ORAL ARGUMENT REQUESTED. No CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS

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1 ORAL ARGUMENT REQUESTED ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 June 11 P4:47 Lisa Matz CLERK No CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS Gay Acedo, R.N., Jennifer Bertaut, R.N., Abnor Sindhu, R.N., Debra Stuart, R.N., Jackie Laran, R.N., Isaac Dada, Emmanuel Iwuoha, Britt Berrett, Ph.D., FACHE, and Susan Hollingsworth, R.N., Appellants, v. Adriane Springs, Individually and as Next Friend of Ron Springs Appellee. Appeal from the 14th District Court Dallas County, Texas Hon. Eric Moyé, Presiding APPELLEE S BRIEF LES WEISBROD State Bar No MAX FREEMAN State Bar No LAWRENCE R. LASSITER State Bar No MILLER WEISBROD, LLP Forest Central Drive, Suite 300 Dallas, Texas (214) (214) FAX ATTORNEYS FOR APPELLEE

2 IDENTITY OF PARTIES AND COUNSEL Appellants: Appellant s Counsel on Appeal: Appellant s Counsel at Trial: Appellee: Appellee s Counsel at Trial and on Appeal: Susan Hollingsworth, R.N., Jennifer Bertaut, R.N., Debra Stuart, R.N., Britt Berrett, Ph.D., FACHE, Abnor Sindhu, R.N., Gay Acedo, R.N., Jackie Laran, R.N., Isaac Dada, Emmanuel Iwuoha, Diana L. Faust R. Brent Cooper Michelle E. Robberson Richard C. Harrist Cooper & Scully, P.C. 900 Jackson Street, Suite 100 Dallas, Texas David E. Olesky Cory M. Sutker Cooper & Scully, P.C. 900 Jackson Street, Suite 100 Dallas, Texas Adriane Springs, Individually and as Next Friend of Ron Springs Les Weisbrod Max Freeman Lawrence R. Lassiter Miller Weisbrod, LLP Forest Central Drive, Suite 300 Dallas, Texas Trial Court Judge: Hon. Eric Moyé 14th District Court Dallas County, Texas i

3 STATEMENT ON ORAL ARGUMENT Appellee respectfully requests oral argument in this case and believes it will help the Court evaluate the case and resolve this appeal. Tex. R. App. P. 39.1, 39.7 ii

4 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL... i STATEMENT OF THE CASE... v ISSUES PRESENTED... vi STATEMENT OF FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 4 A. Standard of Review... 4 Point I The Trial Court Properly Exercised its Discretion by Denying the Motions to Dismiss and Overruling the Objections Because Dr. Groudine s Supplemental Report Corrected the Deficiencies Identified by This Court and Adequately Explains the Link Between Appellants Breaches of the Standard of Care and the Injuries Suffered by Ron Springs A. Dr. Groudine Explains That Each of the Failures by the Administrative and Clinical Personnel was a Proximate Cause of Mr. Springs Hypoxic Brain Injury and Subsequent Death B. Dr. Groudine s Supplemental Report Corrected Each Specific Deficiency Identified by This Court C. With Respect to the Chain of Command and Call for Help Claims, the Supplemental Report Corrects the Deficiencies Identified by This Court D. The Supplemental Report s Causation Opinions Regarding the Anesthesia Technicians are Sufficient CONCLUSION AND PRAYER iii

5 TABLE OF AUTHORITIES Cases Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex.2001)... 4 Baylor University Med. Ctr. v. Rosa, 240 S.W.3d 565 (Tex. App. Dallas 2007, pet. denied)... 4 Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App. Houston [14th Dist.] 2000, pet. denied).... 2, 7 Hollingsworth v. Springs, 353 S.W.3d 506 (Tex. App. Dallas 2011, no pet.)... v, 4, 5, 8, 9, 10, 13, 15 Kelly Ryan Cook, P.A. v. Spears, 275 S.W.3d 577 (Tex. App. Dallas 2008, no pet.)... 4 Menefee v. Ohman, 323 S.W.3d 509 (Tex. App. Fort Worth 2010, no pet.)... 6 Patel v. Williams ex rel. Estate of Mitchell, 237 S.W.3d 901 (Tex.App. Houston [1st Dist.] 2007, no pet.)... 5 Presbyterian Cmty. Hosp. of Denton v. Smith, 314 S.W.3d 508 (Tex. App. Fort Worth 2010, no pet.);... 5 Walker v. Gutierrez, 111 S.W.3d 56 (Tex.2003)... 4 Washington v. Alvarez, 2011 WL (Tex. App. Fort Worth 2011, pet. denied)... 5 Statutes Tex. Civ. Prac. & Rem. Code v iv

