Parkway Hosp., Inc. v. Lee

• Decision Date: 22 May 1997
• Docket Number: No. 14-96-00277-CV,14-96-00277-CV
• Citation: 946 S.W.2d 580
• Parties: PARKWAY HOSPITAL, INC. and Epic Healthcare Group, Inc., Appellants, v. Lisa LEE, Individually, and as Next Friend of Alexander Lee, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 580

946 S.W.2d 580

PARKWAY HOSPITAL, INC. and Epic Healthcare Group, Inc., Appellants, v. Lisa LEE, Individually, and as Next Friend of Alexander Lee,

Appellees.

No. 14-96-00277-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

May 22, 1997.

Rehearing Overruled June 19, 1997.

Kevin J. Keith, Dallas, Thomas P. Sartwelle, Houston, for appellants.

Jim M. Perdue, Mark D. Clore, Denice Smith, R. Tate Young, Houston, for appellees.

Before LEE, AMIDEI and O'NEILL, JJ.

OPINION

O'NEILL, Justice.

Lisa Lee was in active labor when a nurse at Parkway Hospital, Inc. ("Parkway") gave her an injection of Pitocin, a drug used to accelerate labor. Shortly thereafter Lisa's uterus ruptured and her son, Alexander, was born with severe neurological injuries. Immediately after the delivery, Lisa underwent an emergency hysterectomy. Lisa filed suit against her obstetrician, Dr. Chin Lee (no relation), and the hospital, alleging that their negligence caused the injuries she and her son sustained. At trial, the cause of the plaintiffs' injuries was hotly contested. The Lees claimed the negligent administration of Pitocin was the proximate cause of their injuries. The hospital claimed the tetanic contractions that ruptured Lisa's uterus were not precipitated by the administration of Pitocin, and Alexander's cerebral palsy was the result of congenital abnormalities and genetic disorders. It was also disputed whether the Pitocin was administered with or without a doctor's order.

The jury found no negligence on the part of Dr. Lee, and determined that the hospital's negligence proximately caused the plaintiffs' injuries. The jury awarded over $16 million in damages, and the trial court entered judgment on the verdict. ¹ In eight points of error, Parkway contends the trial court erred in (1) making various evidentiary rulings, (2) allowing the Lees to amend their petition post-verdict, (3) allowing an award for "damage to the family relationship," and (4) awarding excessive guardian ad litem fees. Finding no abuse of discretion, we affirm the judgment of the trial court.

Evidentiary Rulings--Standard of Review

The hospital's first five points of error complain of evidentiary rulings made by the trial court. The admission and exclusion of evidence, including demonstrative evidence, is committed to the trial court's sound discretion. Hur v. City of Mesquite, 893 S.W.2d 227, 231 (Tex.App.--Amarillo 1995, writ denied); see also Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). A trial court abuses its discretion when it acts without regard to any guiding rules or principles. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-754 (Tex.1995); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). The supreme court has defined "abuse of discretion" as "a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985).

To obtain reversal of a judgment based upon error in the admission or exclusion of evidence, the appellant must show (1) the trial court did in fact commit error, and (2) the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. Bridges v. City of Richardson, 163 Tex. 292, 354 S.W.2d 366, 368 (1962); TEX.R. APP. P. 81(b). Appellant need not prove that but for the evidentiary error a different judgment would necessarily have been rendered, but only that the error probably resulted in an improper judgment. McCraw v. Maris, 828 S.W.2d 756, 758 (Tex.1992); King v. Skelly, 452 S.W.2d 691, 696 (Tex.1970). A judgment will not be reversed for erroneous rulings on admissibility of evidence where the evidence in question is cumulative and not controlling on a material issue dispositive of the case. Whitener v. Traders and General Ins. Co., 155 Tex. 461, 289 S.W.2d 233, 236 (1956); see also Turner v. Monsanto Co., 717 S.W.2d 378, 381 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.). A successful challenge to evidentiary rulings usually requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted. See GT & MC, Inc. v. Texas City Ref., Inc., 822 S.W.2d 252, 257 (Tex.App.--Houston [1st Dist.] 1991, writ denied); Atlantic Mut. Ins. Co. v. Middleman, 661 S.W.2d 182, 185 (Tex.App.--San Antonio 1983, writ ref'd n.r.e.). We must review the entire record to determine whether the case turns on the erroneously admitted evidence. See Boothe v. Hausler, 766 S.W.2d 788, 789 (Tex.1989); Gee, 765 S.W.2d at 396.

