                                          NO. 07-06-0071-CV

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                 PANEL E

                                      NOVEMBER 1, 2006
                               ______________________________

                         NADINE HAMILTON, nee NADINE LAMBERT,

                                                                            Appellant

                                                      v.

                                     SELMA P. WILSON, M.D.,

                                                           Appellee
                             _________________________________

               FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

                     NO. 2004-527,568; HON. SAM MEDINA, PRESIDING
                           _______________________________

                                          Opinion
                              _______________________________

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

        Nadine Lambert (now Hamilton but hereinafter referred to as Lambert) appeals from

a summary judgment entered in favor of Dr. Selma P. Wilson (Wilson). The latter had

been sued by Lambert for damages arising from the doctor’s purported negligent acts while

intubating Lambert. Wilson filed a motion for summary judgment, asserting that no

evidence illustrated 1) she “committed any act or omission” constituting negligence, and


        1
        John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n 20 05).
2) any act or omission she undertook “proximately caused injury, harm, or damage to”

Lambert. The trial court granted the motion. Before us, Lambert contends that it erred in

doing so because she presented more than a scintilla of evidence illustrating the standard

of care, its breach, and proximate nexus between the breach and her resulting injuries.

We affirm.

       Standard of Review

       When reviewing a decision granting a no-evidence motion for summary judgment,

we are obligated to determine whether more than a scintilla of evidence supporting the

challenged element appears of record. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148

S.W.3d 94, 99 (Tex. 2004). More than a scintilla appears if its sum total allows reasonable

and fair-minded people to differ in their conclusions viz the existence of the disputed fact.

Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). The

standard of review also requires us to examine the record in a light most favorable to the

non-movant, id.; Alashmawi v. IBP, Inc. 65 S.W.3d 162 S.W.3d 162, 170 (Tex.

App.–Amarillo 2001, pet. denied), accept as true all evidence favorable to the non-movant,

Allen v. Connolly, 158 S.W.3d 61, 64 (Tex. App.–Houston [14th Dist.] 2005, no pet.),

indulge, in a manner favoring the non-movant, in all reasonable inferences susceptible

from the evidence, id., and disregard all contrary evidence and inferences. Alashmawi v.

IBP, Inc., 65 S.W.3d at 170. However, it must be remembered that conclusory statements,

even from experts, are not sufficient to support or defeat summary judgment. Wadewitz

v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997); see Brownlee v. Brownlee, 665 S.W.2d

111, 112 (Tex. 1984) (finding the affiant’s statement to be conclusory because it failed to



                                             2
specify factual matters such as the time, place, and exact nature of the alleged

modifications). And, such statements include expressions of subjective belief lacking

explanation. Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 452 (Tex. 1996);

Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994).

       We further note that to recover upon a claim of medical malpractice, the

complainant must prove 1) the physician had a duty to act according to a certain standard,

2) he breached that standard, and 3) the breach proximately caused the complainant to

sustain injury. Schneider v. Haws, 118 S.W.3d 886, 889 (Tex. App.–Amarillo 2003, no

pet.). To the extent that the opinions of an expert are needed to establish these elements,

see id. at 892-93 (recognizing that testimony from an expert may not always be needed to

prove medical malpractice), those opinions must not be founded upon mere possibilities,

speculation, or surmise. Archer v. Warren, 118 S.W.3d 779, 782 (Tex. App.–Amarillo

2003, no pet.). One must look to the basis of the opinion as opposed to the bare opinion

itself. Id. Moreover, this is nothing more than a reiteration of the teachings of Wadewitz,

Continental, Texas-Division, and Brownlee. As illustrated by the latter, conclusion or

opinions without factual support fall short of being evidence. See Brownlee v. Brownlee,

supra (stating that the proffer of a conclusion without factual support was not enough to

stave off a directed verdict). With that said, we turn to the record before us.

