

Opinion issued December 29, 2011

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-09-00925-CV
———————————
The Methodist Hospital, Appellant
V.
John German, Appellee

 

 
On Appeal from the 125th District Court 
Harris County, Texas

Trial Court Case No. 2003-30417
 

 
O P I N I O N
This is a
medical malpractice case against a hospital involving the care provided by its
nurses.  Appellee John German was
admitted to The Methodist Hospital for surgery to repair a congenital heart
defect.  A tragic surgical error
committed during his first heart surgery required additional surgeries and
interventions.  German survived, but only
after suffering the amputation of one leg, one foot, and most of his fingers.
German filed suit to recover
damages for injuries arising from the original surgery and his subsequent
course of treatment.  After settling with
his doctors, he proceeded to trial against the sole remaining defendant, The
Methodist Hospital.  German sought to hold
Methodist responsible for the acts of its nurses, alleging that the nurses failed
to notice that he was having a dangerous reaction to medication, and that their
failure to take appropriate action led to the eventual amputations.  German also alleged that Methodist did not properly
train its nurses to recognize and appropriately respond to his symptoms.
The jury awarded damages to German
based on findings that Methodist was negligent and was 50% responsible for the
injuries.  The jury also found that the
hospital had acted with conscious indifference in providing medical care and awarded exemplary damages.  The trial court entered judgment on the
verdict in German’s favor.  Among other
things, the hospital contends on appeal that the evidence was legally insufficient
to support the verdict, primarily because critical testimony by German’s expert
witness was unreliable and conclusory.
Because there is no evidence of at
least one element of each of German’s theories of negligence, we reverse the
trial court’s judgment and render a take-nothing judgment in favor of The
Methodist Hospital.
Background
John German, then a 32-year-old
mechanic, was admitted to The Methodist Hospital for surgery to correct a
congenital heart defect.  During the
surgery, Dr. Mahesh Ramchandani committed a serious error by puncturing
German’s healthy mitral valve.  The
puncture resulted in a condition known as acute mitral valve regurgitation,
which caused blood to flow backwards through the heart and which would have
been fatal if left untreated. 
Ramchandani attempted to repair the valve during this surgery by
suturing it, but a variety of serious medical conditions over the following two
days indicated that the attempted repair was not successful.  On two consecutive days, doctors performed
additional open-heart surgeries, attempting again to repair the valve and then,
upon the realization that the valve was irreparably damaged, ultimately
replacing it.  During each surgery,
German was placed on a cardiopulmonary bypass machine (also known as a
heart-lung machine).  After the second
failed valve repair, an extracorporeal membrane oxygenation machine (or ECMO)
was also used to provide external cardiopulmonary support.  Both the heart-lung machine and the ECMO
required use of a blood-thinning medication, and for this reason German was
given heparin, an FDA-approved anticoagulant. 
These were the only times that German received heparin during this
hospital stay, and it was administered by the doctors themselves, not the
nurses in the cardiovascular intensive care unit.  After each surgery, German received care in
the hospital’s cardiovascular ICU.
Over the course of eight days
beginning with his original surgery, German experienced, among other things,
cardiac distress, multi-system organ failure, life-threatening bleeding, and
low blood pressure.  He required multiple
blood transfusions, prompting the doctors to artificially elevate his blood
pressure through the use of drugs known as vasopressors.  German also experienced a significant decline
in his blood platelet count, weak pulses, and other signs of blood clotting in
his extremities.  At trial, German’s
expert witness testified that these symptoms could indicate a rare adverse
reaction to heparin called heparin-induced thrombocytopenia, also known as HIT.  But German’s expert conceded that these
symptoms were also consistent with the numerous surgical interventions and
medications that had been administered, and some of German’s doctors testified
that at the time of treatment they believed the symptoms were caused by factors
other than HIT.  For example, German’s decreased
platelet count was consistent with the mitral valve regurgitation resulting
from the punctured valve, and it was also consistent with the repeated use of
the heart-lung machine and ECMO during German’s treatment, both of which had
the effect of decreasing platelets.  His
weak pulses were consistent with the use of vasopressors, which constricted
blood vessels and had the effect of depriving the capillaries in his
extremities of blood in order to keep blood flowing to the brain and other
vital organs.
The treating doctors testified
without contradiction at trial that German would have died without these
surgical interventions.  Unfortunately,
the doctors could not restore circulation to his extremities, and German later
underwent surgery to amputate his left leg above the knee, all of his fingers,
and all of the toes and part of his right foot.
German filed a medical malpractice
lawsuit against his treating physicians and Methodist.  He settled all of his claims against the
doctors, and he proceeded to trial solely against Methodist on a theory that he
had HIT, that it was preventable, and that the negligent failure to prevent it
resulted in his amputations.  German
alleged that Methodist was liable for the negligence of its cardiovascular ICU
nurses who failed to recognize the signs and symptoms of HIT and failed to
alert the doctors to these conditions. 
In addition, German alleged that Methodist negligently failed to train
its cardiovascular ICU nurses about HIT. 
Finally, German alleged that Methodist and its nurses acted with
conscious indifference in caring for him. 
The jury found that Methodist was
negligent and acted with malice, and it awarded compensatory and exemplary
damages to German.  The final judgment
awarded $7,116,095.89 to German on his claims against Methodist.
