### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00134- CV

P if i Constancio, In divid ually an d on B ehalf of the Estate of Rub en Constancio, Dece ased, Appellan t

v. Shan non Medical Center d/b /a Sh annon West Texas M em orial Hospi tal, Appellee

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 119 TH JUDICI AL DISTRICT NO. B -06 -01 57- C, H ONO RAB LE TH OM AS J. GO SSETT, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Pifi Const a

n c io , I n d iv id u a ll y a n d o n behalf of the Estate of Ruben Constancio, bring s 1 this interlocutory appea l from the district court’s order s sustaining a challeng e to the causa tion opinion of Constancio’s expert witness and g ranting a no-evide nce summary judgme nt dismiss ing Constancio’s health car e liability claim ag ainst Shannon Medica l Center d/b/a Shannon West Texas Memorial Hospital. For the rea sons that follow, we reve rse both order s and rema nd this case to the 2 district court.

Be cause appellant and the dece dent share the same last name, we will ref er to appellant as 1 “Constancio” a

nd to the dece dent as “ Ruben.” This appea l follows our rema nd of this case for the district court’s consideration of whether 2 to g rant a statutory extension of time to cure a defic ient expert repo rt as t o C o nstancio’s health car e liability claim ag ainst Dr. J ames Br ay , who is not a party to this appea l. See Constancio v. Bray , 266 S.W .3d 149 (Tex. App.—Austin 2008, no pet.).BACK GR OUND The rec ord ref

lects that Ruben went to the emer g ency room of the S h an n o n W est Texas Memorial Hospital on No v em ber 29, 2003, and was diag nosed with diabetic ketoac idosis (DKA ). Dr. J ames Br ay initially wanted to admit Ruben to the Hospital’s intensive car e unit, which

3 offe rs continuous monitoring and periodic rec ording of a patient’s vital signs, but there wer e no I CU beds available

. I nstead, Ruben was admitted to the Hospital’s “step-dow n” unit that car es for critica l patients who require more car e than a reg ular medical floor but do n o t re ce i v e constant monitoring of vital sig ns and oxy g en leve l.

Rub en ’s DKA condition beg an to improve the next day

. Unfortuna tely , Ruben also had pancr eatiti s an d the undiag nosed conditions of pneumonia and methicillin-resistant Staphylococc us aureus (MRSA) sepsis. Dr. B ray presc ribed medic ations for Ruben—Ativan for 4 restlessness, morphine for pain, and Phenerg an for nausea —which the nurses administered on an “as neede d” basis. On November 30, hospital staf f observe d Ruben becoming incre asing ly restless or ag itated, pulling out his I V lines and ox y g en. That afte rnoon, Dr. Br ay presc ribed 10 milli g rams of Haldol, which he testified he would have order ed for signs of delirium, and a nurse administered it to R uben. 5

Diabetic ketoac idosis is a ty pe of metaboli c ac i d o s i s produce d by an acc umulation of 3 ketone bodies resulting from uncontrolled diabetes mellitus

. Dorland’ s I llustrated Medica l Dictionary

17 (31st ed. 2007). Methicillin-resistant Staphylococc us aureus (MR S A) is a species of bacte ria that cause s 4 serious suppurative infec tions and sy stemic disease and has develope d resistanc e to near ly all classes of antibiotics. Id . at 1203, 1790. Haldol is a trade mark name for haloper idol, an antipsy chotic ag ent used in the manag ement 5 of psy choses and for contr o l of vocal utteranc es and tics char acte ristic of Tourette’ s sy ndrome. Id . at 828, 830. 2T h a t e v e n in g , Ru

b e n ’ s r e s piratory condition beg an deter iorating

. I n th e e a r ly mo r n in g hours of Dec ember 1, a nurse administered morphine, Phenerg an, and Ativan to Ruben concur rently

. When nurses chec ked on Rube n at ab o u t 3 : 40 a.m., they found that he had a respiratory rate of eig ht breaths per minute, with questionable detec table pulse s an d b l o o d pressure . Ruben was intubated, rec eived f

luid resuscitation, and wa s transfe rre d to the intensive car e unit whe re he was

resusc itated. But Ruben sustained signific ant brain damag e afte r the respiratory event, and he died twelve da y s later a fter the withdrawa l of life support. Attributing Ruben’s respira tory event to o v e r s e d a

ti o n , Ru b e n ’ s w if e, Pifi Constancio, and his es t at e filed a health car e liability claim ag ainst Shannon Medica l Center d/b/a Shannon West Texas Memorial Hospital, alleg ing the hospital’s vicar ious liability for its nurses’ neg lige nce in: (1) administering the Ativan, morphine, and Phenerg an medications concur rently t o R u b en, and (2) failing to use proper monitoring device s on Ruben, such as a pulse ox imeter. See Tex. Civ. 6 Prac. & Rem. Code Ann. §§ 74.001-.507 (West 2011 & Supp. 2011) (Texas Medica l L iability Act). I n an eff ort to comply with the require ments appli ca b l e t o h ealth car e liability claims under chapter 7 4 o f the civil prac tice and reme dies code, Constancio provided an expert repor t from Stephen J

. Hata, M.D., a phy sician with four board cer tifications in anesthe siology , cr i t i ca l car e medicine, pulmonology , a n d in te r n a l me d ic in e , w h o a d d

r e s s e d s ta n d a r d o f c are and causation issues. 7

A pulse o x i m et er is a device that measure s the ox y g en saturation of arte rial blood. 6 Id . at 76. T h e d istrict court conclude d that Hata’ s orig inal and first amende d expert repor ts were 7 in ad eq uate and dismiss ed Constancio’s suit on May 15, 2006. See Tex. Civ. Prac. & Rem. Code Ann. § 7 4

. 3 5 1 (a ), ( l ), (r) (6) (West 2011). I n the first appea l of this case , we ag ree d that Hata’ s seco n d ex p ert repor t was inadequa te, but we rema nded the case for the district court’s rec onsideration of whether to g rant a full 30-day extension of time to cure the repor t’s defic iencies. 3A fair summary of Hata’ s causation testimony is that but for the concur rent administrat i o n o f t h e medications causing Ruben’s respira tory event, and the Hospital staff’ s lack of continuous pulseox y g en moni toring to aler t when intervention was needed to preve nt it, Ruben would have lived. The Hospital desig nated Geor g e Marc k, M.D. as one of its experts on standard of car e and causation.

After the parties t o o k t h e experts’ depositions, the Hospital filed a motion to exclude Hata’ s causa

tion testimony and a no-evide nce motion for summary judgme nt. See Tex. R. Civ. P. 166(a) (i); Daubert v. Merre ll Dow Pharm. , 509 U.S. 579 (1993); E.I. du Pont de Nemours

v. Robinson , 923 S.W .2d 549 (T ex . 1995). Two wee ks befor e trial, the district court excluded Hata’ s testimony and g rante d the Hospital’s no-evide nce motion for summ a r y ju d g me n t. Constancio appea ls those two orders he re.

