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Click here for the full text of this decision FACTS:Michael Hart was a missionary in Veracruz, Mexico. In November 2001, he returned to the United States to seek treatment for kidney stones. His wife, Teresa Hart, contacted Dr. Marelyn Medina, who agreed to see him. Medina examined Michael and determined that a kidney stone was blocking the tubes to his left kidney. At first, Medina recommended a non-invasive surgery to break the kidney stone apart, but after complications arose, she determined that invasive surgery was required. Michael was admitted to Rio Grande Regional Hospital for surgery on Nov. 16, 2001. He was placed under general anesthesia. Medina testified that before the surgery, operating room personnel positioned Michael on the operating table with his right side down. His left side was exposed upward so that Medina could access the left kidney. Medina testified that she supervised the placement of cushioning devices used in positioning Hart for surgery. Medina performed the surgery but was unable to remove the kidney stone. After surgery, when Michael awoke, he began to complain of pain underneath his right arm. Upon inspection, nurses discovered blisters on Michael’s right axilla, where an IV bag had been placed for cushioning. After several visits to Medina over the following weeks, Medina referred Hart to Dr. Rafael Avila, who diagnosed Michael”s condition as second- and third-degree burns under his right arm. Dr. Avila recommended and performed a skin graft after removing dead tissue from the area. Michael subsequently lost feeling in that area, is unable to sweat and suffered other complications from the burns. Michael filed a medical negligence suit on Aug. 1, 2003, under former Texas Revised Civil Statutes Art. 4590i. He alleged that Medina negligently used the IV bag as a positioning device, resulting in second- and third-degree burns to himself. Michael designated Dr. Phillip Diggdon as his expert witness to testify about the standard of care, breach and causation. At his deposition, Diggdon opined that Medina bore ultimate responsibility for positioning Hart during surgery. He testified that the standard of care was to safely place a positioning device under the right axilla during the surgery. Diggdon testified that Medina breached the standard of care for positioning Michael during surgery by using a “red hot” IV bag to cushion Michael’s right axilla, which caused Michael’s second- and third-degree burns. After this deposition, Medina filed a motion to strike Diggdon as Michael’s expert. Medina claimed that Diggdon was not qualified to testify under former Art. 4590i, �14.01. Specifically, Medina argued that Diggdon was not practicing medicine at the time of the injury or at the time of his testimony, because Diggdon retired from active practice approximately one month before Michael’s operation. Additionally, Medina argued that Diggdon was unqualified, because he was not a burn expert. The trial court held a hearing on the motion to strike. Medina objected to Diggdon’s affidavit on the grounds that it was untimely. The trial court did not rule on this objection. The trial court denied Medina’s motion to strike Diggdon as Hart’s expert. The case then proceeded to trial. At trial, Medina’s attorney elicited an admission from Medina that placing a hot IV bag under someone’s body would be a breach of the standard of care. She also admitted that she placed the IV bag in position. The parties’ main dispute at trial was over how the IV bag became heated. Dr. Medina denied that the bag was heated when it was handed to her before she placed it underneath Hart’s arm. Cesar Guerra, the circulating nurse on duty at the time of Hart’s surgery, testified that the IV bag was wrapped in a surgical towel prior to being placed under Hart’s arm. He testified that there was an IV bag-warmer outside the operating room that was often used to heat IV fluids in the bags prior to being administered to a patient. Teresa Hart testified that Guerra told her that the IV bag had been heated and then wrapped in a towel prior to being placed underneath her husband’s arm. The jury found that Medina was negligent and that her negligence proximately caused Michael’s injury. The trial court rendered judgment on the verdict, and after applying settlement credits, awarded Michael $193,000 against Medina, plus prejudgment and post-judgment interest and costs. This appeal ensued. HOLDING:Affirmed. Medina argued on appeal that the trial court erroneously admitted Diggdon’s testimony, because Diggdon was not qualified. To obtain reversal based on the trial court’s error in the admission of evidence, however, the court stated that Medina had to show that the error probably caused the rendition of an improper judgment. Medina’s appellate briefs, the court noted, merely stated that absent Diggdon’s testimony, there was no evidence that Medina’s negligence caused Michael’s injuries. But the court disagreed with this statement. The main issue, the court stated, at trial in this case was how and when the IV bag became heated � not whether placing a hot IV bag under someone’s arm would be negligent and cause a burn. Medina, the court stated, judicially admitted negligence and causation. Therefore, contrary to Medina’s argument, Diggdon’s testimony was not the only evidence that the bag was hot when Medina placed it under Hart’s arm. Medina could not establish reversible error in this case, because Diggdon’s testimony was merely cumulative of Medina’s testimony and testimony from the Harts. Assuming, without deciding, that the trial court erred in admitting Diggdon’s testimony, the court found that such error was harmless and probably did not cause the rendition of an improper judgment. OPINION:Rodriguez, Garza and Benavides, JJ.

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