Marvelli v. Alston
| Decision Date | 23 January 2003 |
| Docket Number | No. 2-00-278-CV.,2-00-278-CV. |
| Citation | 100 S.W.3d 460 |
| Parties | Thomas MARVELLI, M.D., Appellant, v. Minnie ALSTON, Appellee. |
| Court | Texas Court of Appeals |
Wallach Andrews Florshiem, D. Michael Wallach, J. Wade Birdwell, Fort Worth, for Appellant.
Jose, Henry, Brantley & Keltner, David E. Keltner, Fort Worth, Miller & Curtis, LLP, Charles Clayton Miller, Heygood, Orr & Reyes, LLP, Lorin M. Subar, Dallas, for Appellee.
PANEL B: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
Appellant Dr. Thomas Marvelli appeals from a judgment rendered on a jury verdict awarding damages to Appellee Minnie Alston for the loss of her right eye following multiple lens implantation surgeries. In his first three issues, Dr. Marvelli contends that the opinions of Alston's medical expert witness as to causation were of no probative value because they were (1) based upon assumptions of fact contrary to the evidence; (2) scientifically unreliable as ipse dixit testimony; and (3) based upon an improper "loss of chance" theory not recognized by Texas law, resulting in legally and factually insufficient evidence that the loss of Alston's right eye was proximately caused by Dr. Marvelli's negligence. Dr. Marvelli's fourth issue alternatively maintains that admission of Alston's expert's opinions over objection was an abuse of discretion and harmful error requiring a new trial. In Dr. Marvelli's fifth, sixth, seventh, and eighth issues, he asserts that the trial court erred in excluding testimony of witnesses who were allegedly intimidated and concealed by Alston during trial, and who were discovered only after trial to possess knowledge of her contributory negligence. Dr. Marvelli's ninth issue complains that the evidence is legally and factually insufficient to support Alston's award for future damages. We affirm.
In 1978, Minnie Alston had cataract surgery resulting in removal of her natural lenses from both eyes, compromising her peripheral vision and requiring her to wear thick-lensed glasses that distorted her perception. Alston's cataract surgery included a peripheral iridectomy, consisting of removal of a small segment from the outer edge of her left iris. The surgery on her right eye required a sector iridectomy, consisting of removal of a larger U-shaped section of her iris extending vertically from the edge of the iris to the pupil and horizontally, as if looking at the face of a clock, from approximately the 11:00 to the 1:00 o'clock position.
Lens implantation contemporaneous with cataract surgery was not available when Alston's surgery was performed. Alston contacted Dr. Marvelli in April of 1996, at age 59, seeking secondary implantation of intraocular lenses in both of her eyes. "Secondary" refers to implantation performed subsequent to earlier cataract surgery. If successfully implanted, the lenses would improve Alston's vision and free her from the need for cataract spectacles or contacts.
Dr. Marvelli is a board certified ophthalmologist specializing in lens implant procedures and has maintained a large practice in Fort Worth, Texas for fifteen years, performing 100 to 200 surgeries per week. Dr. Marvelli discussed the implant procedure with Alston, including the risks of blindness and the loss of her eye, and offered her the alternative options of contact lenses or a new prescription for glasses. Alston chose the implant surgery.
On May 6, 1996, Dr. Marvelli performed a secondary anterior chamber intraocular lens implantation procedure on Alston's right eye. "Anterior chamber" means placement of the lens implant in front of the iris. Dr. Marvelli's surgical technique consisted of making a "superior" incision, that is, at the top of the eye, inserting a multiflex lens, and rotating the lens so that "haptics," S-shaped loops at the top and bottom of the lens, were positioned on the sclera spur of the iris between the 1:00 and 2:00 o'clock and 7:00 and 8:00 o'clock positions. The haptics are intended to be anchored by fibrosis or scarring into the sclera over solid iris.
Dr. Marvelli performed the same procedure on Alston's left eye in August of 1996. Alston had no complaints or complications with the lens implant in her left eye. The quality of her vision improved. She had no complications with the implant in the right eye for over six months, from May until December of 1996. Alston recalled Dr. Marvelli's post-surgical instructions on each occasion to wear a metal shield over the affected eye for six weeks and not to rub the eyes at any time, along with his warning of what could happen, which he demonstrated by turning the lights off.
