Gunn v. McCoy (489 S.W.3d 75, 2016)

SUBSTITUTE OPINION

Marc W. Brown, Justice

On September 13, 2004, when she was 37 weeks pregnant, Shannon McCoy presented at the hospital with severe abdominal pain. Her fetus had died due to placental abruption, and Shannon. was suffering from disseminated intravascular coagulation (DIQ — a blood clotting disorder. Shannon received blood products, including fresh frozen plasma (FFP). She delivered the stillborn baby, received additional blood products, not including FFP, and was transferred to the ICU. Shannon continued to lose blood. In the ICU, Shannon developed tachycardia, and her uterus stopped contracting. Shannon underwent a hysterectomy. Just before the surgery, her heart stopped pumping blood and she went into cardiac arrest. CPR was performed. Shannon suffered brain damage and seizures, was transferred to a neurological ICU, and underwent months of therapy.' Since September 14, 2004, Shannon has required around-the-clock care as a quadriplegic.

A jury returned a verdict in favor of Shannon through her husband and guardian, appellee Andre McCoy, in his healthcare liability suit against appellants Debra Gunn, MD, Obstetrical and Gynecological Associates; P.A., and Obstetrical and Gynecological Associates, PLLC (together, OGA). The trial court signed a judgment in conformity with - the jury’s verdict. Gunn and' OGA assail the judgment in multiple issues on appeal, challenging: (1) the trial court’s granting of McCoy’s no-evidence summary judgment on comparative negligence; (2) the legal sufficiency of the evidence to establish that asserted instances of negligent medical treatment proximately caused Shannon’s brain injuries; (3) the legal sufficiency of the evi-dénce of Shannon’s past medical expenses; (4) the legal sufficiency of the evidence of Shannon’s future medical expenses, along with the trial court’s refusal to allow evidence from Gunn’s and OGA’s life care expert; and (5) the trial court’s refusal to submit various instructions in the jury charge. Gunn also argues that OGA’s indemnity claim is not ripe.

Because the evidence is legally insufficient to support the full amount awarded for Shannon’s future medical expenses, we suggested a remittitur of $159,854.00. See Tex. R. App. P. 46.3. McCoy has timely filed a remittitur.. We therefore modify the trial court’s judgment to change the amount of future medical expenses awarded to $7,082,549.00, and affirm the judgment as modified.

I. Factual and PROCEDURAL BACKGROUND

Shannon McCoy, a 35-year-old first-time pregnant woman, was under the prenatal care of Dr. Debra Gunn, an obstetrician and gynecologist (ob/gyn) with OGA. Oh the morning' of September 13, 2004, Shannon went to her 37-weeks prenatal appointment. That same evening, Shannon presented at the Woman’s Hospital (Woman’s) with severe abdominal pain and lack of fetal movement. Dr. Mark Jacobs, the OGA ob/gyn on call, ordered an ultrasound and discovered that the fetus had died due to placental abruption. Placental abruption occurs when the placenta prematurely detaches from the uterine wall. Lab tests indicated Shannon had developed DIC, a blood coagulation disorder that puts patients at risk for increased bleeding. DIC can occur as a result of placental abruption. Jacobs informed Gunn. Jacobs also consulted with a maternal-fetal medicine specialist, Dr. Brian Kir-shon, who recommended Shannon receive FFP and blood. The nurses documented, a verbal order from Jacobs at 2:18 a.m. on September 14 to provide Shannon with two units of FFP and then two units of packed red blood cells (PRBCs). Kirshon hoped Shannon’s coagulopathy would resolve postdelivery — his plan was to recheck her coagulation studies and to give her blood products as needed. Kirshon also advised being “on the look out for major postpartum hemorrhage.”

Gunn arrived at the hospital at about 4:00 a.m. on September 14 and took over Shannon’s care. Gunn consulted with Kir-shon, and they agreed on vaginal delivery. The stillborn baby girl was born at 6:20 a.m. Gunn left Shannon to' perform a scheduled' C-section on another patient, returning later. The nurses documented a verbal order from Gunn at 7:20 a.m. to provide Shannon with two more units of PRBCs. Lab results at'7:27 a.m. indicated Shannon had experienced significant blood loss and her blood was not clotting normally. The nurses documented a verbal order from Gunn at 9:00 a.m. to provide Shannon with four units of platelets. Gunn left the hospital at 9:40 a.m. to see patients at her office. The nurses documented another verbal order from Gunn at-10:15 a.m. to provide Shannon with two more units of PRBCs, for a total of six units of PBRCs. However, no verbal order for additional FFP was documented; Shannon received no additional FFP after having received the two units of FFP ordered by Jacobs at 2:18 a.m. just before 11:00 a.m., Gunn ordered that Shannon be transferred to the ICU: Gunn also ordered Lasix to increase Shannon’s low urine output.

At noon, in the ICU, Shannon experienced a large amount of bleeding upon uterine massage. Shannon’s uterus was “boggy,” or not contracting down. At 12:10 p.m., Shannon’s pulse rate was measuring over 200 by EKG. Dr. James Collins, the cardiologist in the ICU, diagnosed Shannon’s “extremely fast rate” as paroxysmal atrial tachycardia (PAT). By 12:45 p.m, Shannon’s uterus remained boggy, she passed another large amount of blood, and she became agitated. Her oxygen saturation level was at 72%,’ and her pulse and respiration rate were elevated. Lab results at 1:16 p.m. indicated that her blood still was not clotting normally. Gunn returned to Shannon’s bedside.at 1:28 p.m. Despite medications to help her uterus contract, Shannon had developed uterine atony, which occurs when the uterus can no longer “clamp down” and leads to heavy bleeding. Gunn arranged for a possible hysterectomy' and ordered a “blood emergency.” ‘

Shannon entered the operating room just after 2:00 p.m. Upon starting anesthesia, Shannon went into ventricular fibrillation (v-fib), where her heart was unable to pump blood. The anesthesiologists performed CPR for several minutes. Eventually, Gunn performed the hysterectomy. Shannon experienced seizure activity that evening; an EEG showed severely depressed cerebral function, and Shannon’s pH level based on her blood gases indicated she was acidotic resulting from a lack of oxygen.

Shannon was transferred to the neurological ICU at St. Luke’s Hospital. Shannon underwent months of rehabilitation at The Institute for Rehabilitation and Research (TIRR). Shannon has profound neuroeognitive and physical deficits, and since September 14,2004, has required 24-hour care.