6 STATEMENT OF THE CASE Nature of the case: Appellee sued Appellants and others for medical malpractice and seek damages caused by their negligence. Course of proceedings and Trial court disposition: On August 30, 2011, this Court issued an opinion affirming in part and reversing in part the trial court s order denying Appellants motion to dismiss pursuant to Tex. Civ. Prac. & Rem. Code Hollingsworth v. Springs, 353 S.W.3d 506 (Tex. App. Dallas 2011, no pet.) The trial court granted Appellee s motion for a 30-day extension of time to cure and file Chapter 74 medical expert reports. (CR 291.) Appellee served and filed a supplemental report of Dr. Scott Groudine to address the deficiencies identified by this Court in the opinion. (CR 297.) Appellants objected to the supplemental report and moved to dismiss, and the trial court overruled the objections and denied the motion. (CR 387.) This appeal followed. v

7 ISSUES PRESENTED 1. Did the Trial Court Properly Exercise its Discretion by Denying the Motions to Dismiss and Overruling the Objections Because Dr. Groudine s Supplemental Report Corrected the Deficiencies Identified by This Court and Adequately Explains the Link Between Appellants Breaches of the Standard of Care and the Injuries Suffered by Ron Springs? vi

8 STATEMENT OF FACTS As set forth in the pleadings, on or about October 12, 2007, Ron Springs was admitted to Medical City Dallas for minor surgery to have a small cyst removed from his left forearm. (CR 191.) No pre-operative laboratory studies were ordered. (CR 191.) Springs, a former Dallas Cowboy, was first seen by an anesthesiologist at or around 4:23 p.m. (CR 192.) Anesthesia was started approximately five minutes later, at or around 4:28 p.m. by Defendant Joyce Abraham, M.D. (Id.) Dr. Abraham placed an external jugular intravenous line. (Id.) Thereafter, she administered Diprivan (a/k/a propofol) to induce general anesthesia. (Id.) A laryngeal mask airway (LMA) was inserted, but Springs began experiencing breathing difficulty. (Id.) Dr. Abraham removed the first LMA and inserted a second; however, the breathing difficulty continued. (Id.) Dr. Abraham pharmaceutically induced a paralyzed state in order to intubate Springs, but was unable to intubate. (Id.) Springs suffered a cardiopulmonary arrest and was resuscitated. (Id.) Ron Springs has since passed away. (Id.) 1

9 SUMMARY OF ARGUMENT In its prior opinion, this Court identified specific deficiencies in Dr. Groudine s prior report. At issue is whether the supplement to that report remedied the identified deficiencies. Appellants use the complexity of this case occasioned by the presence of multiple defendants and multiple reports. But the actions of multiple parties may each be a proximate cause of an ultimate injury. Dr. Groudine explains this in his Supplemental Report. That report, when read with his prior report as well as the reports of Mr. Brosseau and Nurse Rosenthal that have already been approved by this Court, explains what happened, what should have happened, and how Mr. Springs injuries could have been avoided had the standard of care been adhered to at multiple points during the tragic sequence of events that led to Mr. Springs hypoxic brain injury and death. Quoting selected portions of the Supplemental Report, Appellants repeatedly contend that the opinions in the Supplemental Report are conclusory. A conclusory statement is one that does not provide the underlying facts to support the conclusion. Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App. Houston [14th Dist.] 2000, pet. denied). In his supplemental report, Dr. Groudine quotes and references the specific facts of this case, including the opinions of Mr. Brosseau and Nurse Rosenthal, that this Court has already ruled were sufficient. Each of the statements listed by Appellants follows lengthy portions from Mr. Brosseau s report which specifically discuss the facts and the conduct of the Appellants, identifying the specific administrative and nursing failures, and Dr. Groudine opines regarding the causal connection between those failures and Mr. 2

