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NUMBER
13-04-436-CV

COURT OF
APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI
- EDINBURG

MARELYN
MEDINA, M.D., Appellant,

v.

MICHAEL B.
HART, Appellee.

On appeal from the 275th District Court of Hidalgo County,
Texas.

O P I N I O N

Before Justices Rodriguez, Garza, and Benavides

Opinion by Justice Benavides

This appeal arises from a medical
malpractice lawsuit that was tried to a jury verdict. Appellee, Michael
Hart, brought suit against appellant, Marelyn Medina, M.D., for injuries
he sustained during surgery to remove a kidney stone. The jury found Dr.
Medina negligent and awarded damages. On appeal, Dr. Medina argues that
the trial court erred in admitting expert testimony from a witness who was
not qualified under former article 4590i of the Medical Liability and
Insurance Improvement Act of Texas.
(1) Dr. Medina claims that without this testimony, there was no
evidence that she breached the standard of care and that this breach
caused appellee's injury. We affirm.

I. Background

Hart is a missionary in Veracruz,
Mexico. In November 2001, he returned to the United States to seek
treatment for kidney stones. His wife, Teresa Hart, contacted Dr. Medina,
who agreed to see him.

Dr. Medina examined Hart and
determined that a kidney stone was blocking the tubes to his left kidney.
At first, Dr. Medina recommended a non-invasive surgery
(2) to break the kidney stone apart, but after complications
arose, she determined that invasive surgery was required.
(3)

Hart was admitted to
Rio Grande Regional Hospital for surgery on November 16, 2001. He was
placed under general anesthesia. Dr. Medina testified that prior to the
surgery, Hart was positioned on the operating table with his right side
down. His left side was exposed upward so that Dr. Medina could access the
left kidney.

Dr. Medina testified
that she supervised the placement of cushioning devices used in
positioning Hart for surgery. Hart's right arm was raised above his head,
and a cushioning device was placed in his right axilla, or his right
underarm, to prevent nerve damage to his shoulder and arm. Dr. Medina
testified that she personally placed an IV bag-a bag primarily used to
infuse liquids into a person's body through the veins-under Hart's right
arm as a cushioning device. Although Dr. Medina testified that she often
used IV bags for this purpose, the parties disputed whether this was a
proper use. Dr. Medina performed the surgery but was unable to remove the
kidney stone.

After surgery, when
Hart awoke, he began to complain of pain underneath his right arm. Upon
inspection, nurses discovered blisters on Hart's right axilla, where the
IV bag had been placed for cushioning. After several visits to Dr. Medina
over the following weeks, Dr. Medina referred Hart to Rafael Avila, M.D.
Dr. Avila diagnosed Hart's condition as second and third degree burns
under his right arm. Dr. Avila recommended and performed a skin graft
after removing necrotic, or dead, tissue from the area. Hart subsequently
lost feeling in that area, is unable to sweat, and suffered other
complications from the burns.

Hart filed a medical
negligence suit on August 1, 2003 under former article 4590i. He alleged
that Dr. Medina negligently used the IV bag as a positioning device,
resulting in second and third degree burns to Hart. Hart designated
Phillip Diggdon, M.D. as his expert witness to testify about the standard
of care, breach, and causation.

At his deposition,
Dr. Diggdon opined that Dr. Medina bore ultimate responsibility for
positioning Hart during surgery. He testified that the standard of care
was to safely place a positioning device under the right axilla during the
surgery. Dr. Diggdon testified that Dr. Medina breached the standard of
care for positioning Hart during surgery by using a "red hot" IV bag to
cushion Hart's right axilla, which caused Hart's second and third degree
burns.

After this
deposition, Dr. Medina filed a motion to strike Dr. Diggdon as Hart's
expert. Dr. Medina claimed that Dr. Diggdon was not qualified to testify
under former article 4590i, section 14.01. Specifically, Dr. Medina argued
that Dr. Diggdon was not practicing medicine at the time of the injury or
at the time of his testimony because Dr. Diggdon retired from active
practice approximately one month before Hart's operation. Additionally,
Dr. Medina argued that Dr. Diggdon was unqualified because he was not a
burn expert. Dr. Medina did not ask the trial court to dismiss the
case-rather, she only requested that the trial court strike Dr. Diggdon as
Hart's expert.
(4)

In response, Hart
filed a supplemental affidavit from Dr. Diggdon. It recited Dr. Diggdon's
qualifications and stated that Dr. Diggdon had been serving as a
consulting physician since closing his practice:

I am a board
certified urological surgeon with 38 years experience in active patient
practice. My medical training and background encompasses all aspects of my
patient's care beginning with safe entry into the operating suite, patient
positioning to safeguard from passive injury and meticulous surgical
preparation including the performance of procedures such as the
pylolithotomy made the basis of this matter. Approximately one month prior
to the date of this incident, I had closed my practice. However, at that
time and continuing to the present, upon the request of my peers, I have
continued to serve as a consulting physician to those physicians who
provide direct patient care in my field of expertise. Additionally, I have
continued to update my medical education through attending conferences
detailing new procedures and techniques.

