Broders v. Heise

• Decision Date: 14 June 1996
• Docket Number: No. 95-0168,95-0168
• Citation: 924 S.W.2d 148
• Parties: 39 Tex. Sup. Ct. J. 752 Albert C. BRODERS, M.D., Franklin James Fleischhauer, M.D., Dirk Anthony Frater, M.D., and Presbyterian Hospital of Dallas, Petitioners, v. Robert A. HEISE and Grace N. Heise, Individually and as Representatives of the Estate of Kathleen Heise, Respondents.
• Court: Texas Supreme Court

Page 148

924 S.W.2d 148

39 Tex. Sup. Ct. J. 752

Albert C. BRODERS, M.D., Franklin James Fleischhauer, M.D.,

Dirk Anthony Frater, M.D., and Presbyterian

Hospital of Dallas, Petitioners, v. Robert A. HEISE and Grace N. Heise, Individually and as

Representatives of the Estate of Kathleen Heise,

Respondents.

No. 95-0168.

Supreme Court of Texas.

Argued Nov. 28, 1995.

Decided June 14, 1996.

John H. Martin, Deborah G. Hankinson, Beverly Ray Burlingame, Gerald W. Benson, Dallas, for petitioners.

James E. Girards, David R. Weiner, John K. Horany, Dallas, for respondents.

PHILLIPS, Chief Justice, delivered the opinion for a unanimous Court.

We must decide whether the trial court abused its discretion in excluding the testimony of an emergency physician that the conduct of the three defendant emergency physicians and the defendant hospital was a cause in fact of a patient's death. Because plaintiffs did not meet their burden to show that their expert had "knowledge, skill, experience, training or education" which would "assist the trier of fact" in deciding the issue of cause in fact, TEX.R. CIV. EVID. 702, we conclude that the trial court did not abuse its discretion. We reverse the judgment of the court of appeals, 888 S.W.2d 264, and render judgment in accordance with the jury's verdict that plaintiffs take nothing.

I.

Paramedics brought Kathleen Heise to Presbyterian Hospital of Dallas around 9:30 p.m., April 7, 1988, after having picked her up in response to calls for help from passersby who found her unconscious on the sidewalk. Eyewitnesses established that she had been assaulted and perhaps choked, although the assailant has never been identified or apprehended. By the time she got to the hospital, she was conscious and could walk around, but she vomited almost immediately upon her arrival, would not respond to questions, and refused to be examined by Dr. Albert C. Broders, the attending physician. After she expressed a wish to leave, Dr. Broders requested a security guard to ensure that she not leave.

Heise vomited again around 10:15 p.m.; but other than somewhat frequent trips to the bathroom, she slept most of the night. A little after 4:00 a.m. she complained of a headache and was given a pain reliever. Finally, around 6:30 a.m., Heise allowed Dr. Dirk Anthony Frater, who had assumed responsibility from Dr. Broders, to perform a complete examination, including blood and urine tests and a chest x-ray. Dr. Frater testified that he found no swelling, bruises, tenderness or other external evidence of injuries to her head, although he did note a contusion over one eye. Because she admitted that she had been drinking the night before, Dr. Frater attributed her mild headache to a hangover. Early that afternoon, Dr. Frater released Heise to the care of her boyfriend, Timothy Connors.

Around 9:30 p.m., Connors brought Heise back to the Hospital because she was vomiting, sensitive to light, and suffering an intense headache. Dr. Franklin James Fleischhauer, who was then on duty in the emergency room, immediately prescribed Demerol, a narcotic, as well as Phenergan, a synthetic narcotic which increases the effects of Demerol, and ordered a CT scan. After the scan, Heise suffered respiratory arrest, but she was soon revived. Dr. Fleischhauer consulted a neurosurgeon, Dr. Richard Weiner, who analyzed the CT scan and concluded that Heise had suffered a fractured skull, with both bleeding and swelling in her brain. He prescribed a diuretic, Mannitol, to help reduce brain swelling, but to no avail. Heise died at 11:20 a.m. the next day, April 9, 1988. The autopsy stated the cause of death as "craniocerebral injuries," apparently sustained during the assault, including "extensive mechanical disruption" throughout the different brain tissues. At trial, defendants' experts described these disruptions as resembling fractures in a bowl of custard.