Analysis
In its first three issues,
Methodist challenges the sufficiency of the evidence to support the jury’s
negligence findings.  The elements of a
medical negligence claim are: (1) a duty to conform to a certain standard of
care; (2) a failure to conform to the required standard; (3) actual injury; and
(4) a causal connection between the conduct and the injury.  See,
e.g., Mariner Health Care of
Nashville, Inc. v. Robins, 321 S.W.3d 193, 205 (Tex. App.—Houston [1st
Dist.] 2010, no pet.).  A medical
malpractice plaintiff must present evidence of a reasonable medical probability
that the alleged injuries “were caused by the negligence of one or more
defendants, meaning simply that it is ‘more likely than not’ that the ultimate
harm or condition resulted from such negligence.”  Kramer
v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399–400 (Tex. 1993).  Methodist argues there was no evidence that
its nurses breached a duty under a legally proper standard of care, no evidence
that any alleged breach caused German’s injuries, and no evidence of any
standard of care for the nurses’ training.
When a party who does not have the burden of proof at trial challenges
the legal sufficiency of the evidence, we consider the evidence in the light most
favorable to the verdict, indulging every reasonable inference that would
support it.  City of Keller v. Wilson, 168 S.W.3d 802,
822 (Tex. 2005).  We will
sustain a no-evidence point when:
(a) there is a complete absence of evidence
of a vital fact, (b) the court is barred by rules of law or of evidence from
giving weight to the only evidence offered to prove a vital fact, (c) the
evidence offered to prove a vital fact is no more than a mere scintilla, or (d)
the evidence conclusively establishes the opposite of the vital fact.
Merrell Dow
Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)
(citing Robert W. Calvert, “No Evidence”
and “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960)).  We review the factual sufficiency of the evidence to support a jury
verdict by considering and weighing all the evidence, and we will set the
verdict aside “only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust.” 
Cain v. Bain, 709 S.W.2d 175,
176 (Tex. 1986).
Two distinct theories of
Methodist’s negligence were presented at trial. 
German contended that Methodist was responsible for the negligent
failures of its nurses to know the adverse effects of heparin, to appropriately
document and report them, and to initiate the hospital’s internal chain of
command when the doctors did not diagnose HIT. 
German’s other theory was that the hospital failed to train its nurses
properly.  To demonstrate the
insufficiency of the evidence to support the jury’s finding of negligence,
Methodist must demonstrate the absence of evidence to support at least one
element of each theory.  As to the theory
based on the nurses’ alleged failures, Methodist argues that a critical component
of German’s proposed standard of care conflicted with Texas law by effectively
requiring the nurses to diagnose German’s symptoms as HIT, and therefore the
proposed standard was not supported by any legally sufficient evidence.  Moreover, Methodist contends that there is no
evidence that the nurses breached any other duty or that any such breach caused
German’s injuries.  With respect to the
alleged failure to train, Methodist argues that German offered no evidence of
the standard of care for training nurses. 
We will address each of German’s liability theories and Methodist’s
contentions in turn.
I.       Negligence of Methodist’s nurses
A.      Standard
of care—nurses’
alleged duty to identify and act
upon symptoms of medical condition
Methodist challenges the sufficiency
of the evidence to establish certain aspects of the standard of care applicable
to nurses, and it argues that the standard of care propounded by German’s
expert is legally flawed.  Because
determination of the standard of care in medical malpractice requires knowledge
and skills not ordinarily possessed by lay persons, evidence of the applicable
standard of care and its breach is usually established by expert
testimony.  See Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex. 2010) (causation); Battaglia v. Alexander, 177 S.W.3d 893,
899 & n.7 (Tex. 2005) (standard of care). 
Methodist’s arguments implicate the sufficiency of German’s expert
testimony—both the expert’s opinions and
the reliability of the information upon which he relied in forming his opinions.
Challenges to expert opinions
ordinarily arise in the context of rulings on their admissibility, which are
reviewed for an abuse of discretion.  See Whirlpool
Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009).  But in some cases, as here, a party asserts
on appeal “that unreliable . . . expert testimony is not only inadmissible, but
also that its unreliability makes it legally insufficient to support a
verdict.”  Id.  “Opinion testimony that
is conclusory or speculative is not relevant evidence, because it does not tend
to make the existence of a material fact ‘more probable or less
probable.’”  Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227,
232 (Tex. 2004) (quoting Tex. R. Evid.
401).  In such cases, courts must
determine if the testimony is sufficiently reliable to make it probative of a
material fact.  See Whirlpool, 298 S.W.3d at 637. 
“[I]t is the basis of the witness’s opinion, and not the witness’s
qualifications or his bare opinions alone, that can settle an issue as a matter
of law; a claim will not stand or fall on the mere ipse dixit of a credentialed witness.”  Burrow
v. Arce, 997 S.W.2d 229, 235 (Tex. 1999).  “It is not enough for an expert simply to
opine that the defendant’s negligence caused the plaintiff’s injury.”  Jelinek,
328 S.W.3d at 536.
Dr. Akella Chendrasekhar was
designated as German’s expert witness on the standard of care for nursing
care.  Before trial, Methodist challenged
Chendrasekhar’s qualifications, and the trial court held a two-day hearing on a
motion to exclude his testimony.  While
permitting much of Chendrasekhar’s proposed testimony, the trial court ruled
that he could not testify that the nurses should have diagnosed HIT.  Nevertheless, at trial Chendrasekhar opined
that the nurses’ standard of care required them to recognize clotting signs and
a downward platelet trend as symptoms of HIT, to report them to the physicians
as such, and ultimately to use the hospital’s internal chain of command to get
“satisfaction” when the doctors failed to diagnose HIT and treat German
accordingly.
