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Texas Surgeon Preserves Trial Win In Patient Death Suit - Law360 https://www.law360.com/articles/1147022/print?section=appellate

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By Y. Peter Kang
Law360 (April 5, 2019, 8:18 PM EDT) -- A Texas appeals court has affirmed a defense verdict in a
suit accusing a physician of causing a patient's blood clot death following surgery, saying the
decision was supported by the evidence.

A three-judge Second Court of Appeals panel on Thursday unanimously upheld a Tarrant County
jury's decision to clear Dr. Kevin R. Gordon of medical malpractice in a suit accusing the surgeon
of failing to prevent patient Beatriz De La Pena's death due to a pulmonary embolism, or a blood
clot in the lungs, which developed after Gordon performed a hysterectomy and ovary removal
surgery.

On appeal, the patient's widower, Rodolfo De La Pena, said the jury's determination that Gordon
was not negligent was not supported by the evidence. The panel disagreed, saying there was
conflicting but credible evidence presented by both sides regarding whether Gordon followed the
standard of care for patients such as Beatriz De La Pena, who had a history of deep vein
thrombosis and was considered a high risk for blood clots.

"The evidence was legally and factually sufficient to support the jury's finding that Dr. Gordon was
not negligent," the panel wrote in a 18-page opinion. "More than a scintilla of evidence supported
the jury's finding, and the finding was not against the great weight and preponderance of credible
evidence."

The parties agreed that the standard of care for such high-risk patients requires that a physician
give the patient certain blood-thinning drugs, have the patient wear specialized compression
sleeves on his or her legs to improve blood flow and have him or her walk around from time to
time.

Gordon testified that the patient was not a good candidate for blood thinners as she would likely
bleed to death if given any. He also testified that he ordered that the patient wear the
compression device and walk without support, and evidence was presented showing that the
patient generally complied with the orders.

"The jury could find that Dr. Gordon followed DVT prevention guidelines by ordering that Beatriz
wear [a sequential compression device] and that he was reasonable to rely on the nurses to carry
out his orders and to believe that they were doing so," the panel said. "The jury had sufficient
evidence to believe that, in accordance with DVT prevention guidelines, Dr. Gordon appropriately
ordered Beatriz to ambulate, that he believed her to be walking as ordered."

Representatives for the parties did not immediately respond to requests for comment Friday.

Judges Lee Gabriel, Mark T. Pittman and Dabney Bassel sat on the panel for the Second Court of
Appeals.

De La Pena is represented by Alfonso L. Melendez of Alfonso L. Melendez PC.

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