ANALYSIS Hospi tal’s Daubert/Robin son challenge and motion to e xclude Hata’s te stim ony

I n her first issue, Const an ci o contends that the district court err ed in g ranting the Hospital’s Daubert/Robinson chal l enge and motion to exclude Hata’ s testimony

. The order g ranting the Hospital’s challeng e specifie d that the court excluded Hata’ s testimony as to causa tion and noted that the ruling prec eded its consideration of the Hospital’s no-evide nce mo t i o n fo r summary judgme nt:

See Constancio , 266 S.W .3d at 162-63. After rema nd, the district court g rante d the 30-day extension and subsequently ruled that Hata’ s second amended report, dated Aug ust 15, 2006, and served on September 19, 2008, w as ade quate. 4Def endant SHANNON MEDI CAL CENTER’s Daubert/Robinson Challeng e and Motion to Ex clude Opinion Testimony of J

. Stephen Hata, M.D. is GRANTED as to the causation testimony of J

. S t ephen Hata, M.D., and said testimony is here by excluded pursuant to Rules 702-705 of the T EX. R. OF CI V. EVI D. I t is also noted by the Court that this ruling has been made, and this Orde r has been e n te r e d , b e f

o r e c o nsideration of Def

endant SHANNON MEDI CAL CENTER’s No-Evidenc e Motion for Summary J udg ment.

Be cause the court’s order expli citly excluded Hata’ s testimo n y b as ed on its unreliability as to

causa tion, we revie w the court’s ruling on that g round. Cf

. K-Mart Corp. v. Honey cutt , 24 S.W .3d 3 5 7 , 3 6 0 (Tex. 2000) (“B eca use the trial court did not specify the g round on which it exc l u d ed Dr. J ohnston’s testimony , we will aff irm the trial court’s ruling if any g round is meritorious.”); cf

. also Tennyson v. Phillips , No. 12-02-00154- CV, 2004 Tex. App. L EXI S 350, at *10 (Tex. App.—Ty ler J an. 14, 2004, pet. denied) (mem. op.) (addr essing eac h of appellee s’ objections
t o expert’s testimony beca use trial court did not specify g round for its exclusion of expert’s testimony ); see In re K.M.B. , 148 S.W .3d 618, 622 (Tex. App.—Houston [14t h Dist.] 2004, no pet.) (conc luding that court’s written order controls over o ral pronounce ment); see also Hype rion Holdings, I

nc. v. Texas Dep’ t of Hous. & Cmty. Affairs , 03-05-00563- CV, 2006 Tex. App. L EXI S 1366, at *8 (Te x . App.—Austin Fe b. 16, 2006, no pet.) (me m. op.) (same ).

Stand ards for testing reliability of expert ’s causation testim ony Texas Rule of Evidence 702 provides t h at “[ i ] f scientific, technica l, or other specia liz ed knowledg e will assist the trier of fac t to understand the evidenc e or to de termine a fac t in issue, a witness qualified as an expert by knowledg e, skill, exper i ence, training , or education may testify there to in the form of an opinion or otherwise.” Tex. R. Evid. 7 0 2. For an expert’s

5testimony to be admissi ble, t he wi tness must be qualified to testify about “scientific, t echnic al, or

other specia liz ed knowledg e,” and the testimony must be rele v an t and based upon a reliable foundation. TXI Transp. Co. v. Hughes , 306 S.W .3d 230, 234 (Tex. 2010) (citing Tex. R. Civ. Evid. 702; Exx on Pipeline Co. v. Zwahr , 88 S.W .3d 623, 628 (Tex. 2002)). The dispute in this case does
not involve Hata’ s qualifica tions to rende r an opinion on the cau s e o f Ru b en’s death, nor the rele vancy of his opin i o n s t o t h i s case ; rathe r, his methodology was challeng ed as unreliable

. Unre liable expert testimony may be excluded under Rule 702. See TXI Transp. , 306 S.W .3d at 234. We revie w a trial court’s exclusion of expert testimony for an abuse of discretion. Honey cutt , 24 S.W .3d at 360; see Cooper Tire & Rubb er C o . v. Mende z , 204 S.W .3d 797, 800 (Tex. 2006) (stati n g t hat abuse- of-discr etion standard applies to revie w trial court’s deter mination of whether admissibili ty

require ments for e x pert testimony wer e met). The Texas Supreme Court identified six fac tors in Robinson to as s i s t co u rts in deter mining the reliability of an expert’s testimony , including: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpre tation of t he ex pert; (3) whether the t heory has been subjected to peer revie w and/or publication; (4) the technique’ s potential rate of err or; (5) whether the underly ing theory or technique has been g ener ally

acc epted as valid by the rele vant sci en t i fi c community ; and (6) the non-judicial uses which have been made of the theory o r t ec h n i q u e. 9 23 S.W .2d at 557. Subsequently , the court clar ified that Robinson ’s six fac tors are nonexclusive a nd “do not fit ever

y scena rio.” TXI Transp. , 306 S.W .3d at 235; Gammill v. Jac k W illiams C hevrole t, Inc ., 972 S.W .2d 713, 726 (Tex. 1998).

6Her e, for instance, Hata re l i ed on his profe ssional experience , Ruben’s medical

rec ords, deposition testimony in this case , and medical literature t o opine that the concur rent administration of medications to Ruben and the l ac k o f pulse-oxy g en monitoring during his respira tory decline led to his respira tory event of Dec ember 1, which led to the depriva tion of ox y g en to his brain, wh i ch l ed t o h i s brain damag e, which led to the commence ment of life support, and ultimately resulted in his death when support was withdrawn. There would be no prac tical way for Hata’ s peer s to cond u ct objective, randomized experiments to test the validity of his two specific

o p i n i o ns about causation, i.e., i t would not be ethically possible to: (1) administ er a combinati o n of Ativan, morphine, and Phenerg an to a patient—af ter a 10 milli g ram dose of Haldol—to deter mine how soon they

broug ht about a re spiratory event, or (2) neg lect a respiratory -compromised patient who is deprive d of pulse-oxim etry monitoring—or one place d on pulse-oxim etry monitoring—to deter mine how soon nursing intervention would need to beg in without further compro m i s ing th e p at i en t ’s health. See Transcontinental Ins. Co. v. Crump , 330 S.W .3d 211, 217 (Tex. 2011); Robinson , 923 S.W .2d at 557.

