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NUMBER
13-06-288-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

McALLEN
HOSPITALS, L.P., ET AL., Appellants,

v.

CARMEN
GARZA MUNIZ, ET AL., Appellees.

On appeal from the 206th District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and
Garza

Memorandum Opinion by Justice Rodriguez

Appellees, Carmen
Garza Muniz, San Juana Muniz Perez, Arturo Muniz Garza, and Sonia Sereno
brought this action against appellants, McAllen Hospitals, L.P., and
McAllen Medical Center, Inc. d/b/a McAllen Medical Center (the Hospital),
and Shahid Rashid, M.D., to recover damages allegedly sustained as the
result of medical malpractice.
(1) The jury returned a verdict in favor of Dr. Rashid but
against the Hospital. The trial court entered judgment on the jury
verdict, and the Hospital filed a timely notice of appeal. By its first
two issues, the Hospital challenges the evidence as legally and factually
insufficient to support the jury's finding that any negligence by the
Hospital was a proximate cause of Mr. Muniz's death. By its third issue,
the Hospital contends the trial court erred when it denied the Hospital's
motion to strike or limit the causation testimony of Howard Rosner, M.D.,
appellants' expert.
(2) We affirm.

I.
Background

This is a medical malpractice case
in which appellees claim negligent acts of the Hospital caused the death
of Mr. Muniz. Dr. Rosner, appellees' designated expert, testified that Mr.
Muniz's death was caused by the Hospital's failure to monitor his
condition while he was administered Dilaudid, an opiate.

Mr. Muniz's lower left leg was
amputated at the Hospital on April 16, 2002. After the surgery, Mr. Muniz
appeared to suffer from pain at the surgical site and from "phantom pain."
Mr. Muniz's pain was controlled through oral administration of Darvocet.
Dr. Rashid was consulted on pain management, and on April 20, 2002, Dr.
Rashid ordered, for Mr. Muniz, the use of a patient-control analgesia pump
(PCA) to deliver Dilaudid intravenously.
(3) At about 8:00 p.m., Cesar Duque, L.V.N., initiated the PCA
to deliver Dilaudid. Following the initiation of the PCA, the amounts of
Dilaudid either administered or received by Mr. Muniz were never recorded.
At 9:00 p.m., a nurse took a blood sample from Mr. Muniz for a glucose
check. At 10:54 p.m. that same evening, Nurse Duque found Mr. Muniz with
no pulse and no respirations. A Code was called. The physician responding
to the Code began the protocol for advanced cardiac life support and, upon
hooking Mr. Muniz up to the EKG, found him to have pulseless electrical
activity. The family agreed to stop resuscitation, and Mr. Muniz was
pronounced dead shortly thereafter.

Appellees sued the Hospital and Dr.
Rashid for wrongful death, complaining that Dr. Rashid should not have
ordered the Dilaudid and that the Hospital failed to monitor Mr. Muniz;
thus, causing his death. Dr. Rosner, appellees' expert witness on
causation, testified that Mr. Muniz died of cardio-respiratory arrest. Dr.
Rosner further testified, "Everybody dies when their heart stops beating
and the lungs stop breathing, and what we're doing here is looking for why
his heart stopped beating and his lungs stopped working and he stopped
breathing." According to Dr. Rosner, Mr. Muniz died from the sedating
effects of Dilaudid. He stated:

As he [a patient] gets more sedated,
he takes in less oxygen and blows off less carbon dioxide. . . . At some
point along the way his carbon dioxide concentration in his blood is going
to be high enough to trigger a fatal arrhythmia or his hypoxia is just
going to stop his heart.

Dr. Rosner testified that had the
Hospital monitored Mr. Muniz while on Dilaudid it could have prevented his
death. Thus, appellees alleged that the Hospital's negligence in failing
to monitor Mr. Muniz proximately caused his death.