The trial court held
a hearing on the motion to strike. Dr. Medina objected to Dr. Diggdon's
affidavit on the grounds that it was untimely. The trial court did not
rule on this objection. Although Dr. Medina represents on appeal that she
objected to the affidavit as conclusory because it did not detail with
whom Dr. Diggdon had consulted, the record does not reflect that such an
objection was made. The trial court denied Dr. Medina's motion to strike
Dr. Diggdon as Hart's expert. The case then proceeded to trial.

At trial, Dr. Diggdon
testified by video as Hart's expert, and Dr. Medina re-urged her objection
to his qualifications. The trial court again overruled Dr. Medina's
objection and allowed Dr. Diggdon to testify by video deposition.

Dr. Medina was
questioned extensively by both sides at trial. She stated that Rio Grande
Regional Hospital policy required her, as the surgeon, to properly assess
her patient for positioning needs and have positioning devices readily
available. She also admitted that it was her responsibility to make sure
that Hart was not going to be injured as a result of being on the
operating table and unconscious for the duration of the
surgery:

Q: I mean, you've
got-you as a doctor having knowledge got [sic] to take the time and the
effort to make sure that he is not going to be injured as a result of just
being on the table and unconscious for whatever length of time that the
surgery takes, true?

A: True.

Dr. Medina's attorney
elicited an admission from Dr. Medina that placing a hot IV bag under
someone's body would be a breach of the standard of care:

Q: All right. So
there's no question about this. Do we need a paid expert from Oklahoma to
come in and tell us that you shouldn't put a hot bag, a red hot bag
underneath a patient's armpit? I mean, would you agree that that shouldn't
be done?

A: That shouldn't be
done, sir.

She testified that
Dr. Avila diagnosed Hart's injury as a burn, and although she initially
disagreed with this diagnosis, she stated at trial that "[a]t this time I
would say that [Hart] suffered a burn." She testified that Hart's burn was
in the same location as the IV bag and approximately the same size.
Although she disputed whether the bag was hot when she placed it under
Hart's arm, Dr. Medina testified that regardless of the heat source, the
IV bag that she placed under Hart's arm was warm and caused Hart's
burn:

Q: Dr. Medina,
regardless of the heat source, it was the IV bag that became warm and
burned Mr. Hart, regardless of the heat source, correct?

A: That is the what
the working diagnosis is.

Q: That is-that is
the only thing that injured Mr. Hart was a hot IV bag from some heat
source, correct?

A: I would assume,
yes.

Q: Okay. That would
be fact, wouldn't it? Was there anything else under his armpit than this
IV bag?

A: The only thing
there that I know of was the bag.

Q: So therefore
regardless of the heat source it was an IV bag that caused injury to Mr.
Hart during the operation?

A: I would assume
that is.

Q: And it was you who
put the IV bag there?

A: That is correct,
sir.

The parties' main
dispute at trial was over how the IV bag became heated. Dr. Medina denied
that the bag was heated when it was handed to her before she placed it
underneath Hart's arm. She could not remember whether it was wrapped in a
towel when it was handed to her, but if so, she testified that she would
have removed the towel prior to placing it under Hart. She testified that
she touched the bag, and it was not hot. Dr. Medina theorized that it was
possible that the bag was heated after being placed under Hart's
arm.

Cesar Guerra, the
circulating nurse on duty at the time of Hart's surgery, testified that
the IV bag was wrapped in a surgical towel prior to being placed under
Hart's arm. He testified that there was an IV bag-warmer outside the
operating room that was often used to heat IV fluids in the bags prior to
being administered to a patient. Although he testified that the IV bag was
not taken off a warmer before Dr. Medina positioned it, he had no personal
knowledge of whether the IV bag was previously warmed.

