Axelrad v. Jackson

• Decision Date: 29 June 2004
• Docket Number: No. 14-02-00518-CV.,14-02-00518-CV.
• Citation: 142 S.W.3d 418
• Parties: David and Carolyn AXELRAD, Appellants v. Dr. Richard JACKSON, Appellee.
• Court: Texas Court of Appeals

142 S.W.3d 418

David and Carolyn AXELRAD, Appellants v. Dr. Richard JACKSON, Appellee.

No. 14-02-00518-CV.

Court of Appeals of Texas, Houston (14th Dist.).

June 29, 2004.

Rehearing Overruled August 26, 2004.

Appeal from the 334th District Court, Harris County, Katie Kennedy, J Darrin Walker, Kingwood, for appellants.

Erin E. Lunceford, Joel Randal Sprott, Houston, for appellee.

Panel consists of Justices ANDERSON, SEYMORE, and GUZMAN.

OPINION

CHARLES W. SEYMORE, Justice.

In this appeal, we determine whether a patient, in recounting his or her medical history, may be assessed comparative negligence in a medical malpractice suit. We hold that a patient's name may be submitted in comparative fault jury questions based on the patient's response to queries regarding medical history. Because there is no evidence of a query designed to elicit the information that appellant, David Axelrad, allegedly failed to communicate, no evidence supports appellee, Dr. Jackson's contention that David Axelrad had a duty to volunteer the information. Accordingly, it was error to submit David Axelrad's name in the comparative negligence jury questions. We reverse and remand for a new trial.

I. FACTS

On Sunday evening, August 17, 1997, David Axelrad, a psychiatrist, began feeling flu-like symptoms and abdominal pain. While he drove home that evening, his abdominal pain increased every time he hit a bump in the road. Overnight, the pain worsened. Axelrad felt so ill that he cancelled his Monday, August 18th psychiatric appointments and called Dr. Richard Jackson. Dr. Jackson suggested that Axelrad might have been suffering from gastroenteritis and recommended Pepto-Bismol.

By Tuesday morning, August 19th, Axelrad's pain was worse. He called Dr. Jackson again and scheduled an appointment. Axelrad's wife drove him to Dr. Jackson's office. She drove slowly because her husband's pain intensified with each bump in the road. Upon arrival at Dr. Jackson's office, she pushed her husband into the office by wheelchair and, with his help, answered Dr. Jackson's questions. Dr. Jackson examined Axelrad and ordered the following diagnostic tests: (1) ultrasound; (2) blood work; and (3) x-rays of kidneys, ureter, and bladder. He did not take Axelrad's temperature or perform a rectal examination. The Axelrads returned to their home after the tests. Around 4:30 p.m., Dr. Jackson called the Axelrads and informed them that the test results were normal. Dr. Jackson instructed Axelrad to take a laxative and perform two enemas. At that point, Dr. Jackson had not received all the results of Axelrad's blood tests. Subsequently, those tests revealed an elevated white blood cell count, indicative of an infection.

Axelrad took the laxative and attempted to perform the first enema. Immediately after administering the enema, he was nauseous and in severe pain. The enema was not productive, and Axelrad fell to the floor vomiting. He experienced rigors and chills. Frightened, Axelrad's wife first called Dr. Jackson, who urged them to administer the second enema. She chose not to follow Dr. Jackson's recommendation. Instead, she immediately transported her husband to the emergency room.

In the hospital, tests revealed that Axelrad's white blood cell count had increased. Surgery on Thursday, August 21st, revealed diverticulitis and pus, which had escaped into the abdomen through a perforation of his colon. Axelrad had an eleven centimeter portion of his colon removed, a temporary colostomy, underwent three surgeries, and suffered a subsequent drug reaction and infection necessitating intensive care.

Axelrad sued Dr. Jackson for malpractice, contending Dr. Jackson failed to diagnose the diverticulitis and negligently prescribed enemas. The jury assessed fault as follows: 51% Axelrad—49% Dr. Jackson. The trial court entered judgment in favor of Dr. Jackson because apportionment of 51% fault to Axelrad bars recovery under the comparative negligence statute.

II. PATIENT'S NEGLIGENCE

In his first six issues, Axelrad questions whether a patient may be assessed comparative negligence in providing a medical history. Accordingly, Axelrad contends a patient's duties are limited to certain circumstances not present in this case.¹ Axelrad further questions whether there is evidence that he breached a duty, and whether there is evidence of causation sufficient to support the jury's apportionment of fault.

Texas law allows a jury to consider a patient's comparative fault in a medical malpractice suit. See Elbaor v. Smith, 845 S.W.2d 240, 245, 251 (Tex.1993) (holding it was error to omit patient's name in comparative fault question where patient's refusal to take antibiotics contributed to infection, which was basis of her medical malpractice claim); see, e.g., Marvelli v. Alston, 100 S.W.3d 460, 468 (Tex.App.-Fort Worth 2003, pet. denied) (patient was 29% at fault); Sloan v. Molandes, 32 S.W.3d 745, 752 (Tex.App.-Beaumont 2000, no pet.) (patient was 49% at fault); Isern v. Watson, 942 S.W.2d 186, 200 (Tex.App.-Beaumont 1997, writ denied) (patient was 35% at fault). A patient has the duty to cooperate with a treating physician. Elbaor, 845 S.W.2d at 245.²

No Texas appellate court has directly addressed whether a plaintiff's failure to accurately or completely relate his or her medical history to the treating physician may constitute contributory negligence. But cf. Isern, 942 S.W.2d at 200 n. 7 (noting issue, although jury did not find patient negligent). However, we have reviewed authority from other states in order to analyze the issues in this case.