In July 2006, Shannon’s husband Andre McCoy, as her permanent guardian, filed suit against Gunn, Jacobs, OGA, Collins, and Woman’s. Jacobs and Woman’s settled their claims and were dismissed. Collins was nonsuited.

Before trial, McCoy filed a no-evidence motion for summary judgment as to the affirmative defense of comparative responsibility, arguing that there was no evidence the treating labor and delivery nurses were negligent or that any alleged negligence proximately caused Shannon’s brain damage. The trial court held a hearing and granted summary judgment.

The jury returned an 11-to-l verdict in favor of McCoy as to Gunn’s negligence and awarded damages of $10,626,368.98. The award included past medical care expenses of $703,985,98 and future medical care expenses of $7,242,403.00. Pursuant to OGA’s election of a dollar-for-dollar settlement credit, which Gunn joined, the trial court applied an offset of $1,206,773.50 in its final judgment. The trial court also determined that OGA was vicariously liable for Gunn’s negligence and that OGA was entitled to indemnity from Gunn.

Gunn and OGA argue several issues. OGA contends: (1) there is no evidence of causation; (2) the trial court should not have granted summary judgment as to the hospital’s negligence or should have granted Gunn’s and OGA’s request for continuance; (3) the court should not have excluded Dr. Helen Schilling’s testimony regarding Shannon’s future medical expenses; (4) the court should have submitted various jury instructions; and (5) the evidence is legally and factually insufficient to support Shannon’s past medical expenses.

Gunn contends: (1) the trial court erred by granting no-evidence summary judgment on comparative responsibility; and (2) the evidence is legally insufficient to support the jury’s finding that Gunn’s negligence harmed Shannon, the award for Shannon’s past medical expenses, and $159,854 of the award for her future medical expenses. Gunn further argues OGA’s indemnity claim is not ripe.

II. Analysis

A. Standards of review

In a legal-sufficiency challenge, we consider whether the evidence at trial would enable a reasonable and fair-minded fact-finder to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). We “must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.” Id. We will only reverse the judgment if: (a) there is a complete absence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence establishes conclusively the opposite of the vital fact. Id. at 810. The record contains more than a mere scintilla of evidence if reasonable minds could form differing conclusions about a vital fact’s existence. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003). Conversely, the record is insufficient when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004).

In a factual-sufficiency challenge, we consider and weigh all the evidence, and can set aside a verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761-62 (Tex.2003). We may not substitute our own judgment for that of the factfinder, even if we would reach a different answer. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998). The amount of evidence necessary to affirm the factfinder’s judgment is far less than that necessary to reverse its judgment. GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 616 (Tex.App.-Houston [14th Disk] 2001, pet. denied).

B. Legally sufficient evidence of proximate cause

We initially address the jury’s finding that Gunn’s negligence proximately caused the occurrence in question. Both Gunn and OGA contend there is no evidence of a causal link between Gunn’s asserted negligence and Shannon’s injuries.

Recovery in a medical malpractice case requires proof to a reasonable medical probability, that the injuries complained of were proximately caused by the negligence of a defendant. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 860 (Tex.2009). Proximate cause includes two components: cause-in-fact and foreseeability. Id. Proof that negligence was a cause-in-fact of injury requires proof that: (1) the negligence was a substantial factor in causing the injury, and (2) without the act or omission, the harm would not have occurred. Id. The danger of injury is foreseeable if its general character might reasonably have been anticipated. Doe v. Boys Clubs, 907 S.W.2d 472, 478 (Tex.1995).

The causal connection between the defendant’s negligence and the injuries cannot be based upon mere conjecture, speculation, or possibility. Morrell v. Finke, 184 S.W.3d 257, 272 (Tex.App,-Fort Worth 2005, pet. denied) (citing Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.1995)). The issue of causation is usually for the trier of fact in medical malpractice cases. See id. Generally, expert testimony based on reasonable medical probability is required to establish proximate cause. See Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex.2010). Such cases often present a battle of the experts, and it is the sole obligation of the factfinder to determine credibility and weigh testimony, particularly opinion evidence. See Morrell, 184 S.W.3d at 282.

Under a legal-sufficiency analysis, an expert’s opinion may constitute no more than a mere scintilla of evidence if the opinion is not reliable under the same standards that govern admissibility, is speculative or conclusory on its face, or assumes facts contrary to the undisputed facts. See Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex.2004) (considering legal-sufficiency challenge to expert opinion because the opinion was alleged to be “conclusory or speculative and therefore non-probative on its face”); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex.1997) (considering legal-sufficiency challenge regarding expert opinion under Daubert and Robinson reliability standards for rule 702 admissibility); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499-500 (Tex.1995) (“When an expert’s opinion is based on assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict or judgment.”).

In determining whether expert testimony is reliable, courts may consider the nonexclusive factors set out in Robinson regarding scientific theories and techniques, as well as the expert’s experience. Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex.2009). When the Robinson factors do not readily lend themselves to a review of the expert’s opinion, expert testimony is unreliable if there is simply too great an “analytical gap” between the foundational data and the opinion proffered. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726-27 (Tex.1998)).

Examination of the expert’s underlying methodology, technique, or foundational data as part of a reliability challenge is “a task for the trial court in its role as gatekeeper, and [is] not an analysis that should be undertaken for the first time on appeal.” Coastal Transp., 136 S.W.3d at 233 (explaining prior holding in Maritime Overseas, 971 S.W.2d at 412). Therefore, the party must timely make a reliability objection in order to allow the court the opportunity to conduct such analysis and to exercise its gatekeeping function. Martini v. City of Pearland, No. 14-11-00111-CV, 2012 WL 1345744, at *4 (Tex.App.-Houston [14th Dist.] Apr. 17, 2012, pet. denied) (mem.op.) (discussing both Robinson factors and Gammill analytical-gap analysis); see Coastal Transp., 136 S.W.3d at 233. Failure to timely object therefore waives the reliability issue for appellate review. Martini, 2012 WL 1345744, at *4.

However, such failure to object does not waive a legal-sufficiency complaint as restricted to the face of the record that the expert’s testimony suffers from fatal gaps in analysis or assertions which are simply incorrect, or that the expert’s testimony is conclusory or speculative. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 912 (Tex.2004); Coastal Transp., 136 S.W.3d at 229, 233; Martini, 2012 WL 1345744, at *4. “[I]f no basis for the opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence, regardless of whether there is no objection.” City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex.2009). Con-clusory or speculative opinion testimony “is not relevant evidence, because it does not tend to make the existence of a material fact more probable or less probable.” Coastal Transp., 136 S.W.3d at 232 (internal quotation marks omitted). But just because an expert’s testimony could have been clearer does not render it speculative or conclusory as a matter of law. See Arkoma Basin Exploration Co., Inc. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 (Tex.2008); Underwriters at Lloyds v. Edmond, Deaton & Stephens Ins. Agency, Inc., No. 14-07-00352-CV, 2008 WL 5441225, at *5 (Tex.App.-Houston [14th Dist.] Dec. 30, 2008, no pet.) (mem.op.).

