Elbaor v. Smith, No. D-1163

CourtSupreme Court of Texas
Writing for the CourtGONZALEZ; Spears; DOGGETT; DOGGETT
Citation845 S.W.2d 240
Parties, 22 A.L.R.5th 879 James E. ELBAOR, M.D., Petitioner, v. Carole Mercer SMITH, Respondent.
Docket NumberNo. D-1163
Decision Date02 December 1992

Page 240

845 S.W.2d 240
61 USLW 2368, 22 A.L.R.5th 879
James E. ELBAOR, M.D., Petitioner,
v.
Carole Mercer SMITH, Respondent.
No. D-1163.
Supreme Court of Texas.
Dec. 2, 1992.
Rehearing Overruled Jan. 20, 1993.

Page 241

John Hill Cayce, Jr., E. Earl Harcrow, and D. Robert Jones, Fort Worth, for petitioner.

George C. Dixie, Aglaia D. Mauzy, Calvin B. Almquist, David E. Keltner, Dallas, Craig M. Price, and Karen S. Precella, Fort Worth, for respondent.

OPINION

GONZALEZ, Justice.

In this medical malpractice case we consider: 1) whether the trial court should have submitted to the jury a requested issue concerning the plaintiff's contributory negligence; and 2) whether Mary Carter agreements are void as contrary to public policy. The trial court rendered judgment in favor of the plaintiff, and the court of appeals affirmed. 845 S.W.2d 282. We hold that the trial court committed reversible error in refusing to submit an issue on the plaintiff's contributory negligence. We further hold that Mary Carter agreements are void as against public policy. 1 We thus reverse the judgment of the court of appeals and remand this cause to the trial court for a new trial.

I.

At 2:00 a.m. on May 8, 1985, Carole Smith was seriously injured in a single-vehicle accident when the Corvette she was driving left the highway and collided with a tree. She received emergency treatment at the Dallas/Fort Worth Medical Center-Grand Prairie ("D/FW Medical Center")

Page 242

from Dr. Abraham Syrquin for multiple injuries including a compound fracture of her left ankle. In an effort to stop the bleeding, Dr. Syrquin performed emergency surgery closing the ankle wound. Ms. Smith remained under Dr. Syrquin's treatment for eight days at D/FW Medical Center after which time she was transferred to the care of Dr. James Elbaor, an orthopedic surgeon, at Arlington Community Hospital ("ACH").

While Ms. Smith was at ACH, she was treated by a team of physicians including Dr. Elbaor, Dr. Joseph Stephens, a plastic surgeon, and Dr. Bienvenido Gatmaitan, an infectious disease specialist. Upon admission to ACH, Ms. Smith was evaluated by Dr. Gatmaitan and placed on intravenous antibiotics. During the course of her stay, Dr. Stephens performed two debridements of the ankle wound. 2 Although the issue of whether Ms. Smith's ankle was infected was hotly contested at trial, Dr. Stephens' progress notes following both debridement procedures indicated that there was no active infection present in the ankle. On June 3, Ms. Smith was transferred to the care of Dr. Wayne Burkhead at Baylor University Medical Center ("Baylor"). Four days after admission, Dr. Burkhead removed a two inch section of bone from Ms. Smith's ankle. Ms. Smith received treatment from several orthopedic specialists over the next three years which ultimately led to the fusion of her ankle joint.

Ms. Smith's medical records from D/FW Medical Center and ACH indicate that she refused to cooperate with the instructions of her doctors and nurses. She frequently refused to take her antibiotics, and directed family members to remove weights from her femoral traction device. Some time later, Ms. Smith was transferred to another hospital for surgery to shorten and fuse the bone, leaving her permanently disabled.

Ms. Smith filed suit against D/FW Medical Center, ACH, Drs. Syrquin, Elbaor, Stephens, and Gatmaitan. Sometime before trial, Ms. Smith entered into Mary Carter agreements with Dr. Syrquin, Dr. Stephens, and ACH. 3 The Mary Carter agreements provided for payments to Ms. Smith of $350,000 from Dr. Syrquin, $75,000 from ACH, and $10 from Dr. Stephens. Under the terms of each agreement, the settling defendants were required to participate in the trial of the case. The agreements also contained pay-back provisions whereby Dr. Syrquin and ACH would be reimbursed all or part of the settlement money paid to Ms. Smith out of the recovery against Dr. Elbaor.

Ms. Smith nonsuited her claim against Dr. Gatmaitan and settled and dismissed her claim against D/FW Medical Center. Dr. Elbaor filed a cross claim against Dr. Stephens, Dr. Gatmaitan, 4 Dr. Syrquin, and ACH. He alleged that in the event he was found liable to Ms. Smith, that he was entitled to contribution from these defendants. Furthermore, Dr. Elbaor requested that the trial court hold the Mary Carter agreements void as against public policy, and alternatively, to dismiss the settling defendants from the suit. The trial court denied this request. The suit proceeded to trial against Dr. Elbaor and the cross defendants.

