File: 060018F - From documents transmitted: 07/24/2007
AFFIRM; Opinion issued July 24, 2007
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00018-CV
............................
VALERIE BRYAN, Appellant
V.
DR. DENTON WATUMULL, Appellee
.............................................................
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-02-10676-E
.............................................................
OPINION
Before Justices Morris, Francis, and Mazzant
Opinion By Justice Mazzant
Valerie Bryan appeals an adverse medical malpractice jury verdict in favor of
Dr. Denton Watumull. In seven issues, she argues jury charge error, legal and factual sufficiency,
improper exclusion of evidence, and erroneous dismissal of certain claims. For the reasons
stated below, we affirm the trial court's judgment.
Procedural History
This medical malpractice case was brought by appellant against appellee based
on his alleged failure to obtain informed consent before performing a surgical procedure to
address symptoms of carpal tunnel syndrome. The lawsuit was filed on September 5, 2002.
Because appellant's claim was filed before the repeal of article 4590i of the Texas Revised Civil
Statutes, it is governed by the provisions of article 4590i in effect at the time her suit was
filed. See Footnote 1 The trial court granted appellant leave to file an amended pleading
adding additional negligence claims. Prior to trial, however, the court dismissed all of appellant's
claims except for her claim for lack of informed consent. See Footnote 2
The
trial court granted a directed verdict in favor of appellee on the
issues of malice and gross negligence, and the jury returned a take-nothing verdict in favor of appellee on
the informed consent claim. The trial court rendered judgment for appellee on September 18,
2005 based on the jury's verdict.
Discussion
Jury Charge
In her first issue, appellant claims the trial court committed harmful error in
submitting jury question number one and the accompanying instruction on the legal requirements
of informed consent because it misstated the law, misled the jury, improperly commented on the
evidence, and probably caused the rendition of an improper verdict.
The standard of review for alleged jury charge error is abuse of discretion.
Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006); Steak & Ale of Tex., Inc. v.
Borneman, 62 S.W.3d 898, 904 (Tex. App.-Ft. Worth 2000, no pet.). A trial court abuses its
discretion by acting arbitrarily, unreasonably, or without consideration of guiding principles.
Borneman, 62 S.W.3d at 904. When submitting the jury charge, a trial court is
afforded more discretion when submitting instructions than when submitting questions.
Borneman, 62 S.W.3d at 904; Wal-Mart Stores, Inc. v. Middleton, 982 S.W.2d 468, 470
(Tex. App.-San Antonio 1998, pet. denied). However, the discretion afforded during the
submission of instructions is not absolute. See Tex. R. Civ. P. 277. According to rule 277, a trial
court must submit instructions “as shall be proper to enable the jury to render a verdict.” Id.
For
an instruction to be proper, it must: (1) assist the jury, (2)
accurately state the law, and (3) find support in the pleadings and evidence. Tex. R. Civ. P. 277, 278;
Borneman, 62 S.W.3d at 904. An instruction that misstates the law as applicable to the facts or
one that misleads the jury is improper. Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87, 90
(Tex. 1973); Owens-Corning Fiberglas Corp. v. Martin, 942 S.W.2d 712, 721-22 (Tex.
App.-Dallas 1997, no pet.).
The issue of whether a doctor failed to fully inform a patient of the risks of
surgery is governed by the Medical Liability and Insurance Improvement Act (MLIIA). Tex.
Rev. Civ. Stat. Ann. art. 4590i, § 6.02 (Vernon 2002); Ocomen v. Rubio, 24 S.W.3d 461,
468 (Tex. App.-Houston [1st Dist.] 2000, no pet.). The MLIIA created the Texas Medical
Disclosure Panel to evaluate all medical and surgical procedures, determine if disclosure of risks
is required, and if so, determine how much disclosure was required. Tex. Rev. Civ. Stat. Ann.
art. 4590i, § 6.04(a); Earle v. Ratliff, 998 S.W.2d 882, 891 (Tex. 1999). See
Footnote 3 If the procedure requires some disclosure of the risks involved in the treatment,
it is placed on List A. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 6.04; Earle, 998 S.W.2d at 891.
However, if the Texas Medical Disclosure Panel determines that no disclosure is required, the
procedure is placed on List B. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 6.04; Earle, 998
S.W.2d at 891.
Both parties agree that the peripheral nerve surgery performed on appellant, a
carpal tunnel syndrome and right radial nerve release operation, was a List A procedure
requiring certain disclosures. Specifically, according to the Texas Medical Disclosure Panel,
appellee was required to disclose the following risks for a peripheral nerve operation: (A)
numbness; (B) impaired muscle function; (C) recurrence or persistence of the condition that
required the operation; (D) continued, increased, or different pain. See 25 Tex. Admin. Code §
601.2(m)(4).
