Crawford v. Hope

• Decision Date: 10 May 1995
• Docket Number: No. 07-94-0312-CV,07-94-0312-CV
• Citation: 898 S.W.2d 937
• Parties: Wanda Faye CRAWFORD and Frank Crawford, Appellants, v. Sherman HOPE, M.D., Appellee.
• Court: Texas Court of Appeals

Page 937

898 S.W.2d 937

Wanda Faye CRAWFORD and Frank Crawford, Appellants, v. Sherman HOPE, M.D., Appellee.

No. 07-94-0312-CV.

Court of Appeals of Texas Amarillo.

May 10, 1995.

Rehearing Overruled June 5, 1995.

Law Offices of Brenda J. Norton, Brenda Norton, Law Offices of John Grost, John Grost, El Paso, for appellants.

McCleskey, Harriger, Brazill & Graf, L.L.P., Jim Hund, Lubbock, for appellee.

Before DODSON, BOYD and QUINN, JJ.

QUINN, Justice.

The pending case entails, for the most part, a battle of experts and the manifestation that the field of medicine, when placed in the legal arena, is far from an exact science. Frank and Wanda Faye Crawford ask whether the trial court erroneously instructed the jury about unavoidable accident, whether the evidence supported the jury's verdict, and whether the trial court abused its discretion in limiting the scope of a medical expert's testimony during their case in chief. The court answers no and affirms the judgment.

FACTS

On August 4, 1990, Wanda Faye suffered a generalized tonic-clonic seizure. As a result of which, she fell and struck her head. A subdural hematoma soon developed, which, she argued, caused her to suffer injury to the left side of her body. Though being a victim of complex partial seizures for many years and having ingested Phenobarbital and Mysoline to control same, she attributed her August 4th convulsion to the Appellee, Dr. Sherman Hope. Approximately four days before the attack, Dr. Hope had removed her from the aforementioned barbiturates and placed her on Zarontin. He did so in effort to ameliorate minor seizures, that is, blackouts, which neither the Phenobarbital nor the Mysoline alleviated.

Experts testifying at trial and on behalf of the Crawfords stated that Zarontin had no "efficacy against" the types of seizures she suffered. Rather, the drugs previously taken were the appropriate ones. Moreover, Hope proximately caused the onset of the seizure by abruptly suspending their use, they opined. They further stated that this action constituted negligence, as did his purported failure to disclose the potentially dire effects of his decision to his patient.

Responding, Hope admitted that halting use of the barbiturates could have enhanced the possibility of seizure. Yet, he denied that it caused the one experienced August 4th. Crawford's malady, in his view, resulted from "hyponatremia," a rapid drop in the sodium level of the blood. The loss of sodium emanated from a bout of diarrhea previously Another expert concurred with Hope. Dr. Carl Smith, testified that Wanda's brain swelled due to a "disturbance in [her] internal fluid balance." In effect, it became "waterlogged". The condition, known as hyponatremia, occurred when the victim rapidly lost sodium from her blood serum. Reacting to the loss, her body released a hormone which induced the brain to "suck" water into it. The brain then swelled within its cranial confines which may have triggered seizure.

suffered by Crawford. The cause of the diarrhea, however, he did not know, though he believed it could have been a virus.

That the foregoing happened to Wanda, according to Smith, was evinced by her complaints of diarrhea shortly before August 4th, a drop in her recorded "serum sodium" level from 132 on July 30th (or "in [Hope's] lab up to 148 at that point in time") to 121 on August 4th, a drop in her recorded "creatinine" level from .09 on July 30th to .04 on August 4th, subsequent rise in her serum sodium after August 4th, and her urine output which was approximately five times more than her fluid intake. What caused the diarrhea, which removed the salt from her body, was unknown, though it could have been a virus. In other words, Smith inferred the sequence of events leading to the seizure but could not determine the initial stimulus of the sequence.

Thus, Smith's opinion was twofold. First, regardless of what caused the seizure, it was not Hope's decision to discontinue Wanda's barbiturates. Second, even had the drugs been continued, neither would have prevented the attack.

The parties eventually completed their presentations, after which the court charged the jury. Included within the charge was a question asking it to decide whether Hope's negligence, if any, proximately caused the injuries in question. Also incorporated were a definition of "proximate cause" and an instruction on "unavoidable accident," to which instruction the Appellants objected. Upon deliberating the evidence and argument, the jurors answered "no" to the foregoing question.

POINTS OF ERROR ONE AND TWO

In their first two points of error, the Crawfords protest the incorporation of the doctrine of "unavoidable accident" into the charge. It was neither applicable in a medical malpractice case nor warranted by the evidence. Declining their invitation to hue a new path in the land of negligence, we overrule both points.

