Isern v. Watson

• Decision Date: 20 March 1997
• Docket Number: No. 09-95-344,09-95-344
• Citation: 942 S.W.2d 186
• Parties: Reuben A. ISERN, M.D., Appellant, v. Helen WATSON and Rix Watson, Appellees. CV.
• Court: Texas Court of Appeals

Page 186

942 S.W.2d 186

Reuben A. ISERN, M.D., Appellant, v. Helen WATSON and Rix Watson, Appellees.

No. 09-95-344 CV.

Court of Appeals of Texas Beaumont.

Submitted Dec. 5, 1996.

Decided March 20, 1997.

Denice Smith, Houston, Jo Ben Whittenburg, Orgain, Bell & Tucker, Beaumont, for appellant.

John H. Holloway, Houston, for appellee.

Before BURGESS, STOVER and CARR, JJ.

OPINION

CARR, Justice ¹.

This is a medical malpractice case which arises out of appellees Helen and Rix Watson's claim that appellant, Dr. Reuben A. Isern, was negligent in failing to properly diagnose and treat Mrs. Watson, or to seek a consultation from a specialist, during her visit to a hospital emergency room after a fall. The Watsons claimed at trial that the alleged acts or omissions of Dr. Isern caused Mrs. Watson's leg to be later amputated at the knee.

This appeal is from a retrial of this case and is the second time the case has been appealed to this Court. In the first trial, the jury awarded zero damages to the Watsons and the trial judge rendered judgment that the Watsons take nothing. Watson v. Isern, 782 S.W.2d 546 (Tex.App.--Beaumont 1989, writ denied) (Brookshire, J., writing).

In the second trial, the jury found that Dr. Isern was negligent in failing to hospitalize Mrs. Watson for further evaluation and negligent in failing to do a "Doppler" exam to assure that there was no major damage to a blood vessel. The jury awarded Mrs. Watson $1,432,600 and Mr. Watson $9,000 in damages. With reduction of the damages by 35% for contributory negligence, the trial court rendered judgment for damages, with prejudgment interest, in the amount of $3,091,495.43, plus post-judgment interest and cost.

Dr. Isern has appealed asserting eight points of error. The Watsons, in five cross-points, have appealed the jury's 35% apportionate finding that Mrs. Watson was negligent in failing to return to the emergency room or seek other medical care prior to seeing another doctor on Tuesday, following her injury on Saturday. We affirm.

Evidence

On May 1, 1982, Mrs. Watson fell and injured her right leg. She weighed 270 pounds at the time. She arrived at the emergency room of a Beaumont hospital at 11:50 p.m. where Dr. Isern saw her. She complained of pain in the right knee, lower leg and ankle.

After X-raying her and finding that the leg was not broken, but finding that there was some damage to the knee joint area, Dr. Isern discharged Mrs. Watson. She was to remain in bed for two or three days, applying ice packs to the knee. Tylenol pain medication was prescribed.

The hospital records reflect her discharge at 1:50 a.m. Sunday morning; it took her family about 30 to 40 minutes to get her into a car to go home. The Tylenol prescription was filled early Sunday morning and she took it for pain, kept the ice packs on her leg as instructed, and remained in bed except to be helped to the bathroom by her family.

Mr. Watson talked with Dr. Isern or his office early Monday morning, and while Mrs. Watson could not detail the two-sided telephone conversation, it was her understanding she was to continue with the prescribed treatment by Dr. Isern.

On Tuesday morning, Mrs. Watson called her orthopedic doctor, Dr. Shorkey. He was unavailable, so she went to see his partner, Dr. Alfred Bessell. Dr. Bessell referred Mrs. Watson across the street to St. Elizabeth Hospital. At St. Elizabeth, she was seen by a vascular surgeon, Dr. Gordon. He referred her to John Sealy Hospital in Galveston where she arrived on the evening of Tuesday, May 4, 1982.

Mrs. Watson spent almost a month at John Sealy. After several procedures on her leg, the Galveston doctors finally removed it, because of lack of proper blood supply due to a ruptured popliteal artery.

At trial, the Watsons contended that Mrs. Watson's ruptured popliteal artery was a result of the fall on the night of May 1, 1982, before she came to see Dr. Isern and that Dr. Isern was negligent in his examination, his diagnosis and treatment of Mrs. Watson, and that it resulted in the loss of her leg.

Medical experts testified that when a popliteal artery is severed, as Mrs. Watson's was found to be at the time of her hospitalization at John Sealy, the blood supply is cut off below the knee, and there is a window of 6-8 hours from the severance within which surgery must be performed to save the leg.