10 Springs injuries. These statements are not isolated conclusory opinions each statement is supported by underlying facts. The Supplemental Report also corrects another specific deficiency identified on appeal the result could have been different had the administrators met their responsibilities. Dr. Groudine does precisely that in his Supplemental Report, explaining, inter alia, that a proper preoperative assessment would have led to a consultation that would have resulted in using something other than the dangerous general anesthesia or, if that was still used, sufficient personnel would have been on the scene to deal with the potential emergencies. Dr. Groudine also explains what would have happened if the chain of command had been invoked the surgeon and other personnel would have been summoned, and there would have been adequate personnel to deal with the emergency. Dr. Groudine also details how the anesthesia tech s failures kept the mechanical call for help of the alarm system from performing its function. He also explains how a properly functioning system would have led to earlier intervention that would have prevented Mr. Springs injuries and subsequent death. 3

11 ARGUMENT A. Standard of Review Courts of appeals apply an abuse of discretion standard in reviewing a trial court s decision with respect to a motion to dismiss under Chapter 74. See American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Kelly Ryan Cook, P.A. v. Spears, 275 S.W.3d 577, 579 (Tex. App. Dallas 2008, no pet.) A trial court abuses its discretion when it acts arbitrarily or unreasonably without reference to any guiding rules and principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). When reviewing matters committed to the trial judge s discretion, an appellate court may not substitute its judgment for that of the trial judge. Baylor University Med. Ctr. v. Rosa, 240 S.W.3d 565 (Tex. App. Dallas 2007, pet. denied). Point I The Trial Court Properly Exercised its Discretion by Denying the Motions to Dismiss and Overruling the Objections Because Dr. Groudine s Supplemental Report Corrects the Deficiencies Identified by This Court and Adequately Explains the Link Between Appellants Breaches of the Standard of Care and the Injuries Suffered by Ron Springs. Dr. Groudine links the administrative and clinical failures to Mr. Springs injuries. The trial court did not abuse its discretion in concluding that Dr. Groudine addressed and remedied the deficiencies identified by this Court in the prior appeal with respect to causation. A. Dr. Groudine Explains That Each of the Failures by the Administrative and Clinical Personnel was a Proximate Cause of Mr. Springs Hypoxic Brain Injury and Subsequent Death. As this Court has noted, there are many layers of conduct at issue in this case. Hollingsworth, 353 S.W.3d at 519. In his supplemental report, Dr. Groudine generally 4

12 explains how each of the administrative and clinical failures identified in the reports of Mr. Brosseau and Nurse Rosenthal was a proximate cause of Mr. Spring s injuries: The tragedy of Mr. Springs hypoxic brain injury and subsequent death is that it was totally avoidable at many levels. An injury such as this suffered by Mr. Springs was not solely the result of one individual s conduct, but instead was a foreseeable result of a systems failure that implicates the conduct of many administrative and clinical personnel as is set forth in the reports of Mr. Brosseau and Ms. Rosenthal. In all reasonable medical probability, based upon the sequence of events, each of the administrative and clinical acts of negligence, as will be set forth in more detail below, was a proximate cause of Mr. Springs hypoxic brain injury and subsequent death. Each of the administrative and clinical acts of negligence contributed to the fact that a complete and competent pre-surgical nursing assessment was not performed on Mr. Springs, which was, in all reasonable medical probability, a proximate cause of Mr. Springs hypoxic brain injury and subsequent death. Policies were not followed. Communication among healthcare providers was lacking, there was an obvious lack of appreciation of the high risk nature of the anesthesia plan for Mr. Springs procedure. The appropriate personnel were not in the operating room at the time of induction in order to safely go forward with Mr. Springs procedure. The appropriate equipment was not available and the alarms apparently were not working. Each of these failures contributed to setting up the dangerous situation which foreseeably did occur in this case. And each further contributed to the inability to respond to a totally preventable disaster which resulted in the hypoxic brain injury that occurred in this case. (CR 297.) Of course, proximate cause need not be sole cause; the actions of one health care provider can be part of a chain of events that all combine to be a substantial factor in causing a patient s injury or death. Washington v. Alvarez, 2011 WL , * 5 (Tex. App. Fort Worth 2011, pet. denied), citing Presbyterian Cmty. Hosp. of Denton v. Smith, 314 S.W.3d 508, 519 (Tex. App. Fort Worth 2010, no pet.); Patel v. Williams ex rel. Estate of Mitchell, 237 S.W.3d 901, (Tex. App. Houston [1st Dist.] 2007, no pet.). In sum, each of the failures constituted an opportunity to comply with the standard of care and avoid the injury. 5