At trial, the jury found that Ms. Smith's damages totalled $2,253,237.07, of which Dr. Elbaor was responsible for eighty-eight percent, and Dr. Syrquin for twelve percent. After deducting all credits for Dr. Syrquin's percentage of causation and settlements with other defendants, the trial

Page 243

court rendered judgment against Dr. Elbaor for $1,872,848.62.

II.

We first consider Dr. Elbaor's assertion that the trial court erred by refusing to submit to the jury a question on Ms. Smith's contributory negligence (along with questions addressing his own negligence and that of Drs. Syrquin and Stephens). The court of appeals held that the trial court's refusal was not error because there was no evidence of Ms. Smith's contributory negligence. 845 S.W.2d at 284. The court concluded that evidence of Ms. Smith's refusal of antibiotics only entitled Dr. Elbaor to an instruction on Ms. Smith's failure to mitigate damages.

Rule 278 of the Texas Rules of Civil Procedure provides that:

[t]he court shall submit the questions, instructions and definitions in the form provided by Rule 277, which are raised by the written pleadings and evidence.

This rule provides a substantive, non-discretionary directive to trial courts requiring them to submit requested questions to the jury if the pleadings and any evidence support them. To determine whether legally sufficient evidence supported Dr. Elbaor's contributory negligence submission, we must examine the record for evidence supporting Dr. Elbaor's question and ignore all evidence to the contrary. See, e.g., Roy v. Howard-Glendale Funeral Home, 820 S.W.2d 844, 846 (Tex.App.--Houston [1st Dist.] 1991, writ denied) ("trial court is obligated to submit the question if the evidence [supporting question] amounts to more than a scintilla"); Times Herald Printing v. A.H. Belo Corp., 820 S.W.2d 206, 215 (Tex.App.--Houston [14th Dist.] 1991, no writ) (in reviewing evidence regarding refused question, appellate court "consider[ed] evidence most favorably in behalf of the complaining party"); Kerrville HRH, Inc. v. City of Kerrville, 803 S.W.2d 377, 383 (Tex.App.--San Antonio 1990, writ denied) (trial court "may refuse to submit a question only if no evidence exists to warrant its submission"); Bryan v. Dockery, 788 S.W.2d 447, 451 (Tex.App.--Houston [1st Dist.] 1990, no writ) ("evidence must be considered in favor of the party against whom the questions were refused and if it supports the question then it must be submitted"); Phillips Pipeline Co. v. Richardson, 680 S.W.2d 43, 48 (Tex.App.--El Paso 1984, no writ) ("evidence must be considered most favorably in behalf of the party against whom the issues were refused, and if there is any conflicting probative evidence in the record, those questions are for the jury's determination"). A trial court may refuse to submit an issue only if no evidence exists to warrant its submission. Brown v. Goldstein, 685 S.W.2d 640, 641 (Tex.1985) (where evidence was conflicting, it is error to refuse submission of contributory negligence issues); Garza v. Alviar, 395 S.W.2d 821, 824 (Tex.1965) (contention that question should not have gone to jury only sustainable if no evidence supports question).

In order to determine whether Dr. Elbaor's questions should have been presented to the jury, we must examine the record to see if there is some evidence that Ms. Smith's refusal to take antibiotics arguably preceded the onset of infection in her ankle. If we find some evidence indicating that Ms. Smith may have been contributorily negligent, then we must conclude that the trial court should have submitted Dr. Elbaor's requested contributory negligence question; and accordingly, we must reverse this cause and remand it for a new trial.

A brief chronology of events will aid our analysis. After the accident on May 8, 1985, Ms. Smith was treated by Dr. Syrquin at D/FW Medical Center for injuries to her left shoulder, femur, and ankle. On May 17, she was transferred to ACH and into the care of Drs. Elbaor, Stephens, and Gatmaitan. She remained under their care until she was transferred to Baylor on June 3.

Shortly after Ms. Smith arrived at ACH, Dr. Gatmaitan rendered an initial diagnosis concluding that her ankle was infected, and

Page 244

he began treating her with intravenous antibiotics. 5 Ms. Smith, however, did not exhibit symptoms typical of systemic infection. That is, as Dr. Stephens' medical notes reveal, she had no fever and her ankle wound was dry and appeared to be healing. Dr. Elbaor's notes of May 20 show that he decided to have Ms. Smith's ankle debrided the following day in order to discover whether it was infected. He also noted that there was no drainage from the ankle as would be typical of an infected wound. Dr. Stephens performed the first of two debridements on Ms. Smith's ankle on May 21. His subsequent medical notes reveal that the wound was clean, healthy, and dry. And on May 26, he noted, regarding the ankle wound, that "I do not feel it is infected." Dr. Stephens still thought the ankle healthy on May 30, just a few days before Ms. Smith transferred herself to Baylor; and he was contemplating performing a skin graft, which, as Dr. Elbaor testified, would have been unthinkable if there had been any sign of infection. The record contains evidence of Ms. Smith's refusal of the antibiotics that were essential to prevent infection in...