Teresa Hart testified
that Guerra told her that the IV bag had been heated and then wrapped in a
towel prior to being placed underneath her husband's arm. She also
testified that after the surgery, she and her husband visited Dr. Medina's
office. She recounted her conversation with Guerra to Dr. Medina and
questioned Dr. Medina about the use of a heated IV bag. At that point, Dr.
Medina became very upset, denied using a heated IV bag, and left the room.
Teresa testified that after Dr. Medina left the room, Dr. Medina's
employee, Lily, stated, "I wish some people would just simply tell the
truth." Hart corroborated this testimony, but he added that Lily told him
that the IV bag was "too hot." In closing arguments, Dr. Medina's attorney
made the following arguments about the issues in the case, including the
standard of care and breach:

This case is about
one question. The question is: Was the IV bag red hot when Dr. Avila-Dr.
Medina put it under Mr. Hart? That is the only issue in this case. Was it
red hot? . . . First of all, if it was red hot, there was a breach in the
standard of care. Dr. Avila-I mean, Dr. Medina will admit to that. If she
actually put a red hot bag underneath Mr. Hart's arm, that was a breach.
Okay. You don't need an expert from Oklahoma to tell you all of
that.

Dr. Medina's attorney
then summarized and attempted to discredit the testimony that the bag was
hot, referencing the Harts' testimony regarding statements made by Dr.
Medina's nurse, Lily.

The jury found that
Dr. Medina was negligent and that her negligence proximately caused Hart's
injury. The trial court rendered judgment on the verdict, and after
applying settlement credits, awarded Hart $193,000.00 against Dr. Medina,
plus prejudgment and post-judgment interest and costs. This appeal
ensued.

II. Standard of Review

Dr. Medina argues on
appeal that the trial court erroneously admitted Dr. Diggdon's testimony
because Dr. Diggdon was not qualified. A trial court's ruling on an
expert's qualifications is reviewed under an abuse of discretion standard.
Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996). "'The test for
abuse of discretion is whether the trial court acted without reference to
any guiding rules or principles.'" Id. (quoting E.I. du Pont
de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995)).

To obtain reversal
based on the trial court's error in the admission of evidence, however,
Dr. Medina must further show that the error probably caused the rendition
of an improper judgment. Tex. R. App. P. 44.1(a); Nissan Motor Co. v.
Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). To make this
determination, we must review the entire record. Nissan, 145
S.W.3d at 144. The complaining party must generally demonstrate that the
"judgment turns on the particular evidence admitted." Id.
Although it sounds simplistic, and often is, application of this standard
is also sometimes difficult and dependent on the facts of that particular
case:

Clearly, erroneous
admission is harmless if it is merely cumulative. But beyond that, whether
erroneous admission is harmful is more a matter of judgment than precise
measurement. In making that judgment, we have sometimes looked to the
efforts made by counsel to emphasize the erroneous evidence and whether
there was contrary evidence that the improperly admitted evidence was
calculated to overcome.

Id.
(citations omitted).

III. Application

Initially, we note
that Dr. Medina's briefs merely state that absent Dr. Diggdon's testimony,
there is no evidence that Dr. Medina's negligence caused Hart's
injuries.
(5)

Otherwise, Dr.
Medina's briefs focus entirely on the admissibility of Dr. Diggdon's
testimony. Dr. Medina did not attempt to point out and distinguish the
portions of the record, referenced above, that might be construed as
otherwise supporting the judgment. We could reject Dr. Medina's arguments
solely based on her failure to brief and demonstrate reversible error.
Tex. R. App. P. 38.1(h); Indian Beach Prop. Owners' Ass'n. v.
Linden, No. 01-05-01116-CV, 2007 Tex. App. LEXIS 2286, at *17 (Tex.
App.-Houston [1st Dist.] Mar. 22, 2007, no pet.); Ford Motor Co. v.
Castillo, 200 S.W.3d 217, 232 (Tex. App.-Corpus Christi 2006, pet.
filed).
(6)

We have reviewed the
record for reversible error, however, because this case is very unique.
While we recognize that a medical malpractice plaintiff must generally
present expert testimony to support their claims of negligence and
causation, Garza v. Levin, 769 S.W.2d 644, 646 (Tex. App.-Corpus
Christi 1989, writ denied), this is not the typical medical negligence
case. See Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) ("It
may be that once discovery is complete and the case is tried, there is no
need for expert testimony."). In most medical malpractice cases, the
physician's actions or inactions are well documented, and there is no
dispute whether an action or inaction by the physician actually occurred.
Rather, the dispute typically focuses on whether the undisputed action or
inaction constituted negligence that proximately caused an injury.

