Opinion
05-20-00201-CV
01-24-2023
KIMBERLY GOMEZ, Appellant v. SHAHRAM N. SANI, M.D., TEXAS PHYSICIAN ASSOCIATES, P.L.L.C.,POPPY DRIVE INPATIENT SERVICE, P.L.L.C., RUSS M. SAVIT, M.D.,ET AL., Appellees
On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-17417
Before Justices Pedersen, III, Goldstein, and Smith
MEMORANDUM OPINION
BONNIE LEE GOLDSTEIN JUSTICE
Appellant Kimberly Gomez appeals the grant of summary judgment in favor of appellees Russ Savit, M.D. Virtual Radiologic Professionals, LLC, Virtual Radiologic Corp., Emily Brown Knez, M.D., and Greater Dallas Radiology Associates, PLLC. We affirm in this memorandum opinion. See Tex. R. App. P. 47.2(a).
For ease of reference, we will refer to (1) Virtual Radiologic Professionals, LLC as "Virtual, LLC," (2) Virtual Radiologic Corp. "Virtual Corp"; (3) Dr. Savit, Virtual LLC, and Virtual Corp. as the "Savit Parties"; (4) Greater Dallas Radiology Associates, PLLC as "GDRA"; and (5) Dr. Knez and GDRA as the "Knez Parties."
BACKGROUND
In early December 2015, Gomez heard a "popping sound" in her back while bending over to pick up a dish towel in her home. She went to Doctors Hospital at White Rock Lake on December 12 complaining of back pain. She was released with instructions to follow up with a physician in one to two days, which she did not do. Rather, on December 17, Gomez went to First Choice ER with severe back pain. A doctor there noted she had altered mental status and was confused. The doctor ordered a CT scan of Gomez's head, but Gomez could not lie still long enough for the imaging. Gomez left First Choice and went to Doctors Hospital, where she was directly admitted, meaning she bypassed the normal admission process for emergency patients. A nurse who initially assessed Gomez noted she had unsteady activity, weakness, and limited range of motion in her extremities. A chest x-ray revealed mid-thoracic vertebral-body compression fractures on Gomez's spine. The next day, Gomez was discharged as she was "ambulatory without any significant pain 24 hours after admission."
On December 20, 2015, Gomez fell down in her home and could not get up. She was able to reach a cell phone and called her mother. Gomez's parents came over and found her "half in, half out of her chair." Gomez complained to her parents that she had back pain but did not report being unable to move her legs. They helped walk her to the bathroom. Gomez's Father left and came back the next morning, while her Mother stayed the night. Gomez's pain persisted through to the next morning, so they called for an ambulance. Emergency Medical Technicians (EMTs) from the Mesquite Fire Department arrived and assessed Gomez. Their report noted that Gomez was suffering back pain in her thoracic area, which she described as a 9 on the pain scale, but she had normal pulse, motor, and sensory function in her extremities. They transported Gomez to the emergency department at Doctors Hospital.
A triage nurse at Doctors Hospital reported that Gomez presented with upper left back pain as her chief complaint, the onset of which occurred two weeks prior. At around 1:00 p.m., Gomez was seen by the emergency department physician, Dr. Jeffrey Link. Dr. Link noted in Gomez's chart that she reported lower-extremity weakness "that may have resulted from decreased fluid intake and resulted in a fall." Dr. Link recorded Gomez's neurological symptoms as "Numbness, weakness and decreased sensation in [bilateral lower extremities]." Dr. Link's physical examination revealed that Gomez had edema in her lower legs, mild respiratory distress, and moderate tenderness in the left paravertebral area of her back. Dr. Link also noted that, upon a neurological examination, "there is minimal movement of the bilateral [lower extremities] when the patient is instructed to move her legs."
At 2:41 p.m., one of Gomez's nurses ordered a thoracic spine MRI. The MRI was initially read by appellee Dr. Savit. In his initial report, Dr. Savit noted there was "a subacute or old compression fracture of T6" and that "[a] retropulsed fragment extends approximately 6 mm into the spinal canal and causes some mass effect on the ventral aspect of the spinal cord." Dr. Savit's impressions included that there was "no evidence of spinal cord compression" and "no definite evidence of spinal cord edema." Dr. Savit later prepared an addendum to his initial report in which he stated, "these emergent findings were discussed immediately with Dr. Link" at 7:52 p.m.
