Bilderback v. Priestley

• Decision Date: 09 April 1986
• Docket Number: No. 04-85-00159-CV,04-85-00159-CV
• Citation: 709 S.W.2d 736
• Parties: Robert D. BILDERBACK, M.D., Appellant, v. Otho M. PRIESTLEY, Appellee.
• Court: Texas Court of Appeals

Page 736

709 S.W.2d 736

Robert D. BILDERBACK, M.D., Appellant, v. Otho M. PRIESTLEY, Appellee.

No. 04-85-00159-CV.

Court of Appeals of Texas San Antonio.

April 9, 1986.

Robert E. Etlinger, San Antonio, for appellant.

George W. Mauze, II, San Antonio, for appellee.

Before BUTTS, DIAL and BISSETT ^*, JJ.

ON APPELLANT'S MOTION FOR REHEARING

BISSETT, Justice (Assigned).

The opinion and judgment of this Court of February 28, 1986 are withdrawn and this opinion is substituted therefor. Dr. Bilderback's motion for rehearing, in part, is granted.

This is a medical malpractice case. Otho M. Priestley was plaintiff in the trial court and Robert D. Bilderback, M.C., was defendant therein. The case was tried to a jury, which answered favorably to plaintiff. Judgment was signed on January 8, 1985, wherein plaintiff recovered, as damages, the sum of $13,673.08, plus post-judgment interest thereon at the rate of 10% per annum until paid. Defendant has appealed the judgment. Plaintiff, by cross-point, requests that this Court award her prejudgment interest on the amount of damages from April 2, 1982, until the date of judgment. The parties to this appeal will be referred to as "plaintiff" and "defendant," as they were in the trial court.

On or about June 8, 1981, plaintiff slipped at her place of employment and sustained injuries to her left knee. She was 63 years of age at that time. She initially consulted a number of physicians at Wilford Hall Center in San Antonio, Texas. On September 9, 1981, she consulted defendant for the first time with respect to treatment for her injuries. In her history to defendant, she stated that she had injured her left knee; she did not complain of any injury to her back. Plaintiff was placed upon a course of physical therapy by defendant preparatory for surgery to remove a "loose body in the left knee" found by him during his examination of plaintiff. The physical therapy treatment continued until October 2, 1981, when plaintiff ceased seeing defendant. Subsequent to that date, she consulted a large number of physicians for treatment of her injuries, complained of by her. Among those physicians was Dr. Evalee Snead, who treated her from June 10, 1983, to May 9, 1984.

At the time of trial (December 12, 1984), plaintiff contended that certain conditions complained of by her were pre-existing at the time of her visit to defendant on September 9, 1981, and that such pre-existing conditions were aggravated by defendant during his course of treatment of her. She makes the same contentions in this appeal.

The jury found: 1) that spinal stenosis was a pre-existing condition on September 9, 1981; 2) that defendant's treatment of plaintiff aggravated such pre-existing condition; 3) that the aggravation of such pre-existing condition in the treatment of plaintiff by defendant was negligence and a proximate cause of the condition complained about; and 4) that defendant failed to diagnose and treat the condition of spinal stenosis "under the generally accepted standards in the community for treatment of a person in the same or similar physical condition of" plaintiff, which failure was "negligence" and "a proximate cause of the occurrence in question."

Defendant, in this appeal, first contends that there was "no evidence," or in the alternative, that the evidence was "factually insufficient" to show that Dr. Evalee Snead, plaintiff's only medical witness, "was familiar with the standard of care within the community for treatment of an individual in the same or similar circumstances as plaintiff." He states in his brief that Dr. Snead was not qualified as an expert witness since he never testified concerning the standard of care for a doctor treating a patient in the same or similar circumstances as plaintiff, and never testified that she was familiar with the standard of care in the community. He argues that plaintiff never raised a fact issue concerning negligence which could have been submitted to the jury, and, therefore, her case "fails as a matter of law."

It is established law in Texas that the plaintiff in a medical malpractice case has the burden of proving that the defendant-doctor "has undertaken a mode or form of treatment which a reasonable and prudent member of the medical profession would not have undertaken under the same or similar circumstances ..." Hood v. Phillips, 554 S.W.2d 160, 165 (Tex.1977). "Unless such mode or form of treatment is a matter of common knowledge or is within the experience of the layman, expert testimony will be required to meet this burden of proof." Hood, at 165-166. It is also established law in this state that a defendant-physician's own testimony is sufficient to establish the applicable medical standard. Wilson v. Scott, 412 S.W.2d 299, 303 (Tex.1967); Baker v. Story, 621 S.W.2d 639, 643 (Tex.Civ.App.--San Antonio 1981, writ ref'd n.r.e.).

