Kirkpatrick v. Memorial Hosp. of Garland
| Decision Date | 09 September 1993 |
| Docket Number | No. 05-91-00251-CV,05-91-00251-CV |
| Citation | 862 S.W.2d 762 |
| Parties | Gregg KIRKPATRICK and Cynthia Kirkpatrick, Individually and as Natural Parents of Joshua Kirkpatrick, a Minor, Appellants, v. MEMORIAL HOSPITAL OF GARLAND, Appellee. |
| Court | Texas Court of Appeals |
Dan S. Boyd, Vic Terry, Warren R. Hays, David Terry, G.P. Hardy, III, Dallas, for appellants.
Michael W. Huddleston, Jim Cowles, Dallas, for appellee.
Before BAKER, BURNETT and ROSENBERG, JJ.
This is a medical malpractice case. Based upon the jury's answers of none to the two damage issues submitted by the court, the court entered a take nothing judgment against the Kirkpatricks.
In this appeal, the Kirkpatricks contend the trial court erred by submitting a definition of the phrase "occurrence in question" and in refusing to submit their requested instructions and questions to the jury. They complain the trial court erred in overruling their motion to limit the Hospital to cross-examination on the subject of damages only. They complain the trial court erred in overruling their motion for new trial because the jury's answers to the damage questions were against the great weight and preponderance of the evidence. Finally, they contend the trial court erred in overruling their motion for new trial because of newly discovered evidence and because the Hospital fraudulently concealed material evidence.
The Hospital asserts one cross-point, contending the trial court abused its discretion by striking the Hospital's pleadings as a sanction for discovery abuse.
We overrule the Kirkpatricks' points of error. Because we overrule the Kirkpatricks' point of error, we do not reach the Hospital's cross-point of error. We affirm the trial court's judgment.
Cynthia Kirkpatrick was a patient at the Memorial Hospital of Garland when her son, Joshua Kirkpatrick, was born on July 13, 1985. Joshua has cerebral palsy. Cerebral palsy is a motor disfunction due to damage to the brain. Mrs. Kirkpatrick had been to the Hospital two times during her pregnancy for premature labor. Her doctor admitted her to the Hospital on July 7, 1985, six days before Joshua's birth. When Mrs. Kirkpatrick delivered Joshua on July 13, 1985, he was seven to eight weeks premature.
Because of the history of Mrs. Kirkpatrick's pregnancy with Joshua, the doctors and hospital staff members knew this was a high risk pregnancy.
The Kirkpatricks, individually and for their son, initially sued the obstetrician, another physician, an attending nurse, and the Hospital. The Kirkpatricks alleged acts of negligence during Mrs. Kirkpatrick's labor and Joshua's delivery process. The Kirkpatricks settled their claim against the obstetrician and dismissed their claims against the other physician and nurse. Thus, the Hospital was the sole remaining defendant at the time of trial.
About halfway through the trial, after the Kirkpatricks had presented their medical evidence on causation, the Kirkpatricks learned that the Hospital had never identified or disclosed the name of a respiratory therapist who was in the delivery room when Mrs. Kirkpatrick gave birth to Joshua. The Kirkpatricks moved for sanctions for this alleged discovery abuse. After a hearing, the trial court granted the Kirkpatricks' motion and struck the Hospital's pleadings. The trial court granted a default judgment against the Hospital on the liability issue.
After the court entered the sanctions order, the plaintiffs located the previously unidentified respiratory therapist and produced her as a witness during the trial. This witness's testimony corroborated the testimony of another nurse about Joshua's poor condition at birth. The Kirkpatricks characterize the respiratory therapist's testimony as the most negative of any view of Joshua's appearance and activity level at birth.
