                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-11-00401-CV


        RAYMOND SNODGRASS, JR., INDIVIDUALLY, AS REPRESENTIVE
        OF THE ESTATE OF PATSY SNODGRASS, AND AS HEIR OF THE
      ESTATE OF PATSY SNODGRASS, MARY GLASS, INDIVIDUALLY, AND
     AS HEIR OF THE ESTATE OF PATSY SNODGRASS, ET AL., APPELLANTS

                                             V.

             HILLCREST BAPTIST MEDICAL CENTER, HILL-ROM CO., INC.,
               SUSAN MOORE, HEATHER MADDOX, LAURIE STEWART,
                REBECCA URBANOVSKY, C. BROCKETTE, K. DENTON,
          L. DEGRATE, R. GONZALEZ AND MICHAEL OVERCASH, APPELLEES

                                  On Appeal from the 414th
                                  McLennan County, Texas
              Trial Court No. 2010-2123-5, Honorable Vicki L. Menard, Presiding

                                    October 31, 2013

                             MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      The trial court rendered a take-nothing summary judgment in favor of appellees

Hillcrest Baptist Medical Center1 and Hill-Rom Company, Inc. Through five issues,


      1
        The plaintiffs asserted a health care liability claim against Hillcrest Baptist
Medical Center and its following employees: nurse manager Susan Moore and nurses
appellants Raymond Snodgrass, Jr., et al., to whom we will refer collectively as the

plaintiffs,2 appeal. We will affirm the judgment.


                                       Background


       Patsy Snodgrass underwent heart bypass surgery at the medical center on

February 20, 2009, and afterward was transferred to its surgical intensive care unit.

There she received care from the nurses and respiratory therapists. Mrs. Snodgrass

did not regain consciousness after the surgery. During visitation hours on February 21,

her family and nurses noted the bed she occupied did not maintain the desired

approximate thirty-degree elevation of the bed‟s head, but spontaneously and gradually

lowered. Hillcrest personnel moved Mrs. Snodgrass to another bed. A February 23 MRI

revealed significant brain damage. Mrs. Snodgrass never regained consciousness and

died on March 4, 2009.


       The plaintiffs filed suit on June 14, 2010.       Their live petition alleged the

spontaneous lowering of the head of Mrs. Snodgrass‟s bed “most likely caused the

endotracheal tube supplying oxygen to [Mrs. Snodgrass] to become misplaced,

resulting in a loss of oxygen and brain damage.” The petition also alleged various acts

of negligence in the treatment of Mrs. Snodgrass by Hillcrest including the failure of the

nurses “and/or” the respiratory therapists “to properly treat, identify and/or respond to



Heather Maddox, Laurie Stewart and Rebecca Urbanovsky; respiratory therapists “C.
Brockette, K. Denton, L. Degrate, and R. Gonzales”; and Michael Overcash, Hillcrest‟s
“biomed supervisor in charge of maintenance.” We will refer to the medical center and
its employees collectively as “Hillcrest.”
       2
          This wrongful death and survival action was brought by Raymond Snodgrass,
Jr., the husband of Patsy Lea Snodgrass, and her nine children.

                                             2
the situation” and the use by these parties, as well as nurse manager Moore, of

“equipment which they knew, or should have known was defective.” The plaintiffs also

alleged Hillcrest “failed to properly identify, warn and/or correct a dangerous premises

defect and/or [failed] to use ordinary care in the maintenance, management and control

of the business premises.” They alleged Hill-Rom was the hospital bed‟s manufacturer,

and asserted theories of products liability and negligence.


       On December 3, 2010, the trial court signed an agreed scheduling order. It

obligated the plaintiffs to file their designation of expert witnesses, supplemental expert

information, and expert reports by May 6, 2011.3           Hillcrest and Hill-Rom filed no-

evidence motions for summary judgment on June 24 and June 30, 2011, respectively.

After a July 26, 2011, hearing the trial court granted each motion and signed a final

judgment on August 19. This appeal followed.


