Lee v. Andrews

• Decision Date: 13 December 1976
• Docket Number: No. 8670,8670
• Citation: 545 S.W.2d 238
• Parties: Billy H. LEE, M.D., Appellant, v. Brenda ANDREWS et al., Appellees.
• Court: Texas Court of Appeals

Page 238

545 S.W.2d 238

Billy H. LEE, M.D., Appellant, v. Brenda ANDREWS et al., Appellees.

No. 8670.

Court of Civil Appeals of Texas Amarillo.

Dec. 13, 1976.

Rehearing Denied Jan. 10, 1977.

Stone, Stone & Chambers, John C. Chambers, Gibson, Ochsner, Adkins, Harlan & Hankins, Amarillo, for appellant.

Gibbins & Spivey, Bob Gibbins, Austin, for appellees.

ELLIS, Chief Justice.

Brenda Andrews, suing individually and in behalf of her two minor daughters and her deceased husband's estate, and Joe Bert Andrews, Sr., the father of the deceased, instituted this medical malpractice suit against Plains Memorial Hospital and Dr. Billy H. Lee for the wrongful death of Joe Bert Andrews, Jr. The trial court rendered judgment on the jury's verdict favorable to the plaintiffs and against Doctor Lee. No liability was found against the hospital. The doctor-defendant has appealed from the judgment. We affirm the judgment of the trial court.

On June 3, 1974, Joe Bert Andrews, Jr. entered Plains Memorial Hospital in Dimmitt, Castro County, Texas, for the purpose of undergoing a hemorrhoidectomy. Andrews was thirty-eight years old and otherwise in good health. Dr. Billy Lee performed the operation on June 4, 1975, and Andrews was returned to his room in good condition. On June 5, it was discovered that Andrews was retaining urine and at 6:00 p.m., Robert Froehner, a freshman medical student, catheterized Andrews to extract the accumulated urine. This catheterization process involved the insertion of a tube into the outer urethral opening, through the urethra and into the bladder. By 10:45 p.m., Andrews' scrotum was swollen to three or four times its normal size and Doctor Lee was notified to this development. At 11:00 p.m., Andrews was catheterized again and by 12:00 midnight he was awake and complaining of severe pain. Doctor Lee ordered an ice pack applied to Andrews' scrotal area. The swollen condition continued on June 6 and Andrews continued to require catheterization to void.

On June 7, Brenda Andrews became extremely concerned about her husband. His pulse was not ascertainable that morning. On the previous day she had gone to Doctor Lee and inquired as to the possibility of serious infection in the testicle area. No treatment was administered or directed by Doctor Lee for infection. The next day, June 8, Andrews fainted on three separate occasions; on each such occasion oxygen was administered. Doctor Lee then ordered intravenous feeding for Andrews. His blood pressure was inconsistent and erratic. Later that day Doctor Lee consulted with a doctor from Lubbock, Texas,--Doctor Pappas--who saw Andrews and had him transferred immediately by ambulance to Methodist Hospital in Lubbock.

At the Methodist Hospital's intensive care unit, Andrews was examined by Dr. Robert Salem. He diagnosed Andrews as having a local infection around the scrotum (cellulitis) and a blood infection (septicemia) with accompanying shock.

Andrews died on June 9. An autopsy by Dr. William H. Long revealed that the probable cause of death was septicemia (blood infection) with shock. In their wrongful death action, the plaintiffs alleged that the negligent acts of Plains Memorial Hospital and Doctor Lee caused Andrews' death. Although their pleadings contain other specific allegations, proof was adduced at trial which tended to support the plaintiffs' theory that Andrews' postoperative catheterization(s) tore his urethra and that urine migrated from his bladder to his scrotum; there an infection allegedly began which spread to other parts of his body. This presumably caused shock and, eventually, death. The plaintiffs contended that Doctor Lee was negligent in not diagnosing and treating Andrews' infection earlier and in failing to consult a specialist at an earlier time.

After a trial on the merits, the jury exonerated the hospital. The jury found, however, that Doctor Lee's negligence proximately caused Andrews' death. Brenda Andrews was awarded $300,000.00 as compensation for the loss of her husband. Each of her two minor children was awarded $85,000.00. The decedent's estate was awarded $2,000.00 for his conscious mental anguish and pain. Joe Bert Andrews, Sr. (the decedent's father) was awarded $5,000.00. Also, there was an award of $2,139.25 for reasonable funeral expenses. Judgment was rendered in accordance with the jury's verdict. In his appeal Doctor Lee has urged seventeen points of error.