The Hospital challenged Dr. Rosner's
testimony several times during trial. It filed a motion for summary
judgment and a motion to limit Dr. Rosner's testimony before trial
claiming that the testimony on causation was speculative and, pursuant to
rule of evidence 702, was neither relevant nor reliable. See Tex.
R. Evid. 702. The Hospital also filed a motion for directed verdict and
objected to the charge on the same grounds. The trial court denied each
motion and objection.

The jury returned a verdict in favor
of Dr. Rashid but against the Hospital. The trial court entered judgment
on the verdict. In this appeal, the Hospital does not challenge the jury's
finding that the Hospital was negligent in its monitoring of Mr. Muniz. It
challenges the jury's finding that the Hospital's negligent act was the
proximate cause of Mr. Muniz's death.

II. Admission of Expert
Testimony

In its third issue, the Hospital
argues that the trial court erred when it denied its motion to strike Dr.
Rosner's testimony because his testimony was not reliable under rule 702.
Specifically, the Hospital argues that Dr. Rosner's testimony is based on
assumptions and not supported by a necessary and detailed explanation. We
disagree.

A. Standard of Review
and Applicable Case Law

If an expert's testimony would
assist the fact finder in understanding the evidence or determining a fact
issue, that expert may testify on scientific, technical, or other
specialized subjects. Tex. R. Evid. 702; Mack Trucks v. Tamez,
206 S.W.3d 572, 578 (Tex. 2006). An expert's testimony is admissible if
the expert is qualified, and if the testimony is relevant and based on a
reliable foundation.
(4) Id. It is within the trial court's discretion
whether these requirements are satisfied. Broders v. Heise, 924
S.W.2d 148, 151 (Tex. 1996); E.I. du Pont de Nemours & Co. v.
Robinson, 923 S.W.2d 549, 556, 558 (Tex. 1995). Therefore, we review
the trial court's decision to admit an expert's testimony under an abuse
of discretion standard. Robinson, 923 S.W.2d at 558; Brandt
v. Surber, 194 S.W.3d 108, 130 (Tex. App.--Corpus Christi 2006, pet.
denied). A trial court does not abuse its discretion merely because a
reviewing court in the same circumstances would have ruled differently.
Robinson, 923 S.W.2d at 558; Downer v. Aquamarine Operations,
Inc., 701 S.W.2d 238, 242 (Tex. 1985); Brandt, 194 S.W.3d at
130. The trial court abuses its discretion if its decision was
arbitrary or unreasonable without regard to guiding rules and principles.
Downer, 701 S.W.2d at 241-42; Brandt, 194 S.W.3d at 130.

To determine whether an expert's
testimony is reliable, the trial court must "evaluate the methods,
analysis, and principles relied upon in reaching the opinion" and "should
ensure that the opinion comports with applicable professional standards
outside the courtroom." Gammill v. Jack Williams Chevrolet, 972
S.W.2d 713, 725-26 (Tex. 1998). The trial court must determine whether the
expert's analysis used to reach its conclusions is reliable not whether
those conclusions are correct. Id. at 728.

Scientific expert testimony is
reliable if it is "grounded 'in the methods and procedures of science'
[otherwise it] is no more than 'subjective belief or unsupported
speculation.'" Robinson, 923 S.W.2d at 557 (quoting Daubert
v. Merrill Dow Pharms., Inc., 509 U.S. 579, 590 (1993)). In
Robinson, the supreme court identified six nonexclusive factors
to guide a trial court in determining whether expert testimony is
reliable.
(5) Robinson, 923 S.W.2d at 557. However, these factors
are not applicable in some cases when "experience alone may provide a
sufficient basis for an expert's testimony." Gammill, 972 S.W.2d
at 726. In these cases, a trial court may exclude an expert's opinion as
unreliable if there is "simply too great an analytical gap between the
data and the opinion proffered." Id. (quoting Gen. Elec. Co.
v. Joiner, 522 U.S. 136, 146 (1997). An impermissible analytical gap
exists if an expert "has offered nothing to suggest that what he believes
could have happened actually did happen" because then "[h]is opinions are
little more than 'subjective belief or unsupported speculation.'"
Id. at 727-28 (citing Robinson, 923 S.W.2d at 557). The
critical inquiry is whether there is an "analytical gap" between the
opinion and the basis on which it is founded. Id. at 726. The
proponent of the expert testimony bears the burden of demonstrating its
expert is qualified under rule 702. Robinson, 923 S.W.2d at 557.
B. Analysis

