                              NUMBER 13-08-281-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


WINSTON COOPER,                                                               Appellant,

                                            v.

R. BRYAN GULLEY, D.D.S.,                                                       Appellee.


                    On appeal from the 28th District Court
                          of Nueces County, Texas.


                          MEMORANDUM OPINION

                 Before Justices Rodriguez, Garza, and Vela
                   Memorandum Opinion by Justice Vela

       This is an appeal from a directed verdict in a dental malpractice case granted in

favor of appellee, R. Bryan Gulley, D.D.S., and against appellant, Winston. By one issue,

Cooper complains that the trial court erred in granting the directed verdict on the issue of

causation because he produced evidence that Dr. Gulley’s treatment was below the

standard of care and proximately caused his injuries. We reverse and remand for a new
trial.

                                        I. BACKGROUND

         On April 5, 2005, Cooper saw Dr. Britt Barwise, the owner of Apple Dental Center,

for a toothache. Cooper testified that he was in severe pain and that the area around the

tooth was “red and . . . swollen,” and “started bleeding” when he moved the tooth. Dr.

Barwise took some x-rays, but they were inconclusive. During his clinical examination, Dr.

Barwise discovered that tooth five was cracked.1 The x-ray showed some bone loss and

a dark mark across the mid-section of tooth four. Tooth four was adjacent to tooth five, the

cracked tooth. The crack in tooth five was not visible on the x-ray because it ran vertically.

Dr. Barwise found that tooth five was “clinically mobile,” that the tooth was separated into

two pieces and that it moved “in two different directions.” The tooth was split from the top

to the bottom but looked “perfectly normal . . . until you actually [applied] force” at which

point it separated.

         Dr. Barwise referred Cooper to Dr. Gulley, an oral surgeon, that afternoon to have

tooth five extracted. He sent a referral card and an x-ray with Cooper to give to Dr. Gulley.

The testimony showed that the referral card was like a “prescription” to have the oral

surgeon perform a service. Due to a clerical error by Dr. Barwise’s staff, the referral card

mistakenly indicated that tooth four was to be extracted. Based on the referral card’s

reference in two different places to remove tooth four and the x-ray showing possible

problems with tooth four, Dr. Gulley extracted tooth four. Cooper testified that Dr. Gulley



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          Dentists prim arily use one of two num bering system s for identifying a particular tooth, the
International System and the Palm er System . Barwise was using the International System which num bers
teeth one through sixteen on the top and seventeen through thirty-two on the bottom .

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appeared to be very busy and Cooper felt like he removed the tooth “as fast as he could

do it.” Cooper further testified that he did not believe that Dr. Gulley ever tapped or felt any

of Cooper’s teeth prior to the extraction of tooth four.

          Cooper was initially concerned that the wrong tooth had been extracted when he

saw that the extracted tooth was a whole tooth. His suspicion was realized later that

evening when the anaesthetic wore off and the severe pain returned. The next morning,

Cooper contacted Dr. Barwise, who, upon examining Cooper, confirmed that tooth four had

been pulled and that tooth five was still present. Cooper was then referred to a different

oral surgeon who extracted tooth five that same afternoon.

          Cooper filed suit against both Dr. Gulley and Apple Dental Center. He settled with

Apple Dental Center; and it is not a party to this appeal. Cooper’s primary claim in the trial

court was that because both tooth four and tooth five were removed, he is no longer

eligible for a permanent bridge, but instead has to wear a partial denture. During the initial

visit, Dr. Barwise and Cooper discussed using a “five-unit-permanent bridge” to replace

Cooper’s missing teeth.2 The plan was to use tooth four as an “abutment” tooth and to use

a “five-unit-permanent bridge” to fill the empty spaces where teeth three and five should

have been. Dr. Barwise testified that although tooth four was not an “ideal abutment,” he

“did plan on using it as an abutment.” Because tooth four was mistakenly extracted, a

permanent bridge is no longer a suitable option for Cooper unless he were to get two

implants at an approximate cost of $1,800 per implant; he could then get a “three-unit

bridge” for “$850" per tooth. Dr. Barwise further testified that whether or not implants were


          2
              A “perm anent bridge” or “fixed bridge” is not rem ovable; it is perm anently placed in the patient’s
m outh.