In the case at bar, both defendant and Dr. Snead were Doctors of Medicine, and both were active in the practice of medicine. Defendant is a board certified orthopedic surgeon. Dr. Snead administers physical therapy to her patients on a frequent basis. She stated that more than 50% of her patients were over 60 years of age, and spinal problems and disabilities were common in that age group. In general, she testified that many of her patients have spinal stenosis and that she treated them for that condition. In particular, she testified, in response to the questions proposed to her, as follows:

Q: Doctor, let me ask you, in your professional opinion, as a general physician and as a physician who administers therapy, is it within community standards to continue therapy with weights when a person is experiencing pain?

A: It's difficult to answer unless you ask anybody in particular, but most people would not do it because pain is a general warning that it is overrising or overtaxing that part of the body.

Q: Okay. Would it be, in your professional opinion, within community standards to, in fact, when a person is experiencing pain to increase the therapy and the poundage of any weights?

A: No Defendant testified that after his examination of plaintiff with respect to her complaints regarding her left knee, he prescribed exercises involving the use of weights. The exercises were supervised by two therapists employed by him and were conducted in his office. He stated that plaintiff never told him that she suffered pain during the exercises or at any time following the completion of the exercises. The written records of what occurred and what plaintiff told the therapists show that plaintiff repeatedly complained that her left leg was "numb"; that she had pain "in the thigh" and pain "on the hip and back since lifting weights." Although the notations made by the therapists were readily available to defendant, he never, at any time, examined plaintiff's back, nor did he reduce the weights which started at seven and one-half pounds and were increased to fifteen pounds. Defendant further said that if he had been informed by plaintiff that she was suffering pain, and if he had believed her, he would have reduced the weights.

The complaints of pain made by plaintiff to defendant's physical therapists constituted notice to defendant of such complaints. Defendant's own testimony tended to show that he failed to conform to the medical standard of care in the community, with which he was familiar. Moreover, although Dr. Snead was not directly asked if she was familiar with the applicable standard of care, her testimony shows that she was familiar with the standard of care within the community for treatment of a person in the same or similar circumstances as plaintiff. See King v. Bauer, 688 S.W.2d 845 (Tex.1985); Christian v. Jeter, 445 S.W.2d 51 (Tex.Civ.App.--Waco 1969, writ ref'd n.r.e.); Garza v. Keillor, 623 S.W.2d 669 (Tex.Civ.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.). Defendant's first point of error is overruled.

Defendant, in his seventh point of error, contends that the trial court erred in allowing Dr. Snead to testify on the ground that she was not of the same school of medicine as defendant. The point cannot be sustained.

The general rule of law in Texas is that a plaintiff in a medical malpractice case has the burden of proving its case through a practitioner of the same school of medicine. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949); Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). There are, however, exceptions to the general rule as established in the case of Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933, 936 (1953), wherein the general rule was held not to apply in a situation where the subject of inquiry is common to and equally developed in all fields of medical practice.

In interpreting the exception laid down in Puryear, the appellate courts of this state have consistently held that a medical witness is competent to testify if he has practical knowledge of what is usually and customarily done by a practitioner under circumstances similar to those confronting the defendant. Hersh v. Hendley, 626 S.W.2d 151, 154 (Tex.Civ.App.--Fort Worth, 1981, no writ); Dupree v. Palmarozzi, 596 S.W.2d 544, 547 (Tex.Civ.App.--Beaumont 1980, no writ); Simpson v. Glenn, 537 S.W.2d 114, 117 (Tex.Civ.App.--Amarillo 1976, writ ref'd n.r.e.) and Christian v. Jeter, supra.

Here, Dr. Snead was not asked whether the treatment of plaintiff involved a subject of inquiry common to and equally developed in all fields of medical practice. However, the subject of inquiry in the point under consideration was the standard of care applicable to the prescription and administration of physical therapy to a person similar to plaintiff. In that respect, Dr. Snead testified that she administered physical therapy on a regular basis; that physical therapy formed a large part of her practice; that she had a great deal of experience in administering physical therapy to her patients; that many of her patients suffer...