Roberts v. Williamson
| Decision Date | 03 July 2001 |
| Docket Number | No. 06-00-00070-CV,06-00-00070-CV |
| Citation | 52 S.W.3d 343 |
| Parties | (Tex.App.-Texarkana 2001) KAREN ROBERTS, M.D., Appellant v. LAINIE WILLIAMSON AND CASEY WILLIAMSON, INDIVIDUALLY AND AS NEXT FRIENDS OF COURTNIE WILLIAMSON, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 97-1556-B
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Before Cornelius, C.J., Grant and Ross, JJ.
Lainie and Casey Williamson sued Dr. Karen Roberts and Dr. Mark Miller for medical malpractice in treating their newborn daughter, Courtnie Williamson. The jury found no liability on the part of Dr. Miller, but found Dr. Roberts fifteen percent responsible for the injuries sustained by Courtnie. In four points of error, Dr. Roberts argues (1) that Dr. Frank McGehee was not qualified to offer expert testimony in the area of pediatric neurological injuries, (2) that there was no evidence of damages for Courtnie's medical expenses before and after age eighteen, her past and future physical impairment, disfigurement, loss of earning capacity, lost earnings, and past and future physical pain and mental anguish, (3) that Texas law does not recognize a parent's right to recover for loss of consortium with a nonfatally injured child, and (4) that the trial court erred in not applying a settlement credit to the Williamsons' recovery from Dr. Roberts.
The Williamsons filed a motion with this court for partial dismissal of the appeal. They contend that Dr. Roberts failed to preserve her no evidence, insufficient evidence, and excessiveness of damages issues because she filed her Motion for New Trial four days late. The Williamsons' contentions do not relate to our jurisdiction over the appeal. Thus, we overrule the motion, but consider the contentions regarding preservation of error in this opinion.
On September 15, 1996, Lainie gave birth to Courtnie at Laird Memorial Hospital in Kilgore, Texas. The following day, Courtnie began experiencing difficulty breathing. She was suffering from severe acidosis, a condition that could cause permanent harm in a matter of minutes. Dr. Roberts, a consulting physician with Laird Memorial Hospital, was called to the hospital from Longview to treat Courtnie. Dr. Roberts arrived but continually refused to treat Courtnie with sodium bicarbonate, despite the fact that several other physicians recommended this treatment. Additionally, Courtnie was "hooked up" to a nonfunctioning pediatric ventilator for nine minutes. After Courtnie spent hours at Laird Memorial Hospital in this condition, Dr. Roberts authorized her transfer to Shreveport Medical Center in Shreveport, Louisiana. As a result of the lengthy period that Courtnie was deprived of oxygen, she suffered multiple intercranial hemorrhages and sustained massive, permanent injury to the right side of her brain.
As her first point of error, Dr. Roberts contends that the Williamsons' medical malpractice expert, Dr. Frank McGehee, a board-certified pediatrician, was not qualified to testify regarding Courtnie's neurological injuries.
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
Tex. R. Evid. 702. The party offering the expert testimony must show that the witness is qualified under Rule 702. Broders v. Heise, 924 S.W.2d 148, 151-52 (Tex. 1996). The admission or exclusion of expert testimony lies in the sound discretion of the trial court. E.I. DuPont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995).
A medical doctor is not, by virtue of a medical degree, automatically qualified to testify on any specific medical subject. Broders, 924 S.W.2d at 153. The party offering the expert's testimony must show that the expert has expertise, training, education, or knowledge "regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject." Id. at 153-54. In Broders, the Texas Supreme Court upheld a trial court's refusal to allow an emergency room doctor to testify regarding the causation of certain neurological injuries.
In the present case, the Williamsons established that Dr. McGehee was a board-certified pediatrician. As the basis for his testimony regarding the neurological damages suffered by Courtnie, Dr. McGehee relied on the testimony of a pediatric neurologist (Dr. Mark Laney), diagnostic test results, and peer-reviewed medical articles. Dr. McGehee's resume established that he was a board-certified pediatrician with neonatal training and many years of experience. His testimony revealed that he was experienced in treating and stabilizing ill newborns, was certified in pediatric advanced life support (PALS), was certified in advanced trauma life support (ATLS), formerly served as the chief of medical staff at Denton Regional Medical Center, formerly served as the chief of pediatrics at Flow Memorial Hospital in Denton, and taught pediatrics to family practice residents.