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a viable option would need to be determined by an oral surgeon.

       Harold James Seiler, D.D.S., Cooper’s expert witness, testified that, “[b]ased upon

the length of the span that we now have to cover, a “fixed bridge” “would not be a very

good choice.” He further opined, based on the x-ray, that tooth four was a “perfectly sound

tooth . . . [with] no obvious decay on either side of the tooth” and appeared treatable. Dr.

Seiler stated: “there is nothing on the x-ray that I can see that would condemn that tooth

needing to be removed.” When asked whether tooth four could have served as a proper

abutment for a five-unit-permanent bridge, Dr. Seiler replied: “It very well could have”; “it’s

entirely probable that a bridge could have been placed there;” and “[t]here was no reason

why that tooth had to be extracted.” Dr. Seiler also testified that Cooper’s options after the

removal of tooth four include a removable partial denture or a permanent bridge if Cooper

were to get implants. Dr. Seiler could not testify to the viability of implants because more

information was necessary, but did testify that a permanent bridge with three missing teeth

in a row was not a good choice.

       Cooper testified that he was thereafter fitted with a removable-partial bridge to fill

the vacant spaces of teeth three, four, and five. He said that he has had the bridge for

over three years and that it remains uncomfortable, that it makes it difficult for him to speak

fast and clear, and that he cannot eat with it in place.

       At the close of all of the evidence, while the parties were preparing the jury charge,

Dr. Gulley moved for directed verdict on the issue of causation. The trial court granted the

motion, and this appeal ensued.




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                                       II. DISCUSSION

A.     Standard of Review

       In reviewing the trial court’s directed verdict or judgment as a matter of law, we

conduct a legal sufficiency analysis of the evidence. City of Keller v. Wilson, 168 S.W.3d

802, 823 (Tex. 2005). Evidence is legally sufficient if:

       the evidence at trial would enable reasonable and fair-minded people to
       reach the verdict under review. Whether a reviewing court begins by
       considering all the evidence or only the evidence supporting the verdict,
       legal-sufficiency review in the proper light must credit favorable evidence if
       reasonable jurors could, and disregard contrary evidence unless reasonable
       jurors could not.

Id. at 827.

       A court may grant a directed verdict “if no evidence of probative force raises a fact

issue on the material questions in the suit.” Prudential Ins. Co. of Am. v. Fin. Review

Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). There are two specific situations in which a

defendant should be granted a directed verdict: (1) when the plaintiff fails to offer evidence

of an essential element of the claim; and (2) when the plaintiff “admits or the evidence

conclusively establishes a defense to the plaintiff’s cause of action.” Id.

B.     Expert Testimony

       In medical malpractice cases, negligence and causation must be established

through expert testimony, not on mere conjecture, speculation, or possibility. Columbia

Med. Ctr. of Las Colinas v. Hogue, 271 S.W.3d 238, 246 (Tex. 2008); see Am. Transitional

Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 876 (Tex. 2001); Hart v. Van Zandt,

399 S.W.2d 791, 792 (Tex. 1965). The plaintiff must establish a causal connection

between the defendant's negligence and the injuries based upon a “reasonable medical

probability.” Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Lenger

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v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970). Proximate cause

includes both cause-in-fact and forseeability. Hogue at 240. The plaintiff satisfies the

cause-in-fact element of proximate cause by presenting proof establishing a direct causal

connection between the damages awarded, the defendant's negligence, and the injury

suffered. Texarkana Mem'l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 838 (Tex. 1997).

