Mendoza v. Varon

• Decision Date: 17 February 1978
• Docket Number: No. 19403,19403
• Citation: 563 S.W.2d 646
• Parties: Mrs. Manuel MENDOZA, Individually and as next friend for her minor daughter, Andrea Mendoza, Appellant, v. Dr. Harold H. VARON, Appellee.
• Court: Texas Court of Appeals

Page 646

563 S.W.2d 646

Mrs. Manuel MENDOZA, Individually and as next friend for her minor daughter, Andrea Mendoza, Appellant, v. Dr. Harold H. VARON, Appellee.

No. 19403.

Court of Civil Appeals of Texas, Dallas.

Feb. 17, 1978.

Rehearing Denied March 22, 1978.

Charles M. Wilson, III, Carter, Jones, Magee, Rudberg, Moss & Mayes, Dallas, for appellant.

Jerry P. Jones, Robert D. Campbell, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.

ROBERTSON, Justice.

Mrs. Manuel Mendoza, individually and as next friend of her minor daughter, Andrea Mendoza, sued Dr. Harold H. Varon, seeking damages for injuries sustained by Andrea as a result of Dr. Varon's alleged medical malpractice. A take-nothing judgment was rendered upon a jury verdict that found that Dr. Varon was not negligent in his treatment of Andrea, and Mrs. Mendoza now appeals. We affirm.

The chain of events underlying the present dispute began when Mrs. Mendoza took her daughter, Andrea, to her pediatrician for treatment of a rash on her leg. During that visit, Andrea was seen by another physician who, after noting Andrea's obesity and obtaining an elevated blood pressure reading, referred her to Dr. Varon for treatment. After examining Andrea, Dr. Varon prescribed a combination of drugs which was apparently intended to reduce Andrea's weight without blood pressure stimulation. After a few weeks of treatment, Andrea began to experience nausea, which became increasingly severe after several months on continued medication. The testimony regarding Dr. Varon's knowledge and reactions to Andrea's difficulties is in conflict. Shortly before treatment by Dr. Varon was discontinued, Andrea's nausea attacks began to occur more frequently, and often included violent vomiting and stomach spasms which lasted throughout the night. According to expert testimony adduced at trial, the result of this repeated vomiting and nausea was an inflammation and scarring of the sphincter valve between Andrea's stomach and esophagus. This inflammation and scarring allegedly limited the effectiveness of the valve so that it could no longer keep the contents of the stomach from entering the esophagus. The entry of stomach contents produced further scarring, which, in turn, led to further regurgitation. At trial, Mrs. Mendoza claimed that Andrea's condition resulted from Dr. Varon's negligence in prescribing treatment for various unjustified conditions, prescribing the particular combination of drugs for the treatment period, failing to monitor Andrea's response to treatment, and in failing to discontinue or reduce the drug therapy after learning of Andrea's nausea.

The appeal presents four basic issues: first, we must decide whether the trial court erred in overruling Mrs. Mendoza's motion for mistrial when one of the jurors on the panel was disqualified pursuant to article 2133(6) of the Texas Revised Civil Statutes; second, we must determine whether the trial court erred in excluding testimony that Dr. Varon and one of his expert witnesses were insured by the same insurance company, and that the expert's insurance premiums would be affected by any judgment rendered for Mrs. Mendoza; third, we must decide whether portions of material which underlay the testimony of Dr. Varon's expert witness was improperly excluded from evidence; and finally, we must determine whether the jury's findings of no negligence are against the great weight and preponderance of the evidence.

The Motion for Mistrial

Mrs. Mendoza's first argument is that the trial court erred in overruling her motion for mistrial when one of the jurors was disqualified under the provisions of article 2133(6) of the Texas Revised Civil Statutes. On the fourth morning of the trial, the court was informed that sheriff's deputies were present with an arrest warrant for one of the jurors. The alleged offense was a felony. According to Mrs. Mendoza's arguments, the juror was disqualified to serve under the provisions of article 2133(6), which provides that, in order to be a competent juror, a person "must not be under indictment or other legal accusation of theft or any felony," and the trial court erred in allowing the trial to continue.

