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Torts Click here for the full text of this decision FACTS:Kelli and Rogelio Hinojosa, individually and as representatives of the estate of their son Bryan, who died during the labor and delivery process, brought suit against the hospital, Columbia/St. David’s d/b/a South Austin Hospital, their attending physician, Dr. Paul Locus, and his practice group, Central Texas Obstetrics and Gynecological Associates, the appellees, for negligent treatment during Mrs. Hinojosa’s labor and delivery. Among other things, they brought claims under the wrongful-death and survivorship statutes. Texas Civil Practice and Remedies Code ��71.002, .021. The trial court granted the appellees’ traditional motion for partial summary judgment, which averred that, because Bryan did not survive live birth, his death did not fall within the two statutory claims. The trial court severed the partial summary judgment, creating this final judgment. HOLDINGReversed and remanded. The appellees moved for partial summary judgment on the ground that, if Bryan did not survive live birth, the parents could not prove an essential element of their wrongful-death and survivorship claims. The appellees attached to their motion for partial summary judgment depositions of the attending medical professionals stating that, based on various objective indicia that they personally observed, it was their expert opinion that Bryan had not been born alive. These conclusions were based on deposition testimony that Bryan was cold and without a heart beat once delivered and the autopsy report regarding his lung inflation. Dr. Breed, the neonatologist, stated that, based on his observations during the attempt to resuscitate Bryan and his expertise in neonatology, he did not believe that Bryan had been born alive. Expert opinions generally only create a fact issue � the trier of fact is free to accept or reject any or all such testimony. The parents responded by producing deposition testimony by Kelli Hinojosa, at least partially corroborated by Rogelio Hinojosa, indicating that they had seen Bryan shaking or moving after birth. They also attached an excerpt from Breed’s deposition in which he stated that, in a baby whose umbilical cord has been severed, shaking and rigidity can be “signs of life.” They also produced statements made by the hospital personnel that only Dr. Locus had access to Bryan directly after birth. The parents assert that, because their lay observations are coupled with expert testimony, their deposition testimony describing Bryan as “shaking” is sufficient to raise an issue of material fact. The appellees respond with the general rule that lay testimony is insufficient to refute an expert’s testimony. Anderson v. Snider, 808 S.W.2d 54 (Tex. 1991). The appellees concede that lay persons in medical-malpractice cases may testify about their observations of other persons’ physical condition, even when that testimony contradicts a medical expert’s testimony. Williams v. Bennett, 610 S.W.2d 144 (Tex. 1980). However, the appellees submit that such testimony is only competent to establish elements of causes of action based on observable fact, not those requiring expert conclusion. According to the appellees, because the medical experts’ testimony was legally sufficient to support the appellees’ position that Bryan was not born alive, the burden was on the parents to produce other expert testimony to controvert the claims. The appellees contend that, because the parents produced no contradicting expert opinion and produced no lay observations refuting the basis of the experts’ opinions, their deposition testimony as presented failed to raise an issue of material fact. While the court tends to agree with the appellees that the lay observations made by the parents that Bryan shook after being delivered, standing alone, are not sufficient to refute the expert opinions offered by the appellees, the parents also attached a copy of Bryan’s death certificate. The death certificate was signed by Dr. Locus, one of the defendants. The Texas Administrative Code creates two different death certificates: 1. a VS-113 “Certificate of Fetal Death” to be filed in the case of a death that occurs prior to complete expulsion or extraction from the mother, indicated by the fact that after such separation the fetus does not breathe or show any evidence of life (fetal death or stillbirth); and 2. a VS-112 “Certificate of Death” to be filed in the case of a death that occurs after the complete expulsion or extraction from the mother, indicated by the baby’s breathing or showing evidence of life after such separation. 25 Tex. Admin. Code sections 181.1(10), .1(16), .14. The different death certificates are established by statute. Texas Health & Safety Code sec. 193.001. Either the person in charge of internment (generally the attending physician) or the funeral home is required to fill out the proper death certificate in each case, depending upon when the death occurred, and must also attest to its validity by signing it. Once a Certificate of Fetal Death or Certificate of Death is certified by the state registrar, it becomes prima facie evidence of the facts attested to in that record. By statute, when Dr. Locus signed the VS-112, it became prima facie evidence of the information contained therein. Tex. Health & Safety Code sec. 191.052. Although the death certificate is only prima facie evidence of life, and therefore subject to rebuttal or explanation at trial, it constitutes proof conflicting with the evidence provided by the appellees and is therefore sufficient to raise a question of fact as to whether Bryan survived birth. The appellees respond to the information contained in the death certificate by arguing that the issue was not specifically raised before the trial court in a written motion, answer, or other response in order to be considered on appeal. The parents’ response to the motion for partial summary judgment raised the issue of whether Bryan had been born alive. The death certificate was attached to the response. Appellees appear to argue that the parents’ response to the motion for partial summary judgment is insufficient to preserve an argument based on the death certificate because the written motion does not specifically rely on the death certificate’s statutory significance. Because the parents argued that Bryan was born alive in their motion, they presented the issue of Bryan’s live birth to the trial court with sufficient specificity to satisfy the requirements of rule 166a and McConnell v. Southside Independent School District, 858 S.W.2d 337 (Tex. 1993). The death certificate serves as evidence on the issue of live birth. The parents were not required to explain with specificity exactly how each document supported their contention, nor were they required to argue their evidence in order for the trial court to consider it. The court is faced with two sets of evidence: 1. expert conclusions drawn from objective indicia, indicating that Bryan was not alive at birth; and 2. an official record, which by statute constitutes prima facie evidence of its contents and which was signed by one of the defendants, indicating that Bryan was born alive, coupled with additional observations by the parents of voluntary movements after birth. The contradiction between the two is sufficient to raise a material fact issue. Because there exists a fact issue as to whether Bryan was born alive, the court sustains the parents’ issue regarding summary judgment evidence. OPINION: Kidd, J.; Kidd, Yeakel and Patterson, JJ.

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