13 The Fort Worth Court of Appeals Court addressed a similar situation in Menefee v. Ohman, 323 S.W.3d 509 (Tex. App. Fort Worth 2010, no pet.) In Menefee, the plaintiff sued a number of doctors alleging that after being prescribed certain medications, she suffered brain damage and permanent mental impairment. Plaintiff alleged that Dr. Ohman, who saw plaintiff after other physicians, was negligent by not immediately responding to her condition in order to prevent brain damage and by failing to immediately prescribe prophylactic anticonvulsants. Menefee, 323 S.W.3d at 512. The plaintiff s expert faulted Dr. Ohman for one thing: failing to immediately prescribe anticonvulsant medication. Id. at 519. The expert also faulted the other doctors who had previously seen the plaintiff and not prescribed such medication. Like each of the Appellants here, Dr. Ohman, who saw the plaintiff last among the defendants, challenged these opinions as conclusory. The court disagreed, explaining as follows: [the expert] states earlier in his report that because all of the doctors continually failed to prescribe such anticonvulsant therapy after recognizing the seizure activity, Tutt continued to have seizures as a result of the syndrome caused by the medications she had been given at Millwood, and that the continuation of those seizures caused her resulting brain damage. In other words, Dr. Tabler s report indicates that each doctor failed to prescribe the anticonvulsants, that each failure contributed to more seizures, and that the multiple seizures caused the injury. Therefore, we conclude and hold that this statement of causation is sufficiently specific and not conclusory and that the trial court abused its discretion by granting this objection to Dr. Tabler s report. Menefee, 323 S.W.3d at Similarly, Dr. Groudine has opined that the conduct of each of the administrative and clinical personnel was part of a sequence of events that contributed to Mr. Springs injuries. As in Menefee, the causation statements in Dr. Groudine s report, which refer to and are based on the specific conduct of each individual 6

14 (as identified by Mr. Brosseau and Nurse Rosenthal, whose opinions this Court has already concluded are adequate), are sufficiently specific and not conclusory. B. Dr. Groudine s Supplemental Report Corrected Each Specific Deficiency Identified by This Court. In addition to explaining how the sum of Appellants failures contributed to Mr. Springs injuries, Dr. Groudine s supplemental report addressed each of the specific deficiencies identified by this Court in its opinion. Note that each of these opinions quotes from and references the facts and the failures identified in the other reports and are therefore not conclusory.. Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App. Houston [14th Dist.] 2000, pet. denied). Dr. Groudine addresses the identified deficiencies, inter alia, as follows: 7

15 Deficiency Identified by This Court Regarding Management Personnel and Causation we conclude that Groudine s March 4, 2010 report, standing alone, does not adequately explain why there would have been a different and better result if the hospital s management personnel had met their responsibilities. Hollingsworth v. Springs, 353 S.W.3d 506, 519 (Tex. App. Dallas 2011, no pet.) Dr. Groudine s December 14, 2011 Report These failures specifically identified by Mr. Brosseau and Ms. Rosenthal were, in all reasonable medical probability, a proximate cause of Mr.. Springs hypoxic brain injury and subsequent death. As I indicated in previous reports, no one ever bothered to get the previous surgery records on Mr. Springs available at that institution. Accordingly, important information available was not elicited or obtained. The problem with that is that as a direct and foreseeable consequence, the procedure was started in an unsafe manner without the necessary equipment and personnel available to ensure that anesthesia started appropriately, or that the personnel were not able to respond appropriately when Mr. Springs airway was lost in order to avoid his hypoxic brain damage. (CR 299) 8