Cause-in-fact requires that the alleged act or omission be a substantial factor in bringing

about the injury and without which, the harm would not have occurred. Hogue, 271 S.W.3d

at 246. In Hogue, the supreme court stated that the words “possibly” and “perhaps”

indicate conjecture and speculation. Id. at 246. Likewise, the words “can” and “could” do

not indicate reasonable medical probability. Id.; see also Gen. Motors Corp. v. Sanchez,

997 S.W.2d 584, 591 (Tex. 1999). The words “reasonable medical probability” are not

required, but the testimony “must demonstrate conduct that to a reasonable degree of

medical certainty would have occurred.” Hogue, 271 S.W.3d at 247.

C. Analysis

        Dr. Gulley did not move for directed verdict on the lack of expert testimony with

respect to either the standard of care or any breach of the standard. Therefore, in our

analysis, we address only the evidence offered with respect to causation. Cooper urges

that the trial court erred in granting a directed verdict on causation because there was

probative evidence that the removal of the wrong tooth caused him to no longer be a

candidate for a permanent bridge.3 Reviewing the evidence under the standards set forth

previously in this opinion, we agree. See Keller, 168 S.W.3d at 823. Dr. Seiler testified

        3
          Dr. Seiler opined at trial that Dr. Gulley should have questioned Cooper concerning why he was there.
He said that m erely because som eone sends him a “paper that has a particular num ber on it, doesn’t m ean
that I don’t have to do m y due diligence as a doctor to determ ine that it’s necessary and appropriate to take
that tooth out.”

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that there was nothing on the x-ray that would require the removal of tooth four. While he

indicated that he would have to know something more about the bone loss and make sure

that it was treated appropriately before a bridge was placed, he also opined that tooth four

“very well could have” served as a proper abutment tooth for a five-unit-permanent bridge.

He stated that “it’s entirely probable” that tooth four could have served as an abutment

tooth. According to Dr. Seiler, with the extraction of tooth four, a permanent bridge “would

not be a very good choice.” On cross-examination, Dr. Seiler stated that though tooth four

had no obvious decay on either side, and that it may have had some decay or abrasion at

the cervical portion of the tooth that appeared to be restorable. Dr. Seiler concluded from

his observation that there was no reason to remove the tooth. When asked if Dr. Seiler

knew for a fact that if Dr. Gulley had not removed tooth number four, Dr. Barwise would

have used the tooth as an abutment for a fixed bridge, Dr. Seiler responded, “I think that

was his intent, yes.” He agreed with Dr. Barwise that the patient would have to return for

further evaluation in order to assess the available options with respect to the bridge.

       Dr. Thornton, Dr. Gulley’s expert, opined that there was a weakening in the structure

of tooth four as well as bone loss. He testified that he would have removed tooth four. He

did not view tooth four as a viable abutment tooth because there was bone loss,

radiolucency at the tip of the root, and weakness in structure. On cross examination, Dr.

Thornton testified that “you can build a house on sand. You can put a crown on that tooth.

That doesn’t necessarily make it a wise thing to do.”

       Dr. Barwise stated that he planned on using tooth four as an abutment. He also

agreed that although tooth four was not a perfect tooth, given Cooper’s age, the tooth was

relatively typical and that he “plan[ned] on using that tooth for an abutment.” Although Dr.

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Barwise did not directly state that a permanent bridge was not an option, he clearly implied

it: “if tooth four was still there to be used as an abutment . . . my intention was to use it as

[an] abutment if the patient so wished.”

       Dr. Seiler’s testimony regarding a permanent bridge was couched in terms of

probability, not possibility. Likewise, Dr. Barwise testified that he planned to use tooth four

as an abutment. Phrases such as “it’s entirely probable” and “planned on using” go

beyond conjecture, speculation, and mere possibility and indicate reasonable medical

probability. Considering the evidence proffered on the issue of causation under the

appropriate standards for granting a directed verdict, we conclude that Cooper’s issue must

be sustained.

                                       III. CONCLUSION

       We sustain appellant’s issue and reverse and remand the case to the trial court.




                                                      ROSE VELA
                                                      Justice


Memorandum Opinion delivered and
filed this 6th day of August, 2009.




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