                                           Analysis


Evidence of Causation in Health Care Liability Claim


       We begin with plaintiffs‟ second and third issues, by which they contend their

summary judgment evidence was sufficient to raise an issue of fact on each element of

their health care liability claim.


       We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005). In so doing, we examine the entire summary judgment

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion.           Yancy v. United Surgical

       3
           The order cites Tex. R. Civ. P. 194.2(f) & 195.5.

                                               3
Partners Int’l, Inc., 236 S.W.3d 778, 782 (Tex. 2007); City of Keller v. Wilson, 168

S.W.3d 802, 824-25 (Tex. 2005).


      When a movant files a no-evidence motion in proper form under rule 166a(i), the

burden shifts to the nonmovant to defeat the motion by presenting evidence that raises

an issue of material fact regarding the elements challenged by the motion.           Mack

Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Weaver v. Highlands Ins. Co.,

4 S.W.3d 826, 829 (Tex. App.—Houston [1st Dist.] 1999, no pet.); Tex. R. Civ. P.

166a(i). In other words, the nonmovant must respond to a no-evidence motion by

presenting more than a scintilla of probative evidence on each challenged element.

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); DR Partners v. Floyd,

228 S.W.3d 493, 497 (Tex. App.—Texarkana 2007, pet. denied). More than a scintilla

of evidence exists when the evidence “rises to a level that would enable reasonable and

fair-minded people to differ in their conclusions.” Merrell Dow Pharmaceuticals, Inc. v.

Havner, 953 S.W.2d 706, 711 (Tex. 1997).


      An essential element of a health care liability claim is that the defendant‟s breach

of the standard of care proximately caused the injury. Marks v. St. Luke’s Episcopal

Hosp., 319 S.W.3d 658, 662 (Tex. 2010) (discussing former Tex. Rev. Civ. Stat. art.

4590I § 1.03(a)(4), repealed by Act of June 2, 2003, 78th Leg., ch. 204, § 10.09, 2003

Tex. Gen. Laws 847, 884).         Proximate cause includes both cause in fact and

foreseeability. IHS Cedars Treatment Ctr., Inc. v. Mason, 143 S.W.3d 794, 798-99

(Tex. 2004).    Proximate cause is not established by mere conjecture, guess, or

speculation. Id. at 799; Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477

(Tex. 1995). Rather, a plaintiff asserting a health care liability claim must demonstrate a

                                            4
causal connection between the injuries and the negligence of the defendant based on

reasonable medical probability.      Arlington Mem’l Hosp. Found., Inc. v. Baird, 991

S.W.2d 918, 922 (Tex. App.—Fort Worth 1999, pet. denied).


       In their no-evidence motion, Hillcrest asserted the plaintiffs had no evidence of

the element of proximate cause. In their response to the motion, the plaintiffs argued

the attached affidavits of registered nurses Davis and Guercia and an attached letter

from K. Michael Webb, M.D., sufficiently raised an issue of fact on causation.


       Nurse Davis has practiced registered nursing in the field of critical care with an

emphasis in cardiovascular surgical recovery for ten years. Concerning the employee

nurses, the respiratory therapists and nurse manager Moore, Davis expressed opinions

of the applicable standard of care and how each breached that standard in the care of

Mrs. Snodgrass. Nurse Davis then opined “the breaches in the standards of care were

the direct cause of the irreversible anoxic hypoxic brain injury sustained by [Mrs.

Snodgrass].”


       Nurse Guercia has practiced registered nursing for twenty five years. She has

practiced in the area of critical care nursing since 1989 having been certified in critical

care since 1991. Through a lengthy and detailed affidavit she defined the applicable

nursing standards of care and expressed opinions regarding breaches of the standards

by the nurses and nurse manager Moore. She stated her opinion their breaches “led to

the oversight of a potentially fatal complication, hypoxia,” and further stated they

ultimately led to her brain injury and death.




                                                5
      The perceived effect of the allegedly defective bed is not clearly defined in the

nurses‟ opinions. Nurse Davis found the bed might have been “a partial causative

factor” but added that she noted little deviation in the endotracheal tube supplying Mrs.