Methodist argues that
Chendrasekhar’s opinion about the standard of care conflicted with legal
prohibitions against the practice of medicine by nurses because his proposed
standard required the nurses not only to recognize and report the objective
data that German’s platelet levels were dropping or fluctuating, but also to take
the further step of diagnosing HIT.  That
is, Methodist contends that under Chendrasekhar’s proposed standard of care,
the nurses would have been required to conclude that German’s platelet levels
were dropping or fluctuating because he had HIT and that the doctors had
misdiagnosed German by not concluding that he had HIT.  Methodist contends this proposed standard of
care is incorrect as a matter of law, and thus Chendrasekhar’s testimony in
this regard is no evidence of the standard of care.
In response, German argues that he
never sought to impose liability on the hospital because its nurses failed to
make a medical diagnosis.  Rather, German
contends that the nurses had a statutory duty to know, document, and report the
effect of medications and treatments administered to patients.  German contends that the nurses should have
known that HIT is an adverse effect of heparin, should have recognized that the
signs and symptoms they observed were consistent with HIT, and should have
communicated that information to the treating physicians.
At trial, Chendrasekhar testified
that his qualifications included intensive care work during his residency, a
post-residency critical care fellowship, and practice of critical care medicine
since 1994.  He is board certified in
general surgery, critical care medicine, and surgical critical care.  He has taught doctors and medical students,
and he served as the assistant director and director of trauma and critical
care medicine at Iowa Methodist Medical Center for eight years.  At the time of trial, he was the director of
trauma and critical care at Lincoln Hospital in New York.  He testified that he served as the chairman
of the quality improvement committee, which encompassed nursing as well as
medical care improvement.  He testified
that he had interacted with nurses on the care and treatment of HIT and that he
had reviewed nursing literature pertaining to HIT.  
Chendrasekhar’s testimony included
reading from several nursing journals, including an article entitled “Bleeding
complications in the patient with cardiac disease following thrombolytic and
anti-coagulant therapies” from Critical
Care Nursing Clinics of North America, which he said was relevant to the
nurses’ standard of care.  The article
stated:
While the patient is
receiving heparin, the platelet count should be monitored regularly, and any
downward trends in the count reported, as well as any change in pulsation or
color of an extremity.  The nurse should
observe for poor capillary refill, weakened or absent pulses or other signs of
decreased perfusion, such as decreased urinary output or neurologic changes,
which may indicate emboli.
He also read an excerpt from “Heparin-induced
thrombocytopenia” published in the Journal
of Vascular Nursing, which stated: “Nurses are responsible for recognizing
and reporting the signs and symptoms of HIT syndrome.”  Chendrasekhar specifically opined that in the
case of German’s treatment, Methodist’s nurses had the following duties under
their standards of care:
·       
The nurses have a responsibility to notify a physician if a patient is
having an allergic reaction to a medicine. 
He testified that “HIT is—thrombocytopenia in this setting related to
HIT is an allergic reaction.”
 
·       
The nurses should have recognized German’s clotting signs and downward
platelet trend as signs and symptoms of HIT, and they should have informed the
treating physicians.
 
·       
Although all the doctors “missed” the diagnosis of HIT, the nurses should
have caught it.
 
·       
The nurses have a responsibility to use the chain of command to inform
superiors “if they don’t get an appropriate response from the physician,” and
they should have done so in this case.
 
Despite his opinion that the applicable standard of
care required that the nurses recognize and report the symptoms as indicative
of HIT, Chendrasekhar nevertheless also confirmed that German’s many symptoms
and complications were also consistent with diagnoses other than HIT, such as
the decreased platelet levels being consistent with his acute mitral valve
regurgitation.
          On
cross-examination, Chendrasekhar testified that he did not know that there was
a Texas statute that governed the practice of nursing, had never heard of the
North American Nursing Diagnosis Association, and was unaware of licensing or
continuing education requirements for nurses in Texas.  He also did not know whether Texas excluded
medical diagnosis from the practice of nursing.
In contrast to Dr. Chendrasekhar’s
opinions about the nurses’ duties and the applicable standard of care, Nurse
Kathy Knaack, the nursing director of Methodist’s cardiovascular intensive care
unit, testified that a nursing diagnosis is “based off the nurse’s assessment,
a problem in the patient that they can address based on their education and
license.”  She distinguished a nursing
diagnosis from a medical diagnosis in that a “medical diagnosis has to do with
the medical condition of the patient in which the physician would order
specific treatments; a nursing diagnosis has things to do with what a nurse can
do to intervene and support the medical diagnosis.”  She also testified that the North American
Nursing Diagnosis Association, or NANDA, sets standards for acceptable nursing
diagnoses.  The 2001–2002 NANDA manual,
which was admitted into evidence at trial, defined “nursing diagnosis” as “[a]
clinical judgment about individual, family, or community responses to actual or
potential health problems/life processes. 
A nursing diagnosis provides the basis for selection of nursing interventions
to achieve outcomes for which the nurse is accountable.”  NANDA,
Nursing Diagnoses: Definitions &
Classifications 2001-2002, at 245 (Marjory Gordon et al., eds., 2001).
