Schorlemer v. Reyes

• Decision Date: 08 April 1998
• Docket Number: No. 04-97-00422-CV,04-97-00422-CV
• Parties: Wendell C. SCHORLEMER, M.D., Appellant, v. Beatriz G. REYES, Appellee.
• Court: Texas Court of Appeals

Page 141

974 S.W.2d 141

Wendell C. SCHORLEMER, M.D., Appellant, v. Beatriz G. REYES, Appellee.

No. 04-97-00422-CV.

Court of Appeals of Texas San Antonio.

April 8, 1998.

Rehearing Overruled June 4, 1998.

Thomas F. Nye, Linda C. Breck, Brin & Brin, P.C., Corpus Christi, for Appellant.

Nelda J. Ortiz, Law Offices of Nelda J. Ortiz, P.C., San Antonio, James L. Gorecki, Scott Roberts, San Antonio, for Appellee.

Before STONE, GREEN and ANGELINI, JJ.

OPINION

GREEN, Justice.

This is a medical malpractice case arising from a gynecological surgical procedure. Beatriz G. Reyes (Reyes) sued Wendell C. Schorlemer, M.D. (Schorlemer) in negligence, claiming he unnecessarily removed an ovary, fallopian tube, and her appendix, and failed to remove a sponge from her abdomen. Schorlemer challenges the jury verdict against him in ten points of error, complaining about the submission of a res ipsa loquitur instruction, the sufficiency of the evidence, and the trial court's refusal to segregate the damages issue among the various damage categories listed in the jury charge. We affirm the trial court's judgment.

Background

Reyes was referred to Schorlemer for treatment of a solid mass on her right ovary. On November 20, 1992, Schorlemer took an oral history from Reyes and reviewed a radiologist's sonogram report, prepared at the order of the referring physician. Without conducting any further tests to determine whether the mass might be cancerous, Schorlemer recommended Reyes undergo an exploratory laparotomy, which would include a biopsy and possible removal of reproductive organs. At that time, Schorlemer educated Reyes about this procedure and obtained her consent to perform any other necessary procedure that would become apparent during the laparotomy.

Schorlemer performed the surgery three days later at Southwest Methodist Hospital. Upon locating the tumor, Schorlemer determined that Reyes had a benign cyst. The cyst was bleeding, had the appearance of an endometrioma, ¹ and was surrounded by adhesions. ² Schorlemer testified he attempted to remove the cyst, lyse ³ the surrounding adhesions, and save the ovary, although his operative report lacks this information. Because he believed the ovary was not salvageable, Schorlemer removed it, along with the corresponding fallopian tube. He sent the organs to the pathology lab for testing; the lab report characterized the cyst as benign, with "old apparent endometriosis." Schorlemer also removed Reyes' appendix.

John Maxwell, M.D., a board certified obstetrician gynecologist, testified for the plaintiff about Schorlemer's course of treatment. Although he agreed an exploratory laparotomy would be proper to determine if a mass is cancerous, he stated that more preliminary tests should have been performed before this surgery. Judging from the pathology report of Reyes' ovary, he opined, complete removal of the ovary and fallopian tube was unnecessary. He conceded, however, that the surgeon performing the operation would be in the best position to determine whether an organ could be salvaged, and that it was possible Reyes' ovary ultimately might have been removed to alleviate the pain attributable to the adhesions.

Vincent Caldarola, M.D., a board certified general surgeon, testified for the defense. Based on his experience performing surgical resection of ovarian cancers, he opined the surgery performed by Schorlemer was fairly standard. Further cancer detection tests would not have ruled out cancer with certainty, therefore the exploratory surgery was the most reasonable method for detection.

Before closing his patient, Schorlemer received at least two correct sponge counts. Patricia Ruiz, the circulating nurse in the operating room, documented the procedure. She and Olga Felan, the scrub technician, conducted an undocumented preliminary sponge count to verify that the number of sponges in each packet matched the number stated on the packaging. As sponges are used during the operation, the scrub technician hands them to the surgeon while the circulating nurse keeps count. The sponges are counted once at the closing of the peritoneum, the abdominal lining, and verified against the circulating nurse's record. A second count occurs at the closing of the patient's skin. Ruiz and Felan stated in depositions, admitted at trial, that both counts were correct.

During the 48-hour period following surgery, Reyes' temperature twice rose sharply, and Schorlemer prescribed medication to reduce it. Fevers are significant because they indicate possible infection. Reyes was discharged on November 25 with a normal temperature and with orders to monitor it.