When evaluating whether an expert’s testimony is speculative or concluso-ry, or whether an expert’s opinion contains fatal analytical gaps, we look to the entire record, not just to the expert’s statements in isolation. Morrell, 184 S.W.3d at 279; United Servs. Auto. Ass’n v. Croft, 175 S.W.3d 457, 464 (Tex.App.-Dallas 2005, no pet.); see Ramirez, 159 S.W.3d at 910.

On appeal, Gunn and OGA do not challenge Brewer’s methodology that one unit of blood is equivalent to one point on a hemoglobin test or the foundational data in the lab results. Instead, Gunn and OGA argue that Brewer’s testimony is no evidence to support the verdict because her testimony is “speculative and conclusory on its face” and there are fatal gaps between the data and her proffered opinion. Therefore, Gunn and OGA’s failure to lodge a reliability objection to this testimony at trial does not preclude our legal-sufficiency review. See Ramirez, 159 S.W.3d at 911-12; Coastal Transp., 136 S.W.3d at 229, 233; Martini, 2012 WL 1345744, at *4.

With these principles in mind, we consider Gunn’s and OGA’s legal-sufficiency issue.

1. Brewer’s testimony

a. Overview

For the standard of care and deviations alleged against Gunn, McCoy relied upon the testimony of Brewer, a medical doctor board certified in obstetrics and gynecology, and in gynecological oncology. Brewer underwent specific training in handling DIC patients and often serves as a 'consultant on their treatment. She has taught “how to handle DIC from placental abruption and other causes” to fellows and ob/gyns.

Brewer testified to the following:

• The medical condition known as DIC . is a blood clotting disorder that compromises the body’s ability to respond to active bleeding. DIC can be triggered by placental abruption.

• With placental abruption, there is a “raw bed” of bleeding -in the uterus where the placenta has detached.

• Post fetal demise and prior to delivery, Shannon’s abnormal lab values — including decreased hemoglobin, platelet count, and fibrinogen, as well as an increase in prothrombin time — indicated Shannon’s blood was not coagulating. -

• Shannon “absolutely” had DIC and was actively bleeding while she was under Gunn’s care on September 14, 2004.

• Shannon was Gunn’s first case of a ’ placental abruption with fetal demise and DIC — so it was unreasonable for her to discharge Kirshon and handle Shannon’s case alone.

• FFP is “absolutely critical” to resolving the coagulation problem — plasma helps the body to make the coagulation factors that enable the blood to clot.

• Despite replacing blood, without replacing the clotting factors by administering FFP, a patient will continue ■ to bléed and her DIC cannot be controlled. That is, “[y]ou can po[ur] the blood in, but the blood just keeps coming out if you can’t clot it.”

• Shannon continued to lose blood volume because she did not receive additional FFP. Shannon “absolutely” needed the FFP.

• The standard of care for a physician treating a patient with DIC Requires ordering and administering FFP.

• The standard of care for a physician treating a patient with DIC requires keeping up with the. lab results and performing repeated calculations relating to approximate blood loss.

• Managing DIC properly requires infusion of blood products and then checking the appropriate lab result. For example, one infuses FFP and then checks prothrombin time, then decides to infuse additional FFP or “sit for a little while and replace the blood,” then gives the PRBCs and checks the hemoglobin.

• Nowhere did the record reveal that Gunn ever calculated Shannon’s blood volume loss.

• Three liters of blood is approximately nine units of blood.

• Brewer calculated Shannon’s initial “healthy” blood volume, based on her weight and status as a pregnant woman, at approximately 6.7 liters, or 18 units of blood.

• A reasonably prudent physician “need[s] to stay at least equal” with the blood loss in a DIC patient like Shannon. Here, the problem was “all the way along, [Gunn] was behind.”

• Calculating a patient’s percentage of blood volume loss is even more difficult without “the labs to go by.”

• No labs were run or checked between approximately midnight and 7:27 a.m. on September 14.

• Shannon’s hemoglobin level was 9.5 as reflected in labs collected at approximately 11:00 a.m. during her prenatal -visit with Gunn on September 13. As reflected in the 7:27 a.m. lab results on September 14, Shannon’s hemoglobin level was down to 5.5. Every one point that the hemoglobin goes down is approximately equal to one net unit of blood. Based on Brewer’s calculations, accounting for the two units of blood received at approximately 4:00 a.m. and 5:00 a.m. on September 14, this indicated that Shannon had lost approximately four units of blood up “to the time of delivery” on September 14, or a blood volume loss of about 25%.

• The hemoglobin result of 5.5 should have put Gunn into “panic” mode regarding Shannon’s bleeding. This result reflected internal bleeding up until the time of delivery because up to that point “they had riot seen bleeding that they could quantitate.”

• To a physician applying. ordinary care to a patient with DIC, this would indicate there was “serious trouble” because managing DIC requires not getting “behind” on blood loss.

• As reflected in the 7:27 a.m. lab results on September 14, Shannon’s prothrombin time had decreased somewhat from 21 to 17-plus seconds, as a result of the FFP given, but remained at a “scary” level where normal ranges from 12 to 13 seconds.

• Gunn did not have a written, coher- - ent plan for how to care for Shannon.

• It probably does not meet the standard of care for a physician treating a patient with DIC to wait until after 9:00 a.m., or at least an hour, to order additional blood products after lab results indicated a 25% blood volume loss.

• The standard of care for a physician treating a patient such as Shannon is to remain by the bedside to monitor infusion of blood products.

• The last unit of FFP Shannon received, which was ordered by Jacobs, finished infusing at 3:51 a.m. on September 14.

• Gunn was negligent in failing to or- , der and administer any FFP to Shannon, and there is “no defense” of that failure.

• Shannon continued to lose blood volume because she did not receive any more FFP.

• Shannon needed to have at least three IVs: one for fluids, one for FFP, and one for blood and platelets. “[Otherwise, you can’t get these products in fast enough.”

• From about the time of delivery until she was moved to the ICU, the labor and delivery nursing notes indicate that Shannon suffered blood loss of about 1.4 liters. Based on Brewer’s calculations, accounting for blood received, at about 11:00 a.m., Shannon’s blood volume loss was approximately 22%.