Knaack offered her opinion that a
doctor’s order is required for the administration of medication, but a nurse is
nevertheless required to know why a medication is ordered and its effects.  This includes adverse reactions, such as the
risk of bleeding associated with giving a patient a blood-thinning medication
like heparin.  She also testified that
Methodist’s nurses do not—and legally cannot—make medical diagnoses, because
nurses are not educated or licensed to do so. 
Nurse Virginia Hathaway, a certified critical care registered nurse who
cared for German in the cardiovascular ICU, also testified that a diagnosis of
HIT is a medical diagnosis that a nurse cannot make.
          Both Methodist and German
rely on the Nursing Practice Act and its implementing regulations in the Texas
Administrative Code as defining the standard of care for nurses applicable to
this case.  See Tex. Occ. Code Ann.
§§ 301.001–301.3607 (West 2004 & West Supp. 2010) (Nursing Practice
Act); 22 Tex. Admin. Code §§
213.1–227.6 (2010).  Although these regulations have been
amended since the events giving rise to German’s claims, neither party argues
that any change is relevant to this appeal. 
Rule 217.11 of the Texas
Administrative Code, entitled “Standards of Nursing Practice,” defines the
“minimum acceptable level of nursing practice” for a given setting.  See 22
Tex. Admin. Code § 217.11.  Among the standards applicable to all nurses
are the requirements that a nurse know the rationale for and effects of
medications and treatments and correctly administer them, as well as accurately
and completely reporting the patient’s signs, symptoms, and responses.  Id.
§ 217.11(1)(C), (D).
In defining “professional nursing,”
the Nursing Practice Act specifically excludes “acts of medical
diagnosis.”  Tex. Occ. Code Ann. § 301.002(2)
(West Supp. 2010).  Furthermore, the Act
specifically states that it “does not authorize the practice of medicine
as
defined by Chapter 151” of the Occupations Code.  See
id. § 301.004(b).  The Medical Practice Act defines “practicing
medicine” to include “the diagnosis, treatment, or offer to treat a mental or
physical disease or disorder or a physical deformity or injury by any system or
method, or the attempt to effect cures of those conditions.”  Id.
§ 151.002(a)(13).  Medical diagnosis
is commonly understood to be the determination of the cause and nature of a
patient’s condition.  See, e.g., Loper v. Andrews, 404 S.W.2d 300, 304–05 (Tex. 1966); Texas Employer’s Ins. Ass’n v. Sauceda,
636 S.W.2d 494, 498 (Tex. App.—San Antonio 1982, no writ).
          Both Methodist and German
agree that nurses cannot legally make medical diagnoses.  Methodist argues that Chendrasekhar’s stated
standard of care required exactly that. 
In response, German argues that the Chendrasekhar’s standard of care
required no more than for the nurses to know and report the effects of the
medications they administer, because Chendrasekhar testified that HIT is an
allergic reaction to heparin.
German received heparin only during
his surgeries and only when administered by a doctor.  The Standards of Nursing Practice required
the nurses assisting with German’s care to know the rationale for and effects
of using heparin, as well as to accurately and completely report and document
German’s status, including his signs, symptoms, and responses.  See 22
Tex. Admin. Code § 217.11(1)(C),
(D).  The nurses’ duties thus included
accurately and completely reporting the signs, symptoms, and responses relied
upon by German’s treating physicians (and later relied upon by Chendrasekhar in
the formation of his opinions), such as German’s falling or fluctuating
platelet levels and intermittent weak pulses. 
These signs, symptoms, and responses were consistent with more than one
medical or clinical cause, not just HIT. 
Determining that these clinical findings actually were symptoms of
HIT—as opposed to side effects of German’s ongoing treatment or symptoms of
some other disorder such as acute mitral valve regurgitation—would have
required the nurses to analyze the cause and nature of German’s condition.  This is a medical diagnosis, prohibited to
nurses under Texas law.  See Tex.
Occ. Code Ann. § 301.004(b) (Nursing Practice Act); id. § 151.002(a)(13) (Medical Practice Act).  Accordingly, the signs, symptoms, and
responses the nurses were obliged to report and document could not have
included the characterization or diagnosis of the symptoms as being indicative
of HIT.
Chendrasekhar’s proposed standard
of care effectively required the nurses to engage in the unauthorized practice
of medicine by making a medical diagnosis. 
Anything that could be characterized as the practice of medicine is
expressly excluded from the scope of professional nursing in Texas as defined
by the Nursing Practice Act.  See Tex.
Occ. Code Ann. § 301.004(b).  The nurses had no legal duty to draw any
conclusion from their observations about the patient’s signs, symptoms, and
responses that would have required a medical diagnosis.  Chendrasekhar’s testimony suggesting
otherwise constituted no evidence of a higher standard of care because such a
standard would impermissibly hold nurses to standard higher than that allowed
by law.  See Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 365 (Tex.
1987) (expert’s opinion on a mixed question of law and fact must be predicated
on “proper legal concepts”); Schneider v.