Snodgrass with oxygen. Nurse Guercia opined that nurse manager Moore‟s failure to

remove the broken bed “led to the head of the bed spontaneously drifting downward.

This movement provided opportunity, until noticed, for potential movement of Mrs.

Snodgrass‟ ETT and possible dislocation of the ETT, thus the opportunity for chronic

hypoxia.”


      The opinions of nurses Davis and Guercia amount to no evidence of causation.

Neither possesses the qualifications by law to render an opinion that any breach of a

standard of medical care was a cause of Mrs. Snodgrass‟s brain damage.         See Tex.

Civ. Prac. & Rem. Code Ann. § 74.403(a) (West 2011) (only a physician may qualify as

an expert witness on issue of causation in health care liability claim); Tex. Occ. Code

Ann. § 301.002(2) (West Supp. 2013) (defining professional nursing to exclude acts of

medical diagnosis); Hopkins County Hosp. Dist. v. Ray, No. 06-08-0129-CV, 2009 Tex.

App. LEXIS 1269, at *9-10 (Tex. App.—Texarkana Feb. 24, 2009, no pet.) (mem. op.)

(collecting cases holding nurse not qualified to render expert opinion regarding

causation); Arlington Mem’l Hosp. Found., 991 S.W.2d at 921 (citing Pace v. Sadler,

966 S.W.2d 685, 689-90 (Tex. App.—San Antonio 1998, no pet.)).            As unqualified

witnesses, their opinions on causation are not based on reasonable medical probability

but are mere speculation amounting to no evidence. Champion v. Great Dane L.P., 286

S.W.3d 533, 544 (Tex. App.—Houston 14th Dist. 2009, no pet.) (citing Broders v. Heise,

924 S.W.2d 148, 150-54 (Tex. 1996)); see Schaefer v. Texas Employers’ Ins. Ass’n,,


                                           6
612 S.W.2d 199, 204-05 (Tex. 1980) (holding no evidence of causation shown where

expert testimony was not based on reasonable medical probability but instead on

possibility, speculation, and surmise).


       Further, the opinions as expressed are mere conclusions.         Neither nurse

sufficiently explains how the identified breaches of the applicable standards of care

proximately caused Mrs. Snodgrass‟s brain damage. For this reason also, the opinions

constitute no evidence of causation. See Coastal Transp. Co., Inc. v. Crown Cent.

Petroleum Corp., 136 S.W.3d 277, 233 (Tex. 2004) (discussing preservation, court

noted expert testimony that is nonprobative on its face, such as testimony that is

conclusory or speculative, constitutes no evidence).


       The letter signed by K. Michael Webb, M.D., appended to the plaintiffs‟ response

to Hillcrest‟s motion, does not provide evidence of causation.4 In the document, Dr.

Webb expressed his opinion of Mrs. Snodgrass‟s post-operative condition based on a

review of two MRI scans. While Dr. Webb described widespread brain abnormality, he

offered no opinion on the proximate cause of the brain injury.


       We conclude the summary judgment record contains no evidence of causation.

Plaintiffs‟ second and third issues are overruled.


Adequate Time for Discovery


       In their first issue, plaintiffs assert the trial court abused its discretion by

disposing of appellees‟ no-evidence motions before the plaintiffs had an adequate time

       4
         Hillcrest objected to Dr. Webb‟s letter as hearsay. But the record contains no
indication the trial court sustained the objection and excluded the letter from the
summary judgment record. We have considered the letter in our review of the record.

                                             7
for discovery. In their response to the no-evidence motions, the plaintiffs argued they

had not had an adequate time for discovery because four Hillcrest employees had not

been deposed and their “bed expert” was not available to inspect Mrs. Snodgrass‟s

hospital bed until August 2011.5


       A trial court‟s ruling on a party‟s claim it has not had an adequate time for

discovery is reviewed for an abuse of discretion. Specialty Retailers, Inc. v. Fuqua, 29

S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). A trial court

abuses its discretion if it acts in an arbitrary or unreasonable manner without reference

to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241-42 (Tex. 1985).