Points of Error One and Two

In its first two points of error, Parkway contends the trial court erred in allowing the Lees' medical expert, Dr. Robert Yetman, to conduct an evaluation of Alexander before the jury. It is helpful in addressing these points to understand the sequence of events preceding introduction of the contested evidence. During voir dire and opening statement, the defense emphasized that there was no current neurological information about the child. Counsel stated that no such medical information would be presented "unless somebody goes out and does it before this trial ends." Counsel also queried whether Alexander's condition was "as bad as it sounds" and whether he "might, in fact, be improving?" To counter these remarks, the Lees called Dr. Yetman, a pediatrician with the University of Texas at Hermann Hospital, who attended Alexander shortly after birth. Dr. Yetman had been timely designated as Alexander's treating physician to testify "on issues of causation regarding Alexander Lee's injuries, damages associated with his condition, including necessary medical, educational, nursing therapy, expenses and intervention."

Because Alexander's neurological deficiencies are not readily visible, Dr. Yetman was asked to conduct a brief evaluation of the child to demonstrate his injuries to the jury. Parkway objected to any new opinions from Dr. Yetman, and claimed that such an evaluation was not within the plaintiffs' designation. Parkway further complained that the witness violated Rule 167a by indicating his willingness to conduct such an examination. The trial court overruled Parkway's objections, but ordered Dr. Yetman to conduct an in-camera preview of the demonstration so that the parties could see "the full breadth of what's being offered" and make their objections to any new opinions in advance. The preliminary in-camera evaluation was videotaped, and is hereafter referred to as the "preview tape."

The preview tape is approximately eleven minutes in length and shows Dr. Yetman directing Alexander to walk forward, walk backward, draw on a piece of paper, put blocks in a cup, stack blocks on top of each other, place a raisin in a small bottle, give a doll a bottle, and talk. During this process, Dr. Yetman asked Lisa questions about Alexander's verbal and physical capabilities. When the preview was completed, the Lees limited their offer of Dr. Yetman's evaluation for the purpose of "exhibit[ing] the child's injuries, that is the nature of his motor dysfunction, his problems walking ... his inability to use his hands, fingers ... his problem with trunk control or incoordination, that is the inability for him to stand up and control his movements...." The court accepted the limited offer, stating that "the sole purpose [of the evaluation] is to demonstrate the child's function," and instructed Lisa not to volunteer information during the demonstration to be conducted before the jury. The defense was told that if Dr. Yetman offered new opinions or testified beyond the scope of his designation during the in-court evaluation, objections could be lodged at that time. The trial then resumed, and Dr. Yetman proceeded with the in-court evaluation.

Dr. Yetman explained to the jury that his demonstration would give "a brief overview of how [Alexander] currently functions." Due to the child's young age, the evaluation took place in the privacy of the court's chambers and was simultaneously viewed by the jury through closed-circuit television. The in-court demonstration was approximately three and a half minutes shorter than the preview and showed Alexander performing the same activities, but without Lisa's input. During the in-court demonstration and Dr. Yetman's subsequent testimony, there were no objections that Dr. Yetman was offering new opinions or testifying beyond the scope of his designation. In fact, Dr. Yetman stated that he formed his opinions about Alexander's condition after reviewing a "day-in-the-life video" made approximately one year earlier, which showed Alexander performing most of the same functions he demonstrated during the in-court evaluation. The "day-in-the-life video" was admitted into evidence without objection.

In its first point of error, the hospital claims the Lees violated Rule 167a by expressing a willingness to submit Alexander to an evaluation. TEX.R. CIV. P. 167a(c). Rule 167a provides that if the mental or physical condition of a party is in controversy, the trial court may, on motion and with notice to the person to be examined, "order the party to submit to a physical or mental examination by a physician or psychologist" at a specific time and place. Id. The order shall also specify the "manner, conditions, and scope of the examination and the person or persons by whom it is to be made." Id. If no examination is sought or ordered by the trial court, the party whose condition is in controversy "shall not comment to the court or jury on his willingness to submit to an examination, on the right of any other party to request an examination or move for an order, or on the failure of such other party to do so." Id.

Parkway claims this rule was violated in the following exchange between the Lees' counsel and Dr. Yetman:

Q. (Mr. Clore) Dr. Yetman, if there are some suggestions in this case that, well, we don't have a current evaluation of the...