Thus, in addition to any applicable Robinson fac tors, when experts rely on e xperie nce and t ra i n i n g rathe r than a particula r methodology to rea ch their conclusions, revie wing courts deter mine whether there may be “simply too g reat an analy tical g ap betwee n the data and the opinion proff ere d” for the opinion to be reliable

. Gammill , 972 S.W .2d at 726; see Fenne rn v. W hitehead , No

. 03-09-00570- CV, 2010 Tex. App. L EXI S 4587, at *5 (Tex. App.—Austin J une 18, 201 0 ,

no pet.) (mem. op.); see also Crump , 330 S.W .3d at 217 (noting that Robinson and Gammill analy ses

wer e appropriate in a ssessing r eliability of phy sician’s testim ony based on differ ential di ag nosis);

7TXI Transp. , 306 S.W .3d at 239 (“Reliability may be demonstrated by the connec tion of the expert’s

theory to the underlying fac ts and data in the case .”). Howeve r, trial courts are not require d to ignor e fata l g aps in an ex p er t ’s analy sis, to consider asser tions that are simply incorre ct, or to consider evidenc e connect ed t o ex i sting data only by the expert’s say -so. See Cooper Tire , 204 S.W .3d
at 800-01. The underly

ing data should be independe ntly evalua ted to deter mine whether the opinion itself is reliab l e. Me r r ell Dow Pharm., Inc. v. Havne r , 953 S.W .2d 706, 713 (Tex. 1997). Ultimately , the trial court’s task is not to deter mine whether the expert’s conclusions are corr ect, but rathe r whether the analy s i s the expert used to rea ch those conclusions is reliable and there fore admissible. TXI Transp. , 306 S.W .3d at 239 (citing Zwahr , 88 S.W .3d at 629; Gammill , 972 S.W .2d at 728); Keo v. Vu , 76 S.W .3d 725, 734 (Tex. App.—Houston [1s t Dist.] 2002, pet. denied)

.

To rec over on a claim of medical neg lige nce, a plaintiff must prove to a rea sonable medical probability that the defe ndant’s neg lige nce proxi mately cause d the complained- of injuries. Columbia Rio Gr a n d

e Healthcare

, L.P. v. Hawley , 284 S.W .3d 851, 860 (Tex. 2009) (citing Park Place Hosp. v. Estate of Milo , 909 S.W .2d 508, 511 (Tex. 1995)). Proxi mate ca use consists of two components: cause -in-fa ct and fore seea bility

. Id

. (citing LMB, Ltd. v. Moreno , 201 S.W .3d 686, 688 (Tex. 2006) (per curiam)). Demonstrating that neg lige nce was a cause -in-fa ct of an injury require s proof that (1) the neg lige nce was a substantial fac tor in causing the injury , and (2) without the act or omission, the harm would not hav e o ccurred. Id

. “The se standards bar rec overy by a patient if a condition pree x i s t s t h e n egl ige nce of a health car e provider and at the time of the neg lige nce, the condition resulted in the patient having a 50% or less c hance of cure or survival.”

8Id

. (addr essing propriety of jury instruction and quoting Kramer v. Lewisville Me m’ l Hosp .,

858 S.W .2d 397, 400 (Tex. 1993)).

An expert’s causation o p i n i o n i s the equivalent of “no evidenc e” if it is based completely on specula tion and surmise rathe r than rea sonable medical probability

. Keo , 76 S.W .3d at 734; Onwuteaka v. Gill , 908 S.W .2d 276, 283 (Tex. App.—Housto n [ 1 st Dist.] 1995, no writ);

see Tennyson , 2004 Tex. App. L EXI S 350, at *31 (noting “ana ly tical g ap” in expert’s analy sis of how failure to timely diag nose and trea t patient’s condition ultimately cause d his death) ; see also Schaefe r v. Texas Emp’rs Ins. A ss’n , 612 S.W .2d 199, 204-05 (Tex. 1980) (holding , in worke rs’ compensa tion case , that there was no evidenc e of how dise ase was transmitted to Schaef er or that bacte ria suspected of causing disease exis ted wher e he worke d). Gene rally , fac tual weaknesses underlying an ex pert’s causation opini on g o to the t estimony ’s weight, not its admissibili ty

. Keo , 76 S.W .3d at 734; see TXI Transp. , 306 S

. W

. 3 d at 239 (citing Ford Motor Co. v. Ledesma , 242 S

. W

. 3 d 3 2 , 4 0-41 (Tex. 2007)). Wit h these standards in mind, we consider whether the d et er m i n at i on that Hata’ s causation testimony fell below Rule 702’s reliability threshold was an abuse of discretion.
Reliability of

Hata’s causation opin ion At the Dau b ert/Robinson hear ing, the Hospital challeng ed the reliability of Hata’ s testimo n y , arg uing that he relied only on specula tion to opine that Ruben’s respira tory event on Dec ember 1, 2003, proxi mately cause d his death twelve day s later. Constancio responde d that the evidenc e supported Hata’ s opinion that th e d ru g combination administered to Ruben, afte r he

rec eived the H aldol, cause d his “respiratory event.”

9To ref ine our revie w of this issue, it is he lpful to note wher e both e x perts’ opinions in this case alig n and whe re the y diverg e. I n sever al re spects, Ha ta’s testimony alig ns with tha t of the Hospital’s ex pert, Marc k. Both ag ree that the cause of Ruben’s death was the withdrawa l of life support and that the rea son nece ssitating the instit ution of life support was the respiratory event that occur red on Dec ember 1 at approximately 3:30 a.m., resulting in Ruben’s brain damag e. Both experts ag ree d that the medical rec ords did not contain sufficie nt evidenc e sug g esting that a stroke

or a pulmonary embolus was a possible explanation for the event, but they disag ree d about what did explain it. Marc k opined that the respiratory event occur red beca use of Ruben’s MRSA sepsis, while Hata attributed it to the drug s administered to Ruben concur rently at 1:45 a.m. and the failure to have Ruben on a pulse- ox y g en monitor.

1. Concurre nt administrat ion of m edications The Hospital arg ues that Hata’ s opinions wer e “not based upon appropr iate evidenc e, but only on specula tion and assumptions,” and its motion to exclude Hata’ s testimony complained that Constancio “wholly failed to provide any evidenc e of probative value to prove that the patient’s death [on Dec ember 13, 2003] was proxi mately cause d by the respiratory arr est which occur red on Dec ember 1, 2003.” The Hospital’s brief rephr ases that complaint, stating that Hata “does not have any valid way

to determine howthe medica tions he is critical of c ontributed to Ruben’s dea th.” Howeve r, the rec ord ref

lects that Hata’ s opinion relied on Ruben’s medical rec ords, published inform ati on on the risks of the intravenous use of the medications, his experience with patients in using the medications, and Cons ta n c io ’ s d e p o s it io n te stimony about her observa tions of Ruben. During his deposition, Hata testified that Ruben rec eived Ativ an , m o rp h i ne, and