• It was foreseeable that when DIC is not controlled and a patient’s uterus is unable to contract, there will be additional bleeding.

• Not receiving FFP had “a lot to do with the uterine atony.”

• Shannon’s urine output decreased while she was still in labor and delivery, a “warning sign” that her kidneys were not being profused with enough blood flow. Gunn ordered Lasix, a diuretic designed to combat fluid overload, but which is contraindicated for bleeding.

• The ICU nursing notes indicate that at 12:00 p.m., Shannon’s fundus was boggy and the nurses massaged it resulting in a large amount of external bleeding and clots.

• The ICU nursing notes indicate that at 12:45 p.m., Shannon’s fundus was again boggy and the nurses expelled a large amount of blood.

• At about noon, Shannon’s heart rate was in the 200s.

• When a patient in Shannon’s situation has a heart rate that is “quite tachycardic,” in the 200s, this tells a reasonably prudent physician the heart is attempting to compensate for a lack of blood.

• At about 12:45 p.m., Shannon’s oxygen saturation rate was down to 72%, and she was agitated. An oxygen saturation level of 72% is a “crisis.” Agitation is a “cardinal sign” that a patient is “going into cardiovascular collapse.”

• When a patient in Shannon’s situation has an oxygen saturation of 72%, a reasonably prudent physician would already be at her bedside or return immediately, not 40 minutes later.

• If a patient’s oxygen level is low, she will increase her respiratory rate to take in more oxygen. In the ICU, Shannon’s respiratory rate was elevated above the upper range of normal (over 20).

• After she was moved to ICU, by approximately 1:00 p.m., Shannon suffered an additional 1.6 liters of external blood loss. Based on Brewer’s calculations, this represented- an additional 11% to 22% blood volume loss, for a total blood volume percentage loss of 33% to 44%.

• As reflected in the 1:16 p.m.' lab results on September 14, Shannon’s hemoglobin level was 7.6. ‘Even though this reflected an increase in her hemoglobin, Shannon was “continuing to bleed.”

• Also, as reflected in the 1:16 p.m. lab - results on September 14, Shannon’s creatinine level had increased to 1.9 from 1.1 as reflected in the 7:27 a.m. lab results, indicating that her kidneys were not receiving adequate blood flow. “[W]hen we see .a change in creatinine this quickly, that is renal failure.”

• The body will shunt blood flow away from- the kidneys in order to spare damage to the heart and the brain.

• At 1:30 p.m., Shannon’s respiratory rate was 30.

• If Shannon had been adequately resuscitated, meaning “corrected to normal,” with blood products by approximately 1:00 p.m., then she otherwise would'have woken up “intact” from her hysterectomy.

• In other words, the “d[i]e was east with reasonable certainty” at approximately 1:00 p.m.

• It was reasonably foreseeable that when a person, suffers significant blood' volume loss of about 33% to 44%, “something catastrophic,” such as going into v-flb, was going to happen when she was brought to the operating room.

• Shannon’s v-fib was likely “inevit- • able” even without sedation.

• When the heart goes into v-flb, it stops pumping properly, resulting in lack of blood flow and oxygen to the brain.

• Shannon was in v-fib for approximately 11 minutes, and CPR was performed for 20 minutes.

• The pH level of Shannon’s blood gases and her EEG indicated that she had suffered global brain damage from oxygen deprivation.

• Shannon’s lack of blood and lack of circulating blood'volume caused her brain damage because she did not have adequate blood flow and oxygen delivery to her brain.

• If Shannon’s DIC had been properly treated, her brain damage would not have occurred.

In contrast to Brewer, defense expert Dr. James Aubuchon, a medical doctor board certified in anatomic and clinical pathology, and blood banking and transfusion medicine, provided the following opinions:

• Shannon’s DIC did not cause excessive bleeding.

• There was no need to perform real-time blood loss calculations.

• Brewer’s blood-loss calculations “didn’t make sense” because they were based on hemoglobin concentrations.

• It would not be necessary to have two IV lines going to provide adequate blood products.

• It would not be appropriate to fre- . quently check a patient’s lab results when infusing blood products.

• Providing Lasix would not directly impact circulating blood volume.

• Prothrombin time is a poor predictor of a patient’s likelihood of bleeding.

• Shannon’s tachycardia did not necessarily result from a lack of low blood volume.

• Shannon’s coding in the operating room was not caused by blood loss.

• It was not foreseeable that Shannon would arrest from blood loss.

• The absence of additional FFP infusions between 4:00 á.m. and 1:16 p.m. on September 14 constituted appropriate care.

• Gunn provided appropriate blood transfusion and support, and properly resuscitated Shannon, such that she was hemodynamically stable when her uterine atony occurred.

b. Causation

McCoy’s causation theory is that Gunn failed to adequately treat Shannon’s DIC by failing to order FFP to replace Shannon’s clotting factors and slow her bleeding, and by failing to. infuse- enough units of blood. As Shannon continued to bleed, her body attempted various compensation mechanisms in an effort . to maintain enough oxygen flow to avoid cardiovascular collapse and damage to her critical organs. However, Shannon continued to lose blood volume. As her blood volume loss approached the critical danger zone of approximately 40%, Shannon’s body could no longer compensate, resulting in her cardiac arrest, lack of oxygen flow 'to her brain, and her permanent brain damage.

Gunn and OGA focus their attack on two aspects of Brewer’s testimony in arguing that a fatal analytical gap exists in Brewer’s theory of causation linking (1) Gunn’s asserted failure to address Shannon’s bleeding properly between approximately 4:00 a.m. and 1:00 p.m.; and (2) Shannon’s cardiac arrest at just after 2:00 p.m. and her subsequent brain, damage.

First, they argue that Brewer made an “unsupported guess” when she opined that Shannon lost 1.6 liters of blood — which equates to 4.8 units — between 11:00 a.m. and 1:00 p.m. in the ICU. Brewer estimated this figure from her review of the hospital medical records, particularly the ICU nursing notes; these notes indicate that a “large” but unquantified amount of blood was expelled twice between 11:00 a.m. and 1:00 p.m. when nurses massaged Shannon’s uterus.

Second, according to Gunn and OGA, the 1:16 p.m. lab results conclusively disprove Brewer’s estimate that Shannon had lost approximately 33% to 44% of her blood volume by about 1:00 p.m. Brewer testified that each point of hemoglobin represents a unit of blood. Therefore, Gunn and OGA argue that the increase in hemoglobin value from 6.5 at 7:27 a.m. to 7.5 at 1:16 p.m. meant Shannon “had 2 more units of blood at 1:16 p.m. than she had at 7:27 a.m.” Gunn and OGA rely on these figures to argue that Shannon had lost 14% of her blood volume by 1:16 p.m. rather than the higher volume estimated by Brewer.

It is undisputed on this record that a patient faces an increasing likelihood of cardiac arrest as blood volume loss approaches 40%. Therefore, the asserted fatal analytical gap is not a valid basis for attacking causation if the jury reasonably could have concluded from unchallenged evidence that Shannon’s blood volume loss between approximately 4:00 a.m. when Gunn took over Shannon’s care and 1:00 p.m. approached 40%.

Blood loss before 6:20 a.m. delivery. Gunn and OGA do not dispute that Shannon experienced DIC while she was under Gunn’s care and that Shannon experienced internal bleeding prior to delivery. Brewer explained that when a DIC patient like Shannon has not exhibited external bleeding that can be quantified, laboratory results are useful to determine whether the patient is experiencing internal blood loss. Gunn and OGA also do not challenge: (1) Brewer’s methodology equating a one-point drop in hemoglobin to one net unit of blood loss; (2) lab results showing a drop in hemoglobin from 9.5 as reflected in the lab results from Shannon’s September 13 prenatal appointment to 5.5 as reflected in the 7:27 a.m. lab results on September 14; or (3) aside from noting it should be 20 percent instead of 25 percent, Brewer’s initial percentage blood volume loss calculation based on these hemoglobin figures reflecting Shannon’s internal bleeding up “to the time of delivery.”

Applying this methodology, Shannon’s net blood volume loss was four units between approximately 11:00 a.m. on September 13 when Shannon’s blood was drawn during her prenatal visit and the 6:20 a.m. delivery on September 14; Shannon experienced internal bleeding totaling about six units of blood and two units of blood were replaced during this interval. Based on this four-unit figure, and using Gunn’s and OGA’s higher 20.1-unit estimate for Shannon’s initial blood volume, Shannon’s percentage of blood volume loss stood at approximately 20% when delivery began.

Blood loss during delivery and before 11:00 a.m. Even a normal delivery results in external blood loss. Here, because Shannon was suffering from DIC, Kirshon recommended watching for “major postpartum hemorrhage.” According to undisputed figures in the labor and delivery medical records, Shannon experienced external bleeding of approximately 1.4 liters of blood from the time of delivery until 11:00 a.m. Gunn and OGA do not challenge that one liter of blood equals three units. Therefore, the jury reasonably could have concluded that Shannon lost an additional 4.2 units of blood during delivery and before 11:00 a.m.

Blood loss after 11:00 a.m, Gunn and OGA do not dispute that Shannon experienced bleeding after she was moved to the ICU at approximately 11:00 a.m. They dispute the amount and contend that Brewer’s 1.6-liter/4.8-unit figure for the 11:00 a.m.-to-l:00 p.m. interval is speculative.

On their face, the medical records do not list a specific figure for the approximate blood loss experienced by Shannon in the ICU between 11:00 a.m. and 1:00 p.m. Gunn acknowledged, and Gunn and OGA do not otherwise challenge, that Shannon experienced two instances of “large” blood loss when the ICU nurses massaged her uterus at 12:00 p.m. and 12:45 p.m. The labor and delivery nursing notes reflect that a prior fundal massage at approximately 9:00 a.m. yielded “moderate” bleeding estimated at 1.5 units. Gunn and OGA do not challenge this figure.

We assume without deciding that Brewer’s 1.6-liter/4.8-unit estimate of blood loss in the ICU between 11:00 a.m. and 1:00 p.m. is speculative. Even with this assumption, the jury reasonably could have relied on the quantified “moderate” blood loss figure of 1.5 units from an earlier bleeding episode following uterine massage to conclude that Shannon lost at least three units when she experienced two episodes of “large” blood loss from uterine massage between 11:00 a.m. and 1:00 p.m.

There is no dispute that Shannon continued to expel blood after 1:00 p.m. According to Gunn’s discharge summary, Gunn approximated active bleeding at Shannon’s perineum to be 800 to 1000 cc at 1:28 p.m., when Gunn returned to Shannon’s bedside. 800 to 1000 cc or 0.8 to 1 liters equals 2.4 to 3 units.

Total blood loss by 1:00 p.m. In sum, this record allowed the jury reasonably to conclude that Shannon lost six units of blood between approximately 11:00 a.m. on September 13 and 6:20 a.m. on September 14 due to internal bleeding, and that she lost another 4.2 units of blood between 6:20 a.m. and 11:00 a.m. due to external bleeding. Even if Brewer’s estimate of a 4.8-unit blood loss between 11:00 a.m. and 1:00 p.m. is given no weight, as discussed above, the jury could have relied on other unchallenged evidence in the record reasonably to conclude that Shannon’s external blood loss in the ICU between 11:00 a.m. and 1:00 p.m. totaled at least three units. Adding these figures together would allow a reasonable jury to conclude that Shannon’s total blood loss by 1:00 p.m. was at least 13.2 units.

Gunn and OGA do not dispute that Shannon received six units of blood via transfusion between approximately 4:00 a.m. and 1:00 p.m.

Utilizing the initial blood volume figure of 20.1 units cited by Gunn and OGA, the jury reasonably could have concluded that Shannon’s blood volume loss reached approximately 36% by 1:00 p.m. in reliance on these figures:

• 20.1 units of blood present in Shannon’s body at 11:00 a.m. on September 13 minus 13.2 units of blood lost plus 6 units of blood replaced equals 12.9 units of blood present at 1:00 p.m. on September 14.

• 20.1 units of blood present in Shannon’s body at 11:00 a.m. on September 13 minus 12.9 units of blood present at 1:00 p.m. on September 14 equals a net blood loss of 7.2 units during that interval.

• A net blood loss of 7.2 units as of 1:00 p.m. on September 14 divided by 20.1 units of blood present at 11:00 a.m. on September 13 equals 36% of blood volume loss during that interval.

This percentage falls squarely within Brewer’s estimated blood volume loss range of 33% to 44%, and approaches the critical danger zone where it is undisputed on this record that cardiac arrest is a reasonable medical probability. The jury also could have considered evidence of additional blood loss after 1:00 p.m.

Contrary to Gunn’s and OGA’s position, Shannon’s hemoglobin result of 7.5 as reflected in her 1:16 p.m. lab results does not conclusively establish that Shannon’s blood volume percentage was increasing or that her blood volume loss was 14% at 1:00 p.m. Viewed in isolation, a lab result indicating that Shannon’s hemoglobin had gone up by two points could indicate an increase in blood volume. But this evidence cannot be viewed in isolation. In assessing proximate cause, the jury was entitled to credit Brewer’s testimony that it is not “appropriate” for someone managing a DIC case to consider just one lab result such as hemoglobin and ignore all the other markers, including the presence of quantifiable external bleeding.

The legal-sufficiency standard of review requires this court to consider all evidence and inferences in the light most favorable to the jury’s findings, and to disregard all contrary evidence and inferences if a reasonable juror could do so when assessing proximate cause. Applying this standard in light of the evidence discussed above, this jury reasonably could have concluded that Shannon’s blood volume loss crossed the threshold of cardiovascular crisis by 1:00 p.m. and thereafter. In addition, the jury reasonably could have relied upon evidence that despite the elevation in hemoglobin level at 1:16 p.m. Shannon was continuing to bleed; her creatinine levels had “almost doubled” from 1.1 at 7:27 a.m. to 1.9 at 1:16 p.m., which indicated reduced blood flow to the point of renal shutdown; she was “quite tachycardic”; her oxygen saturation- had dropped to a “crisis” level; and she was exhibiting agitation signaling imminent cardiovascular collapse.

The remainder of Gunn’s and OGA’s legal-sufficiency issue attacks Brewer’s opinions as being conclusory. Gunn and OGA rely on Jelinek and Blan v. Ali, 7 S.W.3d 741 (Tex.App.-Houston [14th Dist.] 1999, no pet.), in making this argument.

In Jelinek, the Supreme Court of Texas concluded that an expert must explain to a reasonable degree of medical probability “how and why” the negligence caused the injury. 328 S.W.3d at 536-38 (reversing judgment based on jury verdict because expert causation testimony was conclusory; expert testified that patient’s pain was probably caused by lack of antibiotics but acknowledged pain could have been caused by other factors antibiotics would not have treated). In Blan, this court concluded that an expert must explain the basis.of his statement to link his conclusions to the facts. 7 S.W.3d at 748 (affirming summary judgment where conclusory expert affidavit stated that doctors’ negligence allowed patient' to deteriorate and that prompt recognition of patient’s condition would have led to appropriate treatment and, more than likely, an improved outcome).

This reliance is misplaced because the record here distinguishes this case from the circumstances addressed in Jelinek and Blan. Brewer explained the importance of replacing Shannon’s clotting factors particularly through infusions of FFP. Brewer also explained the importance of adequately replacing Shannon’s blood volume loss. She faulted Gunn for failing to take these steps. Brewer sufficiently derailed “how and why” these two primary failures of DIC management in Shannon’s treatment led to her percentage of blood volume loss crossing into a critical danger zone undisputedly linked to cardiac arrest. Brewer further opined that cardiac arrest led to Shannon’s brain damage due to lack of oxygen. Brewer’s testimony was grounded on Shannon’s medical records and lab results. See Jelinek, 328 S.W.3d at 536-37. Moreover, unlike the expert in Jelinek, Brewer did not undermine her own conclusions because she expressed “no doubt” that Gunn’s failure to properly treat Shannon’s DIC caused her brain damage. Cf id. at 536-37 (expert conceded patient’s symptoms were consistent with infections not treatable with the allegedly negligently omitted antibiotics). Brewer explained how and why Shannon’s clotting factors were not replaced and her blood volume continued to decrease to a crisis level as a result of Gunn’s negligent actions. Brewer also explained how and why adequate replacement of Shannon’s lost blood volume would have spared her brain functioning. Cf Blan, 7 S.W.3d at 748.

Gunn and OGA further argue that Brewer’s testimony amounts to no evidence because she did not rule out other causes of Shannon’s brain injuries. The Texas Supreme Court has noted that a medical causation expert need not disprove or discredit every other possible cause. Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 218 (Tex.2010); see Bradley v. Rogers, 879 S.W.2d 947, 954 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (plaintiff need not establish causation in terms of medical certainty nor exclude every other reasonable hypothesis). If that were the case, then few expert opinions would survive scrutiny for purposes of legal sufficiency. See Crump, 330 S.W.3d at 218. However, when an expert fails to explain or adequately disprove alternative theories of causation, this renders her own theory speculative and conelusory. Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 840 (Tex.2010) (per curiam).

Brewer recognized that uterine atony can occur in the absence of DIC, but she explained Shannon’s uterine atony was aggravated- by her hemodynamic instability verging on crisis. Nor did Brewer believe Shannon’s uterine atony caused her brain injuries. Brewer., also explained how, based on her review, Shannon’s EEG was consistent with global anoxic brain damage because it lacked the focal features that would be consistent with a stroke or brain hemorrhage. In addition, Brewer explained why she believed any microthrombi theory involving the formation of small clots in Shannon’s brain was highly unlikely. Brewer similarly explained why she would rule out pulmonary or amniotic fluid embolus, as well as sepsis. Finally, Gunn and OGA point to Collins’s testimony that he • diagnosed Shannon’s rapid heartbeat as a result of an atrial conduction disorder, not low blood volume, and he did not believe Shannon was in hemorrhagic shock prior to 1:00 p.m. But opining that Shannon’s PAT was caused by a conduction disorder is not the same as opining that Shannon’s brain injuries were caused by PAT or any conduction disorder. Even assuming this were an alternative causation theory, Brewer explained that Shannon’s PAT could not be considered “out of context”; Collins came in on an emergency basis without the background on Shannon; and Shannon’s having an arrhythmia unrelated to her blood loss was “unlikely ... because the underlying issue is her blood loss.”

Like many medical malpractice cases, this case was in many respects a “battle of the experts.” See Morrell, 184 S.W.3d at 282. It is the factfinder’s — not this court’s — province to decide which expert witness to credit. See id. The jury heard conflicting opinions; it reasonably could have believed Brewer in light of unchallenged evidence discussed above. See id. In sum, considering only-the evidence and reasonable inferences . favorable to the jury’s proximate cause finding, and disregarding all evidence and inferences to the contrary because a reasonable juror could do so, we conclude that the evidence is legally sufficient to support a finding of proximate cause. Therefore, we overrule Gunn’s second issue and OGA’s first issue.