On December 6, 1996, Alston complained to Dr. Marvelli that she awoke that morning with double vision and irritation in her right eye. Dr. Marvelli noted redness, tearing, and that her eyes were bloodshot and irritated, indicating that she had been rubbing them. Dr. Marvelli later said that she admitted rubbing them. The lens in the right eye was tilted, hanging behind the iris. He performed surgery the following day, finding that the implant had been pushed through the sector iridectomy and behind the iris. The tissue of the iris was ripped and torn. He removed the dislocated lens and replaced it with another lens.
In replacing the lens in the second surgery, Dr. Marvelli followed the same placement procedure as in the initial implantation. He emphasized she must leave the eye alone. For the next five months, Alston had a good result; however, in April of 1997, she presented with an onset of acute deterioration of her vision in the right eye and told Dr. Marvelli she had fallen out of bed and had struck her right eye. Dr. Marvelli determined that the lens in the right eye had dislocated again and had fallen through the hole in her iris tearing a section of the iris as it fell through.
Dr. Marvelli's handwritten notes reflected that Alston was continuing to rub her eyes. He saw Alston rubbing her eyes while in his office. Additionally, by December of 1996, Dr. Marvelli concluded that Alston's drinking was a problem, her smoking was indirectly contributing to the irritation of her eye, and she was a "non-compliant patient." Alston admitted she drank anywhere from two to six beers on a daily basis and had been a smoker for 50 years although she had pulmonary disease and a stent implanted in an artery.
Because the lens had fallen through the sector iridectomy a second time, Dr. Marvelli decided to remove the implant and sew the iris together to reduce the chance of another dislocation. He performed the third surgery to remove the implant and sutured the iridectomy shut on May 6, 1997. By August of 1997, Alston's right eye had improved, and Dr. Marvelli performed another lens implantation, making a wider incision with fresh tissue and removing scar tissue to promote healing. He followed the same lens placement procedure as on the previous occasions.
After the fourth surgery, Dr. Marvelli found increased visual acuity in the right eye and that the incision was healing nicely. Alston's vision was comparable to that before her second surgery. However, by the time of her visit to him on October 2, 1997, Alston's vision had deteriorated considerably and she reported watering and pain upon touching the eye. Although the lens was in place, her visual acuity was limited to perception of hand movements, and her right eye pressure was substantially below normal, with corneal swelling.
Despite the low pressure, Dr. Marvelli saw no wound leak or epithelial down-growth.1 Epithelial downgrowth occurs when skin cells covering the outer portion of the eye grow through a wound into the interior of the eye. The cells can grow all over the entire eye, including the surface of the cornea, can cause glaucoma, and can destroy the eye. He prescribed steroid drops to reduce corneal swelling.
On October 16, 1997, Alston returned to Dr. Marvelli for the last time. Dr. Marvelli described her visual acuity in the right eye as legally blind. Her right eyelid drooped, and she had inflammation. He saw no wound leak and her ocular pressure was back up to normal, but he determined that the cornea in the right eye was dying.
Alston consulted another ophthalmologist, Dr. Edward Augustat. Dr. Augustat determined that the pressure was within normal limits in both eyes. Upon examination, he also saw no wound leak.2 Dr. Augustat referred Alston to Dr. Keith Fisher, a retinal specialist, who found that the sutures used to sew the sector iridectomy together were coming loose and the eye was losing pressure. He, in turn, referred Alston to a glaucoma specialist, Dr. Stephen Goode, who noted that the anterior chamber was closing down, and the iris and cornea were scarring together with swelling in the back of the eye. Dr. Goode diagnosed Alston as having a wound leak with epithelial downgrowth.
Dr. Goode referred Alston to Dr. Robert Wayne Bowman, an ophthalmologist in Dallas. Dr. Bowman attempted to save Alston's eye by gluing a contact lens to the surface of her eye to seal the wound. Two days later the lens came unglued. After a second attempt to glue the contact lens was unsuccessful, he attempted other procedures, including a corneal transplant, which also failed. Finally, he removed the iris and froze the eye in an effort to remove residual epithelial cells. Because of the wound leak, Alston's eye continued to lose pressure, began to collapse, and ultimately died. On January 9, 1999, Alston underwent surgery to remove her eye, which was replaced by a prosthetic eyeball.
Alston filed suit against Dr. Marvelli, claiming negligence and gross negligence. Her expert, Dr. Norman Jaffe, testified by video deposition at trial that Dr. Marvelli breached the standard of care by inserting the implants from...
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