To establish his expertise in the specific area of neurology, Dr. McGehee testified that in forming his opinion on Courtnie's neurological damage, he relied on his foundational medical training and enhanced that knowledge by reviewing Courtnie's diagnostic tests from the University of Arkansas at Little Rock, her diagnostic tests from Gregg County Early Childhood Development, several medical peer-review journal articles and textbooks on pediatric neurology, and, most importantly, the testimony of Dr. Mark Laney, a pediatric neurologist whose videotaped deposition testimony was presented to the jury without objection. Additionally, Dr. McGehee testified that he routinely advised parents on the effects of the type of injury Courtnie had sustained and on the types of problems the parents could expect to encounter in the future. Although Dr. McGehee was not a board-certified neurologist, his testimony established that his medical training, his in-depth study of Courtnie's condition, his extensive review of pediatric neurology articles, his reliance on Dr. Laney's testimony, and his experience in advising parents on the effects of injuries such as Courtnie's qualified him as both knowledgeable and educated regarding the specific issue on which he testified: the neurological damages, long-term prognosis, and future medical needs of an infant who sustained neurological damages due to oxygen deprivation. The trial court did not abuse its discretion by allowing Dr. McGehee's testimony.
Moreover, a showing of harm is required, and Dr. Roberts has failed to address harm in her appellate brief. See Spivey v. James, 1 S.W.3d 380, 385 (Tex. App. Texarkana 1999, pet. denied). No harm arose from Dr. McGehee's testimony because his testimony was cumulative of Dr. Laney's testimony. Dr. Laney's qualifications as a pediatric neurologist were not questioned by Dr. Roberts at trial or on appeal, and his testimony was presented to the jury without objection. He gave the same analyses as Dr. McGehee regarding the neurological damages sustained by Courtnie and also analyzed Courtnie's long-term prognosis. In fact, Dr. Laney's testimony was even more detailed and exhaustive than Dr. McGehee's.
The first point is overruled.
In her second point, Dr. Roberts contends that there was no evidence to support the award of damages for past and future medical expenses, past and future physical impairment, disfigurement, loss of earning capacity, future lost earnings, past and future physical pain and mental anguish, and loss of consortium.
The Williamsons contend that Dr. Roberts failed to preserve these issues for appeal by failing to include them in her Motion for New Trial. However, she was not required to include her no evidence issues in a motion for new trial. No evidence issues may be raised by either (1) a motion for instructed verdict, (2) a motion for judgment notwithstanding the verdict, (3) an objection to the submission of the issue to the jury, (4) a motion to disregard the jury's answer to a vital fact issue, or (5) a motion for new trial. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992). The record shows that Dr. Roberts either moved for a directed verdict or objected to the jury charge on all the issues about which she now raises no evidence contentions.
Additionally, the Williamsons contend that Dr. Roberts challenges the factual sufficiency of the evidence supporting the jury's damage award for Courtnie's reasonable and necessary medical expenses and that Dr. Roberts failed to preserve error for appeal. However, in her brief, Dr. Roberts contends, "There was no evidence of the amount of medical expenses to be expected from the date of trial up to Courtnie's 18th birthday." We conclude this is a no evidence point and, as stated above, was properly preserved for appeal.
When reviewing legal sufficiency, we must determine if there is evidence of probative force to support the jury's finding and must consider all the evidence in the record in the light most favorable to the party in whose favor the jury found. We must apply every reasonable inference from the evidence in that party's favor. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). We disregard all evidence and inferences contrary to the jury's finding. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a...
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Roberts v. Williamson
...expert testimony or in refusing to apply a settlement credit when calculating the defendant physician's percentage of responsibility. 52 S.W.3d 343. In a separate opinion, the court of appeals concluded that the trial court had erred in taxing the guardian ad litem's fee as costs evenly bet......
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CHAPTER 5.I. Motion Authorities
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CHAPTER 2.I. Motion Authorities
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