10Phenerg an in a very short period of time. Hata stated that as a pulmonologist and anesthe siologist,

he presc ribed these medications to patients on a reg ular basis, he was familiar with published information on them, and he provided ref ere nces i n a packe t of information addre ssing “major conce rns” that “if you’re g oing to use these I V, t here is risk for respiratory depre ssion and

overse dation.” 8

Addi tionally , Hata testified that beca use of the published half-life of Haldol, he believed that the Haldol administered previously to Ruben was still in his sy stem when he rec eived the Ativan, morphine, and Phenerg an. Hata stated that Phenerg an “ca n potentiate the eff

ects of all
t h e d rugs,” meaning that “it can incre ase, for example, the pain relief , but it can also incre ase the eff ects of sedation.” Marc k, the hospital’s expert, ag ree d that there is an “additive” or “sy nerg istic” eff ect of putting all four of those drug s toge ther, meaning that “one drug potentiates the eff ect of another , even bey ond what the individual drug itself would g ive.” Hata rea soned that when dealing with a pa t i en t like Ruben, who already had si g nificant respiratory compromise, there i s a concer n about g iving dr

ug s that would further

compromise the pa tient. Hata continued that on Dec ember 1 at 3:30 a.m., based on the deposition te stimony of Ruben’s wife, Ruben “wa s having in c r e a s e d r e spiratory difficulties.” Ruben “wa s found with very labore d respirations,” a “re s p iratory rate that was repor tedly very , very slow,” he was “pale ” and “unre sponsive,” and appropr iately ,“[t] he staff at that point called a code.” Hata opined that “all the evidenc e supports that this was a respira tory —the pati en t had his event beca use of respiratory

The rec ord ref

lects t h at Ha t a’ s deposition exhibi ts 3 and 5 contain the published drug 8 information that Hata revie wed and provided. Although the exhibi ts are not in the rec ord, the parties do not dispute their production at the de position or their use as a uthority

. 11suppression.” Hata s t at ed t he phy sical eff ect of the medications, specific ally linking them to suppressed r espirator

y drive a nd brain damag e: Q. Ex plain to us in common terms what happens as a result of the respiratory arr est. A. What happens when a person has medications of this s o rt , combined with underlying disease, is a patient’s blood ox y g en level g oes down. All rig ht. Wit h that, a patient will respond by try ing to breathe faster , but with the sedation, with t he suppression of hi s respiratory drive by medications, ox y g en level wil l d ro p to a life-thre atening level. The hear t can stop, y ou can have low blood pressure , and the br ain is damag ed.

Hata further detailed the fac ts from R uben’s me d i cal recor ds supporting the opinion that Ruben’s respira tory

event oc curr ed bec ause of the known ef

fec t of the medications:
Q. What was the cause , in y our opinion, within rea sonable probability , of the cause of the re spiratory

depre ssion? A. I believe the evidenc e supports that it was a combination of all three drug s that he rec eived in a very rapid fashion, combined with his underly ing compromised state. Q. What do y ou base tha t on, Doctor? A. M r. Constancio had multipl e predic tors that he was g oing to have respirator y failure ; marke dly abnorma l vital signs in terms of his pulse ox s h o wed that his satura t i on was 84 perc ent at one period of time. He had a marke dly abnorma l exam in terms of his lung exam. He had had inc re as i n g tachy pnea, which I ’ve included ref

ere nce in y our packe t that that is also a high risk fac tor for predic ting car diac arr est, and he had rec eived four very potent medications which are known to cause respira

tor y d epre ssion. When he was found by the phy sicians at this time, they found a pulse initially

sug g esting that this was a re spiratory event.

. . . . Q. W h en y ou order medications like Ativan, Haldol, morphine, and Phenerg an—You’ ve pre scribed a ll four of those; rig ht?

12A. Yes.

Q. Do y ou know what the pha rmac ologic al ef

fec ts of those are on patients? A. I do. Q. Do y ou have any doubt in y our mind that y ou have adequate training , knowledg e, and experience with those medications to know what the eff ects of those are on patients such as Mr . Constancio? [obj ections omitted] A. I believe I

have a very g ood foundation of e ffe cts in patients like this.

. . . . Q. Have y ou studied them and used them in the pr actice of y our prof ession? A. Yes. Q. Did y ou lear

n about them in medical sc hool? A Yes. Q. And in residenc y ? A. Yes. Q. I n fellowship? A. Yes. Q. Do y ou teac h about the fa cts of those four drug s to residents? A. Yes. Q. To fellows? A. Yes.

13Hata pointed to the t em p o ra l rela tionship betwee n the administration of the medications and the

respira tory event and, fac toring in Rube n’s sepsis, he opined that the medications we re the critica l “last straw ” in ca

using Ruben’ s respira tory event: Q. So if I understand y our opinions with respe ct to Mr. Constancio ’s underly ing MRSA, y our opinion within a rea sonable medical probability as to what cause d his code at 3:40 a.m. is the fac t that three medications wer e administered at 1:45 a.m.; is that right? A. I would expound on that, if I may . Q. Go ahe ad. A. I think that when a patient like this dies, it’s usually multipl e fac tors. I think the patient’s und er ly ing disease contributed to his respiratory failure

. I think the patient was likely septic and having incre asing respiratory compromise. I think the final stra

w was r ece iving thre e medications—or, actua lly , four medic ations over a short period of time whic h cause d respira tory depre ssion.

Given Hata’ s testimony and its stated foundation on Ruben’s medical rec ords, Hata’ s profe ssional experience , deposition testimony in this case , and medical literature , t h e Ho spital’s contention that Constancio “wholly failed to provide any evidenc e of probat i ve value” to show that Ruben’s death on Dec ember 1 3, 2003 was proxi mately cause d by his “re spiratory arr est” on Dec ember 1, 2003 is unpersua sive. Hata’ s testimony lacks the ty pe o f an al y

t i ca l g ap identified in Tennyson , a case cited by the Hospital, in which the expert’s causation opinion never stated how

a particula

r ty pe of absce ss or infec tion cause d death g ener ally or the patient’s car diac arr est specific ally , but offe red only that “ea rly surg ical d ra i nag e often leads to a g ood result.” See Tennyson , 2004 Tex

. App. L EXI S 350, at *30-31. Nor does Hata’ s causation testimony suffe r from the ty

pe of analy

tical g ap found in the causation testimony of an expert in Badhiwala v. Favors , 14340 S

. W

. 3 d 5 6 0 , 568 (Tex. App.—Dallas 2011, no pet.), who failed to connec t the conduct of

any hospital per s o nnel to a patient’s car diorespira tory failure from side eff ects of drug s she was presc ribed a t admission.