16 Deficiency Identified by This Court Regarding Management Personnel and Causation Failure to Do a Proper Assessment we conclude that Groudine s March 4, 2010 report, standing alone, does not adequately explain why there would have been a different and better result if the hospital s management personnel had met their responsibilities. Hollingsworth v. Springs, 353 S.W.3d 506, 519 (Tex. App. Dallas 2011, no pet.) Dr. Groudine s December 14, 2011 Report As a direct and foreseeable consequence of failing to do an appropriate assessment or to at least ensure one was done by someone else (even if the chain of command had to be initiated to do so) and also failing to gather important information available, a dangerous procedure was undertaken without the appropriate personnel to respond in order to keep Mr. Springs out of harm s way. These failures specifically identified by Mr. Brosseau and Ms. Rosenthal were, in all reasonable medical probability, a proximate cause of Mr.. Springs hypoxic brain injury and subsequent death. (CR 300.) These administrative failures specifically identified by Mr. Brosseau and Ms. Rosenthal were, in all reasonable medical probability, a proximate cause of Mr.. Springs hypoxic brain injury and subsequent death because they were a direct and foreseeable cause or substantial contributing factor to the clinical failures that lead to Mr. Springs arrest and subsequent brain damage due to the fact that adequate personnel were not immediately available to appropriately respond. (CR 300.) 9

17 Deficiency Identified by This Court Regarding Not Having the Surgeon Present When Anesthesia Began By way of example, Groudine does not explain here why Springs s injury would have been avoided if the anesthesiologist had not begun delivery of anesthesia until the surgeon was present, as the hospital s procedure required. We conclude Groudine s report is conclusory in its attempts to connect the administrative negligence identified by Brosseau with Springs brain injury. Hollingsworth v. Springs, 353 S.W.3d 506, 519 (Tex. App. Dallas 2011, no pet.) Dr. Groudine s December 14, 2011 Report [explaining why having additional personnel, including the surgeon present, would have made a difference] Specifically, at the beginning of the procedure, without appropriate help in the room, Mr. Springs had been put to sleep with 200 mg of Propofol. At that time, ventilating Mr. Springs was possible, but difficult. Had the Propofol been allowed to re-distribute, it would not have taken Mr. Springs long to wake up and to be able to control ventilation on his own. With a high risk difficult to ventilate patient, had the chain of command been initiated and help been called, additional personnel, including the surgeon and others, would have been available to provide input and assistance. More likely than not had that occurred, a discussion would have taken place that would have avoided the administration of the paralytic, Rocuronium. *** Had [the Rocuronium] not been administered, Mr. Springs would not have been paralyzed and would not have suffered the brain injury. It was paralyzing Mr. Springs and then the failure of Dr. Abraham to be able to establish an airway that led to the hypoxic insult to his brain, causing permanent brain injury. Further, had there been the additional help and equipment in the room in order to establish an airway, if the paralytic was administered, as it was here, more likely than not the airway would have been established more quickly. Establishing this airway from the chart appears to have taken just under one-half hour. These specific failures were, in all reasonable medical probability, a proximate cause of Mr.. Springs hypoxic brain injury and subsequent death. 10

18 Appellants contend that these opinions are incomplete without relying on earlier reports by Dr. Groudine that Appellants assert should not be considered. This is beside the point, as the December 2011 supplemental report, along with the report the Court considered before, explain the causal link between not performing a proper preoperative assessment and Mr. Springs injuries. First, in his latest report, Dr. Groudine colorfully explained the importance of the preoperative assessment. (CR 320.) There is a reason the assessment needs to be completely done and communicated, just like there is a reason that surgical procedures take place in hospitals with trained professionals, as opposed to in hotels. In hospitals, there are many checks and balances and built-in redundancies in order to provide safe healthcare. This is especially true for an elective surgical procedure with many safe options for anesthesia/analgesia. Dr. Groudine also explained why the assessment was so important in this case and how doing a proper assessment would have made a difference. Without the assessment, there was an obvious lack of appreciation of the high risk nature that any anesthesia plan for Mr. Springs posed. (CR 297.) As is noted in the report (referencing Nurse Rosenthal s report), while the nursing staff noted Mr. Springs was a diabetic, only subsequent notes revealed that he was an immune-compromised kidney transplant patient with insulin dependent diabetes mellitus, and vascular disease who had undergone a leg amputation. (CR 298.) Dr. Groudine also notes that no one ever bothered to get the previous surgery records on Mr. Springs available at that institution. Accordingly, important information available was not elicited or obtained. The problem with that is that as a direct and foreseeable consequence, the procedure was started in an unsafe 11