Robert and Grace Heise, the decedent's parents, filed a wrongful death suit against Presbyterian Hospital and the three emergency room physicians, Drs. Broders, Frater, and Fleischhauer. The Heises claimed that all the emergency room doctors and nurses were negligent in failing to promptly diagnose and treat their daughter's head injury during her initial admittance and that Dr. Fleischhauer was further negligent in prescribing Demerol and Phenergan. They argued that this negligence was a proximate cause of her death. The defendants countered that Heise had sustained an irreversible, untreatable, and fatal brain injury at the time of the assault. Nothing the doctors and nurses did or did not do, whether negligent or not, could, they argued, have been a cause in fact of Heise's death. Thus, plaintiffs could not prove an essential element of their case.

At trial, plaintiffs called Dr. Frederick Joseph Condo as an expert witness. They sought to qualify Dr. Condo by proving that he had been licensed as a medical doctor since 1961 and had practiced emergency medicine since 1980. Dr. Condo testified that he was trained in "the brain and its functions" in medical school and had actual experience treating head injuries as a doctor aboard an emergency helicopter, where he was required to "stabilize the patient for transport." As an emergency room doctor, he said he had "to understand and appreciate ... what services can be provided by a neurosurgeon ... in order to know which type of physician to recommend."

Dr. Condo testified without objection about the standard of care, that defendants failed to meet that standard, and that it was foreseeable that an untreated head injury could lead to death. He stated that a physician's applicable standard of care involves evaluating all the possible conditions from which a patient could suffer based on the patient's history, then eliminating those possibilities one by one. He said that the nurse's standard of care was to make thorough observations of the patient and to inform the doctors accurately about those observations. Under these standards, Dr. Condo testified that the physicians had sufficient reason during Heise's first admittance to the emergency room to believe that she might be suffering from a head injury. Therefore, he concluded that they should have ordered a CT scan earlier and prescribed diuretics sooner. He also testified that the nurses breached the standard of care in failing to inform the doctors directly of several symptoms that they had recorded on Heise's chart, including that: she may have had a seizure before she arrived at the hospital; she vomited twice; she reported a headache; and she jumbled her words in stating that she wanted to go home.

Dr. Condo offered further testimony by bill of exception that one cause of Heise's death was "that there was no treatment rendered in reference to the--this head trauma." Dr. Condo's belief was that "[i]n all medical probability, had intervention--diagnosis--early diagnosis and treatment been rendered, [Heise] would have survived." When asked: "[B]ut for the negligence of the nurses, would Kathy Heise have survived?" he answered, "Yes." Finally, he opined that "the administration of Demerol with Phenergan superimposed on her pre-existing condition, if not was [sic] an actual cause of her stop--stopping to breathe, certainly it contributed to that." However, the trial court sustained defendants' objections to this testimony on the basis that Dr. Condo was not competent to offer these opinions. As the Heises offered only one other expert witness, a nurse who was also unqualified to testify on causation, they were left without evidence of an element of their claim.

Defendants presented the expert testimony of two neurosurgeons, Dr. Duke Samson and Dr. Richard Weiner, who both testified that Heise had suffered a diffuse mechanical disruption to the cerebral cortex, the cerebellum and the brain stem, which resulted in general swelling of the brain tissues. Each concluded that the disruption itself was inoperable and untreatable. Both also believed that any efforts to control the resultant swelling would, in all medical probability, have been inadequate to reduce the swelling enough for the necessary length of time. ¹ Dr. Samson testified that "between eighty-five to ninety-five percent of patients that have this problem will die or be in a persistent vegetative state." Dr. Weiner went further, testifying that given the extent of the disruption to her brain tissue, Heise had "no chance" of survival after the assault.

The jury returned a verdict for the defendants, and the trial court rendered a take-nothing judgment on the verdict. The court of appeals held that the trial court abused its discretion by excluding Dr. Condo's testimony on cause in fact, because Dr. Condo met the requirements of Rule 702 by "possess[ing] knowledge and skill not possessed by people generally." 888 S.W.2d at 266. Because the court concluded that "the whole case turned on the excluded evidence," it held that "the error in excluding such testimony of Dr. Condo ... probably did cause the rendition of an improper judgment." 888 S.W.2d at 267.

II.

The qualification of a witness as an expert is within the trial court's discretion. Cf. E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995); Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex.1985). We do not disturb the trial court's discretion absent clear abuse. "The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles." E.I. du Pont, 923 S.W.2d at 558. Further, the party offering the expert's testimony bears the burden to prove that the witness is qualified under Texas Rule of Civil Evidence 702. GOODE, ET AL., GUIDE TO THE TEXAS RULES OF EVIDENCE: CIVIL AND CRIMINAL, § 702.3 n.1 (Texas Practice 1988). See also, Matson v. State, 819 S.W.2d 839, 851 (Tex.Crim.App.1991) (construing identical criminal evidence rule). Rule 702 provides:

If scientific, technical,...