This case is
different. The main issue at trial in this case was how and when the IV
bag became heated-not whether placing a hot IV bag under someone's arm
would be negligent and cause a burn. As demonstrated below, Dr. Medina
judicially admitted negligence and causation, and therefore, contrary to
Dr. Medina's argument, Dr. Diggdon's testimony was not the only evidence
that the bag was hot when Dr. Medina placed it under Hart's arm. Dr.
Medina cannot establish reversible error in this case because Dr.
Diggdon's testimony was merely cumulative of Dr. Medina's testimony and
testimony from the Harts. See Nissan, 145 S.W.3d at 144.

In rare cases, a
defendant makes a conclusive, judicial admission on the elements of
negligence and causation. See Grider v. Naaman, 83 S.W.3d 241,
245-46 (Tex. App.-Corpus Christi 2002), rev'd on other grounds,
126 S.W.3d 73, 74-75 (Tex. 2003) (holding that evidence conclusively
established negligence and causation because surgeon judicially admitted
that his action breached the standard of care and caused plaintiff's
injury). Testimonial admissions will be treated as conclusive, judicial
admissions if (1) the statement was made during a judicial proceeding; (2)
it was contrary to an essential fact embraced in his theory of defense;
(3) it was deliberate, clear, and unequivocal, thereby eliminating the
hypothesis of mere mistake or slip of the tongue; (4) giving conclusive
effect to the declaration would be consistent with public policy; and (5)
the statement was not destructive of the opposing party's theory of
recovery. Mendoza v. Fid. & Guar. Ins. Underwriters, Inc.,
606 S.W.2d 692, 694 (Tex. 1980). A judicial admission relieves the
opposing party's burden of proof on an issue. Id. In fact, a
judicial admission bars the party admitting the fact from later disputing
its existence. Grider, 83 S.W.3d at 246.

In conducting a legal
sufficiency review of a judgment in a medical malpractice case, the
Amarillo Court of Appeals recently found legally sufficient evidence of
both negligence and causation based in part on the judicial admissions of
the physician defendant. See Phillips v. Bramlett, No.
07-05-0456-CV, 2007 Tex. App. LEXIS 2124, at *16-18 (Tex. App.-Amarillo
Mar. 19, 2007, no pet.). There, Phillips performed a hysterectomy on Vicki
Bramlett, and after surgery, ordered immediate blood tests to determine
the cause of unusual urine output. Id. at *2-3. While the tests
were performed, Phillips assisted in another surgery, and then he left the
hospital. Id. at *3-4.

The nurses on duty
sent Phillips a voice-mail message indicating that Bramlett's blood tests
were abnormal, signaling that Bramlett was suffering internal bleeding.
Id. Phillips did not check his voice-mail before leaving the
hospital. Id. By the time Phillips was finally reached and
returned to the hospital, Bramlett had already suffered severe
complications from a massive amount of blood in her abdomen. Id.
She eventually died from complications due to post-operative
bleeding. Id.

At trial, Phillips
admitted that "had he gone to the bedside of [Bramlett] and evaluated her
clinical condition, she would be alive today. Further, he admitted that,
had he checked his voicemail, he would have stayed at the hospital."
Id. at *17. The court of appeals concluded that this testimony
should be treated as a conclusive, judicial admission on the question of
negligence and cause in fact of Bramlett's death. Id. at *16-18
(setting forth factors used when determining whether admission is a
quasi-admission or a judicial admission). In reaching this decision, the
court considered the following factors: First, the statements were made
during trial. Id. at *17. Second, Phillips's statement
that had he checked his voice-mail, he would have stayed at the hospital
and Bramlett would be alive today, ran contrary to his defensive theory
that he was not negligent. Id. The court further noted that
"[g]iving conclusive effect to these declarations is consistent with the
public policy that it would be unjust to allow a party to rely on one
factual defense at trial and then, after the trier of fact found against
him, to argue a different factual defense." Id. at *17-18.
Finally, the court found that Phillips' admissions did not destroy
Bramlett's position. Id. at *18.

