Bottoms v. Smith

In Bottoms v. Smith,. 923 S.W.2d 247 (Tex. App.-Houston 14th Dist. 1996, no writ), the court examined expert testimony which was built upon probabilities and inferences to determine whether it was enough to raise a fact issue to preclude summary judgment. In that case, the plaintiffs brought a medical malpractice action against the physician and the clinic at which he worked alleging that the doctor's failure to perform a follow-up colonoscopy proximately caused the patient's death. Id. at 248. The defendants moved for summary judgment claiming that the plaintiffs had failed to raise a fact issue because their expert did not establish that the doctor's conduct fell below the standard of care, and alternatively, that the doctor's conduct was the proximate cause of the patient's death. The trial court granted their motion. The plaintiffs appealed. In addressing whether the plaintiffs established proximate cause, the Houston court of appeals focused on one doctor's affidavit and deposition testimony which the plaintiffs offered as summary judgment proof: If the appropriate diagnostic tests had been done, it is more likely than not, that a polyp or lesion would have been seen and diagnosed. If this polyp or lesion had been identified in September of 1987, it is more likely than not, that it would have been a Duke stage A or B cancer with a five (5) year survival rate of 88% or better. The delay in the evaluation of Ms. Bottoms' condition and the fact that follow-up colonoscopies were not done to determine whether the polyps in 1986 had recurred in reasonable medical probability resulted in the progression in the stage of the disease from probably B1 or B2 to a D. This meant the patient, Ms. Bottoms, went from an approximate 88% possible five (5) year survival rate to a five (5) year survival rate of zero (0). Bottoms, 923 S.W.2d at 251. The plaintiffs also offered deposition testimony of another doctor who stated that if the follow-up colonoscopy had been done, then it was more likely than not that something would have been seen to alert the health-care providers of the potential for cancer. Bottoms, 923 S.W.2d at 251-52. If the tumors or lesions had been identified, the doctor testified that there would have been a different result in the decedent's condition. Id. at 252. The court found that the plaintiffs' summary judgment proof was sufficient to raise a fact issue regarding the proximate cause of the decedent's death.