                                            NO. 07-04-0058-CV

                                     IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                               AT AMARILLO

                                                  PANEL E

                                               JUNE 22, 2006

                                ______________________________


                GREGORY SHAWN BRYANT AND LINSEY KAY BRYANT,
              INDIVIDUALLY AND AS REPRESENTATIVES OF THE ESTATE
                  OF KENNALEE D’LIN BRYANT, A DECEASED MINOR,

                                                                                                Appellants
                                                       v.

              ERIC NICHOLAS LEVY, M.D., AMARILLO AREA HEALTHCARE
               SPECIALISTS, L.L.P., NORTHWEST TEXAS HEALTHCARE
                                    SYSTEM, INC.,

                                                                                                Appellees
                              _________________________________

                FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                          NO. 89,510-E; HON. ABE LOPEZ, PRESIDING

                               _______________________________

Before QUINN, C.J., REAVIS, J., and BOYD, S.J.1

                                  ON MOTIONS FOR REHEARING

        Pending before the court are two motions for rehearing. The first is filed by Eric

Nicholas Levy, M.D., and Amarillo Area Healthcare Specialists, L.L.P. (AAHS). The

second is that of Northwest Texas Healthcare System, Inc. (Northwest). For the reasons


        1
        John T. B oyd, C hief Justice (R et.), Se venth Co urt of Appeals, sitting by assignm ent. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n 20 05).
which follow, I would grant both and affirm the trial court’s summary judgment for the

reasons which follow.        Levy/AAHS

         The claims of negligence asserted by Gregory Shawn Bryant and Linsey Kay

Bryant, individually and as the representatives of the estate of Kennalee D’Lin Bryant

(Bryants), are founded upon two propositions. The first involves the purported duty of Dr.

Levy to insert chest tubes into the infant at 7:45 p.m. on the day she died. The second

concerns the duty to perform a chest x-ray on the infant approximately three and one half

hours earlier (i.e. 4:20 p.m.) to determine if she suffered from a pneumothorax. The

breach of these duties purportedly caused the death of the child.

         Regarding the former, the Bryants concede their expert testified that the insertion

of the chest tubes at the time alleged would not have prevented the infant’s death.

Additionally, they cite to no evidence of record suggesting in any way that the infant would

have survived had the tubes been inserted. Thus, I am unable to find a material issue of

fact exists concerning whether the particular omission proximately caused the child’s

death.

         As for the alleged failure to take a chest x-ray at 4:20 p.m., its importance is

dependent upon the existence of a pneumothorax at that time. In other words, the Bryants

averred that had the x-ray been taken then, Levy would have discovered a pneumothorax,

treated the infant for same, and prevented her death. So, as can be seen, all is dependent

upon proof that the infant was suffering from a pneumothorax at 4:20 p.m. If she was not,

then the failure to order the x-ray and discover the pneumothorax could not be a

substantial factor in the death for there was no pneumothorax to discover.




                                              2
         More importantly, I found no competent evidence of record suggesting it was more

likely than not that the child suffered from a pneumothorax at that time. Indeed, comments

were made by the Bryant’s expert suggesting the rupture could have occurred later. He

testified that 1) it was “possible” the pneumothorax occurred sometime after 4:20 p.m., 2)

the possibility was one that he could not “exclude,” and 3) there was no way of knowing

(without a chest x-ray) whether the changes in Kennalee’s situation at 4:20 p.m. were

caused by a pneumothorax or another malady she experienced.

