In its opinion delivered on September 29, 2017, the Supreme Court of Texas upheld a Texas medical malpractice jury’s finding in favor of a premature infant for the permanent blindness she suffered as a result of the alleged medical negligence of the defendant medical providers, holding that the Texas appellate court, which overturned the Texas medical malpractice jury’s verdict in favor of the plaintiff, had erred in not applying the substantial-factor test because the jury heard ample evidence supporting the combined negligence of the two defendant physicians (one defendant was the infant’s neuroneonatologist, attending physician, and was the medical director of the NICU, and the other defendant was the infant’s ophthalmologist), and the Texas appellate court had further erred in rejecting the plaintiffs’ statistical evidence premised on a medical study as no evidence of causation and in holding that the plaintiffs’ medical experts’ opinions were conclusory and thus no evidence of causation.
The Supreme Court of Texas further held that there was legally sufficient evidence to support the Texas medical malpractice jury’s conclusion that the medical negligence of one of the defendant physicians more likely than not caused the premature infant’s impaired vision (the premature infant, referred to as “D.B.” in the Texas Supreme Court’s opinion, became totally blind in her right eye, and the vision in her left eye is severely impaired).
The Supreme Court of Texas stated that the issue it had to decide was whether legally sufficient evidence supports the jury’s conclusion that the negligence of the treating neonatologist proximately caused the premature infant’s loss of vision. The Supreme Court of Texas determined that the evidence shows that, despite D.B.’s extreme prematurity, had her retinopathy of prematurity (ROP) been diagnosed and treated early enough, it is more likely than not that the blood-vessel growth in her eyes would have been slowed to the point that she would have enjoyed a sighted life.
Retinopahy Of Prematurity
The Supreme Court of Texas held that the evidence is legally sufficient to establish that D.B.’s ROP was not detected and treated early enough to avoid retinal detachment in the right eye and severely impaired vision in the left eye. One of the plaintiffs’ experts described ROP as uncontrolled blood-vessel growth in the eyes of premature children, which can result in retinal detachment in advanced stages. Another expert explained, “[i]f you can just slow [the blood vessels] down, get them to settle down for a while, then they will catch up, and the retina will stay where it belongs instead of becoming detached.” Another expert apparently agreed with this statement, testifying that the purpose of the laser treatment is to reduce the production of the hormone vascular endothelial growth factor (VEGF) enough to return the eye to an auto-regulated condition. Thus, despite D.B.’s extreme prematurity, the plaintiffs presented evidence that if her ROP had been diagnosed and treated early enough, it is more likely than not that the blood-vessel growth in her eyes would have been slowed to the point that she would have enjoyed a sighted life.
The Supreme Court of Texas stated that three of the medical experts who testified during the trial all agreed that properly timed laser therapy is more effective in stopping the progression of ROP in most infants. In fact, one of the experts called ROP “the most treatable cause of blindness in children.” The problem, however, is that the defendant physicians failed to ensure that D.B. received laser therapy at a time when it would have been effective by failing to communicate properly, screen timely, and treat timely. Despite testimony reflecting the rapid progression of ROP in extremely premature infants and the need for surgical intervention within no more than 72 hours of a determination of “threshold” ROP, D.B. went one month from her first examination to her second, at which point one of the defendant physicians determined she required laser treatment “as soon as possible.” D.B.’s treatment was further delayed for three days because the NICU could not find the laser. Two experts testified during the trial that had these delays in screening and treatment not occurred, D.B. would have enjoyed a sighted life, explaining how and why that negligence resulted in D.B.’s adverse outcome. Thus, the Supreme Court of Texas concluded that it cannot say that the evidence is legally insufficient to support the jury’s conclusion that D.B.’s poor visual outcome was more likely than not the result of the defendant’s negligence.
Source Bustamante v. Ponte, NO. 15-0509
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