Dr. Knez testified that, "[a]cute is in the past few days; subacute could be, you know, a week, weeks; and then chronic is remote."
At around 8:00 p.m. on December 21, Gomez was transferred from the emergency department to an inpatient room where she was examined by Dr. Shahram Sani. After his physical examination of Gomez, Dr. Sani graded her lower extremity muscle power as "5/5" and recorded the same in her chart. Dr. Sani testified in his deposition that five out of five is "normal circumstance, it means like patient can move." Dr. Sani further recorded that the MRI had been done and "the official report is pending" but that "it has been reported to have subacute/chronic compression fracture of T4." In the "Assessment and Plan" portion of his report, Dr. Sani wrote, inter alia: "Back pain, status post-fail. At this point, it is not clear if the patient has a new fracture or is the same old fracture she had. We will admit for pain control. We will consult neurosurgery for reevaluation." It is undisputed that Dr. Sani did not consult a neurosurgeon. In his deposition, Dr. Sani explained that he was working the overnight shift and expected that the physician scheduled for morning rotation would see his note and order the neurosurgery consult.
The physician assigned to Gomez on December 22, 2015 was Dr. Farah Masood. Dr. Masood visited Gomez during morning rounds between 8:00 and 10:00 a.m. According to Dr. Masood, Gomez was asleep and reluctant to undergo a physical evaluation but on Dr. Masood's insistence, Gomez was able to "wiggle her toes." Dr. Masood recorded a progress note into Gomez's chart, which was last updated at around 7:00 p.m., stating that Gomez's vital signs were most recently recorded earlier at 4:00 p.m., at which time Gomez was "awake, alert responding appropriately in no acute distress." It also stated that Gomez exhibited "no focal neurological deficit," though Dr. Masood later testified in her deposition that this statement was prepopulated into her report. Regarding the neurosurgery consult, Dr. Masood testified that she did not order it because, based on Dr. Sani's notation in Gomez's chart, she believed he had already done so.
Earlier, on the morning of December 22, Dr. Knez reviewed the MRI images in order to complete a final radiology report. Dr. Knez's final report included her impressions that there was "a vertebra plana compression deformity of the T6 vertebral body with associated bone marrow edema" and a "retropulsion with a mass effect on the spinal cord and a suggestion of mild cord edema at the level of T5." Dr. Knez testified in her deposition that there were two main differences between her and Dr. Savit's findings: (1) Dr. Savit had stated that the MRI imaging presented "no definitive evidence of spinal cord edema" whereas Dr. Knez found a "suggestion of mild cord edema"; and (2) Dr. Savit diagnosed Gomez's lumbar fracture as subacute or chronic, while Dr. Knez believed it was acute or subacute. Despite these differences, Dr. Knez testified that she did not believe it necessary to relay the variance between the two reports to Gomez's treating physicians. She stated that as a part of her practice, she would ordinarily pick up the phone and call the doctors if there was a concern for patient safety, but she did not do so in this case because Dr. Savit had already made a critical report based on his emergent findings.
According to Dr. Martin Lazar, Gomez's retained expert, this meant that Gomez's T6 vertebra was fractured in a flattened shape; a bone fragment was being pushed into her spinal canal and into her spinal cord; and there was swelling in her spinal cord at the T5 vertebra.
Dr. Masood did not see the final radiology report by Dr. Knez because, according to Dr. Masood's testimony, Doctors Hospital does not notify its physicians when a preliminary radiology report becomes final. When asked how she would be alerted to new radiology impressions or results, Dr. Masood testified that "[t]he only way" was if the radiologist were to "call you, communicate with you." Dr. Masood testified that based on the preliminary report by Dr. Savit, she considered Gomez's condition to be non-emergent because it indicated there was no edema and therefore no spinal-cord compression. After later reviewing Dr. Knez's final report, which did indicate edema, Dr. Masood agreed that Gomez's condition was emergent. Dr. Masood testified that if she had been made aware of Dr. Knez's report, she would have ordered a neurosurgery consult, which she would have considered a re-consultation as she was under the impression that Dr. Sani had already ordered it.