For procedures on List A, the informed consent is “considered effective” if it
is in writing and signed by the patient or a person authorized to give the consent and by a
competent witness. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 6.06; Knoll v. Neblett, 966
S.W.2d 622, 628 (Tex. App.-Houston [14th Dist.] 1998, pet. denied). See Footnote 4
Advising a patient of risks in compliance with the statute's required disclosure creates a
rebuttable presumption the physician was not negligent. See Tex. Rev. Civ. Stat. Ann. art.
4590i, § 6.07(a)(1); Knoll, 966 S.W.2d at 628. On the other hand, if the procedure is on List
A and the written consent does not comply with the statute, the statute creates a rebuttable
presumption the physician was negligent in failing to obtain informed consent. See Tex. Rev. Civ.
Stat. Ann. art. 4590i, § 6.07(a)(2); Knoll, 966 S.W.2d at 628. The presumption must be
included in the jury charge. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 6.07(a)(2).
At
trial, appellant argued appellee was negligent for failing to tell her
prior to the surgery that reflex sympathetic dystrophy (RSD) See Footnote 5 was a potential risk
of the surgical procedure. Appellant testified that after the surgery she experienced excruciating
pain that eventually spread throughout her entire body and was not aided by pain medication.
Two physicians she consulted after the surgery diagnosed her with RSD. Appellant insisted she
never would have undergone the operation had appellee explained to her before the surgery that
RSD was a risk of the operation.
According to the Texas Administrative Code, RSD is not one of the risks that
must be disclosed for peripheral nerve surgery. See 25 Tex. Admin. Code § 601.2(m)(4).
Furthermore, the expert testimony at trial agreed RSD is not included on the List A risks that
must be disclosed for carpal tunnel surgery. Therefore, as a matter of law, appellee had no duty
to disclose this risk and cannot be held liable for a lack of informed consent based on this risk.
Our analysis thus turns to the errors alleged by appellant in the trial court's instruction on
informed consent.
The trial court submitted the following instruction on informed consent:
Did Dr. Watumull fail to adequately disclose risks and hazards as required
by law of the peripheral nerve operation?
The law requires Dr. Watumull to disclose to Valerie Bryan the following
risks and hazards regarding a peripheral nerve operation, which includes an open carpal
tunnel release and radial nerve release:
a. Numbness
b. Impaired muscle function
c. Recurrence or persistence of the condition that required the operation
d. Continued, increased, or different pain.
The failure of a physician to disclose those risks and hazards on a written
form, signed by the person or a person authorized to consent for the patient and a
competent witness, is presumed to constitute negligent failure to disclose such risks. This
presumption may be overcome if the physician adequately disclosed such risks and hazards
in some other manner.
The physician's disclosure of these risks and hazards on a written form,
signed by the patient or a person authorized to consent for the patient and a competent
witness, is presumed to comply with the legal requirements for informed consent.
On appeal, appellant focuses on the following alleged errors in jury question
number one: (1) the trial court's addition of the sentence allowing the physician to disclose the
risks “in some other manner;” (2) the trial court's refusal to include an instruction of “medical
emergency” in connection with the physician's rebuttal burden; and (3) the trial court's refusal to
include the word “specifically” in its charge and instruction. See Footnote 6
Here, the trial court's instructions substantially followed the instructions
provided by the Texas Pattern Jury Charge (PJC). The trial court based jury question number
one on the PJC instruction on informed consent when there is “[n]o emergency or other
medically feasible reason for nondisclosure” and the “[d]isclosure [is] not in the statutory
form.” See Comm. on Pattern Jury Charge, State Bar of Texas, Texas Pattern Jury
Charge--Malpractice, Premises & Products PJC 51.12 (2006). The comment to PJC 51.12
explains it should be used “if the evidence shows that the medical procedure was on the list
requiring disclosure (list A) and disclosure is not made in statutory form but there is evidence of
disclosure, such as evidence of oral disclosure.” Id. PJC 51.12 (comment) See
Footnote 7 .
Appellant argues PJC 51.12 is in error because its use of the phrase “in some
other manner” conflicts with the wording of the statute, which requires the informed consent to
be in writing. We believe, however, appellant oversimplifies the informed consent statute. To
begin with, the statute does not say the consent must be in writing. Under the informed consent
statute, as mentioned previously, informed consent is considered effective if it is in writing and
signed by the patient or a person authorized to give the consent and by a competent witness. See
Tex. Rev. Civ. Stat. Ann. art. 4590i, § 6.06. The reason the statute discusses a written consent
form is because the physician is given a presumption of non-negligence if he can prove the
consent form was in writing, signed by the patient, and in compliance with the disclosures
required by List A. See id. § 6.07(a)(1). If the physician cannot prove these things, a rebuttable
presumption of negligence must be included in the jury charge. See id. § 6.07(a)(2).