Through affidavit, expert written
report, and oral deposition, Dr. Rosner expressed that Mr. Muniz's death
was proximately caused by the failure of the Hospital staff to monitor Mr.
Muniz's vital signs, oxygen saturation, and level of consciousness after
the PCA administration of the drug, Dilaudid. Dr. Rosner based his opinion
on his review of Mr. Muniz's medical records, death certificate, clinical
condition, prior opiate sensitivity, and co-morbidities, which are other
associated medical illnesses. In his opinion, Dr Rosner concluded that Mr.
Muniz's co-morbidities of congestive heart failure (CHF), coronary artery
disease (CAD), and chronic obstructive pulmonary disease (COPD) caused him
to have less reserve and be more susceptible to sedation and respiratory
depression.

In a sworn affidavit attached to
appellees' response to the Hospital's motion to strike his testimony, Dr.
Rosner stated that based on his review of these records, (1) Dr. Rashid
prescribed and Mr. Muniz was administered Dilaudid PCA on April 20, 2002,
(2) the prescribed dosage of Dilaudid given intravenously at a basal rate
of 0.5 mg/hr and a demand dose of .025 mg every 15 minutes as needed was
an equipotent
(6)

dose higher than any opiate that Mr.
Muniz had been exposed to before, (3) Mr. Muniz was found non-responsive
with no respirations or pulse at 10:54 p.m., less than three hours after
the administration of Dilaudid. Dr. Rosner opined that the cause of death
was acute opiate intoxication. He based this opinion on his review of Mr.
Muniz's medical record, and on his training, experience, and education as
an anesthesiologist specializing in pain management.

Further, in his written report,
dated March 23, 2004, Dr. Rosner stated that prior to the administration
of Dilaudid through PCA the following occurred:

For the operative pain he [Mr.
Muniz] was started on a PCA with morphine late in the day on 4/16 at a
basal rate of 1 mg/hr and a demand dose of 1 mg every 15 minutes as needed
for pain. . . . At 06:30 the following morning, after significant changes
in mental status and an episode of mild hypotension was noted in the
nursing notes, the PCA was stopped and he was treated with Darvocet N-100
one tab every 3 hours as needed for his postoperative pain. . . . [T]he
nursing notes indicated he was relieved of his discomfort with the use of
Darvocet.

During Dr. Rosner's deposition,
opposing counsel asked him on what he based his opinion that Mr. Muniz
died from opiate intoxication. Dr. Rosner answered that, in his opinion,
Mr. Muniz was an opiate sensitive patient.

I [Dr. Rosner] interpret that
[termination of morphine due to mental status change] as a sort of
indication that this is a patient who is opiate sensitive. . . . I am
struck by a patient who has manifested sensitivity to opiate in two ways:
One, that he developed mental status change to morphine; and two that he
had a decent effect to Darvocet. He's then given a very potent opiate
intravenously at a dose higher than anything that he had been exposed to
before. Several hours later he is dead. In my mind, the sequence of events
is fairly clear, and that is that over the course of a few hours, he
became sedated from the opiate. His respiratory rate dropped. He already
had difficulty in blowing off carbon dioxide because of his pre-existing
emphysema, so he developed an increasing blood level of carbon dioxide.
This deepens his sedation to the point that the carbon dioxide in the
blood starts causing cardiac arrhythmia, and it doesn't take very long for
that to translate to something that is fatal. It is not only a very
plausible sequence of events, it's a very probable sequence of
events.