Schorlemer saw Reyes at his office three times in December 1992 for post-operative care. She complained of abdominal pain and bloating. Schorlemer attributed this pain to the incision and the healing process and prescribed pain medication. In April 1993, Reyes consulted Schorlemer for a fertility evaluation. At that time she also reported some abdominal pain. Reyes saw Schorlemer again in July 1993, complaining of abdominal pain and nausea. Schorlemer performed a sonogram, detected a large mass in Reyes' abdomen, and recommended Reyes have the mass removed. Reyes expressed a desire for a second opinion, and Schorlemer recommended his brother. Reyes declined and sought the advice of Cynthia De la Garza, M.D., who ordered an x-ray and detected a surgical sponge. De la Garza offered to remove the sponge, with Schorlemer's assistance. Reyes refused this option and consulted an attorney who referred her to Richard Garcia, M.D.

On August 12, 1993, Garcia removed the sponge with the assistance of Sabas Abuabara, M.D. The doctors observed a six-inch-square abscess surrounding the sponge ⁴ in Reyes' pelvis. The doctors also drained about 250 cubic centimeters of pus, which was not infected, and lysed "massive" adhesions surrounding the small bowel. In Garcia's opinion, the adhesions were caused by the sponge. Although Reyes' left ovary and fallopian tube had been somewhat displaced by the adhesions, they were unharmed. After this surgery, Reyes underwent two more operations, with Garcia assisting, to lyse more adhesions.

Joseph Garza, M.D. treated Reyes from January through June 1994 for abdominal pain and for evaluation of her chances for future pregnancy. Garza determined Reyes' remaining (left) ovary and fallopian tube were functional. He further opined the sponge had no effect on Reyes' reproductive organs and chances for conception.

Reyes sued Southwest Texas Methodist Hospital, Schorlemer, and the circulating nurse and scrub technician who worked in the operating room during her surgery. After pre-trial settlements, Schorlemer remained the sole trial defendant. Reyes presented multiple theories of negligence to the jury, including: (1) unnecessary removal of her right ovary, right fallopian tube, and appendix; (2) improper diagnosis and failure to conduct appropriate cancer screening; (3) failure to remove a sponge before closing her wound; and (4) failure to administer proper post-operative care and to detect the sponge.

These issues, as well as damages, were broadly submitted to the jury. Over Schorlemer's objection, the charge also included instruction on the doctrine of res ipsa loquitur. The jury answered the first question in the affirmative and awarded $150,000. Reyes opted for a dollar-for-dollar credit of settlement against the jury award, obligating Schorlemer to compensate Reyes in the amount of $100,000 plus pre-judgment interest.

Discussion

Schorlemer presents ten points of error for our review. In his first three points, he complains about the trial court's res ipsa loquitur instruction. In his fourth through ninth points, he argues the evidence was legally and factually insufficient to support the jury's findings of negligence, proximate cause, and damages. In his final point, he contends the court erred in failing to segregate the damages among the various theories of negligence posed by Reyes. We address these points in turn.

1. Res Ipsa Loquitur

a. The Court's Decision to Give the Instruction

Schorlemer's first point addresses the court's decision to give the instruction. In particular, he argues the trial court erred in giving a res ipsa loquitur instruction because there was no evidence that the sponge was in his control at the time of the alleged negligence, a prerequisite for the instruction.

We review the trial court's decision to submit an instruction with the abuse of discretion standard. See Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 791 (Tex.1995); Munoz v. Berne Group, Inc., 919 S.W.2d 470 471 (Tex.App.--San Antonio 1996, no writ). "Sound exercise of this discretion is particularly important in res ipsa cases in order to accommodate the wide range of situations which can arise in these cases." Mobil Chemical Co. v. Bell, 517 S.W.2d 245, 256 (Tex.1974).

Res ipsa loquitur, meaning "the thing speaks for itself," is used only in certain limited cases where the circumstances surrounding the accident constitute sufficient circumstantial evidence of the defendant's negligence to support such a finding. Bell, 517 S.W.2d at 250. Specifically, res ipsa applies only when two factors are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex.1990). Furthermore, the likelihood of other causes does not have to be completely ruled out, but their likelihood must be "so reduced that the jury can reasonably find by a preponderance of the evidence that the negligence, if any, lies at the defendant's door." Porterfield v. Brinegar, 719 S.W.2d 558, 559 (Tex.1986) (citing Bell, 517 S.W.2d at 251). In order for res ipsa to be submitted to the jury, there must be evidence of both...