       Rule 166a(i) allows a party to move for a no-evidence summary judgment after

an adequate time for discovery. Tex. R. Civ. P. 166a(i); Fuqua, 29 S.W.3d at 145. The

comment to Rule 166a(i) provides in part, “[a] discovery period set by pretrial order

should be adequate opportunity for discovery unless there is a showing to the contrary,

and ordinarily a motion under paragraph (i) would be permitted after the period but not

before.” Tex. R. Civ. P. 166a(i) cmt.; McInnis v. Mallia, 261 S.W.3d 197, 200 (Tex.

App.—Houston [14th Dist.] 2008, no pet.).        Notably, the comment also states it is

intended to inform the construction and application of the rule. Id. Nevertheless, Rule

       5
          Case law holds that to preserve a complaint a no-evidence motion for summary
judgment was prematurely granted, the party claiming an inadequate time for discovery
must file either an affidavit explaining the need for further discovery or a verified motion
for continuance. Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 807 (Tex. App.—
Dallas 2006, pet. denied) (citing Tenneco Inc. v. Enterprise Products Co., 925 S.W.2d
640, 647 (Tex. 1996)); see Tex. R. App. P. 33.1(a)(1), (2) (preservation of error). The
plaintiffs‟ unsworn statement in their response would not seem to meet that
requirement. Hillcrest does not argue a failure to preserve the issue on appeal, so we
will address its merits.

                                             8
166a(i) does not foreclose a party from moving for a no-evidence summary judgment

before the completion of discovery, provided the non-movant has had an adequate time

for discovery. Madison v. Williamson, 241 S.W.3d 145, 155 (Tex. App.—Houston [1st

Dist.] 2007, pet. denied); In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App.—

Texarkana 1998, orig. proceeding). “Whether a nonmovant has had adequate time for

discovery under rule 166a(i) is case specific.” Rest. Teams Int’l, Inc. v. MG Sec. Corp.,

95 S.W.3d 336, 339 (Tex. App.—Dallas 2002, no pet.).


       Courts have considered a number of factors in determining whether an adequate

time for discovery has passed: (1) the nature of the cause of action; (2) the nature of the

evidence necessary to controvert the no-evidence motion; (3) the length of time the

case has been active in the trial court; (4) the amount of time the no-evidence motion

has been on file; (5) whether the movant has requested stricter time deadlines for

discovery; (6) the amount of discovery that has already taken place; and (7) whether the

discovery deadlines that are in place are specific or vague. Madison, 241 S.W.3d at

155; Fuqua, 29 S.W.3d at 145 (citing Dickson Constr., Inc. v. Fid. & Deposit Co., 5

S.W.3d 353, 356 (Tex. App.—Texarkana 1999, pet. denied)).


       We see no abuse of discretion in the trial court‟s conclusion that consideration of

Hillcrest‟s no-evidence motion was not premature. Hillcrest‟s motion challenged only

the causation element of the plaintiffs‟ health care liability claim. Although the discovery

period had not elapsed under the agreed scheduling order when Hillcrest filed its

motion, the period to designate expert witnesses and produce their reports had expired,

some six weeks before. The agreed scheduling order specifically required the plaintiffs

to designate, by May 6, their expert witnesses including the information required by Civil

                                             9
Rule 194.2(f) and provide written expert reports.        The parties each took several

depositions. The record does not contain the plaintiffs‟ expert witness designations, but,

as earlier noted, in response to the no-evidence motion the plaintiffs produced only the

affidavits of the nurses and the letter from Dr. Webb.


         The suit had been on file for just over a year when the no-evidence motion was

filed.   We accept the plaintiffs‟ classification of their health care liability claim as

complex. But the requirement for expert medical testimony to establish the element of

proximate cause to support a health care liability claim is well established. See Jelinek

v. Casas, 328 S.W.3d 526, 533 (Tex. 2010) (quoting Guevara v. Ferrer, 247 S.W.3d

662, 665 (Tex. 2007) (“In medical malpractice cases, expert testimony regarding

causation is the norm: „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‟”)). As noted, the adequacy of time for discovery

before consideration of a no-evidence motion under rule 166a(i) is case specific. Rest.