In his written report, Dr. Rosner
explained that the equipotent doses of Dilaudid to morphine are 5-7:1.

That is to say, Dilaudid is five to
seven times the potency as morphine. Therefore, the morphine equivalents
of the Dilaudid PCA doses are: basal rate 2.5 3.5 mg/hr, and demand dose
of 1.25-1.75 mg every 15 minutes as needed. . . . It is my opinion, based
on reasonable medical probability, that the cause of death for Mr. Muniz
was acute opiate intoxication. . . . [C]loser monitoring of the patient
would most likely have prevented such a dramatic
complication.

He then explained that with proper
monitoring, the effects of an opiate overdose is "easily reversed using
naloxone or any other opiate antagonist, if it is given in a timely
fashion."

Because Dr. Rosner's opinion is
based largely on his experience, the trial court may have applied
Gammill's analytical gap test to evaluate its reliability.
See Gammill, 972 S.W.2d at 724-25; see also Mack Trucks,
206 S.W.3d at 579 ("We recognized [in Gammill] that the criteria
for assessing reliability must vary depending on the nature of the
evidence."). Dr. Rosner's analysis of the medical records involves the
application of scientific principles, but he does not rely on scientific
study or theory to form his opinions. Instead, he considered Mr. Muniz's
medical records, death certificate, clinical condition, prior opiate
sensitivity, and co-morbidities to conclude the proximate cause of his
death. This methodology is not easily tested by objective criteria, such
as those identified in Robinson and Daubert; however,
the trial court was still required to evaluate the reliability of Dr.
Rosner's testimony. See Mack Trucks, 206 S.W.3d at 579 ("A
significant part of the trial court's gatekeeper function is to evaluate
the expert's qualifications, listen to the testimony, view the evidence,
and determine which factors and evaluation methodology are most
appropriate to apply.").

In this case, Dr. Rosner relied on
objective criteria in the record and his own experience to conclude in his
sworn affidavit that the Hospital's failure to monitor Mr. Muniz was the
proximate cause of death. While the Hospital may disagree with Dr.
Rosner's conclusions, he explained the basis for his opinions. The
critical inquiry is whether there is an "analytical gap" between Dr.
Rosner's opinion and his interpretation of the data he reviewed on which
he founded that opinion. See Gammill, 972 S.W.2d at 726. In this
case, using the analytical-gap analysis, the trial court could have
concluded Dr. Rosner's medical experience and knowledge, and his
explanation of the basis for his opinions, demonstrates that his testimony
is reliable. See id.

Moreover, both the Hospital's expert
witness, Victor Pallares, M.D., and Dr. Rosner based their opinions on the
same objective data contained in Mr. Muniz's medical records. And,
although Dr. Rosner and Dr. Pallares reviewed the same records, they
differed in their interpretations of what was contained therein. Dr.
Pallares testified that, based on his review of Mr. Muniz's medical
records, Mr. Muniz probably died from a pre-existing heart condition and
not from opiate intoxication. These differences in opinion did not result
from the application of any flawed methodology, but from their "differing
conclusions as to the underlying factual situation." See Brandt,
194 S.W.3d at 132.

Therefore, because the trial court
followed guiding rules and principles and its decision was not arbitrary
or unreasonable, we conclude that the trial court did not abuse its
discretion in admitting the expert testimony of Dr. Rosner. See
Downer, 701 S.W.2d at 241-42. Accordingly, we overrule the Hospital's
third issue.

III. Sufficiency of
Evidence to Establish

Proximate
Cause

By its first two issues, the
Hospital challenges the legal and factual sufficiency of the evidence on
the issue of proximate cause. In addition, the Hospital claims Dr. Rosner
used the term "assumptions" when he gave his opinion and his "assumptions"
cannot support the verdict in this case.