The trial court submitted an instruction on the definition of "occurrence in question" to the jury, together with two damage issues. The jury answered "none" to both damage issues. After the trial, the Kirkpatricks moved for a new trial based upon newly discovered evidence, concealment of material evidence by the Hospital, and the trial court's error in allowing the Hospital to put on evidence about the cause of Joshua's injuries. The Kirkpatricks also claimed that the jury's answers to the damage questions were against the overwhelming weight of the evidence and grossly inadequate. The Kirkpatricks supported this motion for a new trial with affidavits of their attorneys and an affidavit and statement of the respiratory therapist. After an evidentiary hearing, the trial court overruled the Kirkpatricks' motion for a new trial.
The Kirkpatricks contend Joshua's cerebral palsy resulted from a brain injury that occurred when Mrs. Kirkpatrick was in the Hospital. They contend the Hospital negligently rendered medical services to Mrs. Kirkpatrick and Joshua during her labor and his birth. The Kirkpatricks' experts described this event as a "hypoxic/ischemic insult" 1 to the brain occurring during the active labor or delivery.
The Hospital's theory of the case was that Joshua's cerebral palsy did not result from any negligent acts of the Hospital during his delivery but existed long before Mrs. Kirkpatrick went into active labor. The Hospital's experts contended that Joshua suffered from partial agenesis 2 of the corpus callosum, 3 which occurred within twelve to twenty weeks after conception. The Hospital's experts also contended Joshua had a brain abnormality identified as periventricular leukomalacia. 4 In essence, the Hospital's position was that Joshua's neurological deficits resulted from a congenital brain malformation unrelated to the Hospital's medical services.
In their first point of error, the Kirkpatricks contend the trial court erred in defining the phrase "occurrence in question." The Kirkpatricks assert the term does not require a definition and as defined by the trial court put an unduly heavy burden on them. In their second point of error, the Kirkpatricks again complain of the trial court's definition of "occurrence in question" with the trial court's rendition of judgment and in overruling their motion for new trial. In their third point of error, the Kirkpatricks contend the trial court erred in refusing to submit their instruction defining injury and their questions about damages.
The trial court submitted one definition and two jury questions applicable to the case. These were:
1. "Occurrence in question" means "the medical services provided by Memorial Hospital of Garland from July 7, 1985 through the delivery of Joshua Kirkpatrick."
2. Question No. 1: What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Joshua Kirkpatrick for his injuries, if any, that resulted from the occurrence in question?
3. Question No. 2: What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Gregg and Cynthia Kirkpatrick for their damages as a result of the injuries and damages, if any, sustained by Joshua Kirkpatrick from the occurrence in question?
The trial court initially defined the term "occurrence in question" to mean "the medical services provided by Memorial Hospital of Garland during the labor leading to the delivery of Joshua Kirkpatrick." The Kirkpatricks made both oral and written objections to the trial court's initial definition of the phrase.
When the court gave the parties the opportunity to make oral objections to the charge, the Kirkpatricks' counsel objected as follows:
[THE KIRKPATRICKS' COUNSEL]: We object to the court's charge in the following: The instruction given by the court to the jury, the occurrence in question means medical services provided by Memorial Hospital of Garland during the labor leading to the delivery of Joshua Kirkpatrick is, first, restrictive: There is evidence in this record to support a potential jury finding that the medical treatment care given Cindy Kirkpatrick and, consequently, Joshua Kirkpatrick could have been substandard from the date of hospitalization July 7, 1985.
And this particular instruction is restrictive in that sense, and as such, constitutes a comment on the evidence by the court.
And we suggest that the appropriate instruction should be "occurrence in question" means the medical services provided by Memorial Hospital of Garland from July 7, 1985 through the delivery of Joshua Kirkpatrick on July 13, 1985. If the court is going to include an instruction ... we object to it because we think the instruction is a comment by the court on the evidence.
. . . . .
The Kirkpatricks submitted written objections to the trial court's charge. These objections complain of the trial court's definition of the phrase "occurrence in question" because:
a. the pleadings do not support the submission of a definition;
b. the definition imposes a greater burden of proof on the plaintiffs than required had the court not granted a default judgment on liability;
c. the definition constitutes a comment by the court on the evidence;
d. the...
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