C O U R T O F A P P E A LS EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS L AS PAL MAS MEDI CALCENTER AN D E LPAS O H EA L TH CA RE SYSTEM, L TD. D/B /A L AS PAL MAS ME DI CA LCEN TE R, Ap pe lla nt,
v. FE R NAND O R OD R I GU E Z, I NDIVI DUAL L Y AND O N B EHAL F OF THE ESTATE OF CARMEN RODRI GUEZ , DECEASED, Appellee
. § § § § § § § No. 08-07-00016- CV

Appea l from the 210th DistrictCourt of El Paso County , Texas (TC# 2003-3772)

O P I N I O N This is an appea l from a judg ment awa rding money

damag es in a medic al malpra ctice
case . Appellee Fe rnando Rodriguez (Rodrig uez) broug ht a wrong ful death and survival ac tion ag ainst Appellant L as Palmas Medica l Center and E l Paso Healthca re Sy stem, L td. d/b/a L as Palmas Medical Cente r (L as Palmas), a lleg ing ne g lige nce which ca used the de ath of his mother, Carmen Rodriguez. After the first trial of the c ase, the trial court g rante d a motion for mistrial and orde red a

new tria l. Following the sec ond trial, the jury found that L as Palmas’s neg lige nce proxi mately

cause d Carmen Rodrig

uez’s death a

nd awa rded he r son $50,000 damag es for her conscious phy sical pain, $50,000 for her me ntal anguish, and $10,000 for he r burial e x penses. No damag es we re a

war ded for

Fe rnando Rodriguez’s individual wrong ful death claim. The trial court re duced the damag e cla im for the buria l expenses, but otherwise re ndere d judgme nt on the jur y ’s ve rd ic t. We a ff

ir m. Carmen Rodriguez suffer ed fr om a number of medical a ilments including diabe tes and2

hy perte nsion. She had suffe red se vera l strokes and ha d underg one surg ery for a broken hip. She had also suff

ere d from seve re de cubitus ulcers. O n October 17, 2001, she wa s admitted to L as Palmas Medical Cente r in order to rec eive oxy g en tre atments due to a de cubitus ulcer on he r hip, and to re ceive treatment for an inf ection in the wound on he r hip. Ther e wa s evidenc e that she
was a wake , but she was not able to follow rec ommendations or ver bal commands. How ever , the re wa s a lso te sti mony

fr om h e r s on

that sh e wa s c oh e re nt a

nd wa s a ble to c on ve rs e wi th h im
o nt h e e v en i n g b ef

o re h er p as s i n g. At 9:54 a.m. on October

23, 2001, afte r Carme n Rodrigue z had returne d from re ceiving hy perba ric oxy g en tre atment, she wa s scheduled to have a sur g ical proc edure perf ormed that afte rnoon. The patient’s medical c hart indicates that Nurse Majorie Da y , Rodrigue z’s assigne d nurse, pe rfor

med an a ssessment of Rodrig uez. She was not aler t, oriented or ta lking, but her condition was stable. She wa s moaning , but her bre athing was not labore d. Rodrigue z was
s u ff er i n g fr o mdy s p h agi a, a d i ff i cu l t y wi ths wa l l o wi n g. At 10:30, Day

noted that Rodrig uez had a lar g e amount of dr ainag e fr om her wound, a nd she cha ng ed the dr essing s. At 11:30 a.m., Day was c leaningRodrigue z’s mouth when she stopped breathing. He r hea rt was still beating . The medic al cha rt indicates that Da

y called a

“ c od e .” He r h e art

rhy thm wa s at a slo w r a te of

40 pe r m inute . Ro dr igue z’s c od e status wa s “ fu ll code,” indicating that she wa s to be resusc itated in the eve nt of ca rdiac or re spiratory

arr est. Day testified that she did not rec all what occ urre d during the code . Fur thermore , there is no documentation in the hospital’s re cords of the details of what occur red dur ing the code. T he medical r ecor ds indicate that the c ode wa s stopped by order of Dr. O mar Gonzalez, the attending phy sician. Rodrig uez continued to have “ ag onal” r espirations until 12 p.m., when she wa s3