A. Standards of
Review

In determining whether there is
legally sufficient evidence to support the finding, we must "view the
evidence in the light most favorable to the verdict, crediting favorable
evidence if reasonable jurors could, and disregarding contrary evidence
unless reasonable jurors could not." City of Keller v. Wilson,
168 S.W.3d 802, 827 (Tex. 2005). A legal sufficiency challenge may be
sustained only when (1) the record discloses a complete absence of
evidence of a vital fact, (2) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital
fact, (3) the evidence offered to prove a vital fact is no more than a
mere scintilla, or (4) the evidence establishes conclusively the opposite
of a vital fact. Id. at 810. If more than a scintilla of evidence
supports the finding, the no-evidence challenge fails and the finding is
legally sufficient. Lee Lewis Constr., Inc. v. Harrison, 70
S.W.3d 778, 782 (Tex. 2001). "More than a scintilla of evidence exists if
the evidence furnishes some reasonable basis for differing conclusions by
reasonable minds about a vital fact's existence." Certain Underwriters
at Lloyd's v. KKM Inc., 215 S.W.3d 486, 493-94 (Tex. App.--Corpus
Christi 2006, pet. denied) (citing Lee Lewis Constr., 70 S.W.3d
at 782-83). However, the evidence is no more than a scintilla when the
evidence is so weak as to do no more than create a mere surmise or
suspicion of a fact. Ford Motor Co. v. Ridgway, 135 S.W.3d 598,
601 (Tex. 2004).

When reviewing the factual
sufficiency of the evidence, we consider and weigh all of the evidence
which supports or undermines the jury's finding. Maritime Overseas
Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Plas-Tex,
Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We will
set aside the verdict only if it is "so against the great weight and
preponderance of the evidence as to be clearly wrong and unjust."
Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam)
(citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per
curiam)). The jury is the sole judge of the credibility of witnesses and
the weight to be given to their testimony, and we may not substitute our
judgment for theirs. Golden Eagle Archery, Inc. v. Jackson, 116
S.W.3d 757, 761 (Tex. 2003); Ellis, 971 S.W.2d at 407.

B. Applicable
Law

To establish proximate cause, the
plaintiff must prove (1) foreseeability, and (2) cause-in-fact. Leitch
v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). In cases involving
medical negligence, cause-in-fact requires that the plaintiffs prove "by a
preponderance of the evidence, the negligent act or omission is shown to
be a substantial factor in bringing about the harm, and without which the
harm would not have occurred." Park Place Hosp. v. Estate of
Milo, 909 S.W.2d 508, 511 (Tex. 1995). The plaintiff must establish a
causal connection between the defendant's negligence and the injuries
based upon a reasonable medical probability. Id.

The trier of fact may decide the
issue of proximate cause in medical malpractice cases based upon: (1)
general experience and common sense from which reasonable persons can
determine causation; (2) scientific principles provided by expert
testimony allowing the fact finder to establish a traceable chain of
causation from the condition back to the event; or (3) a probable causal
relationship as articulated by expert testimony. Lenger v. Physician's
Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970); Parker v.
Employers Mut. Liab. Ins. Co. of Wis., 440 S.W.2d 43, 46 (Tex. 1969);
Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 889 (Tex.
App.--Texarkana 2004, pet. denied).

Expert testimony on a causal
connection rests upon reasonable medical probability that must be
determined by the substance and context of the testimony rather than
semantics or use of a particular term or phrase. Burroughs Wellcome
Co. v. Crye, 907 S.W.2d 497, 499-500 (Tex. 1995). An expert's opinion
is without probative value and cannot support a verdict or judgment when
it is based on assumed facts that vary materially from the actual,
undisputed facts. Id. at 500.

