Opinion
No. 04-07-00104-CV
Delivered and Filed: January 2, 2008.
Appeal from the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2002-CI-02394, Honorable Andy Mireles, Judge Presiding.
AFFIRMED
Sitting: CATHERINE STONE, Justice SANDEE BRYAN MARION, Justice PHYLIS J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Paula Crawford sued Robert Henley, Matrix Rehabilitation, Inc. d/b/a Alamo Physical Therapy Resources, Inc., and Steven Stratton (collectively, "the therapists") for injuries originating from a car accident caused by Henley. The jury found Henley, the therapists, and Crawford negligent, and apportioned 25% of the responsibility to Henley, 50% to the therapists, and 25% to Crawford. The trial court entered judgment upon the jury's findings and awarded damages to Crawford. In two issues, Henley complains that 1) the trial court erred in denying his request for a new and independent cause instruction and 2) the evidence is factually insufficient to support the jury's findings on causation. We affirm the judgment of the trial court.
Background
On the evening of March 9, 2000, Henley made an improper left turn from the wrong lane, causing his Ford F-350 truck to collide with Crawford's Kia Sephia; the impact forced her car over the curb and into a concrete barrier. It is undisputed that Crawford sustained injuries as a result of the accident, namely muscular and skeletal soft tissue injuries to her head, neck, lower back, and knee. The night of the accident, she went to the emergency room complaining of pain, and x-rays were taken. Subsequently, she sought treatment with her primary care physician, Dr. Michael Centeno, who testified that when he first saw Crawford her primary complaint was "low back and knee" pain with "mild neck pain." Dr. Centeno stated that after the accident Crawford had consistent pain levels of 7 to 10 in her neck. Crawford's neck pain after the accident was also documented by four other doctors and a physical therapist. Crawford, an ophthalmologic surgeon, was able to perform surgery after the accident, although it was painful and she suffered from muscle spasms.
Dr. Centeno testified that the pain scale numerically measures pain levels from 0-10, with 0 equating to no pain and 10 equating to excruciating pain.
In May 2000, Dr. Centeno referred Crawford for physical therapy treatment because her neck had not completely healed and she was experiencing lingering problems. Dr. Centeno categorized her neck pain at that time as "acute/subacute." He estimated that Crawford would heal in six to nine months given that she constantly bends her neck in the operating room. Dr. Centeno issued Crawford two prescriptions for physical therapy; the prescribed modalities included ultrasound, TENS (muscle stimulation), acupressure, and massage. Crawford received physical therapy at Alamo Physical Therapy Resources, which was owned at that time by Steven Stratton. After sixteen therapy sessions, Stratton decided to use mechanical cervical traction on Crawford, even though this particular modality had not been prescribed by Dr. Centeno. Mechanical cervical traction was described at trial as "an automatic digital machine that actually pulls the head mechanically or digitally. . . ." On June 14, 2000, aide Darrell Adkins actually performed the traction therapy on Crawford; Adkins is not a licensed physical therapist, but had worked in physical therapy for fourteen years. Immediately after the traction, Crawford became dizzy, experienced an extremely painful headache, and developed numbness. That night, she paged Dr. Centeno, who examined her two days later. He noted: "New onset headache. 9 out of 10 on a pain scale of 10 since cervical traction. . . . Cannot exclude new injury from traction." At the June 16, 2000 office visit, Dr. Centeno noted that Crawford's "clinical exam had changed," and he was concerned that she had developed a deep tissue injury because her previous complaints were primarily of low back and knee pain with minor neck pain; after the traction, her main focus was neck pain and a severe headache. Subsequently, Dr. Centeno ordered a MRI for Crawford; she was diagnosed with annular tears to the cervical spine at C4/C5 and C5/C6, herniated disks in the two levels where the traction was used, deep ligament injury, and severe and chronic headaches and pain. The pain from these injuries completely prevented her from performing or assisting with surgery.