A patient has no duty to diagnose his or her own condition. Fall v. White, 449 N.E.2d 628, 634 (Ind.Ct.App.1983); Mackey v. Greenview Hosp., Inc., 587 S.W.2d 249, 255 (Ky.Ct.App.1979); O'Neil v. State of New York, 66 Misc.2d 936, 323 N.Y.S.2d 56, 61 (N.Y.Ct.Cl.1971); Lambert v. Shearer, 84 Ohio App.3d 266, 616 N.E.2d 965, 977 (1992); see Robinson v. Wa. Internal Med. Assocs., P.C., 647 A.2d 1140, 1156 (D.C.1994) (Mack, J., dissenting); Carreker v. Harper, 196 Ga.App. 658, 396 S.E.2d 587, 589 (1990) (Pope, J., dissenting).³

A patient, generally lacking the specialized training of the doctor from whom he seeks help, has limited capacity to select and communicate pertinent and relevant aspects of his medical history. Mackey, 587 S.W.2d at 255; Favalora v. Aetna Cas. & Sur. Co., 144 So.2d 544, 550 (La.Ct.App.1962). A patient may rely upon the doctor to ask appropriate questions about the patient's history. Hawkins v. Greenberg, 159 Ga.App. 302, 283 S.E.2d 301, 307 (1981); Fall, 449 N.E.2d at 634; Mackey, 587 S.W.2d at 255; Favalora, 144 So.2d at 550; see Robinson, 647 A.2d at 1150 (Farrell, J., concurring), 1156 (Mack, J., dissenting); O'Neil, 323 N.Y.S.2d at 61 (it is incumbent upon trained physician to isolate the nature of the patient's complaints); cf. Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674, 694 (1982) (in claim that patient failed to fully disclose prior treatments for back, it was questionable whether patient "was even asked if he had previously received treatment for his back"). A patient then has the duty to respond accurately and to tell the truth. Rochester v. Katalan, 320 A.2d 704, 709 (Del.1974) (patient was untruthful about his symptoms in order to receive methadone); Mackey, 587 S.W.2d at 254; Jensen v. Archbishop Bergan Mercy Hosp., 236 Neb. 1, 459 N.W.2d 178, 184 (1990); Brown v. Dibbell, 227 Wis.2d 28, 595 N.W.2d 358, 368-69 (1999); see Skar v. Lincoln, 599 F.2d 253, 260 (8th Cir.1979) (applying Nebraska law where patient gave materially false information); Johnston v. Ward, 288 S.C. 603, 344 S.E.2d 166, 173 (Ct.App.1986) (woman who overdosed on prescription drugs and aspirin denied taking anything but prescription medication); see, e.g., Moodie v. Santoni, 292 Md. 582, 441 A.2d 323, 327 (1982) (each month, patient indicated no symptoms in response to specific inquiry, although he was experiencing adverse reactions to medication that ultimately led to his death); Davila v. Bodelson, 103 N.M. 243, 704 P.2d 1119, 1124 (Ct.App.1985) (testimony that patient failed to reveal prior pregnancies when asked).

A patient has no general duty to volunteer information. Mackey, 587 S.W.2d at 255; see Favalora, 144 So.2d at 550. However, courts have sometimes held a patient must volunteer information "if the patient is aware that the treating physician has failed to ascertain some aspect of the patient's medical history which the patient knows involves a risk of harm to the patient during the course of future medical treatment." Mackey, 587 S.W.2d at 255; see Haynes v. Hoffman, 164 Ga.App. 236, 296 S.E.2d 216, 217-18 (1982); Graham v. Keuchel, 847 P.2d 342, 358 n. 78 (Okla.1993) (patient knew importance of her blood type and need for Rho-GAM shot during pregnancy, but failed to reveal it to her doctor); see, e.g., Jamas v. Krpan, 116 Ariz. 216, 568 P.2d 1114, 1115-16 (Ct.App.1977) (patient who knew significance of her history of breast lumps failed to reveal such history to physician performing breast examination).

Following our survey of authority from other states, we hold that a patient's duty to cooperate includes responding truthfully to a physician's questions.⁴ A patient has no general duty to self-diagnose or volunteer information. A duty to volunteer information arises only when a patient knows the significance of unrevealed history and knows the physician has failed to ascertain the history.⁵

We will determine whether there is legally sufficient evidence to support Dr. Jackson's contention that Axelrad breached the duty to exercise ordinary care in responding or failing to respond to inquiries regarding his medical history. Dr. Jackson claims Axelrad was negligent in failing to reveal (1) that his abdominal pain originated in the left lower quadrant of his abdomen, and (2) a 1994 medical examination in which a proctoscopy was conducted because of rectal bleeding and during which a colonoscopy...