In addition to providing for a rebuttable presumption of negligence, section
6.07(a)(2) also states that “failure to disclose may be found not to be negligent if there was an
emergency or if for some other reason it was not medically feasible to make a disclosure of the
kind that would otherwise have been negligence.” See id. Appellant challenges the trial court's
refusal to include an instruction that the presumption could be overcome if there was an
emergency or for some other reason disclosure was not medically feasible, which appellant
claims are the only means by which a physician can overcome the presumption of negligence.
Although we are aware of no published case authorities construing this particular provision,
based on the wording of the statute, we conclude the trial court properly instructed the jury, in
compliance with the PJC, that the presumption of negligence can be rebutted if the physician
demonstrates disclosure was made in some other manner, which can include evidence of oral
disclosure. See Comm. on Pattern Jury Charge, State Bar of Texas, Texas Pattern Jury
Charge--Malpractice, Premises & Products PJC 51.12 (2006).
The general rule is that a presumption may be rebutted by introducing evidence
contrary to the presumed issue. Technical Chem. Co. v. Jacobs, 480 S.W.2d 602, 606 (Tex.
1972). When any type of contrary evidence has been produced, the issue is then ripe for
submission to the jury. Gen. Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex.1993). In
the present case, appellee rebutted the presumption of negligence by offering testimony
concerning oral disclosure of statutory risks not mentioned in the written consent form. After
appellee created the necessary fact issue, the trial court properly submitted PJC 51.12.
Therefore, the instruction submitted to the jury accurately stated the law, and it was well within
the trial judge's discretion to submit such an instruction. See Plainsman Trading Co. v. Crews,
898 S.W.2d 786, 791 (Tex. 1995); Allen, 966 S.W.2d at 660. By contrast, the instruction
proffered by appellant oversimplified the informed consent statute by suggesting that the
presumption could be overcome only if there was an emergency or if for some other reason
disclosure was not medically feasible. We conclude the trial court did not abuse its discretion
either in submitting the instruction on informed consent or in rejecting appellant's proposed
instruction.
Appellant also argues that the first sentence of question number one should
have included the word “specifically.” According to appellant, the first sentence should have
read: “The law requires Dr. Watumull specifically to disclose to Valerie Bryan the following
risks and hazards regarding a peripheral nerve operation, which includes a carpal tunnel release
and radial nerve release.” Appellant's proposed jury instruction, however, did not include the
word “specifically.” See Tex. R. Civ. P. 278; Kennedy Ship and Repair, L.P. v. Pham, 210
S.W.3d 11, 27 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (to preserve error, complaining
party must tender a written request to the trial court for submission of the instruction, which is in
substantially correct wording). Nor did appellant object at the charge conference to the lack of
the word “specifically.” A complaint about a defective jury instruction is waived unless
specifically included in the objections to the charge. Willis v. Donnelly, 199 S.W.3d 262, 275
(Tex. 1999) (citing Tex. R. Civ. P. 274). Accordingly, the issue was not preserved for review.
Appellant's first issue is overruled. Legal Sufficiency
In her second issue, appellant claims the trial court erred in not granting
appellant's motion for instructed verdict because the evidence is legally insufficient to support the
jury's response to question number one; therefore, we should reverse and render judgment for
appellant on liability.
When a party with the burden of proof challenges the legal sufficiency of an
adverse finding, he must demonstrate on appeal that the evidence establishes, as a matter of law,
all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.
2001); Long v. Long, 196 S.W.3d 460, 466 (Tex. App.-Dallas 2006, no pet.). In reviewing a
“matter of law” challenge, we must first examine the record for evidence that supports the
finding, then we will examine the entire record to determine if the contrary proposition is
established as a matter of law. Dow Chem., 46 S.W.3d at 241; Long, 196 S.W.3d at 466. The
issue should be sustained only if the contrary proposition is conclusively established. Dow
Chem., 46 S.W.3d at 241; Long, 196 S.W.3d at 466.
Jurors
are the sole judges of the credibility of the witnesses and the weight
to give their testimony. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). They may
choose to believe one witness and disbelieve another. Id. Reviewing courts cannot impose their
own opinions to the contrary. Id. Most credibility questions are implicit rather than explicit in a
jury's verdict. Id. Thus, reviewing courts must assume jurors decided all of them in favor of the
verdict if reasonable human beings could do so. Id. It is not necessary to have testimony from
both parties before jurors may disbelieve either party. Id. at 819-20. Jurors may disregard even
uncontradicted and unimpeached testimony from disinterested witnesses. Id. at 820.