To continue reading

Request your trial
329 practice notes
  • Collings v. City First Mortg. Servs., LLC, Nos. 66527–8–I, 66820–0–I.
    • United States
    • Court of Appeals of Washington
    • November 18, 2013
    ...matter of policy. See, e.g., Dosdourian, 624 So.2d at 246;Cox v. Kelsey–Hayes Co., 1978 OK 148, ¶ 32, 594 P.2d 354, 360;Elbaor v. Smith, 845 S.W.2d 240, 250 (Tex.1992). Others have allowed Mary Carter agreements but have required that they be disclosed. Hodesh v. Korelitz, 123 Ohio St.3d 72......
  • Collings v. City First Mortg. Servs., LLC, Nos. 66527–8–I, 66820–0–I.
    • United States
    • Court of Appeals of Washington
    • July 29, 2013
    ...matter of policy. See. e.g., Dosdourian, 624 So.2d at 246;Cox v. Kelsey–Hayes Co., 1978 OK 148, ¶ 32, 594 P.2d 354, 360;Elbaor v. Smith, 845 S.W.2d 240, 250 (Tex.1992). Others have allowed Mary Carter agreements but have required that they be disclosed. Hodesh v. Korelitz, 123 Ohio St.3d 72......
  • Texas Ass'n of Business v. Texas Air Control Bd., No. C-9556
    • United States
    • Supreme Court of Texas
    • March 3, 1993
    ...retroactivity, of course, anything can happen. See, e.g., Carrollton-Farmers Indep. Sch. Dist., 826 S.W.2d at 515-23; Elbaor v. Smith, 845 S.W.2d 240 (Tex.1992) (creating uncertainty by disapproval of a type of pre-trial agreements previously upheld by this 22 "The right of trial by jury, a......
  • Fairfield Ins. v. Stephens Martin Paving, No. 04-0728.
    • United States
    • Supreme Court of Texas
    • February 15, 2008
    ...(Tex.App.-San Antonio 1994, writ ref'd) (holding that assignment of legal malpractice claims was against public policy); Elbaor v. Smith, 845 S.W.2d 240, 241 (Tex. 1992) (holding that Mary Carter agreements, in which the defendant receives assignment of part of plaintiff's claim and both re......
  • Request a trial to view additional results
330 cases
  • Collings v. City First Mortg. Servs., LLC, Nos. 66527–8–I, 66820–0–I.
    • United States
    • Court of Appeals of Washington
    • November 18, 2013
    ...matter of policy. See, e.g., Dosdourian, 624 So.2d at 246;Cox v. Kelsey–Hayes Co., 1978 OK 148, ¶ 32, 594 P.2d 354, 360;Elbaor v. Smith, 845 S.W.2d 240, 250 (Tex.1992). Others have allowed Mary Carter agreements but have required that they be disclosed. Hodesh v. Korelitz, 123 Ohio St.3d 72......
  • Collings v. City First Mortg. Servs., LLC, Nos. 66527–8–I, 66820–0–I.
    • United States
    • Court of Appeals of Washington
    • July 29, 2013
    ...matter of policy. See. e.g., Dosdourian, 624 So.2d at 246;Cox v. Kelsey–Hayes Co., 1978 OK 148, ¶ 32, 594 P.2d 354, 360;Elbaor v. Smith, 845 S.W.2d 240, 250 (Tex.1992). Others have allowed Mary Carter agreements but have required that they be disclosed. Hodesh v. Korelitz, 123 Ohio St.3d 72......
  • Texas Ass'n of Business v. Texas Air Control Bd., No. C-9556
    • United States
    • Supreme Court of Texas
    • March 3, 1993
    ...retroactivity, of course, anything can happen. See, e.g., Carrollton-Farmers Indep. Sch. Dist., 826 S.W.2d at 515-23; Elbaor v. Smith, 845 S.W.2d 240 (Tex.1992) (creating uncertainty by disapproval of a type of pre-trial agreements previously upheld by this 22 "The right of trial by jury, a......
  • Fairfield Ins. v. Stephens Martin Paving, No. 04-0728.
    • United States
    • Supreme Court of Texas
    • February 15, 2008
    ...(Tex.App.-San Antonio 1994, writ ref'd) (holding that assignment of legal malpractice claims was against public policy); Elbaor v. Smith, 845 S.W.2d 240, 241 (Tex. 1992) (holding that Mary Carter agreements, in which the defendant receives assignment of part of plaintiff's claim and both re......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT