent bridge "would
not be a very good choice."   On cross-examination, Dr. Seiler stated that though tooth four
had no obvious decay on either side, and that it may have had some decay or abrasion at
the cervical portion of the tooth that appeared to be restorable.  Dr. Seiler concluded from
his observation that there was no reason to remove the tooth.  When asked if Dr. Seiler
knew for a fact that if Dr. Gulley had not removed tooth number four, Dr. Barwise would
have used the tooth as an abutment for  a fixed bridge, Dr. Seiler responded, "I think that
was his intent, yes."  He agreed with Dr. Barwise that the patient would have to return for
further evaluation in order to assess the available options with respect to the bridge. 
	Dr. Thornton, Dr. Gulley's expert, opined that there was a weakening in the structure
of tooth four as well as bone loss.  He testified that he would have removed tooth four.  He
did not view tooth four as a viable abutment tooth because there was bone loss,
radiolucency at the tip of the root, and weakness in structure.  On cross examination, Dr.
Thornton testified that "you can build a house on sand.  You can put a crown on that tooth. 
That doesn't necessarily make it a wise thing to do."      
	Dr. Barwise stated that he planned on using tooth four as an abutment.  He also
agreed that although tooth four was not a perfect tooth, given Cooper's age, the tooth was
relatively typical and that he "plan[ned] on using that tooth for an abutment."  Although Dr.
Barwise did not directly state that a permanent bridge was not an option, he clearly implied
it:  "if tooth four was still there to be used as an abutment . . . my intention was to use it as
[an] abutment if the patient so wished."	Dr. Seiler's testimony regarding a permanent bridge was couched in terms of
probability, not possibility.  Likewise, Dr. Barwise testified that he planned to use tooth four
as an abutment.  Phrases such as "it's entirely probable" and "planned on using" go
beyond conjecture, speculation, and mere possibility and indicate reasonable medical
probability.  Considering the evidence proffered on the issue of causation under the
appropriate standards for granting a directed verdict, we conclude that Cooper's issue must
be sustained.
III. Conclusion
	We sustain appellant's issue and reverse and remand the case to the trial court.
 
 
 
 								ROSE VELA
								Justice


Memorandum Opinion delivered and 
filed this 6th day of August, 2009.








1. Dentists primarily use one of two numbering systems for identifying a particular tooth, the
International System and the Palmer System.  Barwise was using the International System which numbers
teeth one through sixteen on the top and seventeen through thirty-two on the bottom.
2.  A "permanent bridge" or "fixed bridge" is not removable; it is permanently placed in the patient's
mouth.
3. Dr. Seiler opined at trial that Dr. Gulley should have questioned Cooper concerning why he was there.
He said that merely because someone sends him a "paper that has a particular number on it, doesn't mean
that I don't have to do my due diligence as a doctor to determine that it's necessary and appropriate to take
that tooth out."