C. Analysis

In this case, expert medical
testimony based on reasonable probability was required to establish either
a "traceable chain of causation" based upon general scientific principles
or a "probable causal relationship" between the Hospital's failure to
monitor Mr. Muniz and his death. See Park Place Hosp., 909 S.W.2d
at 511; Arlington Mem'l Hosp. Found., Inc. v. Baird, 991 S.W.2d
918, 922 (Tex. App.--Fort Worth 1999, pet. denied); Bradley v.
Rogers, 879 S.W.2d 947, 953-54 (Tex. App.--Houston [14th Dist.] 1994,
writ denied). Specifically, appellees' burden was to establish, through
expert testimony, that there was a reasonable medical probability that the
Hospital's failure to monitor Mr. Muniz, while on Dilaudid, was a
substantial factor in bringing about his death and without which the harm
would not have occurred. See Park Place Hosp., 909 S.W.2d at
511; Crye, 907 S.W.2d at 500.

The Hospital asserts that Dr.
Rosner's conclusion that the Dilaudid caused respiratory distress,
resulting in less oxygen but more carbon dioxide in the body, and thereby
leading to a fatal heart arrhythmia, was based on assumptions. However, we
have concluded above that Dr. Rosner's testimony was reliable and based on
his experience and objective criteria in the record rather than on
assumptions. See Gammill, 972 S.W.2d at 726; see also
Crye, 907 S.W.2d at 500.

Further, the Hospital argues
appellees did not meet their burden because there is not sufficient
evidence in the record that: (1) Mr. Muniz suffered from respiratory
depression after he received the Dilaudid; (2) the fatal heart arrhythmia
was caused by the respiratory depression; and (3) sufficient monitoring by
the Hospital would have prevented the death. Appellees argue that their
burden at trial was to prove cause-in-fact, i.e., that the Hospital's
negligence was a substantial factor in bringing about Mr. Muniz's death,
and without which Mr. Muniz would have lived. We agree with appellees. The
jury charge states:

'Proximate Cause,' when used with
respect to the conduct of MCALLEN HOSPITALS, L.P., D/B/A MCALLEN MEDICAL
CENTER, means that cause which, in a natural and continuous sequence,
produces an event, and without which cause such event would not have
occurred. In order to be a proximate cause, the act or omission complained
of must be such that a hospital using ordinary care would have foreseen
that event, or some similar event, might reasonably result therefrom.
There may be more than one proximate cause of an event.

On direct examination, Dr. Rosner
testified as follows:

At the end of the day, all of us die
of cardio respiratory failure. . . . That's not causation. . . . In order
for us to function physiologically, we--our lungs do two things: We take
in air, we pull the oxygen out of the air so that it circulates throughout
our body and gets to the muscles and nerves and the brain; and at the same
time, the lung gives back to the lungs carbon dioxide so we blow it off.
And we exist in this balance. If we don't have enough oxygen, our tissues
become what's called ischemic and that means they start to disfunction.
And it can be the brain, it can be the heart. All tissues require a
certain amount of oxygen in order to function. As oxygen levels drop,
people become sedated. As we--if we're not blowing off carbon dioxide and
carbon dioxide levels rise, the heart starts developing very bizarre
rhythms and ultimately can result in a fatal rhythm. And I believe that
that was what occurred in this situation.

Dr. Rosner continued with the
following:

Q: But is it your opinion that the
only thing that is probable is this [Dilaudid caused Mr. Muniz's
death]?

A: In my opinion, it is the major
variable. That was the one thing that changed in the presence of
everything else being constant and, therefore, that remains my opinion as
the most probable reason for his demise at that point in
time.

Q: And that's what you--we refer to
in regard to the sequence of events, right?

A: Yes.

Q: Could you just explain that.
What--explain the sequence of events or the thing that was added that
leads you to believe that Dilaudid is the probable cause and that the
COPD, CHF, cardiomyopathy, coronary artery disease, atrial fibrillation
and carotid artery are in the possible category.