As mentioned previously, the type of operation performed on appellant
required disclosure of the following risks: (1) numbness; (2) impaired muscle function; (3)
recurrence or persistence of the condition that required the operation; (4) continued, increased,
or different pain. The written disclosure and consent form signed by appellant contains a list of
specific “risks and hazards” that “may occur in connection with this particular procedure,”
including “pain syndromes,” “recurrence of symptoms,” and “damage to blood vessels,
nerves or tendons (numbness or weakness).” See Footnote 8
Appellant argues that the failure to check any of the boxes next to the list of
specific risks proved, as a matter of law, that her consent was not in compliance with the statute.
The statute, however, does not mandate any particular format for the consent form and does not
require the boxes to be checked for the form to comply with the statute. See Tex. Rev. Civ.
Stat. Ann. art. 4590i, §§ 6.05, 6.06. Moreover, the testimony of appellee and his medical
assistant, Andrea Tanner, indicated that the boxes on the consent form need be checked only if
a choice had to be made, e.g., whether the surgery was on the right or left arm and whether it
was open or endoscopic. Here, checkmarks are found in only three places on the consent form,
indicating the surgery would be on the right arm, that it would be open as opposed to
endoscopic, and that the use of blood and blood products was authorized. Appellee testified
that no boxes were checked on the list of specific risks because they described complications
that apply “to every single carpal tunnel operation.” Appellee and Tanner also testified that
appellant would have been told, like all patients, that all of the risks listed on the form applied to
her particular surgery.
Appellant also argues that even if the disclosures on the written consent form
adequately addressed the first two statutory risk factors, there is no mention of “impaired
muscle function” and “continued, increased, or different pain.” At trial, there was conflicting
testimony presented concerning the extent to which these risks were discussed with appellant
prior to the surgery. Appellant testified that, when she first saw appellee in June of 2000,
appellee told her she needed “carpal tunnel and radial nerve release” surgery on her right arm.
When asked what he told her about these operations, appellant testified that appellee never
discussed the consent form with her and all he ever told her was that she might have some
arthritis and might continue to experience the same pain she had before the operation. He told
her he would use a local anesthetic and no one ever explained to her the risk of pain syndromes,
recurrence of symptoms, bleeding or infection, or RSD. Appellant admitted that she placed her
initials on the form indicating her consent to the use of blood and blood products if they were
needed. But appellant also claimed Tanner told her that because the boxes on the consent form
next to the specific risks and hazards of the surgery were not checked, those risks did not apply
to her surgery. She testified that neither Tanner nor anyone else on appellee's staff witnessed her
signature on the consent form.
Dr.
Jonathan E. Walker, a board certified neurologist with training in
psychiatry and clinical physiology, was appellant's sole expert witness at trial. He is not a surgeon and has
never performed carpal tunnel surgery. He has been a pain management specialist for “about 10
years,” and this pain management expertise includes RSD and carpal tunnel syndrome. He
testified that appellee was negligent in failing to obtain informed consent for this procedure.
Walker also testified that RSD is one of “the most common serious” complications of carpal
tunnel surgery, that appellant has RSD, that appellant's RSD was caused by the carpal tunnel
and radial nerve release surgery performed by appellee, and appellee's failure to secure
adequate informed consent prior to the surgery was a proximate cause of appellant's condition.
Walker testified that appellee failed to inform appellant of the risk of RSD and merely warning her
of the risk of “pain syndromes” is inadequate unless you “amplify what a pain syndrome is”
and mention “this particular pain syndrome,” i.e., RSD, “which is fairly common and severe
and disabling” and then follow up with either an oral or written explanation of RSD. He did not
believe the term “pain syndrome” was adequate to warn someone of RSD because it
“deemphasizes the severity” of the pain.
Appellee testified both as defendant and as an expert in obtaining informed
consent for the procedure performed on appellant and in diagnosing RSD. He testified that he is
board certified in plastic surgery and has a certificate and qualifications for surgery of the hand.
Peripheral nerve surgery--the care and treatment of nerve problems in the arms and legs--is an
area of special interest. He met with appellant before the surgery and explained the risks and
benefits of the operation to her “one-on-one,” as he does with all of his patients.
