                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                 NO. 02-05-00350-CV


MARGARET YOUNG,                                                         APPELLANT
INDIVIDUALLY AND AS
REPRESENTATIVE OF THE
ESTATE OF WILLIAM R. YOUNG

                                           V.

VENKATESWARLU THOTA, M.D.                                               APPELLEES
AND NORTH TEXAS CARDIOLOGY
CENTER


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              FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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                   MEMORANDUM OPINION ON REMAND 1

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         This is an appeal from a take-nothing jury verdict in a health care liability

claim.       Margaret Young, individually and as representative of the Estate of

William R. (Ronnie) Young, sued Dr. Venkateswarlu Thota for injuries Ronnie

         1
         See Tex. R. App. P. 47.4.
sustained after a cardiac catheterization procedure. In a prior opinion, this court

sustained two of appellant’s issues, holding that submission of two improper jury

instructions was harmful, and remanded the case to the trial court for a new trial.

Young v. Thota, 271 S.W.3d 822, 841 (Tex. App.––Fort Worth 2008), rev’d, 366

S.W.3d 678 (Tex. 2012). But the supreme court reversed this court’s judgment,

holding that any error in the submission of the two instructions was harmless.

366 S.W.3d at 696. The supreme court also directed this court to address the

remaining issues in the appeal. Id.

                                   Background

      In our prior opinion, we described the factual background of this case as

follows:

            Appellant is Ronnie’s widow. Ronnie died on March 10, 2005.
      Ronnie had suffered from a blood disorder called Polycythemia Vera
      (PV) and coronary artery disease, including hypertension and
      angina.    His cardiologist, Dr. Thota, with NTCC (collectively
      “appellees”), recommended that Ronnie undergo a cardiac
      catheterization to evaluate his heart condition. The catheterization
      was scheduled for March 4, 2002 at United Regional Health Care
      System in Wichita Falls, Texas. Dr. Thota performed the procedure
      that morning, and Ronnie was discharged that afternoon. At the
      time, Ronnie was fifty-five years of age.

             After Ronnie began feeling poorly at home and fell from his
      chair around 11:45 p.m., appellant called 911, and Ronnie returned
      to the hospital's emergency room around 1:15 a.m. Olyn Walker,
      M.D. ultimately operated on Ronnie that night to repair a tear in his
      iliac artery and the resulting internal bleeding allegedly caused by
      the catheterization procedure. During the emergency surgery, Dr.
      Walker discovered a large hematoma from severe bleeding in the
      peritoneal cavity. After the surgery, Ronnie was placed on a
      ventilator, suffered acute renal failure that required dialysis, received
      multiple blood transfusions, underwent a splenectomy, and


                                         2
      underwent surgery to remove his gallbladder once it became
      gangrenous due to ischemia caused by the bleed. He ultimately lost
      vision in one eye and suffered numerous strokes and blood clots, all
      allegedly as a result of the negligent catheterization. Ronnie stayed
      in the hospital in Wichita Falls for two months and later transferred to
      Baylor University Medical Center (BUMC) in Dallas, Texas, on May
      2, 2002. While at BUMC, he was diagnosed with and treated for
      thrombocytosis,       sepsis,     respiratory    failure,   depression,
      malnourishment, gout, deep vein thrombosis, and portal vein
      thrombosis. When he left BUMC, he went to Baylor Specialty
      Hospital for rehabilitation for an additional two months. Ronnie died
      on March 10, 2005, about three years after the original procedure, at
      the age of fifty-eight.

              After Ronnie died, appellant brought suit individually and on
      behalf of his estate against Dr. Thota and NTCC. Appellant alleged
      appellees were negligent in failing to obtain an accurate medical
      history on Ronnie, in failing to take into consideration any of
      Ronnie’s pre-existing conditions that might have exacerbated
      potential complications, in failing to properly locate the femoral artery
      and lacerating the right iliac artery instead during the catheterization,
      in failing to discover the laceration before discharging Ronnie, and in
      failing to properly diagnose and treat the tear.

Young, 271 S.W.3d at 826–27 (footnote omitted).