pronounce d dead. H er de ath was c aused by two mucus plug s in her lung s. Day testified that her decision not to resuscitate Rodrigue z was a violation of hospital policy and wa s a bre ach of

the standard of

car e; althoug h she believe d the dec ision not t o resusc itate was ma de by the family

as Dr. Gonzalez had told her the family had dec ided not to resuscitate . The hospital policy did not permit the ac cepta

nce of a DNR orde r over

the telephone
. Dr. Gonzalez testified that Da y called him to tell him that Rodriguez had stopped br e a thi ng , a

nd he ins tr uc te d h e r t o g ive him

so me tim e to r e qu e st a

DN R, o r, do no t r e su sc itate
or de r. He the n p ho ne d F e rn and o Ro dr igue z an d o bta ine d h is a g re e me nt n ot t o r e su sc itate his mother. He called D ay

back a nd told her not to run the code . He be lieved that Rodriguez’s condition was terminal or irreve rsible as she ha d multipl e conditions contributing to her
m o r b i d i t y. Fe rnando Rodriguez testified that he did not rec eive the c all from Dr . Gonzalez, and he
was una war e that his mother had stoppe d breathing until he re ceive d a ca ll from the hospital i n f o r m i n g h i mt h a t

h i s m o t h e r

h a d p a s s e d aw ay. Rodrigue z’s chart indicates that when the code w as stopped, her hear t was still beating. Her respiration continued until 12. S he wa s trying to br eathe for f orty minutes. Her r espirations
we re a g on a l. Var ious ex perts testified on be half of both pa rties. Nurse Cy

nthia Stins on testified the nursing car e at L as Palmas fa iled to meet the standa rd of c are due to lack of

documentation reg ardingthe purporte d chang e in her code status, the failure to document the re spiratory car e, the fa ilure to d oc ume nt what me a sure s w e re take n w he n th e c od e wa s c a lle d, and the fa ilure to follow hospital policy

when the te lephonic orde r to stop the code w as re ceive d.4

Nurse Stinson stated that she ha d no persona l knowledg e of what occ urre d in that she was not present whe n Rodrigue z st opped bre athing ; although the nursing notes indicated that her br e a thi ngwa s a g on a l; that is , s he wa s st ru g g lin g to b re a the . Ape rs on in s uc h a c ir c ums tanc e is often g asping for br eath, is bluish in color, and ofte n has a he lpless look in their ey es. A pe rson utiliz ing a g onal bre athing is try ing to br eathe
. Dr. Hug h Poindex ter testified a s an expert for Rodriguez. He agree d that the nursingstaff brea ched the standard of

car e in treating Rodriguez, and that their fa ilure to take r esuscitative
measure s proxi mately

cause d her de ath due to a muc us plug that developed be cause she did not have a g agref lex. R eg ardingwhether

or not Rodrig uez was consc ious after she stopped breathing, the f

ollowing e x chang e occ urre d: DEF ENSE: I s it also true that y ou can’ t say within reasona

ble medica l probability

that Ms. Rodrigue z was conscious at a ny time after

the code w as ca lled and bef

ore he r re spirations stopped? WI TNESS: We discussed that befor e, and w ithout documentation Ijust don’t

kn ow . T ry

ingto b re a the , I

wo uld a ssume sh e wa s c on sc iou s b ut I would just have to assume. DEF ENSE: I t’s mere ly an assumption? WI TNESS: Assumption. DEF ENSE: And y ou cannot sa y within reasona

ble medica l probability

she wa s conscious at a ll during that period of time? WI TNESS: I f y ou’re trying to br eathe Ithink it’s a pretty g ood assumption that sh e pr ob a bly wa s c on sc iou s. D E F E N S E : W e l l , c anyo us ay th a tw i thr e a s o n a b l e m e d i c a l p r o b a