19 manner without the necessary equipment and personnel available to ensure that anesthesia started appropriately or even that the choice of anesthesia was correct, or that the personnel were not able to respond appropriately when Mr. Springs airway was lost in order to avoid his hypoxic brain damage. (CR 299.) Appellants complain that Dr. Groudine s insistence that all members of the healthcare team need to be on the same page is somehow vague. 1 Dr. Groudine is clear that the surgeon, the anesthesiologist, and the other personnel must be on the same page as to procedures to be performed, as to how to avoid unnecessary emergencies from arising and how to respond if an emergency does occur. (CR 302.) The risks of anesthesia to the patient need to be considered to avoid going forward with an unnecessarily dangerous anesthesia in a situation where the appropriate people were not immediately available to respond. (CR 302.) Dr. Groudine notes that proper assessment and communication is needed for an elective surgical procedure with many safe options for anesthesia/analgesia, options that were not considered here due to the inadequate preoperative assessment. (CR 302.) Dr. Groudine elaborated on this concept in his March 4, 2010 report (which was served on Appellants and which this Court considered in the prior appeal): 1 Brief at 29. [the administrative and clinical personnel] should have verified that the patient s surgeon s and anesthetic plans were consistent with each other. As the surgeon did not need general anesthesia, this would have made it necessary for Dr. Abraham to have a discussion with Mr. Springs on lower risk alternatives to general anesthesia which, as set forth in my report of March 3, 2008, would have prevented the hypoxic brain damage to Mr. Springs. 12

20 (CR 144.) 2 The bottom line, according to Dr. Groudine, is that a proper assessment would have avoided the dangerous procedure that was undertaken in the first place or, if it was undertaken, there would have been an understanding of the heightened dangers, resulting in sufficient personnel being present. C. With Respect to the Chain of Command and Call for Help Claims, the Supplemental Report Corrects the Deficiencies Identified by This Court. The trial court did not abuse its discretion by denying the motion to dismiss with respect to the chain of command and call for help opinions because Dr. Groudine s Supplemental Report corrected the deficiencies in his causation opinion identified by the this Court. Addressing these issues, this Court ruled as follows: Groudine does opine in these excerpts that the failure to solicit assistance when problems arose in the operating room was a proximate cause of Springs's injuries. And he does speak to what would have been the better outcome if help had been called: Springs could have been awakened and the brain injury would have been mitigated or avoided. However, Groudine does not explain what actions would have resulted from the call for help (or initiation of the chain of command) that would have resulted in awakening Springs. Again, we are not permitted to infer how the solicitation of assistance would have remedied the situation; the causation expert must tell us. Hollingsworth, 353 S.W.3d at 523. The Supplemental Report directly addresses these issues, by identifying the deficient conduct and by explaining what would have resulted if 2 In his March 3, 2008 report, (which is referenced in this report), Dr. Groudine explained how a proper pre-operative assessment should have led Dr. Abraham to (1) ensure that she would have additional equipment and support in place to secure his airway; or (2) choose an alternative to general anesthesia, such as monitored anesthesia care or regional anesthesia, under which Mr. Springs could continue to breathe on his own. Performing a proper preoperative evaluation and choosing either of these options would have prevented Mr. Springs from suffering the hypoxic brain injury that resulted from Dr. Abraham s inability to secure his airway in time. (CR 384.) 13