Whether a trial court erred in including or omitting matter from its jury charge depends upon whether it abused its discretion. Edwards Transp., Inc. v. Circle S Transports, Inc., 856 S.W.2d 783, 786 (Tex.App.--Amarillo 1993, no writ). Next, the latter depends upon whether it acted in accordance with guiding principles. Id. at 788; Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991). In other words, the court considers whether the actions were arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). Conduct founded upon misinterpreted or misapplied law falls within the borders of abused discretion. 2300, Inc. v. City of Arlington, 888 S.W.2d 123, 126 (Tex.App.--Fort Worth 1994, no writ). So too does conduct lacking in factual basis illustrate error. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d at 226 (Tex.1991) (holding as a relevant consideration in determining abused discretion whether evidence supported the court's decision). Yet, a reviewing court's mere disagreement with a decision otherwise supportable in law and fact is not ground for reversal. Id. at 226. With this said, the court turns to the points of error.

Point two is addressed first, for the simple reason of its quick disposition. When the standard of review is one of abused discretion, allegations of factual or legal sufficiency are not independent grounds of error. D.R. v. J.A.R., 894 S.W.2d 91, 95 (Tex.App.--Fort Worth 1995, no writ); Mai v. Mai, 853 S.W.2d 615, 618 (Tex.App.--Houston [1st Dist.] 1993, no writ); Beaumont Bank, N.A.

                v. Buller, 806 S.W.2d at 226.   Rather, disputes about the quantity of evidence are subsumed into the test of abused discretion.  Id.  Thus, point two is overruled, to the extent that the Appellants urge it as an independent assignment of error.  D.R. v. J.A.R., 894 S.W.2d at 95
                

Next, under point one, the Crawfords attack the doctrine of "unavoidable accident" as "improper per se in a medical malpractice action." Indeed, it "should not be used at all in Texas," they propose. (Emphasis supplied). To adopt such a position would be to ignore precedent.

The jurisprudence of negligence has long been established in Texas. Within it one finds the tenet that only those responsible for the malady should be burdened with its cure. See Carter v. Steere Tank Lines, Inc., 835 S.W.2d 176, 185-87 (Tex.App.--Amarillo 1992, writ denied) (dissenting opinions rejecting an attempt to make negligence result oriented). Equally inveterate is the principle that an act, no matter how wrong, may not necessarily be the causative factor of injury. From the foregoing concepts, the element of proximate cause merged. Thus, before one may be held liable for redress it must be shown, among other things, that his negligent act produced the injury in a natural and continuous sequence of events. See Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 785 (1949) (stating that "the proof must establish causal connection beyond the point of conjecture ... show more than a possibility").

Next, the theory of "unavoidable accident" is one means of reiterating to the fact finders the need for causation. When invoking it, the court informs them that though conduct "may have been negligent in the abstract" it must, nevertheless, produce the outcome of which the party complains. See J. Edgar & J. Sales Texas Torts and Remedies § 2.12[b] (1991) (discussing the basis of unavoidable accident). More importantly, Texas jurisprudence has long permitted a trial judge to so advise jurors. Hill v. Winn Dixie Texas, Inc., 849 S.W.2d 802, 803 (Tex.1992); Rodman Supply Co. v. Jones, 370 S.W.2d 951, 954 (Tex.Civ.App.--Amarillo 1963, no writ). Additionally, the permission has historically extended to cases of medical negligence. E.g., Wisenbarger v. Gonzales Warm Springs Rehab. Hosp., 789 S.W.2d 688 (Tex.App.--Corpus Christi 1990, writ denied); Swartout v. Holt, 272 S.W.2d 756 (Tex.Civ.App.--Waco 1954, writ ref'd n.r.e.); J. Edgar & J. Sales Texas Torts and Remedies § 11.04. So, regardless of whether one acted negligently, the courts of Texas will not assess him with liability unless his misfeasance caused the resulting injury. To hold otherwise would be to ignore settled precepts of law.

Yet, Texas courts also recognize that a defendant is not automatically entitled to an instruction explaining unavoidable accident. On the contrary, he must first present evidence that the event was caused by some condition other than the negligence of the parties. Hill v. Winn Dixie Texas, Inc., 849 S.W.2d at 803; Wisenbarger v. Gonzales Warm Springs Rehab. Hosp., 789 S.W.2d at 692; Rodman Supply Co. v. Jones, 370 S.W.2d at 954. Until he does so, the court may omit the inferential rebuttal from its charge.

Here, Doctors Smith and Hope provided the requisite evidence. As described above, both stated that though Hope may have acted negligently, the drop in sodium with the attendant bloating of Wanda's brain caused the seizure. Furthermore, the agent which kindled the drop was unknown, though indication...