Dr. John Mayo, a board certified emergency room physician who has been in charge of the Baptist Hospital ER since 1987 or 1988, and who worked with both Dr. Isern and Nurse Lannelle (Hussey) Wilson at the Baptist Hospital ER at the time of Mrs. Watson's ER visit, testified that in his medical opinion, Dr. Isern treated Mrs. Watson correctly; and, in his medical opinion, based on reasonable medical probability, Mrs. Watson did not have a ruptured popliteal artery when Dr. Isern treated her in the ER. Part of the basis for his opinion was that a patient with a ruptured popliteal artery would have an elevated pulse of at least 120, and Mrs. Watson's was 103; that she would not have had a pulse in her foot, while Dr. Isern's medical records noted she did have a foot pulse; and, that her knee would have been gangrenous by the time she was operated on at John Sealy on Wednesday, five days after her Saturday fall and a gangrenous leg is not reflected in the Sealy operative report of her first surgery.

Mrs. Watson's subsequent treating physician, Dr. Bessell testified that there is no way to tell how long the severed popliteal artery findings had been present. He could only say that the injury had been present several hours. If Mrs. Watson had a twisting fall with dislocation a day or even two days after she left Dr. Isern's care in the ER, that would be consistent with what he and Dr. Gordon found.

Dr. Mayo further testified that in his opinion, Dr. Isern's chart of his physical exam revealed that he gave Mrs. Watson an appropriate exam, and that Dr. Isern's recommendations of bed rest, elevating the knee, and ice packs were appropriate for Dr. Isern's diagnosis.

Dr. Barbee, also a board certified emergency room physician, testified on Dr. Isern's behalf, that based upon his review of the medical records in the case and his personal knowledge, training and experience as an emergency room physician, in his opinion Dr. Isern treated Mrs. Watson properly, did a proper examination of Mrs. Watson, and made proper records in the case. Dr. Barbee further testified that had Mrs. Watson been injured to the extent she claimed, it would have been very apparent to Dr. Isern that Saturday night. Instead, Dr. Barbee raised the issue of another possible fall.

Additional factual details of this case will be stated in connection with the points to which they pertain.

Appellant's Appeal

Dr. Isern's first point of error contends that the trial court erred in submitting jury question one ² because (1) it was not submitted broad-form in violation of the TEX.R.CIV.P. 277, and (2) resulted in conflicting jury findings.

Standard of Review

The standard of review for error in the court's charge is abuse of discretion. Texas Dept. of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex.1990). An abuse of discretion occurs when the trial court acts without reference to guiding principles. Id.

Where error in the charge has occurred which caused the jury's finding to be in conflict, a legal question is presented for the appellate court. Bender v. Southern Pacific Transportation Co., 600 S.W.2d 257, 260 (Tex.1980), the Supreme Court explained the test for determining whether jury findings conflict A court may not strike down jury answers on the ground of conflict if there is any reasonable basis upon which they may be reconciled.... We do not determine whether the findings may reasonably be viewed as conflicting; to the contrary, the question is whether there is any reasonably possible basis upon which they may be reconciled.

Broad-Form Submission

TEX.R.CIV.P. 277 does not support appellant's argument that the practice of submitting a jury question that encompasses more than one independent ground of liability in the same question, known as "broad-form submission", is mandatory in Texas or that our trial courts have "no discretion" in submission of the charge. Rule 277 specifically directs that a broad-form submission be given only "whenever feasible".

Also contrary to appellant's "mandatory" argument is the holding by our Texas Supreme Court in H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 260 (Tex.1992):

Because Warner tendered a proper broad-form question with appropriate instructions, the trial court should have granted her request. However, its failure to do so was not harmful error. TEX.R.APP.P. 81(b)(1). Although submitted in granulated form, the jury questions contained the proper elements of a premises liability action. Because the charge fairly submitted to the jury the disputed issues of fact and because the charge incorporated a correct legal standard for the jury to apply, we hold that the trial court's refusal to submit Warner's tendered question and instructions did not amount to harmful error.

We find that the trial court did not abuse its discretion is submitting jury question one and it did not amount to harmful error.

Conflicting Jury Findings

First, we note that Dr. Isern did not object to receipt of the verdict or make any objection at the time that any of the jury's findings were in conflict before discharge of the jury, thereby "waiving" any alleged error as to any conflict in the jury findings. See Ciba-Geigy Corp. v. Stephens, 871 S.W.2d 317, 324 (Tex.App.--Eastland 1994, writ denied); Durkay v. Madco Oil Co., 862 S.W.2d 14, 23 (Tex.App.--Corpus Christi 1993, writ denied); Greater Houston Transp. Co. v. Zrubeck, 850 S.W.2d 579, 586 (Tex.App.--Corpus Christi 1993, writ denied); Roling v. Alamo Group (USA), Inc., 840 S.W.2d 107, 109 (Tex.App.--Eastland 1992, writ denied).

In any event, no conflict can exist...