       Application of the Foregoing Standard

       As previously mentioned, Lambert complained of acts allegedly performed by

Wilson while being intubated for purposes of administering anesthesia. These acts

purportedly resulted in Lambert suffering a torn esophagus. Furthermore, the standards



                                             3
of care appearing in the record obligated Wilson 1) “to put the endotracheal tube in the

trachea . . . [it] does not necessarily require you to recognize which wrong spot you’ve got

it in or whether it’s somewhere else . . . [but] requires you to recognize that it is or is not in

the trachea,” 2) “[e]stablish and maintain control of the patient’s airway during general

anesthesia,” 3) “[e]stablish this control in a safe manner,” 4) “[p]romptly recognize and

document injuries and complications related to airway management,” and 5) “[p]romptly

seek appropriate treatment, if needed, for such injuries and complications.” Wilson

allegedly breached one or more of these standards when she 1) “[f]ailed to establish

control of the airway in a safe manner,” 2) “[f]ailed to recognize and document injuries and

complications related to airway management,” 3) “[f]ailed to seek appropriate treatment for

such injuries and complications,” 4) “push[ed] the 7.5 endotracheal tube down into the

esophagus,” 5) “plac[ed] the tube,” and 6) perforated Lambert’s esophagus. Implicit in all

this discussion about standards of care, their breach, and Lambert’s suffering of a torn

esophagus is the entry of the tube into Lambert’s esophagus. In other words, for her to

recover, Lambert must present more than a scintilla of evidence showing that Wilson

inserted a tube into Lambert’s esophagus. If she cannot, then Wilson breached none of

the standards of care propounded or caused Lambert to suffer the injury underlying her

claim, i.e. a torn esophagus. And, therein lies the problem for no such evidence appears

of record.

       Admittedly, Wilson acknowledged that she could not discount the “possibility” that

she placed the 7.5 mm tube into Lambert’s esophagus. Yet, as we said in Archer, “opinion

evidence must be based upon more than possibilities . . . .” Archer v. Warren, 118 S.W.3d

at 782 (emphasis added). So, what Wilson described as a possibility is of no import.

                                                4
       So too do we recognize that Lambert’s expert also addressed whether the tube

entered her esophagus. Moreover, he opined, based on reasonable medical probabilities

that it did. Yet, in explaining why he so concluded, he relied upon Wilson’s statement

(appearing in her medical report) that she encountered a “tight fit” when attempting to pass

Lambert’s vocal cords. In explaining what he considered to be the source of the “tight fit,”

the doctor stated that “[i]t is my belief that it was the cricopharyngeal ring of the esophagus”

and that “[m]y belief is that the tube was in that portion of the esophagus . . . when it

became too tight.” (Emphasis added). Upon what evidence or facts, if any, he founded

these beliefs went unmentioned, however. Nor did he cite to anything in the medical

records to support his belief. In other words, his “belief” was simply that, his “belief,” and

lacking factual explanation, it was conclusory and constituted no summary judgment

evidence. This particular expert also wrote in his report that “the fact . . . the first

endotracheal tube was too large suggests that it would deflect from the vocal cords and

enter the esophagus” but he did not state that the tube so deflected or describe how the

tube could so deflect from one part of the anatomy into another. Simply put, the expert is

again discussing possibilities.

       Finally, that the surgeon who remedied the tear may have opined that it occurred

during Wilson’s intubation of Lambert is also deficient. It too is nothing more than a

hypothesis without explanation.

       In sum, the possibility and subjective belief that Wilson inserted an endotracheal

tube into Lambert’s esophagus are simply conclusions. As such, they are not evidence

that proves the questioned fact. Consequently, we have no evidence that the tube entered



                                               5
the esophagus, which, in turn, means that Lambert failed to present more than a scintilla

of evidence that Wilson breached any purported standard of care.

      Accordingly, we overrule appellant’s issues and affirm the summary judgment.



                                               Brian Quinn
                                               Chief Justice




                                           6