Andrea Tanner told the jury See Footnote 9 she reviewed the
consent form with appellant line-by-line, as she did with all patients, stressing that all of the
specific risks listed in the middle of the form applied to her surgery. She said there was no
question in her mind that she went over with appellant each of the risks and complications that
was listed on the consent form because she did this with all of appellee's patients. Tanner also
witnessed appellant sign the consent form both in person and on the consent form, and Tanner's
signature appears on the consent form as a witness.
There
is no indication in the record that appellee specifically mentioned
either RSD or “different pain” to appellant prior to the surgery. We have already noted RSD is not a
risk that is required by List A to be disclosed for a peripheral nerve operation. See 25 Tex.
Admin. Code § 601.2(m)(4). See Footnote 10 As for different pain, appellee said
that he discussed “pain syndromes” with appellant and he believed his explanation of pain
syndromes encompassed both different pain and RSD. He also testified that he advised
appellant of the risk of arthritis as a result of the surgery, and appellant's expert admitted that
joint pain was a “different pain than the carpal tunnel pain she came in with.” Appellee also
believed he went beyond what Texas law required by disclosing the risk of “pain syndromes”
because Texas law required only that he disclose continued, increased, or different pain. He
made it a practice of telling every patient that surgery could worsen their pain. Regarding pain
syndromes, appellee told his patients they are rare, they sometimes occur, they can produce pain
out of proportion to the surgery or the underlying problem, and they can be severe.
In
addition, there is no indication appellee specifically warned appellant
about “impaired muscle function.” He insisted, however, that he never took a patient to surgery
before going over the risks and complications of the procedure and he never took “a patient to
surgery without them understanding the risks.” He said he had “no doubt” that he told
appellant about the risks and complications. Appellee also testified that, as an expert regarding
whether he met the standard of care in obtaining informed consent from appellant, he believed he
met the standard of care. There was “absolutely no doubt” in his mind that he went over the
risks and complications with appellant. In addition, there was “no doubt” in his mind that he
fully complied with Texas law for obtaining informed consent from appellant. Appellee's expert
witness, Dr. Jay Boulas, testified, after reviewing the consent form, the office chart, the hospital
chart from the surgery, and the deposition testimony of appellee and his office staff, that appellee
complied with Texas law and the standard of care in obtaining informed consent from appellant
prior to the surgery.
The jury in this case was required to sift through conflicting testimony
concerning what was disclosed to appellant in writing and orally prior to the surgery. The jury
was entitled to believe either appellant's version of events or appellee's, and it resolved the
evidence in appellee's favor. After reviewing the evidence under the appropriate standard of
review, we conclude there is legally sufficient evidence to support the jury's adverse finding that
appellee obtained appellant's informed consent before performing the surgery and that appellant
failed to establish the contrary finding as a matter of law. Appellant's second issue is overruled.
Factual Sufficiency
In her third issue, appellant claims the jury's verdict is so against the great
weight and preponderance of the evidence that we should reverse and remand for a new trial.
When a party challenges the factual sufficiency of the evidence supporting an
adverse finding on which it bore the burden of proof, it must demonstrate the adverse finding is
against the great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at
242; Ameristar Jet Charter, Inc. v. Cobbs, 184 S.W.3d 369, 373 (Tex. App.-Dallas 2006,
no pet.). Only if we determine, after considering all the evidence, the finding is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust will we set aside the
verdict for factual insufficiency. Dow Chem. Co., 46 S.W.3d at 242; Ameristar Jet Charter,
184 S.W.3d at 373.
In the present case, after reviewing the conflicting evidence under the
appropriate standard, we conclude the evidence does not establish that the jury's adverse finding
was clearly wrong or unjust. Having concluded the evidence is factually sufficient to support the
jury's adverse finding on the issue of informed consent, we resolve appellant's third issue against
her.
Exclusion of Rebuttal Testimony
In
her fourth issue, appellant claims the trial court erred in excluding
certain “rebuttal” testimony that
appellant argues should have been admitted in order to rebut any
favorable presumption in favor of appellee regarding informed consent.
Appellee argues appellant waived this issue because there is no
indication in the record she made either an offer of proof or a formal
bill of exception or otherwise set forth the excluded evidence.
Appellant responds in her reply brief that she filed a formal bill of
exception “and attached the deposition excerpts of testimony that
[appellant] would have given at trial, and which the [trial] [c]ourt
indicated it would not permit at trial.”