A: Well, the same treatment for the
surgery--surgically deep vein thrombosis is the same treatment as one
would receive to prevent atrial thrombosis, which is Coumadin. So if the
patient is on Coumadin, then he's being treated to prevent the development
of clots. It doesn't matter where, whether it's in the heart or in the
deep veins. Same blood, same clot. What--when I reviewed the chart, what I
was struck by was looking at a patient who was manifesting benefit on a
regular basis from a fairly weak opiate, who had manifested what I
consider to be an opiate induced side effect, and that is sedation, from
his previous therapy or morphine at a time that was closer to the surgical
trauma than we're dealing with now. So he had morphine day of surgery and
day after surgery and he had a side effect to the dose of one milligram an
hour infusion. Four days later he has less pain, his pain is being
controlled intermittently by a weak opiate. We then take a strong opiate,
put him on an infusion that is two and a half to three and a half times
the dose that he had received immediately after surgery to which he
already had a side effect, we know that. So if he has a side effect to
something and we give him something four days later when he has less
stimulus, that's stronger, I think that that's--that started the sequence
of events. So now he's on an infusion. He has minimal stimulus, he gets
progressively more sedated. Somebody comes in and does a finger stick, he
wakes up. He's stimulated. As soon as the stimulus is gone, he goes back
to sleep. And the sequence of events continues that he gets progressively
more sedated. I mean, that--that much itself is evident. It's in the
chart. He's getting the drug. As he gets more sedated, he takes in less
oxygen and blows off less carbon dioxide. I don't need the chart to tell
me that. Hundreds of years of physiology tells us that that's what
happens. That's what opiates do. At some point along the way his carbon
dioxide concentration in his blood is going to be high enough to trigger a
fatal arrhythmia, or his hypoxia is just going to stop his
heart.

Dr. Rosner also testified as to the
Hospital's role and why its negligence was the proximate cause of Mr.
Muniz's death during the following:

Q: Dr. Rosner, is there anything
that could have saved Mr. Muniz after he had been put on this continuous
rate of Dilaudid on the evening of the 20th?

A: Certainly.

Q: What's that?

A: Well, number one would be to
observe the sedation, observe the slowed respiratory rate and stop the
infusion. Beyond that, these drugs are easily reversed with intravenous
agent such as Naloxone which is readily available in Hospitals. Oftentimes
just shaking somebody and keeping them awake is enough until the drug is
available to reverse the effects.

Q: Okay. When you say that
observation of sedation, respiratory rate and stopping the infusion and
giving these agents could have prevented this death, is--whose
responsibility is that?

A: It's a nursing
function.

. . . .

Q: Okay. So based upon reasonable
medical probability, what happened after that [a nurse took a blood sample
from Mr. Muniz at 9:00 p.m. after the Dilaudid was
administered]

A: Once the stimulation of the
finger stick for blood sugar was over and the pump continued to run,
continued to get this sedating, respiratorily depressing drug that he
didn't need because he didn't have pain, he just went further and further
to sleep, deeper and deeper. And had, at that period of time someone come
in and checked even respiratory rate, how many times a minute is he
breathing, then I think this situation could have been
averted.

Basing his opinion on the same
medical records Dr. Rosner reviewed, Dr. Pallares, the Hospital's expert,
testified that Mr. Muniz was not an opiate sensitive patient. He believed
that Mr. Muniz did not suffer an adverse reaction to the morphine. Dr.
Pallares stated:

In establishing protocols and
dealing with acute pain management for so many years, the hospital that I
trained at, we would see 50 of these PCA patients a day. And we had
routine doses of morphine where patients were getting, over a period of
four hours, up to 30 milligrams, over four hours of morphine, patients who
were--had multiple medical conditions, very critical and really would not
have any effects from that dose of medication which is higher than this
PCA was set at.

Dr. Pallares testified that when a
patient is on a strong opiate such as morphine, the "main concern . . . is
respiratory rate. You're concerned about making sure that their breathing
is not depressed." He continued by explaining that Mr. Muniz's respiratory
rate "maintained normal throughout the time the PCA" was used to
administer the morphine to Mr. Muniz. Dr. Pallares then explained what he
would look for in determining whether Mr. Muniz suffered an adverse
reaction to Dilaudid. "[O]ne of the first things I would be concerned
about is respiratory rate suppression." When asked why it would be
important for a nurse to check Mr. Muniz's mental and neurological status
while on Dilaudid he answered:

Well, if--if someone is on a . . .
Dilaudid and is getting basal rate of Dilaudid and has the option of
pressing the button to get more, you want to make sure that the patient is
not overly sleepy or sedated. And you also--or not slurred speech or
unresponsive. And you also want to make sure that the patient has a
respiratory rate and other vital signs that are stable. And if this was
started at 8:00 and 30 minutes later it was checked, I think that's an
appropriate timing to--make sure that those respirations and the patient's
mental status is--is appropriate.

Dr. Pallares then testified that
based on his review of the records, he believed that one of Mr. Muniz's
other medical conditions "could have precipitated his death" and "not the
fact that he had a--a method of PCA for controlling his pain." During
cross-examination Dr. Pallares clarified that after examining the data in
this case it was his opinion that "it's probable that his [Mr. Muniz]
cause of death was related to his cardiac condition in one--form or
another."

After considering evidence favorable
to the finding that a reasonable fact-finder could and disregarding
evidence contrary to the finding a reasonable fact-finder could not, we
conclude the evidence offered to prove cause-in-fact is legally
sufficient. See City of Keller, 168 S.W.3d at 827. The evidence
does more than create a mere surmise or suspicion that the Hospital's
failure to monitor Mr. Muniz was a substantial factor in bringing about
his death, and without which his death would not have occurred. See
Ford Motor Co., 135 S.W.3d at 601. We, therefore, conclude the
evidence is legally sufficient to support the jury's finding that any
negligence by the Hospital was a proximate cause of Mr. Muniz's death.
Accordingly, we overrule the Hospital's first issue.

Furthermore, after considering and
weighing all of the evidence, we conclude it is not so against the great
weight and preponderance of the evidence as to be clearly wrong and
unjust. See Ellis, 971 S.W.2d at 406-07; Plas-Tex, Inc.,
772 S.W.2d at 445; Ortiz, 917 S.W.2d at 772. As the sole judge of
the credibility of witnesses and the weight to be given to their
testimony, the jury was able to believe Dr. Rosner's testimony that Mr.
Muniz died from opiate intoxication and that the Hospital's negligence
caused his death. See Golden Eagle Archery, Inc., 116 S.W.3d at
761; Ellis, 971 S.W.2d at 407. Therefore, we conclude that the
evidence is factually sufficient to support the jury's finding that any
negligence by the Hospital was a proximate cause of Mr. Muniz's death. We
overrule the Hospital's second issue.

IV.
Conclusion

We affirm the trial court's
judgment.

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 13th day of December,
2007.

1. Appellees are the surviving wife and children of
Lazaro Muniz, who died at the Hospital on April 20, 2002.

2. We must first decide whether Dr. Rosner's testimony
is admissible before we can consider the legal and factual sufficiency of
the evidence.

3. According to Dr. Rosner, a PCA delivers a pre-set
dose of the drug continuously at the basal rate and also allows the
patient to give himself a prescribed dosage of a booster of the drug when
needed.

4. The Hospital does not challenge Dr. Rosner's
qualifications or the relevancy of his testimony on appeal. The Hospital
only complains that Dr. Rosner's testimony is unreliable under rule 702.
See Tex. R. Evid. 702.

5. The nonexclusive Robinson factors include:
(1) the extent to which the theory has been or can be tested; (2) the
extent to which the technique relies upon the subjective interpretation of
the expert; (3) whether the theory has been subjected to peer review
and/or publication; (4) the technique's potential rate of error; (5)
whether the underlying theory or technique has been generally accepted as
valid by the relevant scientific community; and (6) the non-judicial uses
which have been made of the theory or technique. E.I. du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995).

6. "Equipotent" is defined as "having equal effects or
capacities." Merriam-Webster On-Line Dictionary, available at
http://medical.merriam-webster.com/medical/equipotent (last visited
November 29, 2007).