Krishnan v. Ramirez

• Decision Date: 22 February 2001
• Docket Number: No. 13-99-136-CV,13-99-136-CV
• Citation: 42 S.W.3d 205
• Parties: (Tex.App.-Corpus Christi 2001) ELIZABETH KRISHNAN, M.D., Appellant, v. SENOVIO RAMIREZ, JR., TEMPORARY GUARDIAN OF PROPERTY OF HUMBERTO SEPULVEDA, III, AS HEIR OF OLGA RAMIREZ SEPULVEDA, DECEASED, Appellee.
• Court: Texas Court of Appeals

Page 205

42 S.W.3d 205 (Tex.App.-Corpus Christi 2001)

ELIZABETH KRISHNAN, M.D., Appellant, v. SENOVIO RAMIREZ, JR., TEMPORARY GUARDIAN OF PROPERTY OF HUMBERTO SEPULVEDA, III, AS HEIR OF OLGA RAMIREZ SEPULVEDA, DECEASED, Appellee.

No. 13-99-136-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS, CORPUS CHRISTI.

February 22, 2001.

Reeharing Overruled April 12, 2001.

On appeal from the 370th District Court of Hidalgo County, Texas. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before: Justices Hinojosa, Rodriguez, and Chavez. ¹

OPINION

RODRIGUEZ, Justice.

Appellant, Dr. Elizabeth G. Krishnan, appeals from a judgment entered against her in this medical malpractice suit. The jury awarded $250,000.00 for mental anguish damages. Appellant raises eleven issues. We affirm.

Humberto Sepulveda, Jr. and Olga Sepulveda filed suit against appellant for mental anguish damages arising from appellant's supervision and treatment of Mrs. Sepulveda during her pregnancy, which allegedly resulted in the stillbirth of their child. They alleged appellant was negligent in failing to exercise the care of an ordinary prudent obstetrician, specifically, in failing to, inter alia, diagnose and promptly treat Mrs. Sepulveda's condition of preeclampsia.² The Sepulvedas also alleged appellant's negligence caused the death of the fetus as a part of the body of the mother, and caused Mrs. Sepulveda to suffer mental anguish.

During the pendency of the litigation, Mrs. Sepulveda died. Mr. Sepulveda filed a disclaimer, renunciation and assignment of any interest in his wife's cause of action in favor of her sole surviving minor child, Humberto Sepulveda, III. The case was prosecuted by appellee, Senovio Ramirez, Jr., temporary guardian of the estate and the next friend of the minor child.

Appellant bases her appeal on the following issues: (1) the evidence was insufficient to establish causation; (2) the Sepulvedas denied appellant access to evidence that could have conclusively exonerated her by refusing her request to perform an autopsy; (3) the evidence was insufficient to establish a breach of the standard of care; (4) the evidence was insufficient to support the $250,000 mental anguish damage award, or alternately the award was excessive; (5) the trial court improperly admitted prejudicial evidence of familial attachment over her objection; (6) charge error in the damage instruction; (7) appellee misstated the controlling law regarding damages in her closing argument; (8) appellee failed to prove standing before submitting the case to the jury; (9) the suit was not brought in Ramirez's capacity as assignee, only as "heir," entitling appellee to only two-thirds of the amount awarded the decedent; (10) the trial court erred in reading back testimony without a request from the jury as required by rule of civil procedure 287; and (11) cumulative error prejudiced appellant.

By her first three issues, appellant challenges the legal and factual sufficiency of the evidence. In addressing legal sufficiency, we must consider all of the record evidence in a light most favorable to the party in whose favor the verdict has been rendered, and indulge every reasonable inference deducible from the evidence in that party's favor. See Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998); Hines v. Comm'n for Lawyer Discipline, 28 S.W.2d 697, 701 (Tex. App.--Corpus Christi, no pet.).

In reviewing factual sufficiency issues challenging a jury verdict, we consider and weigh all of the evidence, not just the evidence that supports the verdict. See City of Princeton v. Abbott, 792 S.W.2d 161, 163 (Tex. App.--Dallas 1990 writ denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain, 709 S.W.2d at 176; Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985). The jury, as fact finder, is the judge of the credibility of witnesses and weight to be accorded their testimony. See Southwestern Bell Mobile Sys., Inc. v. Franco, 951 S.W.2d 218, 221 (Tex. App.--Corpus Christi 1997), rev'd on other grounds, 971 S.W.2d 52 (Tex. 1998) (citing Benoit v. Wilson, 239 S.W.2d 792, 796 (Tex. 1951)). Because the appellate court is not the fact finder, it may not substitute its own judgment for that of the trier of fact, even if a different answer could be reached on the evidence. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998) (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986)). The amount of evidence necessary to affirm a judgment is far less than that which is necessary to reverse a judgment. See Mayes v. Stewart, 11 S.W.3d 440, 451 (Tex. App.--Houston [14th Dist.] 2000, pet. denied).

