Simpson v. Glenn, 8624
| Decision Date | 30 April 1976 |
| Docket Number | No. 8624,8624 |
| Citation | 537 S.W.2d 114 |
| Parties | Howard SIMPSON, Individually and as next friend on behalf of Scooter Lloyd Simpson, a minor, Appellant, v. James C. GLENN, M.D., Appellee. |
| Court | Texas Court of Appeals |
Robin M. Green, Amarillo, for appellant.
Stone, Stone & Chambers, John C. Chambers, Amarillo, for appellee.
Appellant Howard Simpson brings this appeal from the judgment of the trial court rendered in favor of appellee James C. Glenn, M.D., that plaintiff-appellant recover nothing from defendant-appellee in this wrongful death suit based upon alleged medical malpractice. Mr. Simpson contends, and we agree, that the trial court erred in excluding in toto a medical doctor's deposition proffered as medical evidence in the case. Reversed and remanded.
Appellant filed this suit in his individual capacity as the surviving husband of Julia Ann Simpson, now deceased, and as next friend and natural father of Scooter Lloyd Simpson, minor son of Howard and Julia Ann Simpson. Mrs. Simpson died on April 19, 1973, in the intensive care unit of an Amarillo, Texas hospital after entering the hospital on April 15, 1973 and undergoing a hysterectomy performed by Doctor Glenn on April 16, 1973.
On the morning following the day of her surgery Mrs. Simpson exhibited signs of confusion and delirium. About 5:45 in the afternoon of that same day Mrs. Simpson experienced a cardiac arrest for which she was given emergency care. However, she died two days later. Although various other acts of negligence were pleaded, Mr. Simpson contends that the basic issue in this lawsuit was whether Doctor Glenn 'had properly and adequately maintained the appropriate water and electrolyte balance' in the patient.
During the trial Doctor Glenn, the defendant, and Dr. Carl Thomas Nichols personally testified; the deposition of Dr. Carey Joseph Batson was introduced into evidence. Doctor Batson and Doctor Nichols were the consulting physicians called in by Doctor Glenn on this case. Counsel for the plaintiff Simpson attempted to read into evidence the deposition testimony of Dr. Edward B. Grothaus, a prospective expert medical witness. After objection was made by counsel for Doctor Glenn to the reading into evidence of the deposition testimony, the trial court ruled that all of the testimony of Doctor Grothaus would be excluded from evidence. Counsel for the plaintiff subsequently perfected his Bill of Exceptions and thus preserved the deposition testimony of Doctor Grothaus for consideration in this appeal.
In response to special issues inquiring as to two of eight counts of alleged negligence the jury returned a verdict favorable to Doctor Glenn upon which judgment was rendered by the trial court. The two issues and answers were:
'Do you find from a preponderance of the evidence that Dr. James C. Glenn failed to order the timely reduction of I.V. fluid being injected into the body of Julia Simpson?
'ANSWER: We do not
'Do you find from a preponderance of the evidence that Dr. James C. Glenn failed to make timely use of a consulting doctor when symptoms appeared disclosing problems which he was not qualified to treat?
'ANSWER: We do not'
From the take-nothing judgment entered in favor of the defendant against the plaintiffs on the basis of the jury's verdict this appeal has been perfected. In one point of error Mr. Simpson contends that the trial court erred in excluding the testimony of Dr. Edward B. Grothaus.
Generally, competency of an expert witness is a matter to be determined within the sound discretion of the trial court. See Louis v. Parchman, 493 S.W.2d 310 (Tex.Civ.App.--Fort Worth 1973, writ ref'd n.r.e.); Texas and New Orleans Railroad Company v. Pettit, 290 S.W.2d 730 (Tex.Civ.App.--Beaumont 1956, writ ref'd n.r.e.) and cases cited therein. In the case of Pecos & N.T. Ry. Co. v. Coffman, 56 Tex.Civ.App. 472, 121 S.W. 218 (1909, no writ), in which there was conflict in the medical testimony, it was held that a physician in general practice who has studied a particular disease is qualified to testify concerning it, although he had not made such disease a specialty and had never treated a person therefor, and his want of experience went only to the weight of his testimony, citing Lawson on Expert and Opinion Evidence (1st Ed.) pp. 118--129, inclusive; Montgomery v. Commonwealth, 88 Ky. 509, 11 S.W. 475; 1 Wigmore on Evidence §§ 569 and 687. In this case the court significantly stated:
If it be conceded that ordinarily it would have been discretionary with the trial court to exclude the opinion of Dr. Rogers as an expert, we think that under the authorities, and in view of the conflict of testimony upon the issue as to whether or not the plaintiff was suffering from the . . . diseases complained of, it was an abuse of such discretion to exclude said testimony, and its exclusion constituted error for which the judgment of the trial court must be reversed. 121 S.W. at 220.
For further authority to the effect that the witness need not be a specialist in the particular branch of the profession about which testimony is offered, see Hardware Mutual Casualty Company v. Wesbrooks, 511 S.W.2d 406 (Tex.Civ.App.--Amarillo 1974, no writ); Utilities Indemnity Exchange v. Burks, 7 S.W.2d 1112, 1114 (Tex.Civ.App.--San Antonio 1928, writ dism'd); Steinberg v. Indemnity Insurance Co. of North America, 364 F.2d 266 (5th Cir. 1966); 2 C. McCormick & R. Ray, Texas Evidence § 1427, at 270 (2d ed. 1956).
The record discloses that Doctor Glenn is a specialist in obstetrics and gynecology practicing in Amarillo, Texas, whereas Doctor Grothaus is a general surgeon who has practiced basically in two places following the completion of his training: in Visalia, California, for approximately eleven years, and in Sierra Vista, Arizona, for about two years. Doctor Glenn states that the bases for his objection to the admission of Doctor Grothaus' testimony were: (1) Doctor Grothaus was not shown to be conversant with the standards of care of specialists in the field of obstetrics and gynecology,...
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