C. McCoy’s, no-evidence motion for summary judgment

In their first and second issues, respectively, Gunn and OGA argue that the trial court erred in granting no-evidence summary judgment as to their affirmative defense of comparative responsibility directed towards Woman’s based on the conduct of its nursing staff

To obtain a jury submission on comparative responsibility, Gunn and OGA needed to proffer evidence addressing: (1) a duty requiring the treating labor and delivery nurses to conform to a certain standard of care; (2) the applicable standard of care and its breach; (3) resulting injury; and (4) a reasonably close -causal connection between the nurses’ breach of the standard of- care and the injury. See Blan, 7 S.W.3d at 744. Gunn and OGA contend there is an evidentiary basis for a comparative responsibility submission to a factfin-der against Woman’s because Gunn issued a verbal order for FFP to be administered to Shannon that was not documented or implemented by the nurses.

A no-evidence motion for summary judgment is essentially a motion for a pretrial directed verdict. Tex. R. Civ. P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009). The same no-evidence legal-sufficiency standard of review applies. King Ranch, 118 S.W.3d at 761. After an adequate time for discovery, a party without the burden of proof may, without presenting evidence, seek summary judgment on the ground that there is no evidence to support one or more essential elements of the nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The nonmovant is required to present evidence raising a genuine issue of material fact supporting each element contested in the motion. Id,) Timpte Indus., 286 S.W.3d at 310.

We review the trial court’s grant of summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). In most medical malpractice cases, “expert testimony is necessary” to establish or preclude summary judgment. Blan, 7 S.W.3d at 744; see Am. Transitional Care Centers of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex.2001). We review the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. Timpte, 286 S.W.3d at 310. Where, as here, a trial court’s order granting summary judgment does not specify the ground or grounds relied on for its ruling, we affirm the summary judgment if any theory advanced is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

A party may not avoid a no-evidence 'summary judgment by presenting speculative or conclusory opinions not adequately supported by facts. See Hodgkins v. Bryan, 99 S.W.3d 669, 674-75 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (affirming granting of no-evidence summary judgment as to causation where expert’s affidavit was conclusory — it did not include facts or studies to support that decedent would have survived her brain cancer with prompt treatment). An expert opinion is conclusory if it is essentially a “conclusion without any explanation.” Arkoma Basin Exploration, 249 S.W.3d at 389 & n. 32. Again, evidence does not exceed a scintilla if it is so weak as to do no more than to create a mere surmise or suspicion that the fact exists. Ridgway, 135 S.W.3d at 601; Hodgkins, 99 S.W.3d at 673.

Here, McCoy filed a motion for no-evidence summary judgment as to the affirmative defense of comparative responsibility. With regard to negligence, McCoy argued no expert testimony established that any of the treating labor and delivery nurses failed to exercise ordinary care with respect to the care and treatment of Shannon on September 14, 2004; no evidence demonstrated that anything the treating nurses allegedly did or did not do in the care and treatment of Shannon proximately caused her brain injury; and no evidence demonstrated that any conduct by the treating nurses was a substantial factor in bringing about Shannon’s brain injury. As the parties seeking a jury submission on the asserted negligence of the treating labor and delivery nurses, Gunn and OGA had the burden to introduce sufficient evidence to survive summary judgment. See Tex. R. Civ. P. 166a(i); accord Tex. Civ. Prac. & Rem. Code Ann. § 33.003(b) (West 2013) (only permitting jury submission on percentage responsibility with sufficient evidence in support).

Gunn and OGA responded, arguing that excerpts from Aubuchon’s and Brewer’s depositions provided more than a scintilla of evidence to apportion fault against Woman’s, by and through the actions of its nurses, in not properly documenting and implementing Gunn’s alleged verbal order to administer more FFP to Shannon. McCoy replied that there was no evidence Aubuchon satisfied the qualification requirements under chapter 74 to be able to testify about the appropriate nursing standard of care or how the treating nurses allegedly violated the standard of care. See Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b) (West 2013); cf. Hood v. Phillips; 554 S.W.2d 160, 165-66 (Tex.1977) (plaintiff must establish that medical professional defendant has undertaken mode or form of treatment which reasonable and prudent member of medical profession would not have undertaken under same or similar circumstances, usually by expert testimony).

1. Negligence

Here, Gunn and OGA needed to put forth more than a scintilla of evidence that the treating labor and delivery nurses committed a breach of the applicable standard of care which was a proximate cause of the injury. The record does not contain evidence of any documented physician’s order, whether issued in writing or verbally, by Gunn or any other physician treating Shannon, to provide Shannon with any additional FFP beyond the two units she received between approximately 3:00 a.m. and 4:00 a.m. on September 14 while under the care of Jacobs before Gunn arrived at the hospital. Therefore, to raise a fact issue on the theory of comparative responsibility advocated on appeal by Gunn and OGA, there would need to be evidence that the treating labor and delivery nurses failed to document and implement a verbal order issued after 4:00 a.m. by Gunn or another physician treating Shannon that she receive more FFP. In the summary judgment proceedings, Gunn and OGA did not provide testimony or affidavits from Gunn, another treating physician, or any treating nurse that Gunn or another treating physician issued a verbal order for FFP to a treating nurse during the interval between 4:00 a.m. and 1:00 p.m. on September 14.

Gunn and OGA point to testimony from Aubuchon and Brewer to support a comparative responsibility submission based on the nurses’ conduct. With regard to the nursing standard of care, Aubuchon stated that he would “certainly not be offering any opinions regarding [anyone on the clinical team’s] clinical care” except with regard to his “area of transfusion medicine expertise, that is, whether or not the blood component volumes administered were adequate.” Nor do the deposition excerpts relied on by Gunn and OGA demonstrate that Aubuchon (a pathologist and blood banking and transfusion medicine physician) was qualified to address the standard of care applicable to the treating labor and delivery nurses. See Baylor Med. Ctr. at Waxahachie, Baylor Health Care Sys. v. Wallace, 278 S.W.3d 552, 558 (Tex.App.-Dallas 2009, no pet.) (“Section 74.402(b) makes it clear that different standards of care apply to physicians and health care providers.”).

Even if. he were qualified to opine on the nursing standard of care, and any attendant breach, Aubuchon’s stated “disappointment” in the nurses’ “deficiencies” in documenting blood. components administered and verbal orders by physicians was not supported by sufficient facts or explanations. Further, Aubuchon’s belief that “at least two units of plasma that were ordered early in the morning of September 14th were not ultimately transfused in the timeframe that was expected by the ordering physician” amounts to mere surmise or suspicion because it is speculative and conclusory. Aubuchon did not remember, did not know, and declined to guess at the identity of any physician who supposedly ordered such plasma. He could not recall what time the plasma allegedly was ordered. He acknowledged paying little attention to “who' ordered what blood component when” and lacked the. details to assign responsibility for “who didn’t transmit an order or didn’t hang the units in question.” When pressed to provide “any evidence that any fresh frozen plasma that was ordered by any physician was not administered by the nurses,” Aubuchon could not do so because he did not “have any notes” on the medical records or “any stickies on the depositions.”