           Evidence Supporting Jury’s Failure to Find Negligence

      In her first issue, appellant contends that the evidence is factually

insufficient to support the jury’s finding that Dr. Thota 2 was not negligent in his

treatment of Ronnie. She also contends that she proved negligence as a matter

of law.




      2
      Appellant alleged that North Texas Cardiology Center was liable under
respondeat superior. Young, 271 S.W.3d at 827 n.1.


                                         3
Standards of Review

      If a party is attacking the legal sufficiency of an adverse finding on which

the party had the burden of proof, and there is no evidence to support the finding,

we review all the evidence to determine whether the contrary proposition is

established as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241

(Tex. 2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).

      When reviewing an assertion that the evidence is factually insufficient to

support a finding on which the party had the burden of proof, we set aside the

finding only if, after considering and weighing all of the evidence in the record

pertinent to that finding, we determine that the credible evidence supporting the

finding is so weak, or so contrary to the overwhelming weight of all the evidence,

that the answer should be set aside and a new trial ordered. Pool v. Ford Motor

Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d

175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

Applicable Facts

      The standard of care for Dr. Thota was undisputed: to insert the needle

and catheter into the right femoral artery, as opposed to the right external iliac

artery. Young, 271 S.W.3d at 838. Appellant contends that all of the competent

evidence at trial shows that Dr. Thota violated the standard of care by inserting

the needle into the right external iliac artery and that there is no evidence that

Ronnie’s internal bleed was caused by anything other than Dr. Thota’s insertion

of the needle into the wrong artery.


                                        4
      According to Dr. Thota, when he performs a cardiac catheterization, he

feels for a bony prominence near the groin under which is usually the inguinal

ligament, and he then feels for a pulse underneath, which is the femoral artery;

he said it is difficult to feel a pulse in the external iliac artery because it is too far

underneath skin, fat, and muscle. He then nicks the artery in that area and

passes a thin wire into the artery at that point. According to Dr. Thota, he can tell

if a patient is bleeding during the procedure by changes in pulse rate and blood

pressure. After the procedure, a scrub tech monitors the blood pressure and

heart rate of the patient, compresses the puncture site for fifteen or twenty

minutes, and, once hemostasis 3 is achieved, puts on a bandage.                    When

hemostasis is achieved, there is no bleeding from the puncture site. The patient

is discharged if after four to six hours, there is no pain, no bleeding, and blood

pressure and heart rate are stable.

      Dr. Thota testified that he had no difficulties inserting the catheter during

Ronnie’s procedure and that he placed the catheter in Ronnie’s right femoral

artery. He also testified that Ronnie’s blood pressure and pulse rate were normal

during and after the procedure. His report after the procedure noted that “at the

end of the procedure, all catheters were removed. Hemostasis was obtained by

manual compression without any complication.” The nursing notes show that

hemostasis occurred after twenty minutes. They further state that before he was


      3
       Hemostasis is a clot forming on the puncture hole.


                                            5
discharged, Ronnie experienced some mild pain, that his “groin site” was “okay,”

and that there was no evidence of bleeding. 4

      Dr. Thota’s partner, Dr. Sudarshan, was on call when Ronnie came back to

the hospital. His report of his visit to Ronnie that night notes that he noticed a

puncture site “just about the inguinal ligament,” which, according to Dr. Thota,

means that the puncture was in the right place.

      There is evidence that in some of the radiological studies performed on

Ronnie after the catheterization, the precipitating event is listed as “right iliac

artery dissection.” Dr. Thota explained that if he had dissected the artery, it

would have been a complete cut, which would have caused severe pain and

would have caused difficulty with the catheterization procedure itself. Dr. Thota

also testified that had he torn the iliac artery, he would have known immediately

during the procedure because Ronnie would have had severe pain, a drop in

blood pressure, and an increase in his heart rate.

      Dr. Thota testified that he had read the post-operative report from Dr.

Walker, the surgeon who repaired Ronnie’s bleed the day after the

catheterization.   He noted that Dr. Walker wrote that he repaired Ronnie’s

“external iliac artery.” Dr. Thota also said that the external iliac artery becomes

the femoral artery after crossing below the inguinal ligament. According to Dr.