On the morning December 23, Dr. Masood called an interventional radiologist, Dr. Clare Savage, to consult regarding a potential pain-intervention procedure. Dr. Savage reviewed the December 21 MRI and confirmed that it showed spinal cord edema. Upon physical examination, Dr. Savage noted that Gomez had no sensation in her lower extremities and concluded Gomez "was not neurologically intact." After that evaluation, Dr. Masood consulted a neurosurgeon, Dr. Paul Salinas. Dr. Salinas performed emergency surgery on Gomez's spine on the evening of December 23, but was unable to restore neurological function to Gomez's legs.
Gomez filed this lawsuit on December 20, 2017, asserting causes of action for negligence and gross negligence against Drs. Link, Sani, Savit, Knez, and Masood; three nurses assigned to Gomez's care; and these healthcare providers' employers under both direct- and vicarious-liability theories. The defendants moved for summary judgment in nine separate motions, and Gomez filed an omnibus response. The trial court granted all of the motions without stating its basis and entered final judgment that Gomez take nothing on her claims. This appeal followed.
Both before and after filing her notice of appeal, Gomez either settled with or non-suited the majority of the defendants. The only defendants before this Court as appellees are the Savit Parties and the Knez Parties.
DISCUSSION
Gomez raises two issues on appeal: (1) that the trial court erred in granting the Savit Parties' motion for summary judgment, and (2) erred in granting the Knez Parties' motion for summary judgment. Both sets of defendants asserted no-evidence challenges to the causation element of Gomez's negligence claim and the objective and subjective elements of her gross-negligence claim. The Knez Parties also asserted, as a traditional ground, that the causation element of Gomez's negligence claim was conclusively disproven. Finally, the Savit parties asserted that there was no evidence supporting Gomez's vicarious-liability theories as to appellee Virtual Corp.
I. Standard of Review and Summary Judgment Standard
We review summary judgments de novo. De La Cruz v. Kailer, 526 S.W.3d 588, 592 (Tex. App.-Dallas 2017, pet. denied). When, as here, the trial court does not specify the basis for its ruling, a summary judgment must be affirmed if any of the grounds on which judgment is sought is meritorious. Id. If a party moves for summary judgment on both traditional and no-evidence grounds, we generally address the no-evidence motion first. First U. Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017). If the challenge to the no-evidence motion fails, we need not consider the traditional motion. Id.
After adequate time for discovery, a party may move for no-evidence summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R.Civ.P. 166a(i). To defeat summary judgment, the non-movant must produce summary-judgment evidence that raises a genuine issue of material fact on each of the challenged elements. Id. We review no-evidence summary judgments under the same legal-sufficiency standard as directed verdicts. De La Cruz, 526 S.W.3d at 592. Under that standard, we view the evidence in the light most favorable to the non-movant, indulge all inferences in the non-movant's favor, credit evidence that a reasonable jury could credit, and disregard contrary evidence and inferences unless a reasonable jury could not. Id. We sustain a no-evidence challenge when: "(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact." Id.
Under the traditional summary-judgment standard, the movant has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Vince Poscente Int'l, Inc. v. Compass Bank, 460 S.W.3d 211, 213-14 (Tex. App.-Dallas 2015, no pet.). In deciding whether there is a disputed fact issue precluding summary judgment, we take evidence favorable to the nonmovant as true, indulging every reasonable inference in favor of the nonmovant; we resolve any doubts in the nonmovant's favor. Id. at 214. Once the movant establishes its right to summary judgment as a matter of law, the burden shifts to the non-movant to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. Id. A genuine issue of material fact exists if the non-movant produces more than a scintilla of probative evidence regarding the challenged element. Ward v. Stanford, 443 S.W.3d 334, 342 (Tex. App.-Dallas 2014, pet. denied). A defendant is entitled to traditional summary judgment if it conclusively disproves at least one essential element of the plaintiff's claim or conclusively establishes every element of an affirmative defense. Id.