b i l i ty, Doctor? WI TNESS: Ithink so.5

DEF ENSE: You told me befor e you couldn’t, wa sn’t that true? WI TNESS: Isaid it was possible. Ithink Ig ave you 50/50 on that one, too. DEF ENSE: Iasked you on pag e 144. W IT N E S S : O k ay. DEF ENSE: So, and rea sonable medic al proba bility y ou can’ t say

she wa s conscious duringany

of that per iod of time. Answer : They didn’t document any

thing. Sometimes they

can be conscious, sometimes not. There ’s nothing doc umented so we don’t know in this case. We do not know that she was try ing to br eathe –we do know she wa s tr yingto b re a the , th ou g h. Cor re c t? WI TNESS: Yes, sir. DEF ENSE: You’re not chang ing your answe r today ? You don’t know? WI TNESS: Ithink it’s about the same thing Isaid. Ihope. DE F EN SE: We b re a the wh ile we ’r e sle e pin g but w e ’r e no t c on sc iou s? WI TNESS: Well , we’re not comatose. DEF ENSE: But we ’re not conscious, ar e we ? WI TN ESS: Th e re ’s c on tr ov e rs y a bo ut t hat. H owdo we de sc ri be that? W e jus t say it’s a sleepingstate. Dr. Micha el Robertson testified for L as Palmas. He stated that per sons experiencing ag onal bre athing are not nece ssarily conscious. Dr . Robertson testified that in the instant case , Rodrigue z’s blood pressure wa s low at 40 over 0. H e stated that it was incredibly unlikely that Rodrigue z was conscious bec ause it wa s unlikely a per son with sy stolic pressure less than 70 was get t i n g en o u ghb l o o d

fl o w t o t h e b ra i nt o cau s e h er t o b e a wa re o f a n y

th i n g. I n tw o is su e s, L a s Pa lma s a sse rt s th a t th e e vid e nc e wa s le g a lly ins uf fi c ie nt t o e sta

bli sh that Rodrigue z was conscious for the purpose of

an aw ard of

damag es for

the dec edent’ s6

conscious phy sical pain a nd mental ang

uish. An appellate court will sustain a leg al suffic iency or “no- evidenc e” c halleng e if the r ecor d shows: (1) the c omplete abse nce of a vital fa ct; (2) the
c ourt is b arr e d b y

ru le s o f l aw o r e vid e nc e fr om g ivi ngwe ig ht t o th e on ly e vid e nc e of

fe re d to prove a vital fac t; (3) the evide nce of fer ed to prove a vital fa ct is no more than a scintilla; or (4) the evidenc e esta

blishes conclusively

the opposite of the vital fa ct. City of Keller v. W ilson , 168 S.W .3d 802, 810 (Tex. 2005). Contrary evidenc e may

not be disreg arde d in sufficienc y revie ws under the first, second, a

nd fourth cir cumstance s. See id. at 810-11. In conductingour re view,
we c on sid e r t

he e vid e nc e in t

he lig ht m os t f

avo ra ble to t he ve rd ic t and

ind ulg e e ve ry

re a so na ble infere nce that would support it. Id . at 822. Even if e vidence is undisputed, it i s the province of the jur y to d ra w f ro m it wh a te ve r i nf

e re nc e s th e y

wi shso lon g a s mo re tha n o ne inf e re nc e is possible. Id. at 821. B ut if the evidenc e allows only one infe renc e, neither

jurors nor the revie wing court may

disreg ard it. Id . at 822. We are also mindful that jurors are the sole judg es of the c redibility

of the witnesse s and the we ight to g ive their testimony
. Id. at 819. When there is conflicting evidenc e, it is the province of the jury to resolve suc h conflicts. Id
. a t8 2 0
. In
ever y circ umstance in whic h rea sonable juror s could resolve conflictingevidenc e either way , the revie wing court must presume the y did so in favor of the preva iling par ty , and disreg ard the conflictingevidenc e in its sufficienc y revie w. Id . at 82 1. I f t

he e vid e nc e a t tr ia l w ou ld e na ble
re a so na ble and fa ir -m ind e d p e op le to d if fe r i n th e ir