With regard to Brewer, we assume for argument’s sake that she was sufficiently familiar with the standard of care for labor and delivery nurses treating a patient such as Shannon to opine on this point. Even with this assumption, the testimony cited in Gunn’s and OGA’s summary judgment response does not raise a fact issue.

In that testimony, Brewer stated that “the person who- ordered it, and the person who didn’t carry out the order are all responsible.” This testimony was provided “[i]n general, not in this particular case.” This “general”. testimony — which does not indicate what “it” was that was ordered aside from “blood or blood products” — has not been shown to have any applicability in this case because Brewer repeatedly said she saw no documentation in Shannon’s medical records, indicating that a doctor ordered any blood or blood products for a DIC patient where a treating nurse failed to carry out such order. Brewer agreed that “it’s a problem for the nurse” and “it’s .a problem for the physician” if four units of FFP were ordered but were not administered by the nurses; Brewer does not provide any evidence that Gunn or another physician treating Shannon issued a verbal order for additional FFP to be administered between 4:00 a.m. and 1:00 p.m. Nor does Brewer provide evidence that a treating nurse failed to document and implement such a verbal order for additional FFP to be administered during this interval. Brewer later stated that upon re-review of the medical records, she concluded that Gunn never ordered that Shannon receive four units of FFP. Brewer therefore corrected her deposition testimony: “I think it’s a problem for Dr. Gunn, not the nurse.” Nor did Brewer or Aubuchon testify that the nurses’ standard of care included anything beyond following the doctors’ orders regarding administering blood products.

Based on our review of the summary judgment record, even taking all the evidence and making inferences in their favor, Gunn and OGA did not meet then-burden to raise a fact issue regarding the nurses’ negligence. Therefore, the trial court did not err by granting no-evidence summary judgment in favor of McCoy as to the affirmative defense of comparative responsibility.

2. Causation

Even if Gunn and OGA raised a fact issue as to the treating labor and delivery nurses’ negligence, the trial court properly could have granted McCoy’s no-evidence summary judgment as to proximate cause. Gunn and OGA attempt to rely on McCoy’s live petition. However, setting aside whether we appropriately could consider statements in McCoy’s pleading as judicial admissions in this healthcare liability case, assertions such as “each of the [alleged acts of negligence] was a proximate and producing cause of Plaintiffs’ injuries and damages” are con-clusory statements not sufficient to support or defeat summary judgment. See Hodgkins, 99 S.W.3d at 674-75; Blan, 7 S.W.3d at 748; see also Madeksho v. Abraham, Watkins, Nichols & Friend, 57 S.W.3d 448, 455 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (conclusory opinions in pleadings do not constitute summary judgment evidence). Moreover, the statements in McCoy’s petition do not support a causal nexus between the allegedly responsible party’s conduct and the event sued upon. See Jelinek, 328 S.W.3d at 532. Instead, they are specifically directed at Gunn’s — not the treating labor and delivery nurses’ — alleged negligence.

Gunn and OGA next point to this portion of Brewer’s testimony:

Q. It would have been important, would it not, for Mrs. McCoy to have had the four units of FFP that Dr. Gunn ordered at 7:20 a.m.?

A. Yeah....

They argue that Brewer did not need to use the “magic words” proximate cause. However, again, this testimony is not sufficiently linked to any act or omission by any treating nurse as a responsible party. In addition, Brewer’s statement amounts to a mere conclusion that any negligence, even if committed by the treating nurses, in not administering such ordered blood product proximately caused Shannon’s brain injuries. Gunn and OGA do not point to any evidence in Brewer’s deposition or elsewhere in the summary judgment-related evidence explaining how or why it was important based on a reasonable medical probability for Shannon to have received any ordered blood product. See Hodgkins, 99 S.W.3d at 674-75 (no evidence raised fact issue on “causal connection between the negligent act and the injury based on reasonable medical probability”); Blan, 7 S.W.3d at 748 (same); see also Jelinek, 328 S.W.3d at 536 (expert must explain how and why negligence caused injury).

With regard to Aubuchon, he expressly refused to provide an opinion regarding “whether the nursing conduct was the proximate cause of any harm to Shannon” and did not know whether any nursing conduct “would have changed the outcome in the case.”

Based on our review of the summary judgment record, even taking all the evidence and making inferences in their favor, Gunn and OGA did not meet their burden to raise a fact issue connecting the treating labor and delivery nurses’ negligent conduct with Shannon’s brain injury to a reasonable medical probability. Therefore, the trial court did not err by granting no-evidence summary judgment in favor of McCoy as to the affirmative defense of comparative responsibility.

3. Refusal of continuance

Finally, Gunn and OGA challenge the trial court’s refusal to grant a continuance on McCoy’s motion for no-evidence summary judgment, arguing that it was “patently unfair” to allow McCoy to preclude comparative responsibility on summary judgment and then proceed to trial and present the same challenged facts through Brewer.

Factors to consider when deciding whether a trial court clearly abused its discretion in denying continuance of a summary judgment hearing include: the length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance exercised due diligence to obtain the requested discovery. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex.2004). Here, the litigation had been pending over five years when McCoy filed his no-evidence summary judgment motion, and Gunn and OGA had twice deposed Brewer. Moreover, Gunn and OGA failed to adequately explain their failure to obtain the testimony sought and did not show that the testimony couíd not be procured from another source. See Duerr v. Brown, 262 S.W.3d 63, 78-79 (Tex.App.-Houston [14th Dist.] 2008, no pet.). Finally, Gunn and OGA point to no statute or other authority preventing McCoy from moving for no-evidence summary judgment as to comparative responsibility and then proceeding to trial as they did here. Under such circumstances, it was Gunn’s and OGA’s burden, not McCoy’s, to bring forth more than a scintilla of evidence to withstand no-evidence summary judgment on the comparative responsibility of the treating nurses. We overrule Gunn’s first issue and OGA’s second issue.

D. Legally sufficient evidence of $703,985.98 award for Shannon’s past medical expenses

As their third' and fifth issues, respectively, Gunn and OGA argue that McCoy failed to put forth legally sufficient evidence of Shannon’s past medical expenses, for which the jury awarded $703,985.98. Gunn and OGA argue because McCoy did not offer expert testimony or affidavits in compliance with section 18.001 of th