      4
      The scrub tech’s notes at 8:56 a.m. state, “Pressure held 20 minutes,
hemostasis obtained, sterile pressure, dressing and sandbag applied. Blood
pressure, vital signs, patient to the room, nurses care with no bleeding, no
hematoma, no chest pain or shortness of breath.”


                                        6
Thota, Dr. Walker’s report says that the puncture site for the catheterization was

“above the inguinal,” and that Dr. Walker did not say specifically where the

puncture site was in reference to the inguinal ligament. According to Dr. Thota,

the inguinal area is a large area that encompasses but does not necessarily

mean the inguinal ligament. He agreed that the puncture site is where the artery

is punctured with a needle so the surgeon can gain access to the artery for the

catheterization and that a puncture site from the external iliac artery would be

above the inguinal ligament.

      Dr. Sudarshan’s notes show that a “CT abdomen apparently revealed

bleeding from external iliac artery puncture site.” But Dr. Thota answered “No”

when asked if he knew whether Dr. Sudarshan had actually reviewed the CT

scan himself.

      Dr. Thota testified that one of the common complications of a cardiac

catheterization procedure is bleeding and that the informed consent form given to

Ronnie showed “[i]njury to the blood vessels” and “hemorrhage” as risks of the

procedure. Dr. Thota also testified that a retroperitoneal bleed, such as Ronnie

experienced, could happen “by sticking the common femoral artery.” He further

stated that if he had punctured the middle of the external iliac artery, bleeding

would have occurred in the cath lab itself and would not have stopped. Dr. Thota

agreed with a statement from a recognized authority on catheterization

procedures that “[t]he best prevention for retroperitoneal bleeding is careful




                                        7
identification of the puncture site to avoid entry of the common femoral near or

above the inguinal ligament.”

      Although in his discharge notes for Ronnie, Dr. Thota noted that Dr.

Walker made a “right iliac artery repair,” he explained that he was only describing

what Dr. Walker said in his surgical notes.

      Dr. Thota believed that the puncture site was at the junction of the

common femoral and external iliac arteries, which is, in his professional opinion,

a reasonable and appropriate site. Dr. Thota opined that he was not negligent

and that he did not cause Ronnie’s injury. Dr. Thota believed that Ronnie began

to bleed after he left the hospital.

      On redirect, Dr. Thota testified that he did not think a puncture site one to

three millimeters above the inguinal ligament was improper and that anything

higher would not allow hemostasis to be achieved. Dr. Thota clarified that he

disagreed with Dr. Walker’s description of where he repaired the puncture site;

Dr. Thota said that instead of the right iliac artery, Dr. Walker repaired the site at

the junction of the common femoral and external iliac. 5 Dr. Thota thought the

repair was at that junction because Dr. Walker’s surgical notes state that he

made an incision extending up to, and then across, the inguinal ligament before

he visualized the bleeder.



      5
        There were two reports by Dr. Walker; the first did not mention a puncture
site, but the second one did.


                                          8
      Dr. Neill Eugene Doherty, appellant’s expert, testified that the external iliac

artery is above the inguinal ligament.       Dr. Doherty opined that Dr. Thota

punctured Ronnie in the right external iliac artery above the inguinal ligament.

He based that decision on three things: (1) as a vascular surgeon, Dr. Walker

would have the best knowledge of vascular anatomy, (2) the CT scan taken

before Dr. Walker’s surgery showed a “bleed from the external iliac artery,” and

(3) it is much easier to detect a bleed from the femoral artery. According to Dr.

Doherty, a patient could appear to have hemostasis on the surface after an iliac

artery tear but still have undetected bleeding. Dr. Doherty testified that Dr. Thota

did not use ordinary care in locating the femoral artery and, thus, stuck Ronnie in

the wrong place. He thought the length of the procedure showed that Dr. Thota

did not spend enough time locating the artery. Dr. Doherty also testified that Dr.

Thota’s negligence––puncturing the wrong artery––caused the retroperitoneal

bleed and shock, which precipitated all of Ronnie’s other injuries in the hospital.