In February 2002, Crawford sued Henley and the therapists, alleging that their negligent acts resulted in "severe, permanent and disabling injuries to her cervical spine." The case proceeded to a jury trial, where the issues of liability and damages were hotly contested. At the charge conference, Henley requested a "new and independent cause" instruction, which was denied. After submission, the jury found Henley, the therapists, and Crawford each to be negligent, and apportioned 50% of the responsibility to the therapists, 25% to Henley, and 25% to Crawford. The jury awarded total damages in the amount of $6,293,035.65. The trial court entered judgment on the jury's verdict. Henley filed a motion to modify and alternatively for new trial, which the trial court denied.
The requested instruction read as follows: "' NEW AND INDEPENDENT CAUSE' means that the act or omission of a separate and independent agency, not reasonably foreseeable, that destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question and thereby becomes the immediate cause of such occurrence."
The damages included: $0 for past and future physical pain and mental anguish; $2,230,553 in past loss of earning capacity; $3,212,323 in future loss of earning capacity; $18,000 in past physical impairment; $99,000 in future physical impairment; $181,362.70 in past medical expenses; and $1,551.796.90 in future medical expenses.
Analysis
On appeal, Henley argues that Crawford suffered two entirely separate physical traumas: (1) she was involved in a car accident with Henley which resulted in injuries primarily to her knee and lower back, from which her doctors expected her to fully recover in six to nine months; and (2) she was injured after undergoing traction therapy — which was not prescribed by her physician and was administered by an unlicensed aide — resulting in new symptoms, including dizziness, numbness, and an incredibly painful headache. Henley contends that the inappropriate application of the traction was a new and independent — or superseding — cause of Crawford's injuries, and that the trial court erred in refusing to submit an instruction on new and independent cause. Additionally, Henley argues that the evidence is factually insufficient to support the jury's findings of negligence and apportionment against him.
Crawford responds that the traction did not cause new injuries; rather, it merely aggravated or exacerbated the symptoms she suffered from since the car accident. Therefore, she maintains that the therapists' negligence constitutes a concurring, rather than superseding, cause. Crawford also submits that the evidence is factually sufficient to establish that Henley's negligence was a proximate cause of her injuries.
New and Independent Cause Instruction
Henley first argues that the trial court erred in refusing to submit the requested instruction on new and independent cause. We review the trial court's decision to submit or refuse a particular jury instruction for an abuse of discretion. In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000); Star Enterprise v. Marze, 61 S.W.3d 449, 456 (Tex.App. — San Antonio 2001, pet. denied). A party is entitled to an instruction if the pleadings and evidence raise an issue of fact. Tex. R. Civ. P. 278; Union Pac. R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002). We will reverse a trial court's decision to refuse an instruction if it "probably caused the rendition of an improper judgment." Tex. R. App. P. 44.1(a)(1); Union Pac., 85 S.W.3d at 166.
The Texas Supreme Court recently addressed what constitutes a new and independent cause. See Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 450 (Tex. 2006) (plurality opinion). "A new and independent cause is one that intervenes between the original wrong and the final injury such that the injury is attributed to the new cause rather than the first and more remote cause." Id. (citing Robert R. Walker, Inc. v. Burgdorf, 150 Tex. 603, 244 S.W.2d 506, 509 (1951)). "An intervening cause thus supersedes the defendant's negligence by destroying the causal connection between that negligence and the plaintiff's injury thereby relieving that defendant of liability." Dew, 208 S.W.3d at 450.
The issue of foreseeability is key. "[I]f the intervening force was foreseeable at the time of the defendant's negligence, the force is considered to be 'a concurring cause' of the plaintiff's injuries," and "the defendant remains liable for the original negligence." Id. at 451 (citation omitted). "An intervening cause that is set in motion by the original wrongdoer can never supersede the original act." Rodriguez v. Moerbe, 963 S.W.2d 808, 821 (Tex.App.-San Antonio 1998, pet. denied). "The issue of intervening cause as a bar to a defendant's liability is dependent on whether the forces generated by the defendant's negligence have 'come to rest.'" Id. (citing Bell v. Campbell, 434 S.W.2d 117, 120-22 (Tex. 1968)).