21 the chain of command had been invoked and help had been summoned. (CR ) As Dr. Groudine s report indicates, there were a number of points when invoking the chain of command would have avoided the injuries. The decision to administer rocuronium is one, and doing so without proper equipment and support was another. While Dr. Groudine explains at length that paralyzing Mr. Springs with rocuronium and not having adequate personnel and equipment to deal with that situation was a proximate cause of the injuries, Dr. Groudine is also very clear that had the chain of command been initiated and help been called, additional personnel, including the surgeon and others, would have been available to provide input and assistance. More likely than not had that occurred, a discussion would have taken place that would have avoided the administration of the neuromuscular blocking agent, rocuronium. (CR 302.) Groudine specifically states that if rocuronium had not been used, Mr. Springs would have woken up and ventilated on his own: Specifically, at the beginning of the procedure, without appropriate help in the room, Mr. Springs had been put to sleep with 200mg of propofol. At that time, ventilating Mr. Springs was possible, but difficult. Had the propofol been allowed to re-distribute, it would not have taken Mr. Springs long to wake up and be able to control ventilation on his own. (CR 302.) He goes on to state that more likely than not, had the chain of command been initiated, the rocuronium would not have been administered. Had it not been administered, Mr. Springs would not have been paralyzed and would not have suffered the hypoxic brain injury. (CR 302.) None of this is speculation. 14

22 D. The Supplemental Report s Causation Opinions Regarding the Anesthesia Technicians are Sufficient. This Court has already ruled that Dr. Groudine s opinions regarding the responsibility of anesthesia techs was sufficient. Hollingsworth, 353 S.W.3d at Standard of care and breach with respect to the anesthesia techs is not at issue here. With respect to the anesthesia technicians, this Court stated that Dr. Groudine s causation opinion does not explain how the failure of the alarms can be tied to the brain injury. We cannot infer what the effect of the alarms working would have been or what the response to the alarms would have been; we cannot infer how the alarms, or the response to them, would have led to a better outcome for the patient. The expert s opinion must include these links to his conclusion. Hollingsworth, 353 S.W.3d at 521. The Supplemental Report corrects this identified deficiency, as Dr. Groudine explains how the failure of the alarms (the anesthesia techs responsibility) was directly tied to the brain injury: Another way to call for help is to make sure the alarms are functioning prior to the initiation of a procedure. The failure of the alarms contributes to the delay in responding to emergency situations. Delay is particularly significant when the patient is hypoxic. As indicated, it took just under one-half hour to establish the airway in this case. When the airway is lost, and hypoxemia ensures the insult will continue and worsen until ventilation is re-established or until the patient dies. In this case, the injury to Mr. Springs brain worsened over time until an airway was re-established. Had the alarms sounded, the potential danger to Mr. Springs life and brain would have been identified earlier and announced to everyone in the room, everyone s attention would have focused on this life threatening emergency earlier and the amount of time needed to re-establish the airway would have been decreased, lessening and possibly avoiding entirely Mr. Springs hypoxic induced brain injury and his subsequent death. The failure of the alarms a mechanical call for help system was a contributing factor to this delay and was, in all reasonable medical probability, a proximate cause of Mr. Springs hypoxic brain injury and subsequent death. 15

23 (CR 303.) This is not conjecture. Dr. Groudine specifically explains the mechanism of injury delay caused by the alarms sounding causing hypoxemia to worsen and he also explains how the outcome would have improved if the alarms had sounded properly. CONCLUSION AND PRAYER For the foregoing reasons, Appellee asks this Court to affirm the trial court s orders denying Appellants motions to dismiss and overruling their objections to the expert reports and remand this case for trial, and grant Appellee such other and further relief to which she may be justly entitled. Respectfully submitted, MILLER WEISBROD, LLP By: /s/ Lawrence R. Lassiter LES WEISBROD State Bar No MAX FREEMAN State Bar No LAWRENCE R. LASSITER State Bar No Forest Central Drive, Suite 300 Dallas, Texas (214) Telephone (214) Facsimile ATTORNEYS FOR APPELLEE 16

24 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing has been served upon all counsel of record by electronic service on this 11th day of June, 2012, as follows: Diana L. Faust diana.faust@cooperscully.com Cooper & Scully, P.C. 900 Jackson Street, Suite 100 Dallas, Texas /s/ Lawrence R. Lassiter 17