A plaintiff must prove four elements in a medical malpractice cause of action in order to prevail: (1) a duty by the physician to act according to a certain standard; (2) a breach of the applicable standard of care; (3) injury or harm to the plaintiff; and (4) a causal connection between the breach of the applicable standard of care and the injury or harm. Gonzales v. Outlar, 829 S.W.2d 931, 933 (Tex. App.--Corpus Christi 1992, no writ); Garza v. Levin, 769 S.W.2d 644, 645 (Tex. App.--Corpus Christi 1989, writ denied).

By her first issue, appellant challenges the sufficiency of the evidence on causation. To establish proximate cause, a plaintiff must prove foreseeability and cause-in-fact. See Bradley v. Rogers, 879 S.W.2d 947, 953 (Tex. App.--Houston [14th Dist.] 1994, writ denied)(citation omitted). Appellant challenges only the second prong of proximate cause, wherein "the plaintiff must establish a causal connection based upon 'reasonable medical probability,' not mere conjecture, speculation or possibility." Id. at 953-54 (citing Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988); Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970); Campos v. Ysleta Gen. Hosp. Inc., 836 S.W.2d 791, 794 (Tex. App.--El Paso 1992, writ denied)). However, "[a] plaintiff is not required to establish causation in terms of medical certainty nor is he required to exclude every other reasonable hypothesis." See Bradley, 879 S.W.2d at 954 (citing King v. Flamm, 442 S.W.2d 679, 682 (Tex. 1969)).

Appellant contends that the evidence included too many unknown variables to establish causation to a reasonable degree of medical probability, including: (1) microcephaly, which might possibly indicate other congenital abnormalities; (2) placental necrosis and infection; and (3) the fact that the umbilical cord was wound around the fetus. We look first at appellant's assertion that there was evidence suggesting the possibility of the fetus being microcephalic.

The testimony revealed that in Mrs. Sepulveda's medical record, appellant noted that the "Baby looked microcephalic." Appellant testified at trial that the fetus appeared "small headed." However, appellant also testified that the fetus looked grossly normal and was "not abnormally small." There were no entries in Mrs. Sepulveda's prenatal or hospital records of abnormal measurements of the fetus's head. There were no sonogram measurements of the head before delivery or a tape measurement of the head after stillbirth. Further, appellee's expert, Dr. Angeline Williams, a board certified obstetrician gynecologist, testified that appellant conducted five sonograms over the course of Mrs. Sepulveda's pregnancy, during which time microcephaly could have been diagnosed, but was not. Dr. Williams also testified that the fetus appeared normal, not microcephalic. It did not have other congenital deformities such as low set ears or wide set eyes, which often accompany microcephalic children. In addition, Dr. Williams testified that fetuses that die in utero often appear microcephalic after birth because, once dead, they often become dehydrated and the skull bones tend to come closer together causing the head to appear smaller. Finally, even when asked to assume that the fetus was indeed microcephalic, Dr. Williams testified that microcephaly did not cause the demise of the fetus.

Appellant also contends there was objective evidence that showed placental necrosis and infection, and testified there was no way of telling when the infection occurred. However, the pathology consultation report, the objective evidence to which she refers, provided a diagnosis of "[f]ocal acute necrosis and inflammation of decidua." Further, Dr. Williams testified that the pathology report of the placenta indicated that there was no sign of infection, and no reasonably prudent doctor could opine that Mrs. Sepulveda was suffering from chronic infections which caused the fetal demise.

Finally, appellant contends the umbilical cord wound around the fetus was a factor to be considered in determining causation. Appellant testified that, in her opinion, the cord caused the demise of the fetus. Further, as noted by appellant, Dr. Williams did testify, on cross-examination, that she had witnessed unexplained fetal demise; that there were possibly unknown factors; and that the fetal demise could have been caused by the cord. However, Dr. Williams directly stated that upon review of the records and testimony, it was her opinion, based upon reasonable medical probability, that neither microcephaly (decreased head size), venereal disease, yeast infection, the cord being wrapped around the fetus, nor congenital abnormality caused the fetal demise, but rather it was appellant's failure to admit Mrs. Sepulveda to the hospital for close observation of the preeclampsia and delivery of the fetus that caused its death. Dr. Williams specified a precise time when the fetus would have been born alive. She testified with certainty that "there [was] no doubt in [her] mind" that the baby would have been...