II. Analysis
Appellees moved for summary judgment asserting there was no evidence to support the proximate-cause element of Gomez's negligence claim. In order to prevail on a negligence cause of action, a plaintiff must establish the existence of a legal duty, breach of that duty, and damages proximately caused by the breach. Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017). Proximate causation itself has two prongs: cause in fact and foreseeability. Id. To prove cause in fact, the plaintiff must show that the defendant's act or omission "was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred." Id. "A plaintiff proves foreseeability of the injury by establishing that 'a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission.'" Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex. 2016) (quoting Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995)).
The plaintiff must establish a causal connection between her injuries and the negligence of one or more defendants based on "reasonable medical probability," not mere conjecture, speculation, or possibility. Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex. 2010). Such a showing generally requires expert testimony. See id. ("The general rule has long been that expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and experience of jurors."). "An expert's testimony is conclusory if the witness simply states a conclusion without an explanation or factual substantiation." Bustamante, 529 S.W.3d at 462. If no basis for the opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence, regardless of whether there is no objection. See id. (citing Jelinek, 328 S.W.3d at 536; City of San Antonio v. Pollock, 284 S.W.3d 809, 816-18 (Tex. 2009)). "Stated differently, an expert's simple ipse dixit is insufficient to establish a matter; rather, the expert must explain the basis of the statements to link the conclusions to the facts." Id. Here, appellees contend that there was no competent expert testimony to support the proximate-cause element of Gomez's negligence claim. We focus our analysis on the foreseeability prong of proximate cause as it is dispositive.
In her omnibus summary-judgment response, Gomez argued that her paraplegia resulted from the combined negligence of her doctors and nurses. The gravamen of Gomez's negligence claim is that her spinal-cord injury required decompressive spine surgery on December 21-22, 2015 in order to avoid becoming paraplegic, but her surgery was delayed to December 23 due to the multifactorial and systemic failures in her care. Gomez summarized her causation theory as follows:
Due to the number of healthcare providers responsible for the complete failure to recognize the developing perilous situation that Ms. Gomez was in, there were multiple substantial factors in the failures by Dr. Sani, Dr. Masood, Dr. Savit, Dr. Brown Knez and the medical staff at Doctors Hospital that led to Kimberly Gomez becoming a paraplegic, and without said failures, such an outcome would not have occurred. (See Exhibit E & G). Furthermore, it was foreseeable to each of these health care providers that failure to appropriately recognize and intervene would have led to increasing spinal cord compromise. (See Exhibit G). Each provider failed to identify clear signs of severe neurological deterioration and thus missed the opportunity to get Ms. Gomez the urgent neurosurgical intervention that she needed and with it the chance for neurological preservation including the ability to walk, have urinary bladder and bowel control and the preservation of her neurological function. (See Exhibits E & G).Exhibit E is a report by Dr. Louis Lux, the defense expert retained by Dr. Masood, and Exhibit G is the declaration of Gomez's own expert, Dr. Martin Lazar.
Dr. Lux opined in his report that the communication failures between Gomez's radiologists (Drs. Savit and Knez) and her treating physicians (Drs. Link, Sani, and Masood) were the "most important factor" that contributed to the delay in her surgery. The day after Gomez filed her response, Dr. Masood filed a discovery supplement de-designating Dr. Lux as an expert. Appellees thereafter filed objections to Dr. Lux's report on various grounds, including that it was unverified and therefore incompetent summary-judgment evidence. Dr. Knez additionally objected on grounds that Dr. Masood's de-designation changed Dr. Lux's status from a testifying expert to a consulting expert, rendering his report privileged. Gomez filed a motion for continuance in part to depose Dr. Lux, explaining she had repeatedly requested deposition dates from Dr. Masood's counsel that went unanswered. Gomez argued her motion for continuance at the summary-judgment hearings but there was no oral ruling, no written order granting or denying it and the hearings went forward as scheduled. On appeal, Gomez does not challenge the implicit denial of her continuance motion or Dr. Masood's de-designation of Dr. Lux. In fact, Gomez apparently abandoned any reliance on Dr. Lux's report, stating that "[w]hile Dr. Lux's report is an interesting corroboration of Dr. Masood's testimony, it is entirely unnecessary to defeat summary judgment." We therefore do not consider Dr. Lux's report in our analysis.