A superseding cause can be distinguished from a concurring cause if the injury that is the intervening force is both unforeseeable and its consequences are unexpected, meaning it produces results that would not otherwise have occurred. Dew, 208 S.W.3d at 451. "It must be one not brought into operation by the original wrongful act and must operate entirely independently of such original act." Id. (quoting 1 J.D. Lee Barry A. Lindahl, Modern Tort Law § 4:7 at 4-14-4-15 (2d ed. 2002)). Accordingly, the threshold inquiry when distinguishing between a concurring and a superseding cause is "whether the intervening cause and its probable consequences were such as could reasonably have been anticipated by the original wrongdoer." Bell, 434 S.W.2d at 120; Benitz v. Gould Group, 27 S.W.3d 109, 116 (Tex.App.-San Antonio 2000, no pet.).
The following factors taken from the Restatement of Torts may be considered in determining whether an intervening force rises to the level of a new and independent or superseding cause: (1) the fact that the intervening force brings about harm different in kind from that which would otherwise have resulted from the actor's negligence; (2) the fact that the intervening force's operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of the force's operation; (3) the fact that the intervening force is operating independently of any situation created by the actor's negligence, or, on the other hand, is or is not a normal result of such a situation; (4) the fact that the operation of the intervening force is due to a third person's act or to his failure to act; (5) the fact that the intervening force is due to a third person's act that is wrongful toward the other and as such subjects the third person to liability to him; and (6) the degree of culpability of the third person's wrongful act that sets the intervening force in motion. Restatement (Second) of Torts § 442 (1965) ; see also Dew, 208 S.W.3d at 451 n. 3; Phan Son Van v. Pena, 990 S.W.2d 751, 754 (Tex. 1999).
We now turn to the evidence supporting submission of a new and independent cause instruction. See Orozco v. Sander, 824 S.W.2d 555, 556 (Tex. 1992); Dallas Ry. Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 384 (1952). We look for more than a scintilla of evidence on which reasonable jurors could have found that the negligent acts of the physical therapists cut off Henley's liability. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). Henley urges us to review the evidence supporting submission of a new and independent cause instruction in light of the relevant Restatement factors.
1. Did the intervening force (cervical traction) bring about a different harm?
Henley argues the evidence admitted at trial supports the conclusion that the intervening cervical traction caused an injury "completely different in kind" from Crawford's original injury. Henley stresses testimony from Crawford's treating physician, Dr. Centeno, who testified that the injuries from the automobile accident were muscular/skeletal soft tissue injuries which were expected to be resolved within six to nine months, but that after the cervical traction, "her clinical exam had changed." Henley also points to the testimony from one of Crawford's experts, Dr. Deegear, who testified that adding traction to an already-injured neck can "further the injury to the point where it becomes a new injury." Based on this testimony, Henley argues it is reasonable to infer that the severe headaches and neck pain that occurred immediately following the cervical traction represent a "new injury" from those caused by the automobile accident, and that but for the cervical traction, Crawford would have recovered from her original neck injury and been able to continue performing surgery. We disagree.
The evidence is virtually undisputed that Crawford sustained a neck injury and experienced spasms and pain as a result of the motor vehicle accident. Her neck pain began immediately after the accident and had not resolved or "come to rest" at the time the traction therapy was rendered. See Bell, 434 S.W.2d at 121 (original wrongdoer's negligence must have "come to rest" before second defendant's negligence will be considered a superseding cause); see also Dew, 208 S.W.3d at 459. To the contrary, Dr. Centeno referred Crawford to physical therapy precisely because of her lingering neck problems. Furthermore, although her symptoms of pain may have been aggravated by the cervical traction, there is no testimony in this record based on reasonable medical probability that the cervical traction proximately caused a new and distinct injury. See Guevara v. Ferrer, No. 05-1100, 2007 WL 2457760, at *5 (Tex. Aug. 31, 2007). Except in limited circumstances within a layperson's general experience and common sense, "competent expert testimony is required to prove the nature of and causal connection between physical conditions and an occurrence." Id. at *4-5.