c on c lus ion s, the n ju

ro rs mus t be a llo we d to do so. Id . at 822. So long a s the evidenc e fa lls withi n this z one of r easona ble disag ree ment, we may not substit ute our judg ment for that of the trier- of-f

act. Id. The ultimate test for le g al
su ff ic ie nc y is whe the r t

he e vid e nc e a t tr ia l w ou ld e na ble re a so na

ble and fa ir -m ind e d p e op le to
rea ch the ve rdict under

revie w. Id. at 827.7

Under Texas law, only

pain that is consciously

suffe red a

nd experience d by

the dec ease d is compensable. SunBridge HealthcareCorp. v. Penny , 160 S.W .3d 230, 248 (T e x.Ap p. –T e xar

ka na 20 05 , n o p e t.) ; Lee Lewis Constr uction, Inc. v . Harrison, 64 S.W .3d 1, 14 (Tex.App.–Amarillo 1999), aff’d , 70 S.W .3d 778 (Tex. 2001). Also, its ex istence ma y be established by

circ umstantial evidence , SunBridge HealthcareCorp., 160 S.W .3d at 248. Th ou g h n ot u

nb ri dle d, a

jur y ’s dis c re tio n in

c on sid e ri ngthe e vid e nc e and arr ivi nga t a

jus tif ia ble sum is gre at. Lee Lewis Constr uction, Inc. , 64 S.W .3d at 14. Consciousness of pain a nd suffe ring may

be esta blished by

expert opinion testim ony . See W ellborn v. Sears, Roe buck & Co., 970 F.2d 1420, 1428 ( 5th Cir. 1992)(applying T exas law). I n the instant case , the jury was instructe d that “pain a nd mental anguish” meant “ the conscious phy sical pain a nd emotional pain, torment, and suf fer ing e x perie nced by

Carmen Rodrigue z before he r death . . . .” Ap p e l l an tc o n t e n d s t h a tc o n s c i o u s n e s s i s s yn o n ym o u s w i th“ aw ar e n e s s . ” A c c o r d i n g l y, Appellant re asons that abse nt awar eness of one’s c ondition or circumstanc e, ther e ca n be no contemplation of one ’s condition or a se nsation of pain. Appe llant asserts that Dr . Poindex ter’s and Nur se Stinson’s reliance upon evidenc e that Rodriguez was trying to br eath a nd experience d ag onal re spirations cannot support a n infere nce that she was c onscious. Fur thermore , Appellant
c on te nd s th a t D r. Poi nd e xter ’s te sti mony that hi s a ssumpt ion

tha t Ro dr igue z wa s c on sc iou s w a s a 50/50 proposition amounted to no evidence
. Dr. Poindext er te stified at trial that he c ould say with a re asonable medical c erta inty that beca use Rodrig uez was trying to br eathe , she wa s conscious. While his testi mony is ambiguous in light of his deposition testimony , the re solution of this conflict wa s within the province of the8

jury
. See Yanez v. Byrne

s, 480 S.W .2d 241, 244 (Tex.Civ.App.–El P aso 1972, no writ). Fur thermore , there is authority for the pr oposition t hat takingag onal bre aths clea rly indicates one is suffer ing pa in at the time. Phillips v. Bramlett, 25 8 S. W.3 d 1 58 , 1 72 (T e x.Ap p. –A mari llo 2007, pet. g rante d). We find that Dr. Poindexter’s testimony coupled with the testimony of the
nurse e x pert c oncer

ning the demea

nor of one experiencingag onal bre athing is leg ally sufficie nt to s up po rt

the jur y ’s awa rd of dama g e s. We o ve rr

ule Ap pe lla

nt’ s is su e s. We a ff ir m th e jud g me nt o f t

he tr ia l c ourt .
DAVI D WEL L I

NGTONCHEW, C hief Just ice J anuar y 30, 2009 B e f o r e C h e w , C
. J. , M c C l u r e , a n d C ar r , JJ. Carr, J., not participating