                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-06-406-CV


ROSE OLMOS HERRERA                                                 APPELLANT

                                              V.

MUHAMMAD ASLAM MALIK, M.D.                                          APPELLEES
AND SURGICAL CONSULTANTS OF
FORT WORTH, P.L.L.C.


                                          ------------

           FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY

                                          ------------

                          MEMORANDUM OPINION 1

                                          ------------

                                   I. Introduction

      In four issues, Appellant Rose Herrera appeals the jury’s verdict in favor

of Appellees Muhammad Malik, M.D. and Surgical Consultants of Fort Worth,

P.L.L.C. Because we hold that the testimony of Dr. Malik’s expert on the issue


      1
          … See T EX. R. A PP. P. 47.4.
of negligence was admissible and that the evidence was sufficient to support

the jury’s verdict, we affirm the trial court’s judgment.

                      II. Factual and Procedural History

      In March 2001, Dr. Malik performed a laparoscopic cholecystectomy (gall

bladder removal) on Herrera.    Dr. Malik recommended the surgery to treat

Herrera’s chronic cholecystitis (gall bladder disease) and cholelithiasis (gall

stones). A laparoscopic cholecystectomy is one in which the surgeon views the

gallbladder via a laparoscope—a small camera—inserted through a small incision

in the abdomen. The surgical instruments used in the surgery are also inserted

through small incisions. Alternatively, an open cholecystectomy is one in which

the gallbladder is removed through a single incision in the abdomen; the incision

used is larger than the incision in a laparoscopic procedure.        Prior to the

surgery, Herrera signed consent forms acknowledging the possibility that there

might be exploration with cholangiograms (contrast x-rays of the biliary system)

or that the surgery could be changed to an open procedure if necessary.

      During the course of the surgery, Dr. Malik removed Herrera’s gallbladder

and placed surgical clips on various ducts and blood vessels inside Herrera’s

abdomen to prevent fluid or blood from entering the abdominal cavity. He also

performed an intraoperative cholangiogram (“IOC”)           During the IOC, still

photographs were taken, and Dr. Malik also observed the dye flow on a

                                       2
television monitor during fluoroscopy.       Despite using the IOC, Dr. Malik

mistakenly placed a surgical clip on Herrera’s common bile duct instead of on

her cystic duct.

      Shortly after the surgery, Herrera began experiencing symptoms of

jaundice.    She   was    hospitalized   again,   and   Dr.   Thomas   Dewar,   a

gastroenterologist, examined Herrera’s bile duct and discovered that it was

blocked by a surgical clip. Dr. Malik referred Herrera to Dr. Thomas Shires,

whom he considered a more experienced surgeon in the area of biliary repair,

for removal of the clip. Dr. Shires operated on Herrera and found a surgical clip

on the bile duct that was preventing the flow of bile into the intestine.

      Dr. Malik and Herrera both presented expert testimony regarding Dr.

Malik’s actions during the surgery and whether those actions fell below the

standard of care. At trial, Dr. Malik was called by Herrera as her first witness

and again as an expert for the defense. Herrera also produced testimony from

Dr. Gail Burbridge, and Dr. Morris Franklin testified for Dr. Malik.

      The jury found that Dr. Malik was not negligent in causing the injuries to

Herrera. This appeal followed.




                                         3
                             III. Evidentiary Ruling

      Because Herrera’s third issue concerns the admissibility of testimony at

trial, we consider it before addressing the sufficiency of the evidence. 2 In her

third issue, Herrera argues that the trial court erred by admitting Dr. Franklin’s

testimony on the issues of the applicable standard of care, Dr. Malik’s lack of

negligence, and a lack of a causal relationship between Dr. Malik’s compliance

with the standard of care and Herrera’s injuries. The crux of her arguments

under this issue is that Dr. Franklin should not have been allowed to testify on

these matters because Dr. Malik’s counsel failed to lay the proper predicate.

She asserts that Dr. Franklin first had to testify as to the applicable standard of

care but that his testimony on this issue was overly broad and nonspecific,

conclusory, and speculative.

      We review the trial court’s admission of evidence for an abuse of

discretion.3   In a trial on medical malpractice claims, the plaintiff bears the

burden of establishing the standard of care. 4 This court has already held that


      2
      … See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d
227, 232 (Tex. 2004) (affirming the rule that incompetent evidence, even if
admitted without objection, cannot support a judgment).
      3
      … Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex.
2000).
      4
       … Warner v. Hurt, 834 S.W.2d 404, 407 (Tex. App.—Houston [14th
Dist.] 1992, no writ).