Prior to trial, the
trial court had granted appellant leave to file a first amended
original petition asserting additional claims that appellee was
negligent in failing to (1) recommend more conservative treatment
before performing the surgery and (2) provide adequate follow-up care
after surgery, particularly in not diagnosing RSD and commencing
immediate treatment. Appellee moved to dismiss these claims pursuant to
section 13(e) of article 4590i based on the inadequacy of appellant's
expert reports to establish that their author, Dr. Walker, a
neurologist and psychiatrist, was not qualified to offer an expert
opinion against appellee, a board certified plastic surgeon. Shortly
before trial, the court dismissed all of appellant's claims except for
lack of informed consent. During the trial, appellant's counsel
unsuccessfully sought to elicit testimony from appellant about her
increased susceptibility to RSD because of her smoking, history of
depression, the fact that she was a woman, that she had only a “mild”
carpal tunnel syndrome condition, and that she did not want to have
general anesthesia.
Appellant filed her post-judgment “Formal Bill of Exception with Respect to
the Testimony of Valerie Bryan” on November 18, 2005. The stated purpose of appellant's bill
was to “make part of the [r]ecord the essential subject of the testimony of [appellant] with
regard to the negligence of [appellee] in performing the Carpal Tunnel Syndrome . . . operation
without failing to provide adequate follow-up care.” The bill was supported by highlighted
portions of appellant's sworn deposition testimony, which was attached to the bill and
incorporated by reference.
To preserve error on appeal, a party must present to the trial court a timely
request, motion, or objection, state the specific grounds therefore, and obtain a ruling that
appears in the record. Tex. R. App. P. 33.1(a); Wal-Mart Stores, Inc. v. McKenzie, 997
S.W.2d 278, 280 (Tex. 1999). To preserve factual error that does not appear on the face of the
record, an appellant is required to make a formal bill of exception within thirty days of filing the
notice of appeal. See Tex. R. App. P. 33.2(e)(1); Smith v. Smith, 143 S.W.3d 206, 211 (Tex.
App.-Waco 2004, no pet.). Here, appellant's bill of exception was timely filed. See
Footnote 11
Rule
33.2(c), however, also sets forth specific requirements for a formal
bill of exception. Formal bills of exception must be presented to the trial judge for his approval and
signature. Tex. R. App. P. 33.2(c)(1). If the parties agree as to the contents of the bill, the trial
judge must sign the bill and file it with the trial court clerk. Id. at 33.2(c)(2). If the contents are
not agreed to by the parties, after notice and hearing, the judge must (1) find the bill is correct,
sign it, and file it with the trial court clerk; (2) suggest corrections to the complaining party, and if
the complaining party agrees to the corrections, sign and file the bill with the trial court clerk; or
(3) if after making suggested corrections, the complaining party will not agree to the corrections,
return the bill to the complaining party with the judge's written refusal on it. Id. The rule also
provides a procedure traditionally referred to as a “Bystander's Bill of Exception,” which
enables a party to develop a record and place an issue before an appellate court when the
party's version of events differs from that of the trial court. See Thieleman v. State, 187
S.W.3d 455, 457 n.2 (Tex. Crim. App. 2005); see also Tex. R. App. P. 33.2(c)(3).
In
this case, although the record contains a filed bill of exception, the
record does not contain any evidence the bill was presented to the trial court or agreed to by appellee.
Moreover, the record lacks any indication that any action was taken on the bill--the docket sheet
lacks any indication a hearing was held on the bill, the trial judge's signature is absent from the
bill, and there is no indication whether the trial court acted to make any corrections to the bill.
See Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex.
App.-Amarillo 1988, writ denied) (“A formal bill of exception not approved by the trial court or
opposing counsel and not a bystander's bill, is inadequate to preserve an appellate complaint”).
Accordingly, we conclude the errors complained of in appellant's bill of exception are not
preserved for review.
In
addition, even if appellant preserved error, we further conclude there
was no abuse of discretion. A trial court's decision to admit or exclude evidence is reviewed for an
abuse of discretion. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex.
2000). As discussed in more detail below, the trial court acted within its discretion in dismissing
appellant's claims that appellee was negligent in deciding to perform the surgery without
attempting more conservative treatment and in failing to provide adequate follow-up care. Since
the trial court properly dismissed these claims--the basis for the argument raised in appellant's
bill of exception--appellant was not entitled to submit evidence in support of them. See Tex. R.
Evid. 402 (evidence which is not relevant is inadmissible); E.I. du Pont de Nemours & Co. v.
Robinson, 923 S.W.2d 549, 556 (Tex. 1995) (evidence that has no relationship to any issue in
the case is irrelevant and therefore inadmissible). Appellant's fourth issue is overruled.
Dismissal of Appellant's Remaining Claims
In
her fifth issue, appellant claims the trial court erred in dismissing
her claims that appellee was negligent in deciding to perform the surgery and in failing to provide adequate
follow-up care. Appellee argues the trial court did not abuse its discretion in dismissing these
claims with prejudice.
