Medical Malpractice - Standard of Review

Medical Malpractice Lawyer Austin Texas

Mar 19, 2013 — by Jeff Mundy
Tags: Medical Malpractice


Appellants' claims against appellees are health care liability claims sounding in negligence. The elements of such claims are (1) a legal duty, (2) a breach of that duty, and (3) damages proximately caused by the breach. Columbia Med. Ctr. Subsidiary, L.P. v. Meier, 198 S.W.3d 408, 414 (Tex. App.--Dallas 2006, pet. denied). The standard of care for a health care provider is what an ordinarily prudent health care provider would do under the same or similar circumstances. Simonson v. Keppard, 225 S.W.3d 868, 871 (Tex. App.--Dallas 2007, no pet.). Proximate cause encompasses foreseeability and cause in fact. Meier, 198 S.W.3d at 414. Cause in fact is established if the negligent conduct was a substantial factor in bringing about the injuries and, without it, the harm would not have occurred. Id. In a medical-malpractice case, the plaintiff ordinarily must produce expert testimony to establish both the applicable standard of care and proximate causation if those matters are not within the experience of a layperson. See Ethicon Endo-Surgery, Inc. v. Gillies, 343 S.W.3d 205, 212 (Tex. App.--Dallas 2011, pet. denied) (standard of care); Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex. 2010) (proximate cause). No one disputes that expert testimony was required as to these elements in this case.

When an appellant appeals the factual sufficiency of the evidence supporting an adverse finding on an issue on which the appellant had the burden of proof, he must show that the adverse finding is against the great weight and preponderance of the evidence. We must consider and weigh all of the evidence, and we set aside the verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that the verdict is clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam); PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 722 (Tex. App.-- Dallas 2011, pet. denied). We may not reverse merely because we conclude that the evidence preponderates toward an affirmative answer. Kirkpatrick v. Mem'l Hosp. of Garland, 862 S.W.2d 762, 772 (Tex. App.--Dallas 1993, writ denied). The factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Wagner v. Edlund, 229 S.W.3d 870, 874 (Tex. App.--Dallas 2007, pet. denied); see also Thota v. Young, 366 S.W.3d 678, 695 (Tex. 2012) (noting that jury is entitled to give weight to expert testimony even if given by a party to the case). If reasonable minds could differ as to the inferences and conclusions to be drawn from the evidence, we may not substitute our judgment for that of the factfinder. Wagner, 229 S.W.3d at 874. When we conclude that a finding is against the great weight and preponderance of the evidence, we must detail the relevant evidence and state how the contrary evidence greatly outweighs the evidence in support of the verdict. PopCap Games, Inc., 350 S.W.3d at 722.

Creech v. Columbia Medical Center of Las Colinas, (Tex. App. - Dallas 2013)


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