Gross v. Burt

• Decision Date: 02 September 2004
• Docket Number: No. 2-01-206-CV.,2-01-206-CV.
• Parties: Robert GROSS, M.D., All Saints Integrated Affiliates d/b/a All Saints Medical Associates, and Stephanie Perdue, M.D., Appellants, v. Alyssha and Keith BURT, Individually and as Next Friends for Hunter and Tyler Burt, Minor Children, Appellees.
• Court: Texas Court of Appeals

149 S.W.3d 213

Robert GROSS, M.D., All Saints Integrated Affiliates d/b/a All Saints Medical Associates, and Stephanie Perdue, M.D., Appellants, v. Alyssha and Keith BURT, Individually and as Next Friends for Hunter and Tyler Burt, Minor Children, Appellees.

No. 2-01-206-CV.

Court of Appeals of Texas, Fort Worth.

September 2, 2004.

Rehearing Overruled September 30, 2004.

Haynes and Boone, L.L.P.; E. Earl Harcrow, Craig M. Price, and Karen Williams

Altaras, Fort Worth, for appellant Robert Gross, M.D.

Cooper & Scully, P.C.; R. Brent Cooper and Diana L. Faust, Dallas, for appellant All Saints Integrated Affiliates d/b/a All Saints Medical Associates and Stephanie Perdue, M.D.

Jose, Henry, Brantley & Keltner, L.L.P.; Rickey J. Brantley, David E. Keltner, and Anna K. Alvarado, Fort Worth, for appellees.

PANEL A: LIVINGSTON and WALKER, JJ.; SAM J. DAY, J. (Retired, Sitting by Assignment).

OPINION ON REHEARING

TERRIE LIVINGSTON, Justice.

After reconsidering our prior opinion on appellees' motions for rehearing and motions for rehearing en banc, we deny the motions for rehearing and rehearing en banc,¹ withdraw our February 26, 2004 opinion and judgment, and substitute the following in their place.

A jury found several defendants negligent in this medical malpractice case regarding their failure to treat and diagnose twin premature infants for retinopathy of prematurity, which resulted in permanent injury and partial blindness for the twins. The appellees, Alyssha and Keith Burt, asserted claims in their individual capacities and on behalf of their two sons, Hunter and Tyler. They asserted claims against Robert Gross, M.D., a pediatric ophthalmologist, Stephanie Perdue, M.D. and Wayne Yee, M.D., both pediatricians, All Saints Integrated Affiliates d/b/a/ All Saints Medical Associates (All Saints), Dr. Perdue's employer, and Harris Methodist Texas Health Plan, Inc. d/b/a Harris Methodist Star Health Plan (the Plan). Prior to trial, the trial court granted Dr. Gross's motion for summary judgment as to the Burts' claims with respect to Tyler based upon the lack of a physician-patient relationship. The Burts' remaining claims proceeded to trial. The jury returned a verdict against all of the defendants except the Plan. The Burts settled with Dr. Yee. Dr. Gross, Dr. Purdue, and All Saints appealed. This appeal follows. We reverse the trial court's judgment and render judgment against the Burts on all of their claims against Dr. Gross, Dr. Perdue, and All Saints.

Factual Summary

Hunter and Tyler were born prematurely on December 26, 1996 at Harris Methodist Hospital (Harris). They both required ventilation and some oxygenation and remained in Harris's neonatal intensive care unit (NICU) until February 1997. At birth, Tyler weighed three pounds one ounce and Hunter weighed two pounds nine ounces. They both required intravenous feeding and were diagnosed with apnea of prematurity, bradycardia of prematurity, and neonatal jaundice. Hunter also had an inguinal hernia. Further, because of his weight and prematurity, Hunter was potentially at risk for retinopathy of prematurity (ROP), which can result in retinal scarring, retinal detachment, vision loss, and even blindness. Babies at risk of ROP require serial screening.

In the NICU, Tyler was identified as Twin A and Hunter as Twin B. Medical records reflected their mother was Alyssha Taylor and their father was Keith Burt. Both twins were given the last name of Taylor at Harris.²

Dr. Kim Smith, a neonatologist, was the admitting and attending physician for the twins while they remained in the NICU. The attending neonatologist determines whether a premature baby needs to be screened for ROP. Harris's Level III NICU has an ROP screening protocol, and when a premature infant meets the protocol's criteria, that infant's name is placed on one of the consulting ophthalmologists' examining lists. The actual screening is performed by a pediatric ophthalmologist. At the Harris NICU, the pediatric ophthalmologist is a consulting physician requested or ordered by the attending physician, who reports back to the attending physician. Thus, Dr. Smith ordered a screening ROP examination for Hunter because he met hospital protocol for screening due to his birth weight and gestational age of twenty-nine months. Tyler did not fall within the NICU's parameters, so Dr. Smith did not order an initial ROP screening test on him. On Dr. Smith's order, Dr. Gross, who was a consulting pediatric ophthalmologist for the NICU, performed a preliminary screening examination on Hunter on February 8, 1997. Hunter was identified by Dr. Smith as Twin B at the time Dr. Gross performed the screening tests.