Haws, 118 S.W.3d 886, 889–90 (Tex. App.—Amarillo 2003, no pet.) (medical
malpractice expert witness’s attempt to impose upon a doctor and his assistant
“a standard of care greater than that compelled by law . . . constituted no
evidence, as a matter of law, of the applicable standard of care”).  The nursing journals entered into evidence
also were no evidence that a nurse should interpret certain symptoms as
indicating HIT.  Instead, consistent with
the definition of professional nursing in Texas, see 22 Tex. Admin. Code § 217.11(1)(C),
(D), they merely stated that, when a patient receives heparin, a nurse should:
monitor and report downward trends in platelet count; report “any change in
pulsation or color of an extremity”; “observe” certain signs including “poor
capillary refill, weakened or absent pulses or other signs of decreased
perfusion”; and “report” such “signs and symptoms.”
          In
addition, Chendrasekhar’s testimony that he was unaware of the Texas statutes
governing or restricting nursing practice made his testimony about the standard
of care unreliable.  See Whirlpool, 298 S.W.3d
at 637, 642.  Although Chendrasekhar
testified about his extensive experience in intensive care, including working
with and reviewing the work of nurses, Chendrasekhar did not provide any basis
for his opinion that the nurses’ standard of care required them to determine
that a patient suffered from HIT and then act upon that determination.  Any such opinion in this case necessarily
required reference to the relevant legal restrictions on the practice of
nursing, yet Chendrasekhar’s opinion could not account for these restrictions
considering that he admitted being ignorant of their substance.  Thus, to the extent that he testified that
the nurses should have recognized German’s symptoms as signs of HIT and
characterized them as such, this testimony is no evidence of the applicable
standard of care because of its fundamental unreliability.
          We
hold that German offered no evidence of any standard of care effectively
requiring the nurses to diagnose HIT. 
This holding does not mean that a nurse has no duty to recognize and
appropriately report or otherwise act on the signs and symptoms of a dangerous
allergic reaction.  Instead, consistent
with the complementary provisions of the Medical and Nursing Practice Acts, we
hold that Texas law specifies that it is the doctor, not the nurse, who draws
medical conclusions from the information observed and reported by the
nurse.  Only doctors are legally
authorized to make a medical diagnosis by evaluating a patient’s medical
treatment and the development of subsequent symptoms to conclude that a
particular medical condition has resulted. 
This is particularly true when, as occurred in this case, the signs and
symptoms observed by a nurse are consistent with more than one disease,
syndrome, or cause.  Opinion testimony
about the standard of care in a medical malpractice case cannot be used to
expand this responsibility to nurses in conflict with Texas statutes and
regulations governing the nursing profession. 
To the extent Chendrasekhar also opined that Methodist’s nurses should
have gone over the heads of German’s treating doctors to seek “satisfaction”
when those doctors did not diagnose German with HIT and treat him accordingly,
we hold that such testimony also fails because it is based on the same flawed
premise that the nurses effectively could be required to diagnose HIT.
B.      Breach and causation—adequacy and
effect of nurses’ observations and
reports
The nurses’ failures to identify
HIT and act in accordance with Dr. Chendrasekhar’s opinion of their duties
in that regard were not the only theories of Methodist’s negligence presented
at trial.  German also contended that the
nurses failed to observe and properly communicate to the doctors the presence
of symptoms that may have indicated HIT. 
In particular, German argues that he presented evidence that the nurses
failed to document and report to the physicians his downward trend in platelet
counts, weak pulses, and clotting signs. 
Chendrasekhar testified that the nurses failed to satisfy their duty to
document and communicate this information to the doctors.  German thus argues that the evidence supports
the jury’s verdict that acts of negligence attributable to the hospital
proximately caused his injuries.
Methodist argues both that there is
no evidence that the nurses failed to report completely on German’s signs and
no evidence that the nurses’ actions caused German’s injuries and
amputations.  In particular, Methodist
points to the evidence in the record about the thorough nursing assessments
conducted in the cardiovascular ICU and the physicians’ testimony that they
would not have done anything differently if the nurses provided more
information.
a.                
Adequacy
of nurses’ observations and communication 
Chendrasekhar testified that the
nurses should have known the potential adverse effects of heparin, but their
deposition testimony showed their knowledge was inadequate.  For example, Methodist’s nurses testified
that heparin can cause excessive bleeding, but they did not indicate awareness that
clotting was one of the drug’s potential adverse effects.  When German’s blood pressure and pulses did
not correlate, according to Chendrasekhar the discordant pressure data implied
“that some other process is going on, like—that’s within the blood vessel, such
as clotting.  Because you are not feeling
a pulse yet the blood pressure is such that you should be feeling a
pulse.”  He testified that the nurses
should have recognized that the blood pressure was discordant and “at least
informed the physician that was caring for him”; that the nurses should have
noticed a significant drop in German’s platelet counts from the time of his
admission to the hospital to the time of each assessment; and that they should
have reported trends in his clotting signs as well.
Nurse Knaack testified that, consistent
with hospital procedure, the nurses performed a head-to-toe, hands-on nursing
assessment of German within one hour of each admittance to the cardiovascular
ICU after surgery and every four hours thereafter.  In doing so, a nurse examined all of German’s
major organ systems by sight, touch, and measurements with medical equipment,
as well as by speaking to him when possible. 