                                        4
the failure of an expert to state an opinion as to the applicable standard of care

does not require the exclusion of the expert’s testimony.5 The failure to testify

as to the standard of care “may ultimately go to the weight or value of the

expert’s testimony to the fact finder, but not to its admissibility.” 6

Furthermore, an expert may give an opinion on an ultimate issue “if a predicate

is laid to show that the expert knows the proper legal definition in the

question.” 7 All that was required in terms of predicate before Dr. Franklin could

testify on a mixed question of law and fact was that he be given the law—in

this case, the definitions of the legal terms in the questions being asked of

him—so that he could apply those definitions to the facts and state his opinion

on the matter. Dr. Malik’s counsel advised Dr. Franklin that

      Negligence, when used with respect to the conduct of defendant,
      . . . means the failure to use ordinary care, that is, the failure to do
      that which a general surgeon of reasonable and ordinary prudence
      would have done under the same or similar circumstances, or doing
      that which a general surgeon of reasonable and ordinary prudence
      would not have done under the same or similar circumstance[s].

           Ordinary care, when used with respect to the conduct of
      defendant, . . . means that degree of care which a general surgeon


      5
      … Shelton v. Sargent, 144 S.W.3d 113, 125 (Tex. App.—Fort Worth
2004, pet. denied).
      6
          … Id.
      7
     … Lawrence v. City of W ichita Falls, 122 S.W.3d 322, 328 (Tex.
App.—Fort Worth 2003, pet. denied).

                                         5
      of reasonable and ordinary prudence would exercise under the
      same or similar circumstances.

Dr. Franklin was thus given proper legal definitions of “negligence” and

“ordinary care.” 8 Because Dr. Franklin was given the proper legal definition of

“negligence” and “ordinary care,” he could then give his opinion as to whether

Dr. Malik was negligent based on those definitions. 9

      Finally, Herrera argues that Dr. Franklin’s testimony “on the subject of a

lack of any causal relationship between Dr. Malik’s alleged compliance with the

applicable standard of medical care and the injuries, harm, and damages of

Herrera were not admissible for the reasons set forth above in [Herrera’s] brief.”

Dr. Franklin did not testify that Dr. Malik’s misplacement of the clip did not

cause any harm or injury to Herrera; he stated only that Dr. Malik complied with




      8
        … Chambers v. Conaway, 883 S.W.2d 156, 158 (Tex. 1993) (stating
that “the physician has a duty to act as would a physician of reasonable and
ordinary prudence under the same or similar circumstances” and that “a
physician’s failure to so act constitutes a breach of that duty”); Birchfield v.
Texarkana Mem’l Hosp., 747 S.W.2d 361, 366 (Tex. 1987) (considering
definition of “ordinary care” as applied to a hospital and holding that defining
“ordinary care” as “‘that degree of care that a hospital of ordinary
prudence . . .would have exercised under the same or similar circumstances’”
was proper).
      9
       … See Isern v. Watson, 942 S.W.2d 186, 193–94 (Tex.
App.—Beaumont 1997, pet. denied) (holding that expert doctor did not lack the
proper legal concepts to testify on the defendant doctor’s negligence because
the expert was provided with the proper legal definition of negligence).

                                        6
the standard of care and that his actions during the surgery did not constitute

negligence. We overrule this argument.

      For the reasons stated above, we cannot say the trial court abused its

discretion by admitting Dr. Franklin’s expert testimony. We overrule Herrera’s

third issue.

                       IV. Legal and Factual Sufficiency

      In Herrera’s first issue, she argues that the jury’s finding that Dr. Malik’s

negligence, if any, did not proximately cause her injuries is against the great

weight and preponderance of the evidence and that the evidence established

as a matter of law that Dr. Malik’s negligence was a proximate cause of

Herrera’s injury.

      A. Standard of Review

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered

to prove a vital fact; (3) the evidence offered to prove a vital fact is no more

than a mere scintilla; or (4) the evidence establishes conclusively the opposite

of a vital fact.10 In determining whether there is legally sufficient evidence to


      10
       … Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.
1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence”

                                        7
support the finding under review, we must consider evidence favorable to the

finding if a reasonable fact-finder could and disregard evidence contrary to the

finding unless a reasonable fact-finder could not.11 If a party is attacking the

legal sufficiency of an adverse finding on an issue on which the party had the

burden of proof at trial, 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. 12

      When reviewing an issue asserting that a finding is “against the great

weight and preponderance” of the evidence, we must consider and weigh all

of the evidence and set aside the finding only if the evidence is so weak or the

finding is so contrary to the great weight and preponderance of the evidence

as to be clearly wrong and unjust. 13 When conducting a factual sufficiency

review, a court of appeals must not merely substitute its judgment for that of




and “Insufficient Evidence” Points of Error, 38 T EX. L. R EV. 361, 362–63
(1960).
      11
           … City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
      12
        … 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).
      13
       … Dow Chem. Co., 46 S.W .3d at 242; In re King’s Estate, 150 Tex.
662, 244 S.W.2d 660, 661 (1951).

                                       8
the trier of fact.14   The trier of fact is the sole judge of the credibility of

witnesses and the weight to be given to their testimony.15

      B. Analysis

      A plaintiff in a medical malpractice case is required to prove by a

preponderance of the evidence that the defendant’s negligence proximately

caused his injuries.16 To do this, the plaintiff must prove four elements: (1) a

duty by the physician to act according to applicable standards of care; (2) a

breach of the applicable standard of care; (3) an injury; and (4) a causal

connection between the breach and the injury.17 The standard of care is the

threshold issue that a plaintiff must establish before the fact-finder determines

if the defendant doctor deviated from the standard of care to a degree that

constitutes negligence. 18 As a general rule, expert testimony is required to

establish the governing standard of care and whether that standard has been




      14
           … Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003).
      15
           … Id.
      16
           … Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988).
      17
      … Denton Reg’l Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950 (Tex.
App.—Fort Worth 1997, writ dism’d by agr.).
      18
           … See id.

                                        9
breached.19 In resolving competing expert testimony, it is the sole prerogative

of the jury to determine the weight and credibility of the witnesses, the

obligation of the respective advocates to persuade them, and this court’s

obligation “to see that the process was fair and carried out according to the

rules.” 20

       The evidence presented during the trial clearly established that Dr. Malik

erroneously placed a surgical clip on Herrera’s common bile duct, or hepatic

duct, when he thought he was placing it on her cystic duct. The issue that the

jury had to decide was whether that error rose to the level of negligence, thus

making Dr. Malik liable for any damages proximately caused by the misplaced

surgical clip.

       Herrera argues that she established Dr. Malik’s negligence as a matter of

law through Dr. Burbridge’s testimony that under the applicable standard of

care, Dr. Malik should have properly identified Herrera’s cystic duct prior to

placing the clip on the duct, should have been aware of difficulties in visualizing

the anatomical structures in Herrera’s abdomen, should have performed an IOC,



       19
      … See Hood v. Phillips, 554 S.W.2d 160, 165–66 (Tex. 1977); LaCroix,
947 S.W.2d at 950.
       20
      … Welch v. McLean, 191 S.W.3d 147, 160 (Tex. App.—Fort Worth
2005, no pet.) (quoting Warner v. Hurt, 834 S.W.2d 404, 409 (Tex.
App.—Houston [14th Dist.] 1992, no writ)).

                                        10
should have realized the cystic duct could not be visualized on the IOC, and

should have converted to an open procedure and avoided injury to her common

hepatic duct.   She also argues that the evidence put on by Dr. Malik was

factually insufficient to support the jury verdict.

      Dr. Franklin’s and Dr. Malik’s testimony is directly contrary to Dr.

Burbridge’s testimony that Dr. Malik’s failure to convert to an open procedure

and his misplacement of the clip constituted negligence. Dr. Malik testified as

to the applicable standard of care with respect to locating the common bile duct

in relation to the cystic duct:

      A.    Identification of bile duct is not a standard of care.
      Awareness of where bile duct is standard of care. Identification
      where I would go and peel the overlying tissue in order to find out
      where common bile duct is, that would be dangerous. It is
      contraindicated and it would be a violation of standard of care. So
      my awareness is essential to know approximately where the bile
      duct may be under all this tissue.

             ....

      ....

      Q.    [Herrera’s counsel] All right. So what you’re saying is the
      standard of reasonable and prudent surgical care in Mrs. Herrera’s
      surgery was to be—to identify; that is, actually see through the
      scope the gallbladder, the neck of the gallbladder and the cystic
      duct, and then be aware of where the common bile duct was
      located?

      A.     Yes.


                                       11
He further testified that he saw the portion of the cystic duct that he needed

to see in order to identify the cystic duct. He stated that the cystic duct was

short and about the size of a small matchstick; he performed an IOC to be

certain that the structure identified was in fact the cystic duct, and although

the cystic duct was not visible in the IOC results introduced at trial, which were

still photographs, he could see the cystic duct during fluoroscopy. Once he had

completed the IOC, he knew that the clip he had placed to hold the catheter

was on the cystic duct; he was “absolutely certain” that he had identified the

cystic duct. According to his testimony, if he had at that point in the surgery

misidentified the cystic duct, he would not have been able to see the dye

flowing in the lower part of the duct system. He also testified that he had

identified the cystic duct at three separate points during the surgery.

      Dr. Malik could not account for the subsequent misplacement of the

permanent surgical clip other than by conjecture. He stated that prior to cutting

the duct, he pulled out the catheter, and to do that, he took off the clip; he

then put three clips on the area before cutting the duct.      He stated that in

choosing where to place the permanent clips, his “deduction” was that he

would put the permanent clips where the clip holding the catheter had been

“because [he] knew that that clip did not impinge or encroach on the bile duct,




                                       12
so [his] assumption was that if [he] used the same location to put [the]

permanent clips that [he] would be safe.”

      As to his decision not to convert to an open procedure, he stated that the

chances of avoiding putting the clip on her common bile duct would not have

been better if he had converted to an open procedure. He stated that although

failing to attempt to identify the cystic duct would be a breach of the standard

of care, misidentifying the duct is not.

      Dr. Malik also testified that injury to the common bile duct is a known risk

of the surgery and that he discussed that fact with Herrera prior to the surgery.

He referred to plaintiff’s exhibit 18, a booklet listing the risks and complications

of the procedure and specifically including injury to the common bile duct as a

risk. He stated that he explained the procedure to Herrera using the booklet

and then gave it to her.      He answered in the affirmative when asked by

Herrera’s counsel if he believed that “that part of the booklet referred to the risk

of injury to the structures in the common bile duct that could occur despite

reasonable and prudent surgical technique,” and if that is what he intended for

Herrera to believe. The consent form signed by Herrera before her operation

also listed injury “to the tube between the liver and the bowel” as a risk of the

surgery, which Dr. Malik testified referred to a risk of injury to the structures

in the common bile duct.

                                        13
      During Dr. Franklin’s testimony, Herrera’s counsel went over Dr.

Franklin’s extensive qualifications in great detail, including discussion of the

numerous articles that he has authored; the four to six thousand laparoscopic

gallbladder surgeries he has performed; and all the places in the world he has

traveled to give presentations on laparoscopic surgeries, some of which

specifically included topics on how to prevent biliary tract injuries during

laparoscopic gallbladder surgery. Herrera’s counsel questioned Dr. Franklin on

his opinions about whether Dr. Malik should have converted the surgery to an

open procedure, his review of Herrera’s medical records, the complications and

conditions associated with surgery, and Dr. Malik’s technique and decisions

during Herrera’s surgery. Dr. Franklin testified that even though he performs

IOCs, sometimes the cystic duct cannot thereby be identified, but even so, he

does not always then convert to an open procedure. He stated that converting

to an open procedure will “[a]bsolutely not” guarantee that there will not be

injury to the common duct and elaborated that “[i]n actual fact, one can see

better laparoscopically than open.”

      Dr. Franklin gave his opinion on what should be done by the surgeon

performing a laparoscopic cholecystectomy in a step-by-step manner from the

beginning to the end of the surgery. Dr. Franklin then gave his opinion that Dr.

Malik was not negligent:

                                      14
      A.    Based on review of the records, based on review of the
      operative report, many years of experience in the way we teach the
      technique, I saw no departure whatsoever from the standard of
      care, nor of negligence.

      Q.     Do you have an opinion as to whether or not—using these
      definitions of negligence and ordinary care, as to whether or not Dr.
      Malik was negligent in not converting this laparoscopic procedure
      to an open procedure?

      ....

      A.     In my opinion, no.

      Q.     Why?

      ....

      A.    Because as I read the records, including the op note, I felt
      that he acted as a prudent and ordinary surgeon would act and
      there was no indication to convert to open.

