Roth v. Law

• Decision Date: 30 March 1979
• Docket Number: No. 1326,1326
• Citation: 579 S.W.2d 949
• Parties: Ronald Earl ROTH et al., Appellants, v. Janet M. LAW et al., Appellees.
• Court: Texas Court of Appeals

Page 949

579 S.W.2d 949

Ronald Earl ROTH et al., Appellants, v. Janet M. LAW et al., Appellees.

No. 1326.

Court of Civil Appeals of Texas, Corpus Christi.

March 30, 1979.

Supplemental Opinion on Remittitur April 5, 1979.

Rehearing Denied April 26, 1979.

Charles R. Dunn, James Wyckoff, Wyckoff, Russell, Dunn & Frazier, Houston, for appellants.

K. Michael Mayes, G. P. Hardy, III, Harvill & Hardy, Houston, for appellees.

OPINION

YOUNG, Justice.

In this motor vehicle accident case, appellee, Janet M. Law, individually and as next friend of Lea Rae Law, a minor, sued Ronald Earl Roth, Lilly Ice Cream Company, and Lilly Dairy Products for injuries received when the Law vehicle and a Lilly truck driven by Roth collided. Trial was to a jury which found Roth and Lilly Ice Cream Company liable for resulting injuries to Mrs. Law's back and Lea's left eye. Judgment of $7,655.00 in favor of Mrs. Law and of $193,760.00 in favor of the minor child was entered on the verdict. Roth and Lilly Ice Cream Company bring this appeal.

A fair summary of the record indicates the following events. On January 29, 1976, appellee and her daughter Lea were travelling westbound on a two-lane highway near Bay City, Texas on a dry clear day. As Mrs. Law was approaching the intersection of the highway with Hasama Road, where she intended to turn left, Roth, driving a Lilly truck behind Mrs. Law, pulled into the left lane to pass the Law vehicle. Mrs. Law apparently signaled her left turn, began slowing down and started to turn left when the Lilly truck and the Law vehicle collided in the east bound lane of the highway at the intersection with Hasama Road.

Mrs. Law sustained injuries to her back and Lea, who had been riding in the back seat of the Law automobile, apparently was thrown around in the back seat, striking the door, seat and floor. Lea, however, showed no visible signs of injury after the accident. She did though, complain about a headache and told her mother that her eye hit the door. Thereafter, in March and April of 1976, Lea's left eye began crossing. Mrs. Law did nothing about it, though, thinking Lea merely needed glasses.

Subsequently, in June of 1976, Lea was struck by an automobile and received a minor skull fracture. During Lea's examination after this accident an ophthalmologist discovered that Lea's left eye was suffering a detached retina. The child was then referred to Dr. Alice McPherson, a retinal specialist. Dr. McPherson determined that the retinal detachment most probably was caused by trauma and that it was of long standing, i. e., was not caused by the recent June accident but had occurred at least three months prior to the time she saw Lea in June of 1976. Dr. McPherson performed three operations upon Lea in an attempt to reattach the retina to the wall of her eye but was unsuccessful. As a result, Lea became permanently blind in her left eye.

Appellants bring thirty points of error. Appellants' points 1 and 2 contend that the trial court erred in allowing Doctor Smith, an ophthalmologist, to testify concerning the retinal detachment because two of his opinions were based solely upon opinions of other physicians as found in the hospital records and the records of Dr. McPherson. We disagree. The evidence shows that Dr. Smith examined Lea on one occasion only, that being a "little over a month" before the case went to trial on August 15, 1977. This examination was routine and because an advanced cataract clouded the minor's eye, Dr. Smith was unable to personally examine the retina in question although the doctor did observe the total absence of sensitivity to light in the left eye, and that her left eye was crossing. As a consequence, Dr. Smith's testimony as to the causation and timing of the retinal detachment was totally reliant on the minor's hospital records, the optical sketches drawn by Dr. McPherson or her staff and the child's history as related in the hospital records and by the child's mother.

At trial, Dr. Smith was asked to give opinions on two separate questions. The first question asked if the June 1976 accident caused the retinal detachment. Appellants objected to this question on the sole ground that it was based upon other physicians' opinions. The objection was overruled and appellants were given a running objection to any of Dr. Smith's opinions based upon opinions of other doctors. Dr. Smith then answered that in his opinion the June 1976 accident did not cause the detached retina. The second question asked if the January 1976 accident (made the basis of this suit) caused the retinal detachment. He answered that it probably did.