Under section 13.01 of the MLIIA, the trial court must grant a motion
challenging the adequacy of an expert report unless the report represents a good faith effort to
comply with section 13.01(r)(6)'s definition of an expert report. Tex. Rev. Civ. Stat. Ann. art.
4590i, § 13.01(1). In order to constitute a good faith effort under section 13.01(1), an expert
report must “discuss the standard of care, breach, and causation with sufficient specificity to
inform the defendant of the conduct the plaintiff has called into question and to provide a basis
for the trial court to conclude that the claims have merit.” Am. Transitional Care Ctrs. of
Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). Because the statute focuses on what
the report discusses, the only information relevant to the inquiry will be found within the “four
corners” of the document. Id. at 878.
A
trial court's decision to dismiss under section 13.01 is reviewed for
abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Walker v. Gutierrez, 111
S.W.3d 56, 63 (Tex. 2003); Palacios, 46 S.W.3d at 877-78; Hansen v. Starr, 123 S.W.3d
13, 19 (Tex. App.-Dallas 2003, pet. denied). Under this standard, if the trial court determines
the expert report lacks any of the necessary statutory elements, it is not an abuse of discretion
for it to dismiss a plaintiff's claims. Hansen, 123 S.W.3d at 19; see also Palacios, 46 S.W.3d
at 878.
For a document to be considered an “expert report” for the purposes of
section 13.01, it must be rendered by someone qualified to testify as an expert on the relevant
medical subject area. Hansen, 123 S.W.3d at 19. The report itself must show the expert is
qualified. Id. In determining whether the purported expert is qualified to offer an opinion, the
trial court may consider whether the expert (1) is board certified or has other substantial training
or experience in the area of medical practice relevant to the claim and (2) is actively practicing
medicine in rendering medical care services relevant to the claim. Id. (citing Tex. Rev. Civ. Stat.
Ann. art. 4590i § 14.01(c)). An expert report must show “within the document itself” that the
purported expert is qualified to testify about the particular subject matter on which the opinion is
offered. Id. at 20; see also Chisolm v. Maron, 63 S.W.3d 903, 907 (Tex. App.-Amarillo
2001, no pet.).
In this case, appellant's two expert reports and accompanying curriculum vitae
show Dr. Walker is board certified in neurology, psychiatry, and clinical neurophysiology. He
also belongs to the national registry of “Neurofeedback Providers” and has practiced medicine
since 1971. He is licensed to practice medicine in both Texas and Colorado. However, nothing
within the “four corners” of the expert reports or the accompanying curriculum vitae show Dr.
Walker has any surgical training or experience. In order to demonstrate the expert is qualified, the
offering party must establish the expert has knowledge, skill, experience, training, or education
regarding the specific issue before the trial court which would qualify the expert to given an
opinion on that particular subject. See Broders v. Heise, 924 S.W.2d 148, 153-54 (Tex.
1996). Appellant has not met this burden. Nor do we find any indication in the reports that Dr.
Walker “has knowledge of accepted standards of medial care for the diagnosis, care, treatment
of the illness, injury, or condition involved in the claim.” See Tex. Rev. Civ. Stat. Ann. art.
4590i § 14.01(a)(2). Instead, he flatly asserts appellee's actions fell below the standard of
care. Because appellant's expert reports and accompanying curriculum vitae do not show Dr.
Walker has any surgical training or experience, the trial court could have concluded the report
did not represent a good faith effort to comply with the statutory requirements for an expert
report. See Hansen, 123 S.W.3d at 20. Therefore, the trial court did not abuse its discretion in
granting appellee's motion to dismiss. Appellant's fifth issue is overruled.
Appellant's sixth and seventh issues concern evidence excluded by the trial
court relating to her dismissed claims. In her sixth issue, appellant claims the trial court erred in
excluding evidence on whether appellee was negligent in deciding to perform the operation and
in failing to submit the issue to the jury. In her seventh issue, appellant claims the trial court erred
in excluding evidence that appellee was negligent in failing to provide adequate follow-up care
and in failing to submit the issue to the jury.
For the reasons previously stated, we conclude that because the trial court
properly dismissed these claims, appellant was not entitled to submit evidence in support of
them. See Tex. R. Evid. 402; Robinson, 923 S.W.2d at 556. Appellant's sixth and seventh
issues are therefore overruled.
The trial court's judgment is affirmed.
AMOS L. MAZZANT
JUSTICE
060018F.P05
Footnote 1 See Tex. Rev. Civ. Stat. Ann. art. 4590i, repealed and recodified by Act of June
2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, 10.09, 23.02(a), (d), 2003 Tex. Gen. Laws 864,
884, 898-99 (adopting chapter 74 of the Texas Civil Practice and Remedies Code, applicable
only to actions filed on or after September 1, 2003, and continuing prior law in effect for actions
filed before that date).