In his first point of error, Doctor Lee has directed our attention to some expert testimony which, he has argued, 'invaded the province of the jury.' The substance of Lee's complaints is that the plaintiffs' medical experts testified to their opinions and conclusions on the ultimate issues in the case--negligence and proximate causation. Lee has argued that conclusions on ultimate issues are for the jury and only the jury to draw.

Initially, we refer to the basic standards in malpractice cases set out in the supreme court's decision in Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949). In that case the court held that the medical malpractice plaintiff must meet a two-pronged burden of proof. He must have a qualified expert testify to the effect that (1) the defendant doctor was negligent and (2) that such negligence was a proximate cause of the plaintiff's injuries.

Although Doctor Lee does not question the foregoing standards, he has argued that the expert testimony in this case was objectionable because of the Form in which it was admitted. According to Lee, certain words and phrases cannot be uttered by the plaintiff's medical expert because of the possibility of invading the province of the jury. In our analysis of Doctor Lee's contentions, we have considered certain evidentiary rules developed since Bowles v. Bourdon was decided and the particular manner in which they have been applied in regard to negligence and causation.

The supreme court's decision in Snow v. Bond, 438 S.W.2d 549 (Tex.1969) imposed restrictions on the type of expert testimony which can be used to prove a defendant doctor's negligence. The court stated that '(a) medical expert is not competent to express an opinion . . ..' as to what constitutes 'malpractice' or 'negligence' or '. . . what a reasonable and prudent doctor would nave done under the same or similar circumstances . . ..' Id at 550--51. These are conclusions which only the trier of facts may draw, and testimony to that effect should be excluded. Following Snow v. Bond, it has been held that the expert cannot testify that the defendant committed 'malpractice.' Bender v. Dingworth, 425 F.2d 378 (5th Cir. 1970). He cannot testify that the defendant's acts constituted negligence or give testimony as to what a reasonable prudent doctor would have done. Christian v. Jeter, 445 S.W.2d 51 (Tex.Civ.App.--Waco 1969, writ ref'd n.r.e.).

On the other hand, he Can testify as to what medical practices are 'correct' in certain circumstances. Prestegord v. Glenn, 441 S.W.2d 185 (Tex.1969). Further, he can testify that certain hypothetical acts (shown by independent evidence to have been committed by the defendant doctor) are 'against good (medical) practice . . .' Cleveland v. Edwards, 494 S.W.2d 578, 580 (Tex.Civ.App.--Houston (14th Dist.) 1973, no writ). He also can testify that a doctor who failed to perform certain acts (shown by independent evidence not to have been performed by the defendant) would fall below the 'standard of conduct' of other doctors. Martisek v. Ainsworth, 459 S.W.2d 679, 680 (Tex.Civ.App.--Houston (14th Dist.) 1970, writ ref'd n.r.e.) (holding such testimony sufficient to raise a fact question on the negligence issue). Further, the medical expert can give testimony which indicates that certain steps should have been taken to meet the standards of good medical practice. Seeley v. Eaton, 506 S.W.2d 719 (Tex.Civ.App.--Houston (14th Dist.) 1974, writ ref'd n.r.e.).

In this case, plaintiffs' counsel questioned Dr. Ray E. Showery concerning possible deviations from applicable standards by Doctor Lee in his diagnosis and treatment of Mr. Andrews' condition (based upon a review of the record, including hospital, autopsy and depositions). Doctor Showery responded:

I felt there was ample evidence to suggest earlier treatment and referral, and therefore, my conclusion was that, If I--the word 'malpractice' was committed, at least timely treatment was not awarded this mentlemen in that errors had been made which went unrecognized, untreated even though they were obvious.

Doctor Showery also testified that treatment should have begun on the evening of June 5; that Andrews should have had a urologic consultation on June 5; and that Doctor Lee should have performed an indwelling catheterization following the scrotal swelling. Later Dr . Daniel P. McCarthy testified that Andrews should have had a urologic examination three or four days sooner.

The above described portions of the testimony of Doctors Showery and McCarthy state, in effect, that Doctor Lee was Wrong in the way he treated Andrews. Snow v. Bond and the cases which have followed it preclude the medical expert from passing judgment on the correctness or incorrectness of the defendant doctor's conduct. He can inform the jury of good medical standards in particular circumstances. He may even express an opinion that some specific act (which the plaintiff may prove by independent evidence to have been done by the defendant) would not conform to good medical practice. He may not, however, declare directly that the defendant doctor committed a breach of good medical practice. That is a matter for determination by the fact finder. With proper application of these rules, the jury will be restrained from 'forego(ing) independent analysis of the facts and bow(ing) too readily to the opinion of an expert . . .' McCormick, Some Observations Upon the Opinion Rule and Expert Testimony, 23 Texas L.Rev. 109, 117 (1945). For this reason, the testimony...