         Furthermore, while the expert did utter that “the worsening mechanics [experienced

by the child] were more likely than not caused by extra ventilatory air [i.e. a

pneumothorax],” he failed to explain the basis for his conclusion. Instead, he simply said

that “knowing that the child had a pneumothorax at 7:20 [p.m], and that at that time it was

under tension and it caused the child to arrest” he was “lead[] . . . to ask what is more likely

at 4:20 [p.m.], that the child had worsening disease, or had a pneumothorax that was

becoming symptomatic . . . .” Then he concluded by saying “. . . I think that the arrest

secondary to the pneumothorax indicates that worsening mechanics were more likely than

not caused by extra ventilatory air.” Why the presence of a pneumothorax under tension

at 7:20 p.m. suggests a pneumothorax also existed three hours earlier goes unexplained,

and there lies the problem. Without that explanation I am, and the trial court was, left to

guess at the link. That very same void also renders the expert’s opinion nothing more than

ipse dixit.2 And, an expert’s ipse dixit is not competent evidence sufficient to create an

issue of fact. See Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999) (stating that “[a]n



         2
           Ipse dixit is a labe l appe nde d to m atter that one as serted but failed to proved. Marvelli v. Alston, 100
S.W .3d 460 , 478 n.6 (T ex. A pp.– Fort W orth 2 003 , pet. de nied), quoting BLACK’S LAW DICTIONARY 833
(7 th ed. 1999 ).

                                                           3
expert’s simple ipse dixit is insufficient to establish a matter; rather, the expert must explain

the basis of his statements to link his conclusions to the facts”); Marvelli v. Alston, 100

S.W.3d 460, 478 (Tex. App.–Fort Worth 2003, pet. denied) (stating the same).

        In view of 1) the expert’s testimony that it was possible the pneumothorax occurred

after 4:20 p.m. and 2) the absence of explanation underlying his opinion that it had

occurred by 4:20 p.m., I must conclude that no competent evidence of a pneumothorax at

4:20 p.m. appears of record. Without that evidence, I must also conclude that the Bryants

did not sufficiently link their child’s death to Levy’s purported failure to have an x-ray done

at that time.

        The motion for rehearing should be granted, and the trial court’s judgment should

be affirmed.

        Northwest

        Of the several grounds urged by Northwest, I address only that involving the topic

of causation. Northwest argues that the Bryants failed to present evidence sufficient to

raise a question of fact regarding whether the conduct of Northwest’s employees

proximately caused Kennalee’s death. I agree.

        The Bryants attempted to establish the element in question through the testimony

of their expert. The latter offered statistics about the general survival rate of children who

contracted RSV and bronchiolitis, two ailments suffered by Kennalee.3 Yet, it cannot be

ignored that the infant also suffered from a pneumothorax. Because she did, any statistics

involving the mortality rate of children who merely suffered from RSV and bronchiolitis fall



        3
         The expert conceded that Kennalee’s RSV and bronchiolitis were “very severe” and continued to
worsen after the infant entered the hospital. W hether the maladies of those comprising the test group from
which the statistics were taken were equally severe goes unmentioned. They may or may not have been.

                                                    4
short of establishing that Kennalee would have survived but for the purported negligence

of Northwest’s staff. See Botello v. McWhorter, No. 00 -07-0218-CV, 2001 Tex. App.

LEXIS 177 at *10 (Tex. App.–Amarillo January 10, 2001, pet. denied) (noting that before

statistics are probative on the issue of causation, their proponent must illustrate that the

circumstances or conditions of the person involved in the instant suit were similar to those

of people from whom the statistics were garnered). In other words, there must be a

comparison of apples to apples, not apples to oranges, before the findings are probative.

       Regarding the evidence that came closer to comparing apples to apples, I too find

it flawed. The evidence about which I speak is that of the expert wherein he said Kennalee

would not have had a cardiac arrest “had a pneumothorax been diagnosed at 4:20 [p.m.],

and had it been appropriately evacuated.” While it suggests that the infant may have

survived, his opinion is nonetheless conditioned upon the discovery of a pneumothorax at

4:20 p.m. And, as discussed earlier, there is no competent evidence that Kennalee had

such a condition at that time. Accordingly, I would also grant Northwest’s motion for

rehearing and affirm the summary judgment.


                                                 Brian Quinn
                                                 Chief Justice




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