Even if Gomez had not abandoned her reliance on Dr. Lux's report, we could not consider it. See Kolb v. Scarbrough, No. 01-14-00671-CV, 2015 WL 1408780, at *4 (Tex. App.-Houston [1st Dist.] Mar. 26, 2015, no pet.) (mem. op.) (unsworn expert report is incompetent summary-judgment evidence). We also do not find any evidence in Dr. Masood's testimony related to the foreseeability factor of causation as to Drs. Savit and Knez. Gomez relied upon Dr. Masood's testimony and Dr. Lux's report solely to support the cause-in-fact prong of proximate causation.
We now turn to Dr. Lazar's testimony. In his deposition, Dr. Lazar provided both general testimony about the spinal cord and specific testimony about Gomez's treatment and care. He explained that "mass effect" on the spinal cord, also known as spinal-cord compression, refers to pressure on the spinal cord from "some space occupying structure." He said that a mass effect does not necessarily lead to spinal-cord injury: "a patient can have compression of a cord and not have signs or symptoms," in which case there would be no likelihood of permanent "neurologic deficits." However, "[i]f the patient becomes symptomatic of the compression, they are at risk for cord injury." Dr. Lazar further explained that "a complete spinal cord motor injury" is the loss of motor function below the level of the trauma (i.e., toward the legs), which is often accompanied by edema above that level (i.e., toward the head). He described the "vicious cycle" that occurs when a spinal cord experiences trauma:
We note for the sake of clarity that the word "compression" is used in our record to refer to two different phenomena. As Dr. Lazar explained, a compression fracture refers to the actual breaking apart of a patient's vertebra by vertical force. Conversely, cord compression refers to something-such as fluid, a bone, or a tumor-exerting pressure on the spinal cord. The record reflects that Gomez exhibited both. Her vertebra was fractured from vertical force and a bone fragment from that fracture was being pushed into her spinal cord.
[T]he spinal cord lives in this bony box, this bony house. That can't expand. And so with swelling, there's more pressure, decreased blood supply. With decreased blood supply, more injury to cells. More injury to cells, more swelling. And that's the vicious cycle.Dr. Lazar explained that certain conditions-such as lupus, diabetes, anemia, osteopenia, and osteoporosis-put a patient at higher risk for permanent neurological deficit resulting from a spinal cord injury. He said that a patient with such conditions would progress to permanent deficits more rapidly than a patient without them, but he was not aware of any studies that detailed how much that rapidity would affect the patient. Further, although Dr. Lazar knew of studies showing how long it takes for a healthy patient to experience permanent loss of motor function after the onset of symptoms of injury, none of the studies "are accepted to the level of guidelines." Nevertheless, Dr. Lazar said that there is general consensus among neurosurgeons that "once a deficit has been present, for example, loss of bowel and bladder control for 24 hours, the likelihood of recovery from a spinal cord injury resulting from that is small."