2. Was the intervening force (cervical traction) extraordinary rather than normal?
Henley contends that the use of cervical traction was well outside the ordinary in three ways. First, its use was controversial. Dr. Centeno testified that he had only prescribed it once or twice before, and only on the recommendation of a neurosurgeon. Another physician testified that he never prescribes mechanical cervical traction because it is "fraught with potential for . . . problems." Second, Henley alleges the traction was extraordinary because it was not ordered by Dr. Centeno. Stratton admitted that he knew there was no prescription for the traction and that he did not communicate with Dr. Centeno prior to ordering the traction to be performed on Crawford. Furthermore, Dr. Centeno testified that had Alamo Physical Therapy called to ask whether to administer the traction, he would have said no. Third, Henley asserts that the traction was extraordinary in that it violated state law because an unlicensed aide administered the traction, and it was contrary to the requirements imposed by the Food and Drug Administration ("FDA") in approving such devices because the FDA requires a physician's approval for the use of a Class II medical device.
Despite the circumstances under which Crawford received the cervical traction, we cannot characterize her medical treatment as so extraordinary as to be unforeseeable in the normal course of events. See Bell, 434 S.W.2d at120 (first inquiry is whether the intervening cause and its probable consequences could have been reasonably anticipated by the original wrongdoer). Medical treatment following a motor vehicle accident is certainly foreseeable, as is the fact that such medical treatment may or may not be successful. See Cannon v. Pearson, 383 S.W.2d 565, 567 (Tex. 1964) ("one who wrongfully injures another is liable in damages for the consequences of negligent treatment by a doctor or surgeon selected by the injured person in good faith and with ordinary care"). Clearly, the traction therapy here was intended to treat injuries Crawford sustained from the original automobile accident and therefore has a traceable connection to the accident. See City of Port Arthur v. Wallace, 141 Tex. 201, 171 S.W.2d 480, 483 (1943) ("One who has received a personal injury as a result of the negligence of another can recover all damages proximately traceable to the primary negligence, including subsequent aggravations the probability of which the law regards as a sequence and natural result likely to flow from the original injury.") Neither the fact that the treatment may be characterized as controversial, nor the fact that proper protocols were not followed, so alters the natural sequence of events as to make the application of mechanical cervical traction an unforeseeable medical treatment. See Clark v. Waggoner, 452 S.W.2d 437, 440 (Tex. 1970) (first wrongdoer will not be excused by intervening actions of a third party if such actions ought to have been foreseen).
3. Was the intervening force (cervical traction) independent of Henley's negligence?
Henley next argues the traction operated independently of his negligence because he "did not control the physical therapy at Alamo Physical Therapy; nor did he have any say in how or when therapy was administered." Again, we disagree that the traction therapy Crawford received was independent of or far removed from Henley's conduct. It was Henley's negligence in causing the automobile accident that led to Crawford's injury which set in motion the need for medical treatment, and ultimately physical therapy. "An intervening cause that is set in motion by the original wrongdoer can never supersede the original act." Rodriguez, 963 S.W.2d at 821. The traction in this case was "brought into operation by the original wrongful act" and did not "operate entirely independently of such original act." Dew, 208 S.W.3d at 451 (internal citations omitted).
4. — 6. Wrongful Nature of Intervening Act?
