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Click here for the full text of this decision FACTS:Delores McLean went to the emergency room at Harris Methodist Hospital HEB on April 24, complaining of shortness of breath and chest pain. Two nurses evaluated the 30-year-old woman before she eventually met with Dr. Robert Morrow Welch. Welch’s observation of McLean’s sinus drainage, cough and shortness of breath was consistent with the nurses’ evaluation. McLean did not complain of chest pain, but Welch ordered a chest x-ray, a sinus x-ray, a pulse oximetry test and an arterial blood gas test. He also examined her legs for evidence of thrombosis, but because McLean was severely obese, he did not find the test useful. Though McLean’s x-rays were normal, the pulse oximetry test showed a below-normal level of oxygen saturation, and the blood-gas test showed low levels, too. Welch concluded that McLean was suffering from sinusitis and other respiratory problems. He ordered ventilator treatments, from which McLean reported feeling better. He prescribed medication consistent with the respiratory conditions and eventually discharged McLean. Over the next several weeks, McLean went to her primary care physician several times, complaining of the same symptoms that sent her to the emergency room on April 24, as well as gastrointestinal problems. On July 8, McLean went to the emergency room, complaining of cough, congestion, fever, headache, sore throat, and difficulty breathing, which she reported had been intermittent since April. A chest x-ray showed an abnormality on the upper right lobe of her lung, so the attending emergency room physician (not Welch), concluded McLean had pneumonia. McLean collapsed at home the next day and died. An autopsy said the cause of death was a massive “saddle” embolus that had lodged in her pulmonary arterial trunk. The autopsy also revealed evidence of thrombosis in her left leg. What the ER doctor thought was evidence of pneumonia ended up being a recently developed, but not yet fatal, embolus. McLean’s husband filed a medical malpractice claim against Welch, among others. The first trial resulted in a mistrial. On retrial, the jury returned a verdict for McLean’s husband. Welch challenges the legal and factual sufficiency of the evidence. HOLDING:Reversed and remanded for a new trial. The evidence is factually, but not legally, sufficient to support the jury verdict. The court establishes that in deciding a factual insufficiency issue, it must determine whether the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. The court also confirms that, because the question of whether emboli were present in McLean’s lungs when Welch examined her was not a matter of common knowledge, expert medical testimony was required to establish a traceable chain or causation between her medical condition then and her death two-and-a-half months later. The court then examines the testimony of the various experts in painstaking detail. Dr. Maria Granzotti testified for McLean’s husband. She said that McLean’s condition, including the low oxygen saturation level, was consistent with Welch’s diagnosis of respiratory problems, particularly in light of McLean’s obesity. Nonetheless, she pointed out that Welch never provided a medically valid explanation for McLean’s shortness of breath. Another plaintiff’s expert, Dr. Marc Krouse, said in his experience, the majority of the time someone died from pulmonary embolism, the person had low oxygen-saturation and blood-gas levels like McLean did. Both Granzotti and Krouse said that McLean’s normal chest x-rays should have suggested that she did not have an infection. When combined with the low levels on her tests, McLean’s condition was “highly suggestive” of pulmonary embolism, the experts said. Welch testified that he had considered pulmonary embolism as a possible diagnosis, but ruled it out when she responded to feeling almost normal after ventilator treatment. Granzotti said this improvement was not consistent with her low test levels. She surmised that McLean was suffering from “showers” of small pulmonary emboli that would go unnoticed when the airways were freed up by the ventilator. Among further disputes over the factors that should have alerted Welch to emboli, Welch and the plaintiff’s experts disagreed over the effect, if any, McLean’s low-dose birth control pills had on her. The experts also gave their opinion on the results of the autopsy. Krouse found three small emboli in one area, and these he estimated to be at least four to six weeks old. Two emboli from another area were said to be from seven days old to two-and-a-half weeks old. Both Krouse and Granzotti agreed that the three older emboli could not, by themselves, have produced the symptoms McLean complained about on April 24. Krouse, however, found evidence that these three emboli were evidence of showers of emboli, ones that might disappear. Distilling this and additional evidence, the court finds that a reasonable inference could be drawn that McLean’s April 24 symptoms were caused, at least in part, by something other than respiratory problems, possibly showers of microscopic pulmonary emboli that did not appear on her chest x-ray. Further, because McLean experienced intermittent breathing difficulties between April 24 and July 8 that neither got better or worse, it can be reasonably inferred that all of her breathing problems had the same cause. “While the issue is a close one, we conclude that this evidence and reasonable inferences, when linked together, are legally sufficient to establish, based on a reasonable medical probability, that showers of pulmonary emboli were present in [McLean's] lungs on April 24, 1996. Accordingly, we hold that the evidence is legally sufficient to sustain the jury’s verdict. Nonetheless, we conclude that this evidence is so weak that it is factually insufficient to sustain the verdict.” Krouse’s testimony that the three older emboli were between four and six weeks old would have put their origination at somewhere between May 29 and June 12. Though an inference could be drawn that these emboli were part of a pattern of a showering of small emboli, the inference cannot be used to support the further inference that “showers of symptom-causing emboli were present in [McLean's] lung tissue over a month earlier on April 24, 1996.” Additionally, the autopsy results do not rule out Welch’s diagnosis of respiratory problems. OPINION:Cayce, C.J.; Cayce, C.J.; Holman and Gardner, JJ.

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