He further testified that he himself had injured the common bile duct of two

patients in the past after misidentifying the cystic duct and that he still met the

standard of care. He testified that if Dr. Malik was in error in identifying the

cystic duct, it was not in violation of reasonably prudent general surgery

standards under the circumstances.

      When asked if the biliary tract injury rate in open procedures is

significantly less than in laparoscopic procedures overall, taking into account all

skill levels of operators, Dr. Franklin testified that he did not know of any

scientific study that has shown “any difference at all,” and based on anecdotal

                                        15
evidence from “many discussions at many meetings,” that at the time of trial

the rates were “almost exactly the same.” Dr. Franklin later in his testimony

stated that the incidence of injury to the bile duct in an open procedure was

three injuries per one thousand surgeries, in laparoscopic procedures, four and

a half injuries per one thousand surgeries. When asked about Herrera’s position

that in converting from a laparoscopic procedure to an open procedure, a

surgeon could use sutures rather than clips to prevent the misidentification and

misclamping off of the common duct, he disagreed with that position and

explained that “[i]n the old days,” before surgeons had reliable clips and sutures

were used instead, “[W]e still had an incidence of common bile duct injury of

about 0.3 percent . . . . So using sutures doesn’t immune one from having an

injury in the main bile duct.”

      In response to a question from the jury about the feasibility of taking out

all the surrounding connective tissue to be able to expose the entire cystic duct,

he testified that “[m]ost people do not recommend dissecting the duct entirely

out because this is where we get into problems. We get tears in the main bile

duct, which may or may not be seen, and will lead to a postoperative leak.”

Finally, Herrera’s counsel asked Dr. Franklin a question from the jury, who

wanted to know—based on Dr. Malik’s testimony that the difficulty of the

procedure performed on Herrera was above average, that Herrera’s cystic duct

                                       16
was shorter than normal, and that the clip “likely” went over the connective

tissues and could not be visualized on the cystic duct—whether Dr. Franklin

would have done anything more to verify that the common duct was not

clipped if he were operating on his wife or other loved one.         Dr. Franklin

answered, “I would have done exactly what he did, which was dissect out

what I thought was the cystic duct and place the clip accordingly.”

      Although Herrera’s expert, Dr. Gail Burbridge, testified that, given the

many warning signs and difficulty in identifying the structures in Herrera, Dr.

Malik should have converted to an open procedure and that his failure to do so

violated the standard of care, this testimony was controverted by Dr. Franklin

and Dr. Malik. We hold that the evidence offered by Dr. Malik at trial was more

than a scintilla and that Herrera’s evidence did not establish Dr. Malik’s

negligence as a matter of law.

      Further, the jury, as the sole judge of the witnesses’ credibility, was free

to evaluate and give more weight to Dr. Malik’s and Dr. Franklin’s opinions on

the standard of care.21    Dr. Malik’s and Dr. Franklin’s testimony as to Dr.

Malik’s actions during surgery and their statements that these actions met the

applicable standard of care, Dr. Franklin’s statements that he would not have




      21
           … See Jackson, 116 S.W.3d at 761.

                                       17
done anything different than what Dr. Malik did and that he also on two

occasions had injured a patient’s bile duct even when meeting the standard of

care, and the evidence that injury to the bile duct is a known risk of the

procedure even when a surgeon meets the applicable standard of care all

support the jury finding that Dr. Malik’s error did not rise to the level of

negligence. The evidence supporting the jury’s finding is not so weak or the

findings so contrary to the great weight and preponderance of the evidence as

to be clearly wrong or unjust. 22      Because the evidence is both legally and

factually sufficient to support the jury finding that Dr. Malik was not negligent,

we overrule Herrera’s first issue.

      Herrera’s second issue relates to the jury’s answer on the damages

question. Her fourth issue relates to the trial court’s refusal to submit some of

her requested definitions with respect to the damages question. Because we

have held that the evidence supports the no-negligence finding, we overrule

Herrera’s second and fourth issues as moot.23




      22
           … See Dow, 46 S.W.3d at 242.
      23
           … See T EX. R. A PP. P. 47.1.

                                           18
                              V. Conclusion

      Having overruled each of Herrera’s four issues, we affirm the judgment

of the trial court.




                                              LEE ANN DAUPHINOT
                                              JUSTICE

PANEL: DAUPHINOT, HOLMAN, and WALKER, JJ.

DELIVERED: August 7, 2008




                                    19