Hata’ s testimony is more like the unobjected- to causat ion testimony that an expert prese nted to the j u ry i n THI of Tex. at Lubbock I, LLC v. Perea , 329 S.W .3d 548, 579 (Tex. App.—Amar illo 2010, pet. denied) , which “esta blished a trac eable chain of causati o n from the condition—[ the patient]’s arr est—bac k to the event—the administration of multipl e doses of Ativan.” The phy sician expert in Perea opined that the patient—a seventy -eig ht-y ear -old man with

a history of hear

t disease complicated by respiratory issues and diabetes—w as o v ersedated and overdose d afte r he rec eived a second dose of Ativan. Id . at 556, 562, 577. The expert opined that “[h] is brea

thing beca

me incre asing ly more shallow until there was insufficient ox y g en to support the functions of his hear

t or brain causing his hear t to g o into arr

hy thmia until he s u ff

er ed a car diac

arr est and finally quit br eathing altog ether due to respiratory depre ssion.” Id

. at 562, 577; see also Sanjar v. Turner , 252 S.W .3d 460, 467-68 (Tex. App.—Houston [14t h Dist.] 2008, no pet.) (c o n cl u d i ng that causation opinion in expert’s repor t was sufficie nt in that it explained basis fo r expert’s statements and descr ibed causa l link betwee n patient’s cong est ive hear t condition, depre ssion of her respirations from overme dication, and fail u re t o adequately monitor her deter iorating condition).

I n Perea , approximately six hours passed betwee n the time that the patient was administered medications and the time of his car diac arr est. Id. at 578. Thus, the evidenc e offe red by the claimants’ expert in that case prese nted a weaker temporal connec tion than does the evidenc e

15here , beca use few er than two hours passed betwee n Ruben’s rec eipt o f t he medications and his respira tory event. See Crump , 330 S.W .3d at 219 n.3 (noting that while tempora l prox imity alone will not support infere nce of medical ca usation, “whe n combined with other causation evidenc e, evidenc e that conditions exhibi ted themselves or wer e diag nosed shortly afte r an eve n t m ay be probative in deter

mining causation” (quoting Guev ara v. Ferrer , 247 S.W .3d 662, 667-68 (Tex. 2007)). Hata’ s testimony o ff er i n g a causa l link betwee n the eff ects of the administered medications and the respiratory event meets the minimum standards for reliability under Robinson. Hata relies on the medications’ p u b l i s h ed l i tera ture instead of a “subjec tive interpre tation” of the data. He considers Ruben’s repor ted sy mptoms and the medical rec ords to rea ch his opinion and rules o u t o ther theories in a proce ss that acc ords with the differ ential diag nosis technique that is “g ener ally acc epted as valid” by the scientific community of phy s icians, and he utiliz es the same methodology in a “non-judicia l” setting when he trea t s p at i en t s who prese nt with conditions like Ruben’s. See Robinson , 923 S.W .2d at 557. Hata’ s testimony also satisfies Gammill by making a

ca u s al l ink betwee n the concur rent administration of medications that are rec og nized in medical literature as respiratory depre ssants, the la c k o f c o n ti n u o u s p u lse-oxy g en monitoring to aler t Hospital staff to a decline i n Ruben’s respiratory function, t he re spiratory event, the la ck of oxy g enation to the brain, the brain damag e, the commence ment and discontinuance of support, and death; as such, there is not “too g reat a

n analy tical g ap betwee n the data a nd the opinion proffe red” to be reliable

. See G ammill , 972 S.W .2d at 727.

16Howeve r, this addre sses only part of the Hospital’s complaint about the unreliability

of Hata’ s testimony

. The Hospital also cont en d ed that Hata’ s opinion that Ruben would have survived was specula tive and based only on assumptions. We turn now to Hata’ s causation opinion on continuous pulse-oxy g en monitoring in addre ssing the H ospital’s further contention.

2. Continu ous p ulse-oxygen m onitoring Hata’ s causa

tion opinion attributes Ruben’s respiratory event to the medications admi nistered to him concur rently at 1:45 a.m., but Hata further opined that Ruben should have

rec eived c ontinuous pulse-ox y g en monitoring

. Hata testified that if the s taff had us ed continuous pulse-oxy g en monitoring, even afte r the combinat i o n of medicines g iven to Ruben, there was a

rea sonable probability that Ruben would have rec eived ear lier ox yg en intervent i on and survived. Hata testified that ox y g en saturation is benef icial to patients like Ruben beca use respira

tory failure ,

or failure of the lungs, is a complication of diabetic ketoac idosis, and having ox y g en s at u ra t i o n information would have helped clinicians and nurses to know that he was doing poorly

. Hata further testified that a pulse ox imeter i s a noninvasive, eff ective device that usually fits on a fing er and is used in many

intensive and int erme diate care units to m onitor ox y g en in a pa tient’s blood. The device will sound an alar m if a patient’s ox y g en level fa lls to life-thre atening levels so that the health car e provider can incre ase the ox y g en or have other medical interventions. Hata specifie d the particula r usef ulness of continuous pulse-oxy g en monitoring in Ruben’s ca se: Q. Do y ou have an opinion from the time he was admitted—Mr. Constancio was admitted into the s tep-down unit, up until the t ime of hi s arr est, whether or not he shoul d have been under constant blood ox y g enation moni toring; fi rs t of all, do y ou have a

n opinion?

17A. I t’s my opinion he should have ha d continuous monitoring— Q. Why ? A.

— o f ox y g en saturations. The major rea sons wer e that the patient had sh o wn evid en ce of hy

pox emia, that is, low blood ox y g en levels, during the stay

. Secondly , we know beca

use of the del[i] rium he was at highe r risk for failure of the lungs. Third, t h i s i s an intermediate car e unit for somebody who the phy sician thoug ht was at hig h risk. Rely ing entire l y o n t wo excerpts of Hata’ s testimony , the Hospital arg ues that Hata’ s causation opinion was: (1) specula tive in requiring assumptions that Ruben could and would have responde d to trea

tment for sepsis and (2) incapa ble of testing beca

use Hata declined to assig n perc entag es of c ausation betwe en Ruben’s unde rly ing c ondition and his medications:
Q: How, in y our opinion, within rea sonable medical probability did this respiratory event a t 3:30 on the 1st play into his ul timate death, if at all? A: I believe it wa s a major f actor

. Q: Ex plain how? A: Once the patient beca me hy pox emic and develope d ence phalopathy , ultimately there was a decision to limit support for the patient. I f the patient had responde d, his se psis c ould ha

ve been trea ted, his D KA would have responde d, and I think he would have survived.

. . . Q: What pe rce ntag e of the cause of his de ath do y ou attribute to the se medications that y ou’ve ta lked about? A: Ag ain, that is very difficult. M y co n cerns are the medications led to the rapid deter ioration in terms of his respira tory status. A: May Ig o on?