For example, the cardiovascular part of the assessment required the
nurse to monitor German’s heart sounds with a stethoscope, to touch his neck
veins to assess cardiac function, to look for swelling throughout his body, to
check for pulses by touching his arms, feet, and other body parts or by using a
Doppler machine, and to squeeze his nail beds and watch the color return to determine
capillary refill time.  The
cardiovascular ICU nurses also monitored German’s vital signs—either every hour or every 15 minutes—when he received certain medications.  This monitoring included his blood pressure,
respiratory rate, temperature, heart rate, pulmonary artery catheter reading,
drip medication and pulmonary status, oxygen or ventilator status, and
neurological assessment.  The vital signs
and the information from the periodic hands-on, head-to-toe assessments were
stored in German’s bedside computer, which could be accessed by every member of
the cardiovascular ICU.
Knaack also testified about the
importance of continuity of care, which required communication among the
patient’s health care providers. 
Continuity of care included both written nursing records and verbal
bedside updates from the nurses to the health care providers.  Knaack testified that a nurse updates a
doctor on “her clinical assessment findings . . . anything related to the
medications that the patient is receiving [and] lab work or test results.”  She testified that the standard of care does
not require the nurse to record verbatim what she told the doctor; rather, the
standard of care is satisfied if the nurse simply notes, “update given.”
          Cardiovascular ICU nurses at
Methodist follow nursing standards based on those set by the American
Association of Critical Care Nurses. 
Knaack reviewed the nurses’ notes from the relevant time period.  During German’s critical first days in the
cardiovascular ICU, nurses performed more than 30 head-to-toe nursing
assessments.  Knaack testified that they
were done within one hour from the time German was admitted or readmitted to
the ICU and every four hours thereafter. 
These assessments included monitoring blood pressure and looking for
signs of clotting.  The nurses monitored
German’s pulses and platelet counts during this same period, testing his
platelet counts ten times.  Knaack also
testified that a bedside computer is assigned to each patient for the purpose
of documenting the medical record and nursing notes.  Nurses access laboratory results, including
platelet levels, through the bedside computer. 
All the doctors, respiratory therapists, and physical therapists, as
well as the dietician and pharmacist, also had access to the laboratory results
through the bedside computer.
Dr. Faisal Masud, a critical care
anesthesiologist and cardiac anesthesiologist, worked at Methodist’s
cardiovascular ICU and treated German there. 
Methodist employed around-the-clock cardiovascular ICU physicians and
critical care specialists, so that physicians were available at all times if a
nurse needed to contact a specialist. 
Masud explained that the nurses work with the cardiovascular ICU team of
surgeons, critical care specialists, residents, physicians’ assistants, and
nurse practitioners.  He testified that
nurses are an important part of patient care, serving “continuously at the
bedside” because “no physician can be continually at the bedside.”  He characterized the nurses’ role as an
“integral part of anything,” explaining that physicians provide instruction to
the nurses, that the physicians and nurses routinely exchange information, with
nurses reporting significant changes to the physician or other appropriate team
member.  Although he reviewed the nursing
notes at times, he relied on the nurses’ verbal updates about changes in a
patient’s status.  Masud explained that
both as his general practice and specifically in the case of German’s
treatment, he listens to the nurses and actively evaluates and treats the
patient while he is at the bedside.
Chendrasekhar opined that the
nurses’ failure to recognize and act on the signs and symptoms of HIT
proximately caused German’s injuries. 
Again we look to the basis of his opinions.  See
Whirlpool Corp., 298 S.W.3d at 637. 
Although the nurses could not be required to make a medical diagnosis of
HIT, they were required to accurately and completely report German’s signs,
symptoms, and responses.  See 22 Tex.
Admin. Code § 217.11.  There
is no evidence supporting Chendrasekhar’s opinion that they failed to do so in
the sense that the relevant information was not actually observed and
documented.  Nurse Knaack testified that
the nursing record included notes on clinical assessments done in accordance
with the one-hour and four-hour standards set by the hospital and that these
assessments included checking blood pressures, pulses in German’s extremities,
and looking for signs of clotting.  In other
words, the head-to-toe nursing assessments included the very signs and symptoms
that Chendrasekhar testified would be present in a patient who had HIT.  And, critically, Chendrasekhar himself
testified that the doctors were provided all of the information they needed to
diagnose HIT, including information about German’s weak pulses and falling
platelet levels.  Although he criticized
the nurses’ alleged failure to identify trends in the information they recorded
and the adequacy of the nurses’ verbal reports to the doctors, such as their
failure to verbally report about German’s downward trending platelet count and
fluctuating pulses at a critical point in time, he acknowledged that the nurses
had documented the underlying information in their assessments, which were
available to the doctors.  He thus agreed
that the doctors should have been able to make a diagnosis of HIT with the
information available to them—the
same information he relied upon to conclude that German’s symptoms indicated
HIT.  Methodist’s nurses observed and
documented all of this information, upon which German’s physicians
contemporaneously relied for their treatment decisions.
The nursing notes indicate that
treating physicians were frequently at German’s bedside while the nurses were
there monitoring and caring for German. 
Having reviewed the record, including those portions of the record
identified in German’s briefing as supportive of his claim, we find no evidence
that the nurses failed to fully discharge their duties to accurately and
completely document the patient’s signs, symptoms, and responses.  Accordingly, the only possible remaining
theories upon which the jury could have concluded that the nurses failed to
satisfy the nursing standard of care are the possibilities that the nurses’
duty to report information included the duty to identify trends in that
information or to verbally communicate particular information at a particular
time.  We need not express any opinion
about whether the evidence would have supported a finding of breach on these
narrow theories because, as explained below, there is no evidence that any
breach of that nature caused German’s injuries.
b.   
Effect of
nurses’ reports on treatment decisions by German’s physicians
As suggested above, German contends
that it was not enough for the nurses to observe and record information.  Chendrasekhar testified that the nurses
should have identified a downward trend in German’s platelets, that they should
have specifically informed a treating physician of that trend, and that their
failure to do so caused German to lose his fingers, a leg, and a foot.  Chendrasekhar also
testified about a particular incident immediately before German’s second
surgery, in which Dr. Michael Reardon, the co-director of the ICU, was present when German began to
descend into cardiac arrest.  A nurse
asked for Reardon’s assistance.  Reardon
placed German on the heart-lung machine, administering heparin in the
process.  Chendrasekhar offered his opinion that a nurse should have told Reardon
about the downward platelet trend, and if she had, a hematology consult should
have been ordered, HIT should have been diagnosed, and ultimately heparin
should not have been used.
          Dr. Reardon confirmed that when the
nurse asked him for help, he was not specifically made aware of any downward
trend in German’s platelets and he did not call for a hematology consult.  He looked only at the daily lab work and did
not know of the falling platelet trend. 
But he testified that he would not have done anything differently even
if he had known of the falling trend, because German would have died if he did
not take immediate action.  He testified:
Q.      On 9/20/02, if you had known that Mr. German’s blood
platelets were 68 on that day and were 243 upon admission, would you have
called for a hematology consult?
A.      No.
Q.      And why is that?
A.      Because he was going to be
dead in a short period of time if I didn’t get him on bypass, and by the time
we could have gotten a hematologist, he would be dead and his platelet count
would have been immaterial.
Q.      So that would be the same
for any blood platelet level?
A.      That’s correct.  It was my opinion, when the nurses asked me,
that he was going to die in short order without getting on the heart lung
machine, which is why I placed him on it. 
If he had been stable enough to wait, I would have done what it took to
tide him over until his doctor, Dr. Ramchandani, was there.
Dr. Masud was also present at this same time, and he had been
treating German for several days and was aware of the platelet count.  Masud did not believe German had HIT at the
time.  Instead, he believed that the low
platelet count was a direct result of German’s multiple surgeries and his
bleeding.  He testified that if a nurse
had persisted in questioning his judgment as to the cause of German’s bleeding,
he would have thanked the nurse, explained why HIT was not the proper medical
diagnosis, and, if necessary, asked for the nurse to be reassigned to another
patient.
          Three of German’s other treating physicians also testified that they
either had all the information necessary to diagnose HIT, or that, if a nurse
suggested a diagnosis of HIT it would not have changed their course of action
or their assessment that German did not have HIT.  Dr. Lawrence Rice is a board-certified
hematologist who was consulted regarding German’s case.  Rice testified that he would not have
suspected HIT or ordered a heparin antibody test in the days following German’s
first surgery, even if he knew the complete history of platelet counts, because
there were “a lot of alternative explanations for the things going on.”  He testified that the two additional
surgeries and Reardon’s action in placing German on an emergency heart-lung
bypass machine were necessary to save German’s life.  And although German introduced evidence that
an alternative blood thinner, Argatroban, was used in treating patients with
HIT, Rice testified that even assuming German had HIT, he would not have
recommended the use of an alternative blood thinner.
Dr. Luis Velez-Pestana, a physician
who treated German in the cardiovascular ICU, testified that he had all the
information he needed to care for German when he did.  He said that although the nurses did not
identify a downward “trend” in platelet levels, he made himself aware of
German’s platelet trend by checking his records.  Velez testified that if a nurse had questioned him about whether
German had HIT, he would have thanked her for the information “because it’s
very important what they see there with the patient all the time,” but he would
not have diagnosed HIT because German did not display the signs and symptoms of
HIT at that time.  Velez also testified
that if the nurse said she believed German to be having an allergic or adverse
reaction to heparin, he would have explained the clinical and laboratory findings
comported more with use of the cardiopulmonary bypass pump and his extreme
post-surgical bleeding than with a diagnosis of HIT.
Dr. Saleem Zaidi was another critical care specialist with
Methodist who treated German.  When asked
if he would have acted differently if a nurse had suggested a diagnosis of HIT,
Zaidi explained that HIT was already in his mind as a potential medical
diagnosis, but the treatment for HIT would have exacerbated bleeding and German
was already in a “life and death” situation. 
Moreover, Zaidi testified that he knew of the downward platelet trend
because German was his patient, he had cared for him “continuously for four or
five days,” and he had been checking German’s laboratory results “continuously
. . . interoperatively and post-operatively.”
Chendrasekhar testified that if the
nurses had informed Reardon of the downward trend in platelet levels, then
Reardon should have called for a hematology consult and used the alternate
anticoagulant when putting German on the heart-lung bypass machine.  But Reardon specifically testified that he
would not have taken that course of action if the nurses had informed him of
German’s platelet trend because it would have cost German his life—thus indicating that the nurses’ failure to
report in accordance with Chendrasekhar’s opinion of how they should have did
not cause German to receive heparin. 
Chendrasekhar actually agreed that the surgical and medical
interventions performed at Methodist were necessary to save German’s life and
that he would have died if the doctors had not performed the second heart
surgery.  Finally, Chendrasekhar conceded
that German’s many symptoms and complications were consistent with diagnoses
other than HIT, such as acute mitral valve regurgitation.
