Cooper v. Bowser

• Decision Date: 18 December 1980
• Docket Number: No. 1343,1343
• Citation: 610 S.W.2d 825
• Parties: Harold N. COOPER, M. D., Appellant, v. A. E. BOWSER et al, Appellees.
• Court: Texas Court of Appeals

Page 825

610 S.W.2d 825

Harold N. COOPER, M. D., Appellant, v. A. E. BOWSER et al, Appellees.

No. 1343.

Court of Civil Appeals of Texas, Tyler.

Dec. 18, 1980.

Charles E. Sweetman and Allison & Plumb, Peter N. Plumb, San Antonio, for appellant.

Lawrence J. Madigan, Richard L. Josephson, Houston, George Spencer, Joseph L. Segrato, San Antonio, for appellees.

SUMMERS, Chief Justice.

This is a medical malpractice and products liability case. A. E. Bowser and his wife, Margarita Bowser, brought this action against Harold N. Cooper, M.D. (appellant), Leonard Cowan, Ciba-Geigy Corporation (Ciba-Geigy) and Merck and Co., Inc. (Merck) to recover damages for injuries sustained by Mr. Bowser. The Bowsers alleged that A. E. Bowser's injuries were caused by the negligence of Dr. Cooper and his employee, Leonard Cowan, in using the drugs Sterazolidin (a Ciba-Geigy product) and Indocin (a Merck product) to treat an injury to Mr. Bowser's right knee. The Bowsers further alleged that the failure of the drug manufacturers, Ciba-Geigy and Merck, to provide adequate instructions regarding the use of the drugs was a producing cause of Mr. Bowser's injuries.

Defendants Cooper, Ciba-Geigy and Merck filed cross-actions against each other for indemnity and contribution. The West American Insurance Company (American) intervened to recover worker's compensation benefits paid to Mr. Bowser.

The case was tried to a jury, and at the close of the evidence the trial court granted motions for instructed verdicts for Ciba-Geigy and Merck. Based on the jury's verdict, a judgment was rendered that the Bowsers and American recover damages in the amount of $240,735.30 against Dr. Cooper; that the Bowsers and American take nothing as to the other defendants and that each defendant take nothing by reason of their respective cross-actions. From this adverse judgment appellant Dr. Cooper has prosecuted this appeal against the Bowsers, American and Ciba-Geigy. The defendants Cowan and Merck are not parties to this appeal.

We affirm.

On April 9, 1975, A. E. Bowser was hitting a car bumper with a hammer when the hammer slipped and hit his right knee. Bowser was working on a job at the time for Dale's Paint and Body Shop where he had been working for a number of years.

Mr. Bowser had been engaged in automobile body repair work for approximately nineteen years and at the time the hammer hit his knee was 45 years old, a married man with four children.

He continued to work on April 9, the day he hit his knee, and on the following day, April 10, his employer sent him to the company doctor, Dr. Harold Cooper, for treatment of the knee injury.

Mr. Bowser was given an x-ray and a physical examination of his right knee which revealed that he had a bruised knee with swelling and fluid in the joint. Upon completion of this examination, Dr. Cooper prescribed thirty capsules of the drug Sterazolidin with the direction that one capsule be taken three times a day, or enough for ten days. Mr. Bowser was then released to return to light duty work and given an appointment for a follow-up examination on April 18, 1975.

Mr. Bowser returned to Dr. Cooper's office on April 11, 12, 14, and 15, 1975. Dr. Cooper did not see him on these occasions, but his medical assistants saw him and assisted with therapy to the knee. After starting the medication on April 10 and during the period of time he was returning to Dr. Cooper's office, Mr. Bowser began to experience headaches, dizziness, muscle pain over his body, pressure and ringing in his head and ears and had difficulty in controlling his body motion. On April 18, 1975, Dr. Cooper examined Mr. Bowser. He noted that the swelling in the knee was reduced but that it was still painful and inflamed. He prescribed forty capsules of Indocin to alleviate the pain and inflammation and released Mr. Bowser to return to regular work duty on April 21st. Over the period of nine days from April 10 through April 18 Dr. Cooper prescribed six different prescription drugs for treatment of Mr. Bowser's bruised knee. Two of these prescription drugs, Sterazolidin, manufactured by Ciba-Geigy, and Indocin, manufactured by Merck, are potent drugs and are capable of causing injury to the central nervous system, loss of hearing and loss of eyesight.

On April 21, 1975, Mr. Bowser saw his regular family physician, Dr. Pedro DeLeon, who noted that Mr. Bowser was on Sterazolidin and Indocin, and placed Mr. Bowser in the hospital on the following day, April 22nd. Dr. DeLeon requested consultation from Drs. Neigut, Gordon, Huey and Wilson. Mr. Bowser was discharged from the hospital in a wheelchair some two months later on June 26, 1975, suffering from loss of hearing, loss of eyesight and loss of motor control.