Teams Int’l, Inc., 95 S.W.3d at 339. In this case, with the agreed expert designation

deadline passed with no qualified expert on causation designated, we cannot agree the

trial court‟s consideration at that time of Hillcrest‟s motion challenging the causation

element was an abuse of discretion. Moreover, neither the “bed expert” nor any of the

four Hillcrest employees the plaintiffs argued they needed to depose, none of whom

were physicians, could have filled the gap in their causation evidence. We overrule the

plaintiffs‟ first issue.




                                            10
Products Liability Claim against Hill-Rom


       By their fourth issue, plaintiffs assert the trial court erred in granting summary

judgment in favor of Hill-Rom because they brought a products liability claim and not a

health care liability claim against Hill-Rom.       Plaintiffs‟ argument in support of their

contention consists only of two sentences. Their argument explains neither its premises

nor its consequences. The brief cites no authority supporting the argument, nor does it

contain citations to the record. The issue is inadequately briefed, and thus waived. See

Tex. R. App. P. 38.1(i) (appellant‟s brief must contain clear and concise argument for

contentions made, with appropriate citations to authorities and the record); Redmon v.

Griffith, 202 S.W.3d 225, 241 (Tex. App.—Tyler 2006, pet. denied) (holding issue

lacking cogent argument and citation to authority waived by adequate briefing).


       Moreover, even were the issue properly before us it could not be sustained. That

the plaintiffs‟ claims involved different theories of liability in tort did not alter their

summary judgment burden. The summary judgment record contains no evidence that

any conduct by Hill-Rom was a proximate or producing cause6 of any injury alleged to

Mrs. Snodgrass. Plaintiffs‟ fourth issue is overruled.


Res Ipsa Loquitur


       In their fifth issue, plaintiffs argue that the trial court‟s premature disposition of the

case through summary judgment had the additional harmful effect of preventing them

from amending their petition to assert the doctrine of res ipsa loquitur. We have already
       6
          In a products liability case, the causation standard is producing cause. See
Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995) (“[P]roducing cause is
the test in strict liability. Proximate and producing cause differ in that foreseeability is an
element of proximate cause, but not of producing cause.” (citation omitted)).

                                               11
found the trial court did not abuse its discretion by proceeding to disposition prior to

completion of the discovery period. Because plaintiffs‟ fifth issue does not assert trial

court error distinct from the error asserted in their previous issues, our disposition of

those issues requires that we also overrule their fifth issue. Moreover, even were we to

consider the potential application of the doctrine of res ipsa loquitur, we could not agree

it provides a reason to reverse the trial court‟s judgment.


       Res ipsa loquitur is not a stand-alone cause of action but merely a rule of

evidence permitting an inference of negligence by the fact-finder.              Haddock v.

Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990); Ford Motor Co. v. Ridgway, 135 S.W.3d

598, 604 (Tex. 2004) (Hecht, J., concurring) (“The rule of res ipsa loquitur allows an

inference of negligence, absent direct proof, only when injury would ordinarily not have

occurred but for negligence, and defendant‟s negligence is probable”). But in any event

application of res ipsa loquitur to plaintiffs‟ claims against either or both of the appellees

would not change the complete absence of evidence their conduct caused any injury to

Mrs. Snodgrass. See Kalteyer v. Sneed, 837 S.W.2d 848, 853 (Tex. App.—Austin

1992, no writ) (noting res ipsa loquitur does not relieve a claimant of the need to prove

causation). For that reason also, plaintiffs‟ fifth issue is overruled.


                                         Conclusion


       Having overruled each of the plaintiffs‟ issues on appeal, we affirm the judgment

of the trial court.


                                                   James T. Campbell
                                                       Justice



                                              12