Similar to
Phillips, in the present case, Dr. Medina judicially admitted
negligence and causation. First, her testimony was given at trial. Second,
Dr. Medina's defense theory at trial was that she was not negligent.
Nevertheless, Dr. Medina expressly admitted that it was her duty to ensure
proper positioning of her patient to avoid injury. On direct examination
by her own attorney, she admitted that a doctor should not place a hot IV
bag under a person's arm and that such action would breach the standard of
care. See Grider, 83 S.W.3d at 245-46 (doctor admitted negligence
when he testified that "it would fall below the standard of care for a
doctor to cut a brachial plexus nerve when he thought he was in the
stellate ganglion," and doctor admitted these precise actions occurred).
Dr. Medina further admitted that the IV bag was the cause of Hart's
injury. She stated that Hart was diagnosed with a burn in the exact
location as the IV bag, and that regardless of the heat source, the IV bag
that she placed under Hart's harm was warm and caused Hart's burn.

Much of the testimony
recited above was elicited on direct examination by Dr. Medina's own
attorney. Moreover, formal declarations in open court by a party's
attorney that are clear, deliberate, and unequivocal can also constitute
judicial admissions. Isern v. Watson, 942 S.W.2d 186, 200-201
(Tex. App.-Beaumont 1997, pet. denied). In this case, Dr. Medina's
attorney made arguments in closing that, if not sufficient themselves as
judicial admissions, at the least support our conclusion that Dr. Medina's
statements at trial were deliberate, judicial admissions.

Moreover, in
conducting a harm analysis, we are entitled to consider how the
erroneously admitted testimony was used during trial. During closing, Dr.
Medina's counsel emphasized her admissions on standard of care and
causation, and he further argued that Dr. Diggdon's testimony was
unnecessary because of Dr. Medina's admissions. Considering Dr.
Medina's arguments at trial, public policy supports our conclusion that
Dr. Medina's statements on standard of care, breach, and causation were
judicial admissions. Dr. Medina should not be able to resurrect a defense
on appeal that she wilfully failed to assert below.

Finally, although Dr.
Medina claims that Dr. Diggdon's testimony was the only evidence that the
IV bag was hot-an issue that clearly does not require expert testimony-the
Harts both testified as much. Further, after arguing that expert testimony
was unnecessary, Dr. Medina's attorney detailed the non-expert evidence
demonstrating that the bag was hot when Dr. Medina placed it. He also
referenced the Harts' testimony regarding statements by Dr. Medina's nurse
and tried to discredit the testimony.

IV.
Conclusion

Assuming, without
deciding, that the trial court erred in admitting Dr. Diggdon's testimony,
we find that such error was harmless and did not probably cause the
rendition of an improper judgment. Tex. R. App. P. 44.1(a). Accordingly,
we affirm the trial court's judgment.

____________________________

GINA M. BENAVIDES,

Justice

Opinion delivered and
filed

this the 5th day of
July, 2007.

1. See Tex. Rev. Civ. Stat. art. 4590i,
repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §
10.09, 2003 Tex. Gen. Laws 847, 884 (now codified at Tex. Civ. Prac. &
Rem. Code § 74.401 (Vernon ). Because this suit was filed on August 1,
2003, and article 4590i was repealed effective September 1, 2003, former
article 4590i governs this case. Id.

2. Dr. Medina initially
recommended a lithotripsy, which uses shock waves to pulverize kidney
stones non-invasively.

3. Dr. Medina performed a pyelolithotomy, an invasive
surgery where the doctor surgically removes the kidney stone.

4. Article 4590i, section 14.01 governs qualifications
of experts and the time frame for a court's pre-trial ruling on
admissibility. Tex. Rev. Civ. Stat. Ann. art. 4590i § 14.01. Unlike
section 13.01, which provides for dismissal if a plaintiff fails to comply
with deadlines for serving an expert report, section 14.01 does not
provide for dismissal of a case for lack of a qualified expert.
Id.

5. Again, we note that Dr. Medina did not ask the
trial court to dismiss the case pre-trial under section 13.01 of article
4590i for the absence of an expert report. Rather, she filed a motion to
strike Dr. Diggdon as Hart's expert as unqualified, specifically
requesting only that the trial court "prohibit Dr. Diggdon from
testifying." She re-asserted this objection at trial. Therefore, we cannot
presume that this case would not have gone forward past the point of an
expert review of the case because Dr. Medina did not ask for dismissal. We
must review all the evidence in the record to determine if the trial
court's ruling on Dr. Medina's objection was reversible error.

6. Dr. Medina points to only the fact that the "jury's
verdict, which imposes liability on Dr. Medina based on unqualified expert
testimony, establishes harm." Such a statement could be made by an
appellant in any case and is not sufficient under the Texas Rules of
Appellate Procedure to support
review.