18A: I f this patient had been a 25-y ear -old, healthy individual, these medications may not have cause d the same deg ree of compromise; but this patient wa s , ag ain, older. He had chronic medical problems. So I think all three toge ther—a ll of the medications tog ether

cause d his respirator

y failure

. Q: But y ou cannot tell the jury or me what perc entag e is attributable to hi s underlying dise ase a s opposed to his medications? A: I think that’s very

hard to do that in a va lid fashion.

T h e Hospital does not cite any leg al authority requiring an expert to assig n perc entag es betw ee n

causa tion fac tors of death or injury ; rat h er , the controlling leg al authority on proxi mate cause require s a showing that the neg lige nce was a substa n t i al fac tor in causing the injury and without which the harm would not have occur red. See Hawley , 284 S.W .3d at 860. I n any event, Hata did opine that Ruben would have survived, eve n with the sepsis:
Q. I know y ou’re reluc tant to do perc entag es, but would y ou ag ree with me that with all of the things that we’ ve talked about, and the incre ased risk of mortality that we’ v e ad ded to the equation as we’ve gone throug h Mr. C onstancio, t hat m ore likely than not he had a substantial risk of mortality when he first hit the door at Shannon? [obj ection omitted] A. When y ou say

substantial, what do y ou mean by that? Q. Good. Was it more likely than not that this was g oing to be a terminal illness for him when he hit the door of the emer g ency

room? A. When y ou say

that, that infers y ou mean g rea ter than 50 pe rce nt? Q. Yes, sir. I ’m try ing to avoid that perc entag e, but that’s what I ’m asking straig ht up; y es, sir. A. I don’t think so.

19Q. I t could be close to that; ag ree d? Ag ain, y ou can’ t use perc entag es.

A. I tho u gh t h e had a better chanc e than that to survive, particula rly with the response that he had.

Ha t a testified that “[i] f y ou intervene ear ly , y ou can preve nt deaths from sepsis,” and noted t h at Ruben responde d well to his initial trea tment and did not have any other org an failure

. Hata opined that even with the combination of medicines g iven to Ruben, if the staff had used continuous pulseox y g en monitoring , there was a rea sonable proba

bility that Ruben would have survived:
Q. Well, let me ask y ou another question. Would y ou ag ree with me t h at it was g oing to be a signifi ca n t ch alleng e for him to overc ome the occult MRSA infec tion that he had, g iven his underly ing health co n d i t i o n s; would y ou just ag ree with that statement? A. Yes. Once , afte r his arr est, he was place d on antibiotics, and initially he require d some hemody

namic support, but those wer e—the hemody namic support was—I mean, he did not require that for a long time. He did not have evidenc e of other signific ant org an failure

. So once he rec eived appropr iate thera py , he seeme d to g et better , except for his bra in injury

.

. . . Q: Now, what differ ence would it have made, Doctor, if he had been on continuous pulse ox monitoring beg inning at midnight, and even afte r he g ot these th re e medications? What differe nce, if any , would that have ma de, in y our opinion? A: The benef

its of having pulse ox imetry continuously is tha t a n alar m w ill sound, health car e pro v i d er s will g o to the patient immediately and provide adequate support. Q: What, in y our opinion, within a rea sonable probability , would have happene d if we a ssume this whole fact scenario that he g ot the Haldol at the a fternoon, tha t he had the respiratory chang es that we saw late in the night into the ear ly morning of the 1st, that he even g ot these three drug s; had he been on a continuous pulse ox monitoring, what, in y our opinion, would h av e b ee n the results for Mr. Constancio?

20A: I believe the patient would have survived.

Q: Why ? A: I believe tha t— Q: Why do y ou believe he would have sur vived? A: I believe that with appropr iate suppo rt , t rea tment of his sepsis, which he was shown to have, he would have res p o n ded to. I believe that his major event in terms of having hy

pox ic ence phalopathy would have been preve nted by ear ly use of oxy g en. Q: Ex plain that. I f he had been on the pulse ox afte r the 1:45 medications wer e g iven? A: Yes. Q: Do y ou have an opinion within rea sonable medical probability whether or not his ox y g en satura

tions decre ased up to the time of his re spiratory event a t 3:30? A: Ba sed on all of the e vidence Ihave, I believe that his oxy g en saturations would have dr opped to life thre atening levels. Q: I f he w ould have be en on—the little thing on his fing er, the monitoring— A: Yes. Q: I f it was hooked up, a nd it was working , would an ala rm have sounded? A: Yes. Q: I f an a larm had sounde d, what is the staff or a nur se supposed to do? A: The staf

f will come to bedside, a ssess the patient, provide ox y g en. Q: Was that done in this patient, based on the re cords y ou’ve se en? A: Ba sed on the re cords I ’ve se en, it was not done until it was too late.

21Q: L et me re- ask this. Do y ou have an opinion as to whether or not the alar m would have sounded befor e it g ot to the poin t t h at he was in arr est that led to brain damag e? A: I believe tha t to be so. Q: I f the alar

m had sounded prior to him g etting to O2 sats to the point he had g otten brain damag e, wer e interventions available that would have preve nted the brain damag e, within rea sonable medic al proba bility ? A: Yes. Q: What would those interventions have be en at this fac ility ? A: Ba sed on all of the information I have, this i s a ver y solid facility . They

would have called people to the bedside, they would have provided ox yg en, and they would have be g un resusc itation. Q: Resuscitation would include turning up his ox yg en? A: Yes. Q: Could it include turning up his ox y g en? A: I t could include incr easing ox y g en. Q: Could it be ca ll a code? A: Yes. Q: Could it include intubating the patient? A: Yes. Q: Wit hin rea sonable probability , had those things been done prior to the arr est, would he have survived? A: I believe so.

22The Hospital’s expert, Dr. Marc k ag ree d that timely medical intervention would have

preve nted Ruben’s respiratory event, that Ruben showed signs of res p o n ding to his trea tment for sepsis, and that nurses could use t heir own judgme nt to chec k a patient’s blood ox y g en saturation without a phy sician’s orde r: Q: And just so I

—beca use we’ ve g ot to chang e the tape, and I just want to finish this p art. So what I ’m hear ing y ou say , if he would have g otten adequat el y ox y g enate d in the 1:00 a.m., 1:30 a.m. time frame

— A: Uh-huh. Q: —had that bee n achie ved— A: I t could have ma de a dif fer ence . Q: -—and it proba

bly would have ma de a dif

fer ence ? A: That’s—that’s possible. Ye s. I ’ll ag ree with that. Q: Those are kind of key words, probable , possible, could have. But what I want to know is based upon what y ou see afte r the event and befo re t h e—before the event. I f he had g otten that ox y g enation previously , he probably would not have had the e vent of 3:30. Corre ct? A: That’s possible. I

would ag ree with that. Q: You would ag ree with that? A: Yes.

. . . . Q. After the eve nt of 3:30 in the morning— A. Okay

. Q. —and they

rea liz ed that he w as septic a t that point in t ime. Am Irig ht?