Causation requires proof that the
“allegedly negligent act or omission constitute[s] ‘a substantial factor in
bringing about the injuries, and without it, the harm would not have
occurred.’”  Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238,
246 (Tex. 2008) (quoting IHS Cedars
Treatment Ctr. of DeSoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 799 (Tex.
2004)).  “Proximate cause cannot be
satisfied by mere conjecture, guess, or speculation.”  Id.  German’s treating physicians testified
that additional information or questions from the nurses would not have changed
their course of treatment, refuting the suggestion that any deficiency in the
nurses’ reporting proximately caused German’s injuries.  German properly notes that the jury could
have disbelieved the treating doctors’ testimony, but he still carried the
burden of proving by a reasonable medical probability that his injuries were
caused by the alleged breach of failing to identify trends in the information
they had observed or by the alleged breach of failing to verbally notify a
doctor about this information. 
Chendrasekhar offered opinion testimony that, with more information, a
doctor should have requested a hematology consult and then should have altered
the course of treatment so as to avoid use of heparin.  But this speculative testimony is
insufficient to raise a question of fact on the element of causation,
particularly in light of the undisputed evidence that German would have died
unless Reardon had immediately intervened.  See Hogue,
271 S.W.3d at 247.
In sum, there is no evidence establishing
a reasonable medical probability that the course of German’s treatment was
influenced by any failure by nurses to communicate information to
physicians.  See Jelinek, 328 S.W.3d at 533. 
The documentary record reflects that the doctors had all of the
information they needed available to them, and the only fact question suggesting
a breach of duty is whether the nurses should have done more to distill certain
information for them.  Regardless of any
such breach by the nurses, the undisputed evidentiary record also reflects
German would have died if the treating doctors altered their course of
treatment to obtain the hematology consult suggested by German’s expert.  Accordingly, there is no proof that the
nurses’ alleged deficiencies were a substantial factor in bringing about
German’s injuries.  See Hogue, 271 S.W.3d at 246. 
Chendrasekhar’s opinions to the contrary were based on nothing more than
conjecture, guess, or speculation, rendering them insufficient to establish
proximate causation by a reasonable medical probability to support German’s
negligence claims.
II.      Failure to train nurses
German also claimed that Methodist
was negligent for failing to train its nurses about potential adverse reactions
to heparin.  On appeal, Methodist
contends that there is no evidence of the standard of care with regard to the
hospital’s duty to train because the trial court specifically ruled before
trial that Dr. Chendrasekhar could not testify that Methodist should have
provided nursing education concerning HIT or that Methodist maliciously failed
to train its nurses about HIT.  To
prevail on this theory, German had to prove: (1) under the applicable standard
of care, the hospital had a duty to train its nurses about HIT; (2) the
hospital breached this duty; (3) he was injured; and (4) there is a causal
connection between the breach of care and the injury.  See,
e.g., Robins, 321 S.W.3d at 205.
There is no evidence of the
standard of care in the record.  Nurse
Knaack testified that, during the time when German was in the hospital, it was
her job to make sure she had “hired and trained competent staff.”  She said that Methodist’s nurses were trained
to monitor the patients, including performing the head-to-toe assessment, looking
at lab values, recording information, and reporting to the physicians.  She testified that she did not specifically
train the nurses that blood clotting could be an adverse reaction to heparin,
and she could not say if that training had been otherwise provided to
them.  When asked whether the nurses were
trained that a drop in platelet count was an adverse reaction to heparin,
Knaack stated, “They are trained that a drop in platelet count can be an
adverse reaction to many things, and it’s the physician’s decision whether it’s
related to heparin or whether it’s a disease process.”
Chendrasekhar did not testify as to
a particular standard of care regarding training.  He did not offer any opinion about what the
nurses should have been taught, how they should have been trained, or how often
they should received such instruction. 
He did not opine that the appropriate standard of care required
Methodist to train its ICU nurses to recognize the adverse signs and symptoms
of heparin.  Rather, Chendrasekhar said
that the excerpts from nursing journals were relevant to the appropriate
standard of care.  In addition, he
testified that he was completely unaware of licensing or continuing education
requirements for nurses.  Thus, to the
extent he did offer testimony pertinent to the standard of care for training,
his testimony was not supported by a reliable foundation.
Even if there were evidence of the
hospital’s duty to train and a breach of that duty, German could not show that
he was harmed by the hospital’s failure to train unless it resulted in both the
nurses’ failure to conform to the proper standard of care and his injury.  As we have explained, German’s treating
physicians testified that additional information or questions from the nurses
would not have changed their course of treatment.  Accordingly, there is no evidence of a causal
connection between any alleged failure to train the nurses and the injuries
that German alleges.  See Hogue,
271 S.W.3d at 247.  We therefore hold
that there was no evidence of standard of care or causation for German’s theory
of negligent failure to train.  
Conclusion
Because we hold that there is no
evidence of at least one element of each of German’s theories of negligence, we
sustain Methodist’s first three issues. 
We reverse the trial court’s judgment and render a take-nothing judgment
in favor of Methodist.  In light of this
disposition, we need not address Methodist’s remaining issues.
 
 
 
                                                                   Michael
Massengale
                                                                   Justice

 
Panel
consists of Justices Keyes, Sharp, and Massengale.
Justice
Sharp, concurring without opinion.
 