The main thrust of Mr. Bowser's case was that Dr. Cooper was negligent in using the drugs Sterazolidin and Indocin and that the toxic effects of the drugs caused his injuries. Eight physicians testified at the trial of this cause, Dr. Cooper and six physicians called by him, and plaintiff's medical expert, Dr. Arthur Grollman. Dr. Cooper endeavored to show that Mr. Bowser's condition was one of long standing duration unrelated to the drugs he used in the treatment of Mr. Bowser's bruised knee. Of the six physicians called to testify by Dr. Cooper, only three of these physicians, namely Drs. Gordon, Huey and Rolfini, were involved in Mr. Bowser's medical picture since his knee injury and the use of the drugs in question. Dr. Gordon, an internist, and Dr. Huey, a neurologist, both of whom were consultants during Mr. Bowser's April 1975 hospitalization, admitted they were puzzled by Mr. Bowser's condition. Both considered the possibility of a drug reaction as the cause of his condition, and admitted they did not know what his condition was or the cause of that condition; but it was their opinion he was suffering from a systemic collagens disease in spite of the fact that all specific tests for collagens disease were negative for same.

Dr. Rolfini, a physical rehabilitation physician, testified that Mr. Bowser had the remnants of old polio in one leg but that his present problems, he felt, were mental and emotional rather than physical; however, Dr. Rolfini agreed with the neurologist, Dr. Huey, that Mr. Bowser was unable to work. The three remaining physicians who were called to testify by Dr. Cooper did not give an opinion as to Mr. Bowser's condition after Dr. Cooper's use of the drugs in the treatment of Mr. Bowser's knee bruise. Dr. Trick testified as to the propriety of Dr. Cooper's use of the drug Sterazolidin in treatment of a bruised knee but did not give an opinion as to Mr. Bowser's condition or the cause of that condition. The remaining physicians, Dr. Lee, an ophthalmologist, and Dr. Palmer, an ear, nose and throat specialist, testified with respect to medical problems experienced by Mr. Bowser many years prior to his April 1975 injury, Dr. Lee as to treatment of an industrial injury when Mr. Bowser had some foreign body or acid in his eye and Dr. Palmer as to an ear infection that was alleviated with an antibiotic.

Plaintiff Bowser's expert witness was Dr. Arthur Grollman. Dr. Grollman had extensive qualifications and personal knowledge of the use of prescription drugs in patient therapy and the dangerous propensities and consequences that may result in the use of such drugs. He was a member of the Commission on Drug Safety and a teacher in medical schools for fifty-four years. He was a professor of medicine at the University of Texas Medical School at Dallas from 1950 through 1977 (serving as head of the Department of Pharmacology and Therapeutics for many years) and was teaching at the University of Alabama at the time of his video tape deposition herein. He had authored seven editions of the medical textbook Pharmacology and Therapeutics which deals with the nature of drugs, what they are, what they do, when and how to use them and their toxic effects. In fact, Dr. Grollman had taught the appellant, Dr. Cooper, in medical school, and Dr. Cooper admitted both Dr. Grollman and Dr. Grollman's book Pharmacology and Therapeutics were authoritative in the study of drugs in patient therapy. This text dealt with the drugs in question in this case.

Dr. Grollman testified on the basis of a hypothetical question containing facts proven in evidence. Dr. Grollman's opinion was that Bowser's condition was one of central nervous system injury caused by the drugs, Sterozolidin and Indocin.

Dr. Cooper predicates his appeal upon two points of error. In his first point of error, appellant Cooper complains that the trial court erred in admitting the opinion testimony of the plaintiffs' expert witness, Dr. Arthur Grollman, regarding the cause of Mr. Bowser's injuries because his opinions were based substantially on a hearsay consultation report contained in the hospital records.

By Appendix "A" to his brief, appellant Dr. Cooper attaches a document purporting to be the consultation report of Dr. J. Neigut referred to in his first point of error. This document is not included in the appellate record either by way of bill of exception in the transcript, the statement of facts or the exhibits admitted into evidence by the trial court. Because this document is not a part of the appellate record, the motion of appellees Bowsers and American Insurance to strike Appendix "A" to Dr. Cooper's brief and to assess the merits of his first point of error within the confines of the appellate record is granted.

The burden is on the appellant to present a record sufficiently complete to show clearly the action of the court and the error of which he complains. If he brings up a record that shows only a portion of the proceedings, every reasonable presumption will be indulged in favor of the ruling below, and a reversal will not be ordered unless it appears that on no possible state of the case could the ruling be upheld. 6 Tex.Jur.3d Appellate...