23A. Yes.

Q. They beg an tre ating that, didn’t they ? A. Yes. Q. Was he responding to that treatment? [obj ection omitted] A. There wer e sig ns of that, y es. Q. I s that a g ood sign or

a bad sig n? A. That’s a

g ood sign. Q. All rig ht. A. His white blood cell count was coming back up. And y eah, it looked like things wer e improving

. Q. And there was—save and except for his—the brain injury that he had, y ou didn’t see any thing that was keeping him from continuing to improve and respond to the trea tment, did y ou? [obj ections omitted] A. No.

. . . . Q. All rig ht. And in a patient li k e M r. C onstancio, the nurses don’t have to have a—an order to chec k his O2 saturations if they think in their judgme nt the re’ s a circ umstance tha t say s are we g etting g ood ox y g enation for the patient? A. That’s rig ht.

Simi l ar testimony came from Cy nthia Clark, who worke d for the Hospital as a bedside nurse and char g e nurse. She worke d at the Hospital from 11:00 p.m. on November 30 until

247 : 00 a.m. t he nex t day , car ed for Ruben, and made entries in medical recor ds about hi s ca re . S h e

testified that normal respirations for a patient with DKA are betwee n 18 and 24, and ag ree d that there

was a signific ant chang e betwee n Ruben’s vital signs at midnight, which showed respirations at 22,

a n d the respiratory thera

pist’s assessment forty minutes later, which showed respirations at 3 2

. Cl a r k also testified that with such information, a rea sonable and prude nt nurse should have g one to Ruben’s bedside, a ssessed him, and che cked his pulse oxy g en.

Finally , with rega

rd to the manner in which Hata worke d throug h the data to his conclusions, Marc k acknow ledg ed that h e h ad n o criti cism of the methodology that Hata used in rea ching his causation opinion. See Crump , 330 S.W .3d at 217 (stating that Robinson reliability inquiry focuse s “solely on the underlying principles and methodology , not o n t h e conclusions they g ener ate” ); Robinson , 923 S.W .2d at 557. M ar ck t es t ified that Hata used “a very aca demic approa ch” by considering the literature , pharma cology , his experience , and Ruben’s condition to

rea ch his conclusions. Marc k further ag ree d that Hata was not “out of line” for coming up with his theory linking ca

usation to the drug s. A fair summary of Hata’ s causation testimony is that but for the concur rent administration of the medications causing Ruben’s respiratory event, and the Hospi tal staff’ s lack of continuous pulse-oxy g en monitoring to aler t when intervention was neede d to preve nt it, Ruben would have lived. Hata specific ally attributes Ruben’s death to his rec eipt of a combination of drug s with published respiratory -suppre ssing eff ects, administered concur rently without proper p ulseox y g en monitoring, which resulted in his suppressed respiratory function as shown by the medical

rec ords and deposition testimony , a lack of notification to hospital staff to intervene when his blood

25ox y g en level declined, his loss o f o x y g en to the brain, the instit ution of life support, its eventua l

withdrawa l, and his death. Hata’ s ca u s ation opinion relied on evidenc e in the medical rec ords to ref ute Marc k’s su gges tion that Ruben’s death due to sepsis was inevitable, pointing out Ruben’s positive response to his trea tment and his lack of othe r sig nificant org an fa ilure.

By the Hospital’s own expert’s admission, Hata utiliz ed a “ver y aca demic approa ch” in rea ching his opinions. Nonethele ss, as in many case s, the Robinson fac tors do not alig n perf ectly with the issues in this case . See Robinson , 923 S.W .2d at 557. As previously noted, Hata’ s specific opi nions are not susceptible to “testing ” or “pee r revie w,” nor does his methodology have a mathematica l “rate of err or.” See id. Howeve r, his relianc e on the medications’ published literature satisfies those criter ia to some deg ree and tends to neg ate a “subjec tive interpre tation” of the data, his proce ss of considering Ruben’s repor ted sy mptoms and the medical rec ords to rea ch his opinion and ruling out other theories acc ords with the differ ential diag nosis technique that is “g ener ally acc epted

as valid” by the scientific community of phy sic i an s , an d Hata utiliz es the same methodology in

a “n o n -j u d icial” setting when he trea ts patients who prese nt with conditions simil ar to Ruben’s. See id. We conclude that Hata’ s testimony , which makes a causa l link betwee n the

concur rent administration of medications that are rec og nized in medical literatur e as respiratory depre ssants, t he lack of continuous pulse-oxy g en moni toring to aler t Hospital staff to a decline i n Ruben’s respiratory function, t he respiratory event, the lack of ox y g enation to the brain, th e b rain damag e, the commence ment and discontinuance of support, and death, does not prese nt “too g rea t an analy tical g ap betwee n the data and the opinion proff ere d” to be reliable

. See Gammill , 972 S.W .2d

26at 727. Hata’ s testimony offe red more than mere ly “his cre dentials and a subjective opinion.” Cf

. Cooper Tire , 204 S.W .3d at 801; Havne r , 953 S.W .2d 706 at 712; see also Viterbo v. Dow Chem. Co. , 826 F.2d 420, 424 (5th Cir. 1987). Be cause Hata had a sufficie ntly reliable foundation for his opinions on proxi mate cause to war rant admission of his testimony linking the respira tory event of Dec ember 1, 2003 to Ruben’s death, the exclusion of Hata’ s testimony was an abuse of discretion. Acc ording ly , we sustain Constancio’s f irst issue. Having deter

mined that Hata’ s causation testimony should not have been excluded,

we must now deter

mine whether Hata’ s testimony constituted mo re than a scintilla of evidenc e to raise a g enuine issue of materia l fac t i n re s ponse to the Hospital’s no-evide nce motion for summary judgme nt. Hospi tal’s no-evidence m otion f or sum m ary judgm ent I n her second issue, Constancio contends that the district co u rt er red in g ranting the Hospital’s no-evide nce motion for summary judgme nt. As previously noted, the court excluded Hata’ s testimony specific ally as to c ausation and clar ified that its ruling and entry of the exclusion order prec eded its consider ation of the Hospital’s no- evidenc e motion for summary judgme nt. A party seeking a no-evide nce summary judgme nt contends that there is no evidenc e of o n e o r m o re essential elements of a claim on which an adver se party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i); Hamilton v. W ilson , 249 S.W .3d 425, 426 (Tex. 2008). I f the responde nt does not produce summary judgme n t evidenc e raising a g enuine issue of materia l fac t, the t rial court must g rant the motion. Tex. R. Civ. P. 166a(i); Hamilton , 249 S.W .3d at 426. We revie w a n o -evidence summary judgme nt for evidenc e that would enable rea sonable and

