Duntsch v. State, 05-17-00235-CR

• Citation: 568 S.W.3d 193
• Decision Date: 10 December 2018
• Docket Number: No. 05-17-00235-CR,05-17-00235-CR
• Parties: Christopher Daniel DUNTSCH, Appellant v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas

568 S.W.3d 193

Christopher Daniel DUNTSCH, Appellant

v.The STATE of Texas, Appellee

No. 05-17-00235-CR

Court of Appeals of Texas, Dallas.

Opinion Filed December 10, 2018

Rehearing En Banc Denied January 30, 2019

OPINION

Opinion by Justice Lang

Following a plea of not guilty, appellant Christopher Daniel Duntsch was convicted by a jury of intentionally or knowingly causing serious bodily injury to an elderly individual while using or exhibiting a deadly weapon. Punishment was assessed by the jury at life imprisonment.

In three issues on appeal, appellant contends the trial court abused its discretion by admitting certain evidence of extraneous conduct of appellant and the evidence presented at trial is insufficient to support appellant’s conviction because the State failed to prove the culpable mental state beyond a reasonable doubt. We decide against appellant on his three issues. The trial court’s judgment is affirmed.

I. FACTUAL AND PROCEDURAL CONTEXT

A. Pretrial Proceedings

At the time of events in question, appellant was a neurosurgeon licensed to practice medicine in Texas and Tennessee. The indictment in this case alleged that on approximately July 25, 2012, appellant "intentionally, knowingly, recklessly and with criminal negligence cause[d] serious bodily injury to MARY EFURD, an elderly individual 65 years of age or older, ... by MALPOSITIONING AN INTERBODY DEVICE AND MALPOSITIONING PEDICLE SCREWS

AND AMPUTATING THE LEFT L5 NERVE ROOT," and "use[d] a deadly weapon, to-wit: HANDS AND SURGICAL TOOLS AND A PEDICLE SCREW, during the commission of the offense." (emphasis original).

Prior to trial, the State sought a ruling on the admissibility of evidence respecting surgeries performed by appellant on patients other than the complainant. The State asserted in part,

[T]he totality of the defendant’s conduct is relevant, admissible, and crucial to the jurors' understanding of the case. This Court should admit the evidence of the defendant’s other surgeries, including the outcomes of those surgeries, under the doctrine of chances and as substantive proof of the defendant’s culpable mental state....

....

The most likely defense will be that the defendant did not act intentionally, knowingly, or recklessly.... In order to make a competent decision regarding the defendant’s state of mind, the jurors need to understand the information that the defendant knew regarding his surgical technique and previous outcomes.

In response, appellant contended the extraneous offense evidence in question constituted improper character evidence and its admission would result in an improper amount of time "devoted to extraneous offenses and not the case itself." Further, during a pretrial hearing on that matter, counsel for appellant stated in part "[w]e would ask the [trial court] to not allow any of the extraneous offenses" the State sought to admit into evidence.

Following that pretrial hearing, the trial court ruled that it would allow the extraneous offense evidence in question and provide limiting instructions to the jury respecting that evidence.

B. Opening Statements

During opening statements, the State asserted in part, "You're going to hear the carnage [appellant] caused was not a mistake or an accident or just malpractice ... and he was aware of all the injuries that he had caused these patient [sic], and he knew what he was capable of, and he knew that the next patient he walked into he was going to maim or paralyze or kill."

Counsel for appellant asserted in part during opening statements as follows:

They want to be at knowing and intentionally, and to do that they're going to bring you ... other individuals who have had surgery with him, character evidence, other extraneouses, so that you can push yourself up that hill....

....

... When we're talking about surgery and we're talking about consent, there are risks in surgery. They don't want you to think that this is just one of those risks that failed, so they bring you more to persuade you it’s not a risk, to persuade you that he knew, that he did it intentionally. They want to keep pushing you with the emotion and draw you away from the facts.

C. Evidence Presented at Trial

1. Complainant’s Surgery by Appellant

At trial, the complainant, Mary Efurd, testified that in 2011, she was seventy-four years old and had suffered from lower back pain for years. Her pain management doctor referred her to appellant. Efurd stated appellant recommended surgery, including a fusion of two of her vertebrae and the insertion of "hardware" in her spinal area. In December 2011, appellant performed back surgery on Efurd at Baylor Regional Medical Center of Plano ("Baylor"). Efurd testified the December 2011 surgery "went fine," but did not relieve her pain. During a follow-up appointment, appellant recommended another surgery "lower down," in the "lumbar region" of her spine.