Finally, Henley asserts we should consider the degree of culpability of the wrongful act that set the intervening force in motion. Specifically, he contends the third party actors who wrongfully caused the mechanical cervical traction to be applied demonstrated a high degree of culpability by intentionally disregarding a prescription and state regulations. We disagree that the actions of the therapists are of such an unforeseeable nature as to make the application of cervical traction a superseding rather than concurring cause. As previously discussed, the therapists are not unrelated third parties, but are medical professionals brought into contact with Crawford due to the car accident Henley caused. Furthermore, even an unforeseeable intervening cause may be a continuing cause of the injury if the chain of causation is continuous or unbroken. See Bell, 434 S.W.2d at 121; see also Biaggi v. Patrizio Rest., Inc., 149 S.W.3d 300, 309 (Tex.App.-Dallas 2004, pet. denied); see also Harvey v. Stanley, 803 S.W.2d 721, 725 (Tex.App. — Fort Worth 1990, writ denied).
Having reviewed the record in light of the Restatement factors, we conclude the trial court did not abuse its discretion by refusing to submit an instruction on new and independent cause. The record simply does not contain more than a scintilla of evidence that the cervical traction was an "unforeseen, independent force from a third party, causing injury different from that which might have been expected at the time of the original negligent act." Dew, 208 S.W.3d at 452. Henley's first issue is overruled.
Factual Sufficiency Challenge
In his second issue, Henley argues that the evidence is factually insufficient to support two of the jury's findings — that Henley's negligence proximately caused Crawford's ultimate injuries and that the injury-causing negligence was 25% attributable to Henley. Specifically, Henley maintains that the evidence is insufficient to support a finding on either the cause in fact or the foreseeability component of proximate cause. "Cause in fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred." See D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002); but see Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995) (cause in fact is not shown if defendant's negligence did no more than furnish a condition that made the injury possible). "Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others." Nixon v. Mr. Prop. Mgmt., Inc., 690 S.W.2d 546, 549-50 (Tex. 1985); Benitz, 27 S.W.3d at 116 (new and independent cause must be one incapable of being foreseen by the original wrongdoer). In conducting a factual sufficiency challenge, we review the entire record to determine whether the evidence supporting a finding is so weak as to render the finding clearly wrong and manifestly unjust. Potter v. GMP, L.L.C., 141 S.W.3d 698, 702 (Tex.App.-San Antonio 2004, pet. dism'd).
In support of his position that the evidence is insufficient to establish cause in fact or foreseeability between the car accident and Crawford's ultimate debilitating injuries, Henley once again stresses the evidence that the injuries arising from the car accident were soft-tissue injuries that were expected to be resolved within six to nine months. Instead, Crawford received cervical traction that was not ordered, that was "fraught with problems," and that was performed in an unlawful manner which caused new and different symptoms and created a change in her clinical exam. Furthermore, Henley argues the evidence shows Crawford was diagnosed with annular tears and herniated discs in the exact spot where the cervical traction had been applied.
The evidence, however, also shows that Crawford did suffer neck injuries from the car accident. Henley's passenger stated that although Crawford was up and walking around after the accident, her neck was "probably hurt." The night of the accident, Crawford went to the emergency room complaining of various injuries, including neck pain. She then sought treatment from Dr. Centeno, who verified that she experienced consistent pain in the neck area of 7-8 on the pain scale after the time of the accident and prior to physical therapy. Months after the accident, her neck pain, although initially described as minor, was still substantial enough to cause her to seek treatment through physical therapy. Several experts testified that, based on reasonable medical probability, the proximate cause of Crawford's disabling neck injury, spasms, and pain was due, at least in part, to the trauma from the motor vehicle accident. Some experts even opined that the cervical traction administered to Crawford cannot and did not cause annular tears, muscle, ligament, or disc injury. Finally, there is no expert testimony that the cervical traction was the sole cause of Crawford's neck injury or pain. Based on our review of the entire record, we conclude the evidence supporting the jury's findings is not so weak as to be clearly wrong and manifestly unjust, and is not insufficient to support the jury's finding that Henley's conduct was foreseeable and a substantial factor in bringing about Crawford's injuries. Accordingly, we overrule Henley's second issue.
Conclusion
Based on the foregoing reasons, the judgment of the trial court is affirmed.