27fair- minded jurors to differ in their conclusions. Hamilton , 249 S.W .3d at 426 (citing City of Keller

v. W ilson , 168 S.W .3d 802, 822 (Tex. 2005)). A no-evide nce point will be sustained when (1) there is a complete absenc e of evidenc e of a vital f act, (2) the court is ba

rre d by rules of law or evidenc e fr o m gi v i n g we ight to the only evidenc e offe red to prove a vital fac t, (3) the evidenc e offe red to prove a vital fac t is no more than a mere scinti lla, or (4) the evidence conclusively establishes t he opposite of a vital f

act. King Ranc h, Inc. v . Chapman , 118 S.W .3d 742, 751 (Tex. 2003) (quoting Havne r , 953 S.W .2d at 711). When deter mining whether more than a scintilla of evidenc e has been produce d in response to a no-evide nce mot i o n fo r s ummary judgme nt, we view the evidenc e in the light most favor able to the non-movant. Ford Motor Co. v. R i d g w ay , 135 S.W .3d 598, 601 (Tex. 2004). Be cause the district c ourt’s order does not spe cify the g rounds for its ruling , we may aff irm the summary judgme nt if any of the theories prese nted to t h e d i s t ri ct court and prese rved for appellate revie w are meritorious. Browning v. Prostok , 165 S.W .3d 336, 344 (Tex. 2005) (citing Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 216 (Tex. 2003)).

To preva il on a medical- malprac tice cla im, the pl aintiff mus t prove: (1) the he alth

car e provider had a duty to act acc ording to a cer tain standard; (2) the p ro vider brea ched that standard; a

nd (3) the br eac h proxi mately cause d the pl aintiff to sustain injury

. See Hamilton , 249 S.W .3d at 426 (re cog nizi ng require d elements applied by appellate court). Constancio contends that if Hata’ s causation testimony had not been ex cluded, the Hospital’s no-evide nce motion for summary judgme nt would have been denied beca use she prese nted more than a scintilla of evidenc e to cre ate an issue of materia l fac t on her claim that the Hospital’s nurses we re n eglig ent. The

28Hospital’s motion arg ued that there was no evidenc e of Constancio’s wrong ful death damag es and,

if Hata ’s testimony

wer e excluded, Constancio would have no evidenc e of c ausation. Although two of the Hospital’s witnesses, Dr. Marc k and Nurse Clark, testified as to

cer tain aspec ts of causa tion—namely , that Ruben’s re spiratory event “almost had to be” the ca use of his brain da mag e, and that a rea sonable and prudent nurse should ha ve included pulse ox imetry in an assessment of Ruben’s chang ing respiratory ra t e— Ha ta’s testimony was essential beca use it was the only expert testimony aff irmatively linking the nurse- administered medications and lack of continuous pulse-oxy g en monitoring during Ruben’s respi ra t o ry decline to his ultimate death. See American Transit ional Care Ctrs. of Tex. v. Palacios , 46 S.W .3d 873, 876 (Tex. 2001) (“Te x as courts have long rec og nized the nece ssity of expert testimony in m ed i ca l-malprac tice

case s.”); Chester v. El-Ashram , 228 S.W .3d 909, 914 (Tex. App.—Dallas 2007, no pet.) (“Without expert testimony in a medical malprac tice action, there is no issue to submit to the jury .”); W iggs

v. All Saints Health Sys ., 124 S.W .3d 407, 414 (Tex. App.—For t Worth 2003, pet. denied) (af firming trial court’s take- nothing judgme nt beca use claim an t s ’ sole causation evidenc e supporting their claims was from experts’ testimony that court had excluded as unreliable ); see Tennyson , 2004 Tex. App. L EXI S 350, at *32 (conc luding that expert’s testimony was sole evidenc e supporting medicalmalprac tice action and afte r its exclusion claimant “wa s left with no evidenc e to defe at Appellee s’ no-evide nce motion for summar y judgme nt”). As the hospital predic ted in its arg ument below, a favor able ruling on its Daubert/Robins o n ch alleng e clea red the way for its no-evide nce motion for summary judgme nt: “[I ]n the event the Court sustains the Def endant’ s Motion and prec ludes the testimony of Plaintiffs’

29expert witness as to o ff er i n g any evidenc e as to any depar ture from the standard of car e and/or proxi mate cause , then Plaintiffs would be p re cl u d ed from offe ring any evidenc e of liability

or causa tion and summary judgme nt as to those alleg ations would be ripe for dismiss al.” I f Hata’ s testimony had not been excluded, Cons t an ci o would have prese nted g reater than a scintilla of evidenc e on her alleg ation of the Hospital’s liability for the neg lige nce of its nursing staff. Be cause

we have previously deter mined that the district court abused its discretion in striking Ha t a’s

causa tion testimony , and beca use his testimony constitutes more than a scintilla of evidenc e cre ating

a materia l fac t issue as to the element of causation, we co n clude that the district court err ed in gr anting the Hospital’s no-evide nce motion for summary judgme nt on this g round. See Tex. R. Civ. P . 166a(i).

Fur ther, as to the Hospital’s arg ument that there was no evidenc e of Constancio ’s wrong ful death damag es, Constancio provided an aff idavit to the district court descr ibing the history of her rela tionship with her husband, her pres en ce at his side as he was trea ted and when he died at the Hospital, her emotional pain in his absenc e, an d h er gri ef o v er the loss of his advice , his emotional support, and their plans for the future toge ther. Wrongf ul death damag es may include

rec overy for mental anguish, loss o f companionship and society , pecunia ry losses, and loss of inheritanc e . Moore v. Lill ebo , 722 S.W .2d 683, 6 8 7 (T ex. 1986); see Tex. Civ. Prac. & Rem. Code Ann. §§ 71.001-.012 (West 2008) (Wrong ful Dea th Act). T h e Ho s pital did not challeng e Constancio’s af

fidavit. We conclude that Constancio’s aff idavit constitutes more than a scintilla of evidenc e

cre ating a materia l f

act issue as to her wrong ful death damag es; thus, the Hospital was not e ntitled

30to a no-evide nce summary judgme nt o n t h e al terna tive g round raised in its motion. See Tex. R.

Civ. P. 166a(i); Knott , 128 S.W .3d at 216; Lill ebo , 722 S.W .2d at 6 8 7

. Ac co rd i n g ly , we sustain Constancio’s sec ond issue.

CONCLUSION

Having sustained both o f C o n s t ancio’ s issues, we reve rse the district court’s order g ranting the Hospital’s Daubert/Robinson Challeng e and Motion to Ex clude Opinion Testimony of J

. Stephen Hata, M.D., reve rse the order g ranting the Hospital’s No-Evidenc e Motion for Summary J udg ment, and rema nd this case to the district court for further proce eding s consistent with this opi nion.

J eff Rose, J ustice Be fore J ustices Pury ear , Pemberton and Rose Reverse d and Remande d Filed: May

22, 2012

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