      Dr. Doherty explained that the reason Dr. Walker had to cut up to and

across the inguinal ligament was to open as large a space as possible because

the iliac artery is located deeper in the pelvis. In addition, Dr. Doherty testified

that Ronnie’s pre-existing, underlying health condition, PV, created a concern for

clotting and bleeding because bleeding for such a patient could have

catastrophic consequences.

      Dr. Doherty agreed that, based on the notes about the procedure and

Ronnie’s condition afterward, there was a ninety-nine percent chance that


                                         9
Ronnie was not bleeding when he was discharged and that discharging him that

day was reasonable. He also agreed that, based on those records, there is no

objective evidence Ronnie was bleeding at the time of discharge. Dr. Doherty

admitted that there was a possibility that the hole clotted, and the clot was

discharged and started to bleed after Ronnie left the hospital. Finally, he further

agreed that the area underneath the inguinal ligament is an appropriate place to

puncture the artery. Regardless, Dr. Doherty testified that in his opinion, Ronnie

started bleeding while he was being monitored after the procedure, before he

was ever discharged from the hospital. He testified that a retroperitoneal bleed

can occur without detectable symptoms for at least twelve hours and that he

would not have expected them to see any symptoms in the hospital. He said

pain is a late symptom of a retroperitoneal bleed.

      Dr. Joseph McCracken, a hematologist, testified that Ronnie’s underlying

condition made him more susceptible to bleeding and clotting complications. He

agreed that Ronnie’s condition at 6:00 p.m. the evening of the procedure

indicated that he was not in shock at that time and that a person can go into

shock syndrome in as little as thirty minutes. Dr. Barry Cooper, a hematology

expert, also testified that patients with PV are prone to bleeding and clotting

problems, especially during surgical procedures.        He further testified that a

person with PV is “more likely to clot off the . . . femoral . . . artery, if they are

cannulating the artery” during a cardiac catheterization procedure.




                                         10
         Appellant testified that Ronnie was complaining of being in a lot of pain

after the procedure but that Dr. Thota called him a “big baby” and said that it did

not hurt that bad. On cross-examination, appellant said Ronnie was only in pain

in the cath lab but that he was not complaining of pain by the time he was in

recovery.     According to appellant, he also said though that after he was

discharged and she took him home, Ronnie was “tired and kind of worn out, but

not hurting or anything.” He slept that evening. About 9:00 that night, he was

sitting in a recliner and would not go to bed. Ronnie said he was not feeling well;

appellant checked the puncture site, but it looked fine. After appellant went to

sleep, she was awakened by Ronnie’s shout; he told her he felt “sick at his

stomach” like he needed to go to the bathroom. She could not get him out of the

recliner and had to call an ambulance. By the time the ambulance arrived, “he

had turned real pale, [had] started sweating, [and] the color [had gone] out of his

eyes.”

         Dr. Sudarshan’s notes of when he talked to appellant in the hospital

indicate that she told him Ronnie “apparently did well until around 10 p.m. when

he suddenly started complaining of pain.”

Analysis

         Based on the foregoing, there is evidence supporting the jury’s finding. In

addition, that finding is not against the great weight and preponderance of the

evidence such that the jury’s verdict is manifestly unjust.      The record shows

conflicting, battle-of-the-expert evidence, of the type that a reasonable jury as


                                          11
fact finder could resolve in either party’s favor. See Young, 366 S.W.3d at 695–

96. We therefore conclude and hold that the evidence is neither legally nor

factually insufficient to support the jury’s finding that Dr. Thota did not breach the

applicable standard of care in his treatment of Ronnie. See id. (holding that the

jury could have reasonably concluded that Dr. Thota did not breach the standard

of care and that “the record supports the jury’s finding of no negligence as to Dr.

Thota”). We overrule appellant’s first issue. Having overruled her first issue, we

need not address her second. See Tex. R. App. P. 47.1; Young, 366 S.W.3d at

694 (holding that once jury found Dr. Thota not negligent, any answer to the

subsequent contributory negligence question could not alter the verdict).

      Having overruled appellant’s remaining dispositive issue, we affirm the trial

court’s judgment.




                                              TERRIE LIVINGSTON
                                              CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MCCOY, JJ.

DELIVERED: June 20, 2013




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