Whatever the merits of this argument may be in other cases, we conclude that Mrs. Mendoza has waived her right to present it here. After being informed of the warrant, the trial judge advised counsel that he would discharge the juror and proceed to trial with eleven jurors. However, after discussing the potential problems of continuing the trial with an eleven-member panel when a 10-2 verdict is permissible, counsel for both parties agreed that the trial should proceed without discharging the disqualified juror. The trial court honored the agreement and the sheriff's officers were asked to wait until the verdict was returned and the jury discharged before making the arrest. Mrs. Mendoza did not move for a mistrial based upon the disqualification until an adverse 10-2 verdict had been returned. By urging the court to continue the trial, Mrs. Mendoza not only waived her right to assert error by failing to object, but also expressly consented to the action; a party may not secure reversal for an error that she invited. Dickson v. J. Weingarten, Inc., 498 S.W.2d 388 (Tex.Civ.App. Houston (14th Dist.) 1973, no writ); Yaeger v. Long Bros. Drilling Co., 147 S.W.2d 276 (Tex.Civ.App. San Antonio 1941, writ ref'd).

Although Mrs. Mendoza urges that the doctrine of waiver is not available to defeat the rights of the minor in this case, we cannot accept this contention. Rule 44 of the Texas Rules of Civil Procedure provides that a next friend or her attorney may settle suits and agree to judgments "and such judgments, agreements and compromises, when approved by the court, shall be forever binding and conclusive upon the party plaintiff in such suit." If the next friend is authorized to settle and agree to judgments on the minor's behalf, surely she can also make binding strategic decisions in an effort to secure relief. We recognize that the next friend may not agree to anything which benefits her individual claim at the expense of the minor's right to recover; see Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795, 797 (1954); cf. Greathouse v. Fort Worth & Denver City Ry. Co., 65 S.W.2d 762 (Tex.Com.App.1933, holding approved) (next friend cannot agree to judgment under circumstances where his interest conflicts with that of the minor, and record shows that agreement was fraudulently induced); Wright v. Jones, 52 S.W.2d 247 (Tex.Com.App.1932, holding approved) (next friend's attorney cannot waive issuance and service of citation on minor); however, there is no evidence in this case that Mrs. Mendoza's decision to proceed with trial was designed to further her individual claim to the detriment of her daughter's rights. The interests of Mrs. Mendoza and her daughter were not in conflict, and the record shows that, at the time the decision to proceed was made, both counsel felt that it was in the best interest of all parties to retain the juror on the panel despite his technical disqualification. Under these circumstances, we hold that Mrs. Mendoza's agreement to proceed with the trial waived any right to subsequently challenge the presence of the disqualified juror on the panel, either in her individual capacity or as next friend of her minor daughter.

Insurance

As her second argument, Mrs. Mendoza urges that the trial court erred in excluding testimony that Dr. Varon and one of his expert witnesses were insured by the same insurance company. She asserts that this exclusion violated the rule that facts tending to show interest or bias on the part of a witness are admissible even though they disclose that the defendant may be protected by insurance. See South Texas Natural Gas Gathering Co. v. Guerra, 469 S.W.2d 899, 914 (Tex.Civ.App. Corpus Christi 1971, writ ref'd n. r. e.); Barton Plumbing Co. v. Johnson, 285 S.W.2d 780, 781 (Tex.Civ.App. Galveston 1956, writ ref'd); Aguilera v. Reynolds Well Service, Inc., 234 S.W.2d 282 (Tex.Civ.App. San Antonio 1950, writ ref'd). However, the rule established by these cases is substantially more limited than that urged here. In each of the cases, the witness was either an agent, employee or owner of the defendant's liability insurer. The holdings thus properly state the established rule that the relevancy of showing that a witness is an employee or agent of the defendant's liability insurer outweighs the danger of prejudice from injecting the element of insurance into the proceedings. See 2 McCormick and Ray, Texas Law of Evidence § 1539 (2d ed. 1956); McCormick, Evidence § 40, at 83, v. 5 (1954); see also Annot., 4 A.L.R.2d 761, 779 (1949).

In the present case, however, the witness had no direct interest in the outcome of the litigation, as would an agent, owner or employee of the defendant's insurer. While it is true that a large judgment against any doctor will probably affect the insurance rates of other physicians, this interest is remote, and any proof of bias based upon that interest is outweighed by the prejudice caused by informing the jury of the defendant's insurance protection. Accordingly, this case falls within the rule that testimony calculated to inform the jury of the defendant's insurance coverage is inadmissible, Rhoden v. Booth, 344 S.W.2d 481, 487 (Tex.Civ.App. Dallas 1961, writ ref'd n. r. e.), and the trial court did not err in excluding this line of inquiry.

Exclusion of the Letters

Mrs. Mendoza next argues that the trial court erroneously excluded from evidence certain letters written by experts who testified at trial. The letters were furnished to Dr. Bailey, an expert witness for Dr. Varon, by Dr. Varon's attorneys. According to Mrs. Mendoza's argument, Dr. Bailey testified that he relied upon the letters in formulating his opinion, and the letters were thus admissible to show the basis for his opinion. Even assuming the...