On Wednesday, July 25, 2012, Efurd underwent a second surgery by appellant, this time at Dallas Medical Center ("DMC"). According to Efurd, when she awoke from that surgery, she "had excruciating pain" and could not move her feet or legs or turn over in bed. She stated she was "crying and pleading and begging" for something to control the pain, but nothing she was given was effective. Efurd testified that at some point, the "administrator of the hospital" came into her room and told her appellant "wanted to do another surgery to see if he could determine what was causing all of my pain." Efurd told the administrator "something is wrong, bad wrong, and if I have to have a surgery, some type of corrective surgery, please find me another doctor."

On July 28, 2012, Efurd underwent surgery by Dr. Robert Henderson at DMC. Efurd testified that surgery "went fine," but afterward she "still was having lots of pain" and "couldn't move." Efurd was transferred to a rehabilitation facility, where she spent approximately two months. She eventually regained some muscle function in her legs and feet. However, she was left with a condition called "drop foot," which prevents her from being able to raise her left foot and requires her to wear a brace. Also, she stated she now suffers from incontinence. She testified she did not have those conditions before her second surgery by appellant.

Henderson testified he is board certified in diagnosis and treatment of the thoracic lumbar spine and has limited his surgical practice to that specialty since 1988. He stated he is "extremely familiar with orthopedic and neurosurgical techniques." According to Henderson, when he evaluated Efurd after the July 25, 2012 surgery in question, "it was very apparent that all of her current complaints were what we call iatrogenic, or caused by the surgery and by the surgeon doing the surgery." Specifically, Henderson testified in part,

A. ... [O]ne of my thoughts that I expressed was that [appellant] must have known what he was doing because he did virtually everything wrong. So to be able to do that much wrong, I felt that he must have known at some point in time how to do it right. It was that egregious.

Q. So he knew how to do it, and he did the opposite?

A. It seemed like it. In a facetious way, it seemed like it. It was—you asked how egregious it was. I'm not even—it’s as egregious as you can imagine. At the end of—well, during the procedure that I went in on Ms. Efurd to repair, I became concerned whether or not he was a physician and was a surgeon.

Q. Why?

A. Because it was such a tragedy inside what had happened. There were holes where they shouldn't be in the bone, there were holes in the dura leaking cerebral spinal fluid. There was an amputated nerve root, meaning a portion of the nerve root was just gone, and he put a screw in at the S1 level on the right side that was barely on the right side.

It actually crossed the midline and went right through the dural sac, the fluid sac that holds the nerves, and one of the implants that he was planting, that was the purpose of the operation to put between the vertebral bodies for stability and fusion, was placed to the left side of the spine.

It wasn't even in the spine. It was just laying in muscle, muscle that he had destroyed, to some extent, to make a tunnel to put the device into and had injured additional nerves.

Henderson stated he asked DMC administrators for the photograph appellant had submitted with his credentialing process. Then, Henderson faxed a copy of that photograph to Dr. Kevin Foley in Tennessee, whom appellant had listed as his fellowship director. Henderson asked Foley whether this was the person he had trained and approved as a surgeon. Foley responded "yes." Further, Henderson testified he reported appellant to the Texas Medical Board, which ultimately suspended appellant’s medical license two years later.

Henderson stated that the "Hippocratic Oath" taken by all doctors upon graduation from medical school states in part, "I will not be ashamed to say I know not, nor will I fail to call in my colleagues when the skills of another are needed for a patient’s recovery." Henderson testified that in this case, appellant "failed to adhere advice [sic] and interpretation of imaging from other physicians, other specialists and certainly did not call in help and certainly did not provide appropriate post operative care." Also, Henderson testified in part,

Q. ... Would a—would a trained neurosurgeon know, when they are doing the things to Mary Efurd that [appellant] did, that they're going to cause her serious bodily injury?

A. Yes.

....

Q. Is there any way that a neurosurgeon would not know that he was causing her harm?

A. No.

Further, Henderson stated Efurd signed a consent form prior to her surgery that stated in part "there is a chance for adverse outcomes." Then, he testified as follows:

Q. So when Mary Efurd signed that consent, was she consenting to the defendant putting the interbody device into her muscle?

A. No.

Q. That’s not in the realm of possibility that’s being considered by this consent form that she’s signing?

A.

...