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No. 07-01-00027-CV, 7/15/2003. Torts Click here for the full text of this decision FACTS: Appellant Emily Archer, a gynecologist, appeals from a judgment against her in a medical negligence case. Archer began treating patient Anita Warren in 1988, performing a hysterectomy which successfully relieved Warren’s pelvic pain. Warren consulted with Archer as well as other doctors through the years. In 1990 and again in 1993, Warren complained of mild incontinence. Examination by Archer revealed the cause of her incontinence as resulting in part from a cystocele, formed by herniation of part of her bladder, which worsened over time and ultimately compromised her urethra, the canal that discharges urine from the bladder. By 1995, Warren’s incontinence had progressed to a point where Archer recommended corrective surgery. Archer did not discuss Kegel’s exercises with Warren, which are designed to strengthen muscles in a woman’s pelvic floor and the muscles supporting the urethra. Warren testified that she understood surgery was required to repair her bladder, which had dropped following the hysterectomy. Warren had the recommended surgery on Jan. 27, 1995, which stopped her incontinence and corrected her anatomical defects. However, Warren developed post-operative pain in her right leg, which was diagnosed as pain from nerve damage resulting from the surgery. Warren and her husband sued Archer, alleging that the doctor’s negligence proximately caused her continuing pain and impairment. The case was tried on the theory that 1. Archer negligently failed to offer nonsurgical option of Kegel’s exercises before resorting to surgery; 2. Warren would have chosen a nonsurgical option had it been offered; 3. the Kegel’s exercises probably would have corrected the incontinence without surgery; and 4. Warren’s nerve damage would have been avoided had surgery not been done. The jury found that Archer’s negligence was a proximate cause of Warren’s injury. Judgment was entered in favor the Warrens for damages in an amount determined by the jury, together with pre- and post-judgment interest. Archer appealed, challenging the verdict via 10 issues. The court deems the third issue – which urges legal insufficiency of the evidence to support a finding that the alleged negligence proximately caused Warren’s issue – dispositive and addresses only that issue. HOLDING: Reversed. Plaintiffs in medical negligence cases are required to prove by a preponderance of the evidence that the allegedly negligent act or omission was a proximate cause of the harm alleged. To establish proximate cause, the plaintiff must prove forseeability and cause-in-fact. Establishing cause-in-fact requires proof that the alleged negligence was a substantial factor in bringing about the harm, without which the harm would not have occurred. Specifically, the plaintiff must establish a causal connection between the defendant’s negligence and the injuries, based on a reasonable medical probability. Opinion evidence relied on as proof must be based on more than possibilities, speculation and surmise. Archer challenges the legal sufficiency of the evidence of proximate cause in two areas. First, she asserts that there is no evidence that Warren would have done Kegel’s exercises had they been offered to her. Second, she alleges that there is no evidence that even if Warren had done the exercises, she, to a reasonable probability, would have improved to the extent that surgery would not have been necessary. The court addresses the question of whether Warren’s use of Kegel’s exercises would have avoided surgery. After analyzing the testimony of various experts, the court concludes: “The evidence showed that statistically, well-done Kegel’s would cure some patients of SUI so that surgery would not be necessary; would not improve some patients at all and surgery would still be necessary; and would improve SUI symptoms in some patient to some degree and for some time duration in which case surgery might or might not be necessary, depending on the degree of improvement, and whether the improvement was temporary or permanent. Such general statistical studies are not legally sufficient evidence that, to a reasonable medical probability [Warren's] SUI would have been cured or improved by Kegel’s to the extent that surgery would not have been necessary.” Because the evidence is legally insufficient to support a finding that, to a reasonable medical probability, Warren would have avoided surgery by use of Kegel’s, the judgment of the trial court is reversed and the Warrens take nothing. OPINION: Johnson, C.J.; Johnson, Reavis and Boyd, JJ.

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