Dr. Gross determined that Hunter had Stage I ROP in his right eye. He forwarded an ROP "Initial Evaluation" report of his findings and recommendations back to Dr. Smith and recommended that Hunter seek a follow-up visit within two weeks. Prior to Hunter's evaluation in the NICU, the Harris NICU nurses helped Alyssha make eye appointments for both twins at Dr. Gross's office for February 17, after their discharge. Alyssha used the names Hunter and Tyler Burt when she made the February 17, 1997 appointments.

Tyler, Twin A, was discharged from the NICU on February 5, 1997, and Hunter, Twin B, was discharged on February 13, 1997, before their scheduled February 17 appointments with Dr. Gross. Dr. Smith testified that the parents had been sufficiently educated about ROP by the time of the babies' discharges. Jerri Ballard, a Harris NICU nurse, testified that in her opinion both of the parents were taught the importance and relevance of the follow-up ROP appointments in order to be discharged from the NICU.

Upon discharge, Alyssha selected Dr. Wayne Yee, a pediatrician, to become the babies' primary care physician. Dr. Yee examined Tyler on February 12, 1997, and his external eye exam was normal. He confirmed Alyssha's appointments for both twins with Dr. Gross for the 17th. Dr. Yee testified that he discussed with the Burts the importance of making the appointments for the ROP exams.³ A doctor-to-doctor letter from Dr. Smith to Dr. Yee specifically identified Hunter's ROP diagnosis and showed that both twins had set up appointments with Dr. Gross for February 17. Hunter's appointment with Dr. Gross was "starred," as was his ROP diagnosis.

The NICU also confirmed the twins' appointments with Dr. Gross for February 17, 1997. Alyssha and Keith were informed of the importance of the follow-up appointments for ROP. However, Alyssha did not take the twins to this appointment because she had no referral. Records at Dr. Yee's office show that Alyssha requested a referral from Dr. Yee to Dr. Gross on February 17, the actual day of their appointment. Dr. Yee completed the referral on February 19.

Alyssha rescheduled the appointment for February 28, 1997; however, they missed this appointment too. In the interim, both twins had been admitted to Cook Children's Hospital (Cook's) on February 24 due to a virus. Hunter was released from Cook's on February 28 and Tyler was released on March 1. Alyssha never called to cancel the February 28 appointment or to reschedule it. Dr. Yee testified that he had instructed Alyssha to postpone the February 28 appointment since one or both twins were about to get out of the hospital.

As of March 1, Alyssha and Keith had become dissatisfied with Dr. Yee. At the same time, Alyssha knew they had missed two appointments with Dr. Gross. On or about March 6, 1997, the parents terminated Dr. Yee's services and switched to Dr. Stephanie Perdue as their new pediatrician. Except for Hunter's February 8 examination by Dr. Gross, Hunter and Tyler did not see a pediatric ophthalmologist until June 1997 when they were diagnosed as being legally blind.

After trial but before the jury's verdict came in, Dr. Yee settled with the Burts for $7.5 million. The jury found all three doctors negligent, as well as All Saints. They found Dr. Yee liable for 50% and 60% of the damages to Hunter and Tyler, respectively; Dr. Perdue liable for 30% and 35%, respectively; Dr. Gross liable for 15% of Hunter's damages; and the parents liable for 5% of the twins' damages. The jury awarded no punitive damages against any defendant and found that the Plan was not liable at all. Pursuant to the settlement, the Burts dismissed their claims against Dr. Yee. The trial court entered a judgment against Dr. Gross, Dr. Perdue, and All Saints accordingly.

Issues Relative to Dr. Gross's Appeal

In five issues, Dr. Gross challenges the judgment rendered against him. In his first issue, he challenges the legal and factual sufficiency of the evidence to support the jury's finding that his negligence caused any harm to Hunter. In his second issue, Dr. Gross challenges the trial court's rulings on several evidentiary issues including: the trial court's refusal to allow Dr. Gross to introduce evidence of nystagmus as an alternate theory of causation; the trial court's refusal to strike Dr. Don Schaffer's testimony that Dr. Gross was negligent; and the trial court's prohibiting Dr. Gross from offering an explanation of Hunter's name change from Taylor to Burt. In his third issue, Dr. Gross contends Alyssha and Keith cannot recover mental anguish damages because such alleged damages were not a contemporaneous result of Hunter's injuries. In his fourth issue, Dr. Gross challenges the legal and factual sufficiency of the evidence to support the various amounts the jury awarded Hunter. In his fifth issue, Dr. Gross challenges the Burts' right to an award of prejudgment interest on future damages.⁴

Facts Relative to Dr. Gross

When Hunter was added to Dr. Gross's screening list at the NICU, Dr. Gross performed an initial examination. The only information or record Dr. Gross maintained on Hunter was the one-page examination sheet he completed and the registration information the hospital had provided him. While it showed the...