We hold that appellants' complaint that Dr. Smith's opinions were based on the opinions of other physicians to be unjustified. About the first opinion concerning the June 1976 accident, Dr. Smith stated that this opinion could be totally based upon the retinal drawings. Regarding the second opinion, we find an absence of any indication that Dr. Smith relied on other medical opinions; indeed, Dr. Smith himself stated that the retinal drawings were the very heart of the medical records, all of which were admitted into evidence.

In response, appellants contend that the retinal drawings are merely medical opinions of the condition of Lea's retina. We disagree and hold that the retinal drawings Dr. Smith reviewed were not opinions but were objective findings made by Dr. McPherson or her staff. Dr. Smith testified that the making of retinal drawings follows a standardized procedure such that any ophthalmologist could interpret the drawing even if he or she could not see the retina. In general, such drawings are hand sketched reproductions of what the doctor views when looking into the patient's dilated eye. Further, according to Dr. Smith, the drawings are usually very accurate because they are made in preparation for surgery so that the surgeon will know where to work on the eye. In addition, they are prepared for future reference by the treating doctor and for reference by other doctors who might need to become involved with the patient. Dr. Smith did state, however, that some ophthalmologists would be better skilled than others in making retinal drawings but that essentially ophthalmologists, as a group, would give the same rendition of a certain ocular condition. It should be further noted that Dr. McPherson worked exclusively with retinas and that she and her staff were extremely well practiced in making accurate retinal drawings. Moreover, Dr. Smith was experienced in interpreting Dr. McPherson's drawings in that she was his medical school professor and taught him the technique of retinal drawing. Dr. Smith also stated that two equally trained ophthalmologists interpreting a retinal sketch would probably come up with about the same interpretation.

At trial, Dr. Smith explained to the jury the observations which he gleaned from the drawings. He explained that the pictures showed extensive scarrings, extensive gliosis (dried blood caked on the retina), cyst formation impigmentation (suggesting trauma) and blood vessels growing into the gliosis (suggesting that the damage had been present for some time). In addition, he stated that the retina appeared fixed and folded (also suggesting that the damage had occurred quite some time in the past). We think Dr. Smith's opinion was based upon fact rather than opinion.

Under points 1 and 2 appellants also complain that Dr. Smith's opinion, concerning the January 1976 accident, was not admissible because according to Dr. Smith's own admission his opinion was based primarily upon the history that the mother had given him. Appellants cite Goodrich v. Tinker,437 S.W.2d 882 (Tex.Civ.App. El Paso 1969, writ ref'd n.r.e.) for the proposition that a testifying doctor may not base his opinion, in part, upon the interested testimony of a party. This objection to the admissibility of Dr. Smith's testimony was not, however, raised at trial and may not be raised now on appeal. Kettle v. Smircich, 415 S.W.2d 935 (Tex.Civ.App. Corpus Christi 1967, no writ); see also City of Wichita Falls v. Jones, 456 S.W.2d 148, 154 (Tex.Civ.App. Fort Worth 1970, no writ). Furthermore, even if the objection had been raised at trial, the case of Slaughter v. Abilene State School, 561 S.W.2d 789, 791 (Tex.Sup.1977), makes it clear that a medical opinion is not rendered inadmissible because a testifying doctor bases his opinion, in part, upon an interested party's case history. Appellants' points 1 and 2 are overruled.

Appellants' points 3 and 4 contend that the court erred in allowing Dr. Smith to answer a hypothetical question concerning the causal relation between the January 29, 1976, accident and the retinal detachment because the hypothetical assumed that no other trauma had occurred to the child's eye prior to January 29, 1976.

It is within the province of counsel to assume, within the limits of the evidence, a state of facts which he contends the evidence justifies and which enables the witnesses to form an intelligent answer from the facts assumed. Pan American Fire & Casualty Company v. Reed, 436 S.W.2d 561 (Tex.Civ.App. Amarillo 1968, writ ref'd n.r.e.). Hypothetical questions should, though, be restricted to the facts in evidence or to be put in evidence in order to prevent misleading or confusing the jury. J. Weingarten, Inc. v. Tripplet, 530 S.W.2d 653 (Tex.Civ.App. Beaumont 1975, writ ref'd n.r.e.). In the hypothetical, about which appellants complain, appellees' counsel asked Dr. Smith to assume his earlier mentioned physical findings based upon the retinal drawings and to assume further "that the only other trauma involving the eye that the little girl had been involved in had to do with an automobile-truck wreck that took place on January 29, 1976." Given this, Dr. Smith was asked whether it was consistent with his observations for the detachment to have occurred in the January accident. Dr. Smith never answered this...