Dr. Lazar confirmed that Gomez had the conditions listed above and was therefore at a "higher risk for permanence of neurological deficits should [she] suffer a spinal cord injury." Dr. Lazar explained that it is possible Gomez fractured her spine when she bent over to pick up a dish towel on December 3, 2015. He reiterated, however, that a patient who suffers a spinal fracture does not necessarily need surgical intervention. According to Dr. Lazar, surgery is indicated if the fracture resulting in compromise of the spinal canal causes neurological change; is "of sufficient magnitude to concern the surgeon"; or if there is spinal instability, meaning the vertebra are not optimally positioned or are moving out of position. He explained that when Gomez went to the emergency room on December 12 complaining of back pain, she apparently did not have any neurological signs or symptoms given that "[s]he walked out." When Gomez went back to the emergency room on December 17, she showed symptoms that were "potentially" consistent with spinal-cord damage, such as back pain, wheezing, shortness of breath, and disorientation. But when asked whether Gomez's spinal cord was compromised on December 17, Dr. Lazar explained that he could not agree to any degree of medical certainty that it was, because a sufficient neurological examination was not conducted at the time. Dr. Lazar agreed that a chest x-ray taken of Gomez on December 17 showed a fracture, but he noted that she was again able to walk out of the hospital the following day. Notably, the physician who admitted Gomez on December 17, Dr. Aruna Koney, wrote in Gomez's chart that she "was ambulatory without any significant pain 24 hours after admission." Dr. Koney diagnosed Gomez with chronic back pain resulting from Lupus. Dr. Lazar testified that this was "[p]robably not" the correct diagnosis. Asked what the right diagnosis was, Dr. Lazar responded "[f]racture of the spine."
Dr. Lazar confirmed that Gomez's December 21 MRI scan showed a retropulsed bone fragment consistent with a compression fracture. He stated his belief that the fragment possibly retropulsed as early as December 17, but no later than December 20, and compromised Gomez's spinal cord. Dr. Lazar stated his belief that the compression on Gomez's spine from the bone fragment worsened over those days, stating that it would not be fair to assume "the extent of compression was the same on the 17th as it was on the 20th." Dr. Lazar agreed that by the time Dr. Knez read Gomez's MRI on December 22, there had been mass effect on Gomez's spinal cord for over thirty-three hours. Moments later, the following exchange occurred:
Q. [Dr. Knez] interpreted mass effect on that MRI, correct? A. Yes.
Q. You saw mass effect on that MRI, correct?
A. Yes.
Q. Dr. Savit saw mass effect on that MRI, correct?
A. Yes.
Q. And Dr. Savit called Dr. Link and told him about that mass effect, didn't he?
A. Yes.
Q. You can't say in reasonable medical probability that had [Dr. Knez] done anything different, that this patient would have ended up in surgery any sooner than she did, correct?
[Gomez's counsel]: Objection; form.
A. Correct.
Q. (BY [Dr. Knez's counsel]) And therefore, you can't say anything [Dr. Knez] did was ultimately the proximate cause of the harm to this patient, correct?
[Gomez's counsel]: Objection; form.
A. I'm not here to make that testimony.
There is no indication in the record that Gomez sought a ruling on these objections. We include them here only for completion.
About three months after his deposition, Dr. Lazar prepared a declaration in support of Gomez's summary-judgment response. The declaration is twenty-eight pages long, and the first twenty-four of those describe Gomez's "patient history/medical chronology" from her visit to the emergency room on December 17 to the day after her spinal surgery, December 24. Two pages in this section describe the MRI reports completed by Drs. Savit and Knez. Specifically, the declaration lists Dr. Savit's initial impressions that the MRI scans showed (1) "[subacute or old compression fracture of T6 with a retropulsed fragment causing some mass effect on the ventral aspect of the spinal cord"; (2) "no evidence of spinal cord compression"; and (3) "no definite evidence of spinal cord edema." The declaration also describes Dr. Savit's addendum, stating that his "emergent findings were discussed immediately by telephone with Dr. Link, 12/21/2015 7:52 PM CST." The declaration then describes the "Final Report" completed by Dr. Knez, including the following impressions:
1. There is a vertebra plana compression deformity of the T6 vertebral body with associated bone marrow edema. There is retropulsion with a mass effect on the spinal cord and a suggestion of mild cord edema at the level of T5. The bony spinal canal is adequate with an AP diameter of 10 mm. 2. There are mild discogenic degenerative changes of the lower lumbar spine without acute pathology.Dr. Lazar listed these findings and impressions without comment or opinion.
The last four pages of the declaration contain Dr. Lazar's conclusions as to medical causation. Some of these conclusions refer to specific doctors, while others apply generally to all of Gomez's doctors and nurses. Although Dr. Lazar refers to Dr. Savit by name only twice and Dr. Knez only once, we discern that a reasonable interpretation equally applies his general conclusions to both. Thus, Dr. Lazar's conclusions applicable to Drs. Savit and Knez conceivably include the following:
. On her December 21, 2015 admission to Doctors Hospital, Ms. Gomez was noted to have signs and symptoms of Spinal Cord compromise and an MRI scan demonstrated the primary structural pathology of a T6 vertebral body fracture with retropulsion into the Spinal Canal. None of the physicians or nursing staff responsible for
her care in the Emergency Department, or subsequently upon admission to hospital, recognized the urgency of her situation with respect to Spinal Cord injury. There was no attempt to closely monitor neurological signs specific for Spinal Cord function. There was no recognition of the importance of the multi-factorial issues that could adversely affect Spinal Cord function.
. Prior to the late afternoon of December 23, 2015, no physician or nurse recognized the degree of jeopardy facing Ms. Gomez and her Spinal Cord function, despite physical signs and symptoms pointing towards that perilous situation.
. The December 21, 2015 MRI Scan result was reported to Dr. Jeffrey Link by the Radiologist, Dr. Russ Savit. That information, in this clinical setting, was more than enough reason to request an emergency Neurosurgery consultation. The medical chart does not contain any information to suggest why these consultations were never requested.
. Ms. Gomez was proven to have a major Spinal Column structural problem with Spinal Canal impingement in a critical anatomical region on December 21, 2015. Given the fact that her deteriorating neurological condition was sufficient evidence to suspect that the structural problem at T6 was the likely etiological agent for this deterioration, it was imperative for the sake of functional neurological preservation to intervene as soon as possible. The earlier a definitive intervention takes place, the greater the likelihood for functional preservation. On the other hand, once severe neurological deficits are manifested and the longer they are present, the less likely they are to be reversed. In this case, within reasonable medical probability, had Mrs. Gomez undergone a decompressive spinal procedure on December 21 or December 22, 2015, she would have had, more likely than not, some functional restoration and at least the preservation of neurological function already present at that time. [Emphasis in original]
. Due to the number of healthcare providers responsible for the complete failure to recognize the perilous situation that Ms. Gomez was in, there was not just one single proximate cause of her injury, but rather, multiple substantial factors in the failures of health care provided by Dr. Sani, Dr. Masood, Dr. Savit, Dr. Brown Knez and the medical staff at Doctors Hospital that led to Kimberly Gomez
becoming a paraplegic, and without which causes such an outcome would not have occurred. Furthermore, it was foreseeable to each of these health care providers that failure to appropriately recognize and intervene would have led to increasing spinal cord compromise. Each provider failed to identify clear signs of severe neurological deterioration and thus missed the opportunity to get Ms. Gomez the urgent Neurosurgical intervention that she needed and, with it, the chance for neurological preservation including the ability to walk, have urinary bladder and bowel control and the preservation of her neurological function.
Gomez argues that Dr. Lazar's testimony provides some evidence of foreseeability because the physicians involved in her care were "aware that symptomatic spinal cord compression is a medical emergency that requires neurological consultation" and, accordingly, asserts that "Dr. Lazar concluded that it was foreseeable to each of the health care providers involved that failure to appropriately recognize and intervene would have led to increasing spinal cord compromise."
We disagree. Dr. Lazar's testimony offers only conclusory support for foreseeability as to Gomez's radiologists, Drs. Savit and Knez. We find nothing in either Dr. Lazar's deposition transcript, his declaration or the omnibus summary judgment evidence that explains how and why it was foreseeable to the radiologists that their conduct might create a risk of injury to Gomez.
Gomez argues that this case is governed by the supreme court's decision in Bustamante, which held that a stringent but-for causation requirement was inappropriate because the plaintiff's injuries resulted from the combined negligence of two physicians. Bustamante, 529 S.W.3d at 472. Gomez does not argue that the rule from Bustamante applies to the foreseeability prong of proximate cause, and we decline to extend concurrent causation under Bustamonte to the foreseeability prong. To the extent Gomez could rely on the "combined negligence" of her physicians to establish cause in fact, she nevertheless had to provide independent evidentiary support for foreseeability as to each physician. She fails to do so.