Footnote 2 There is no written dismissal order in the clerk's record, but according to the civil
docket sheet, on August 18, 2005, several weeks before trial, the trial court granted appellee's
motion and dismissed “everything” except for appellant's lack of informed consent claim. The
general rule is that a docket entry forms no part of the record which may be considered; it is a
memorandum made for the clerk's and the trial court's convenience. Daniel v. Falcon Interest
Realty Corp., 190 S.W.3d 177, 188 (Tex. App.-Houston [1st Dist.] 2005, no pet.); Guyot v.
Guyot, 3 S.W.3d 243, 246 (Tex. App.-Fort Worth 1999, pet. dism'd). It cannot be used to
show the existence of an order or judgment. See Guyot, 3 S.W.3d at 246-47. In this case,
however, the trial court's final judgment dismissed all of appellant's claims against appellee with
prejudice. Consequently, we may review appellant's contentions concerning the trial court's
dismissal of her claims. See N-S-W Corp. v. Snell, 561 S.W.2d 798, 799 (Tex. 1977) (stating
that docket entry cannot be used to contradict or prevail over final judicial order); Nine
Greenway Ltd. v. Heard, Goggan, Blair & Williams, 875 S.W.2d 784, 787 (Tex.
App.-Houston [1st Dist.] 1994, writ denied) (stating that written judgment controls over the
court's oral pronouncements).
Footnote 3 In Earle, it was undisputed the surgeries performed on appellee were both List A
procedures and that appellant warned appellee of all the risks identified by the Texas Medical
Disclosure Panel regarding those procedures. 998 S.W.2d at 891. The Texas Supreme Court
held the MLIIA does not permit a finding that a physician who made disclosures as prescribed
by the Texas Medical Disclosure Panel was negligent for not disclosing other risks associated
with the recommended procedure. Id. The court reasoned that to allow such a finding would
afford a physician no protection from liability for non-disclosure and the entire purpose of the
Texas Medical Disclosure Panel would be thwarted. Id.
Footnote 4 Appellant cites Knoll for the proposition that the List A procedures must be in
writing. In Knoll, however, the court's comment cited by appellant that “[f]or procedures on
List A, the informed consent must be in writing,” was clearly made in connection with section
6.06, which, as explained above, provides that consent to medical care appearing on List A
“shall be considered effective” if it is given in writing. See Knoll, 966 S.W.2d at 628.
Footnote 5 According to appellee's trial testimony, RSD is a type of pain syndrome where
“the sympathetic nervous system seems to overact and fire and create a feedback with new
pain.” RSD is a rare complication of carpal tunnel surgery. The most common injuries accredited
to RSD are fractures and crush injuries, and strokes are one of the most common causes. Dr.
Jonathan Walker, appellant's expert witness, agreed there are no specific tests that can actually
diagnose RSD.
Footnote 6 Other jury charge errors are alleged in the “issues presented” part of appellant's
brief, but they are not supported with appropriate argument or relevant legal authorities.
Accordingly, we will not address them. See Tex. R. App. P. 38.1; Fredonia State Bank v.
Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994); Devine v. Dallas County, 130
S.W.3d 512, 513-14 (Tex. App.-Dallas 2004, no pet.); Sullivan v. Bickel & Brewer, 943
S.W.2d 477, 486 (Tex. App.-Dallas 1995, writ denied).
Footnote 7 PJC 51.13 provides a separate informed consent instruction when “the evidence
shows that the medical procedure was on the list requiring disclosure (List A) and disclosure
was not made but there is evidence that would excuse the failure to disclose, such as an
emergency or other medically feasible reason.” See id. PJC 51.13.
Footnote 8 The other “risks and hazards” disclosed on the consent form are “wound
pulling apart (dehiscence),” scarring, “painful incision,” “failure of surgery to relieve
symptoms,” bleeding, infection, stiffness, and “other complications.”
Footnote 9 Andrea Tanner's deposition testimony was read to the jury.
Footnote 10 Appellee's “standard practice” was to not mention RSD to his patients
because “[t]he average layperson does not know the name RSD.”
Footnote 11 The final judgment in this case was signed on September 19, 2005. On October
19, 2005, appellant filed a motion for judgment notwithstanding the verdict and for new trial. She
filed her notice of appeal on December 16, 2005, twenty-eight days after she filed the bill of
exception. See Tex. R. App. P. 33.2(e)(1).
File Date[07/24/2007]
File Name[060018F]
File Locator[07/24/2007-060018F]