As previously quoted, Dr. Lazar's sole opinion as to this element of proximate cause was that "it was foreseeable to each of these health care providers that failure to appropriately recognize and intervene would have led to increasing spinal cord compromise. Each provider failed to identify clear signs of severe neurological deterioration and thus missed the opportunity to get Ms. Gomez the urgent Neurosurgical intervention that she needed and, with it, the chance for neurological preservation including the ability to walk, have urinary bladder and bowel control and the preservation of her neurological function."
If anything, Dr. Lazar's testimony suggests the opposite conclusion. Gomez contends that Dr. Savit's preliminary MRI report was incorrect because it found no edema and no spinal-cord compression. But the preliminary report did say that there was "some mass effect" on Gomez's cord and, as Dr. Lazar recognized, Gomez was exhibiting symptoms of spinal-cord deficit. And Dr. Savit's subsequent addendum stated that his "emergent findings" were relayed to Dr. Link by telephone. Thus, even if Dr. Lazar agreed that some aspects of Dr. Savit's report were incorrect, a conclusion Dr. Lazar did not reach, the report nevertheless provided "more than enough reason to request an emergency Neurosurgery consultation."
Gomez's argument as to Dr. Knez suffers a similar fate. Gomez contends that Dr. Knez's final report, while correctly identifying spinal-cord compression and edema, was not properly communicated to Gomez's treating physicians. Gomez argues that Dr. Knez should have picked up the phone and called the treating physicians to update them about the changes in the report. But if Dr. Savit's less-than-correct conclusions were sufficient, according to Dr. Lazar, to warrant a neurosurgery consultation, we fail to see how Dr. Lazar could come, or did come, to a different conclusion as to Dr. Knez.
We conclude that Dr. Lazar's opinion-regarding the foreseeability of Gomez's injury specifically as to Drs. Savit and Knez-was conclusory. Gomez's summary judgment response directed the trial court to no other competent expert testimony to support the foreseeability prong of proximate causation. Accordingly, the trial court did not err in granting summary judgment on Gomez's negligence claim against Drs. Savit and Knez.
Therefore, we need not and do not reach Dr. Knez's traditional summary-judgment ground that the causation element of Gomez's negligence claim was conclusively established, Dr. Knez's contention that Dr. Lazar's declaration is a sham affidavit and the Savit Parties' summary-judgment grounds as to Gomez's theories of vicarious liability.
With respect to Gomez's gross-negligence claim, appellees argue that there was no evidence of the objective or subjective elements, while Gomez argues there was some evidence as to these elements in testimony from Drs. Lazar and Masood. In light of our disposition of Gomez's negligence claim, we need not address these arguments. It is well settled that "one's conduct cannot be grossly negligent without being negligent." First Assembly of God, Inc. v. Tex. Utilities Elec. Co., 52 S.W.3d 482, 494 (Tex. App.-Dallas 2001, no pet.). In light of our conclusion that summary judgment was appropriate as to Gomez's negligence claim, her gross-negligence claim must also fail. See Garren v. Cunningham, No. 05-16-00455-CV, 2017 WL 1360229, at *8, n.5 (Tex. App.-Dallas Apr. 13, 2017, no pet.) (mem. op.) ("Further, because we have concluded appellees were entitled to summary judgment on appellants' common law negligence claims, it follows that appellants' claims that appellees were grossly negligent must also fail.").
CONCLUSION
We overrule Gomez's issues and affirm the trial court's judgment.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees RUSS SAVIT, M.D., VIRTUAL RADIOLOGIC PROFESSIONALS, LLC, VIRTUAL RADIOLOGIC CORP., EMILY BROWN KNEZ, M.D., and GREATER DALLAS RADIOLOGY ASSOCIATES, PLLC recover their costs of this appeal from appellant KIMBERLY GOMEZ.
Judgment entered
Justices Pedersen, III and Smith participating.