Smith v. Guthrie, 17889

• Citation: 557 S.W.2d 163
• Decision Date: 13 October 1977
• Docket Number: No. 17889,17889
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Parties: Harlen SMITH et ux., Appellants, v. Dr. Aubrey E. GUTHRIE, II, Appellee.

Page 163

557 S.W.2d 163

Harlen SMITH et ux., Appellants, v. Dr. Aubrey E. GUTHRIE, II, Appellee.

No. 17889.

Court of Civil Appeals of Texas, Fort Worth.

Oct. 13, 1977.

Rehearing Denied Nov. 10, 1977.

Mullinax, Wells, Mauzy & Baab, Inc., and Otto B. Mullinax, Dallas, for appellants.

Shannon, Gracey, Ratliff & Miller, David E. Keltner and Kleber C. Miller, Fort Worth, for appellee.

OPINION

SPURLOCK, Justice.

This is a medical malpractice case. The alleged malpractice consisted of the defendant-doctor's incorrect diagnosis of heart disease, when in reality, the patient did not have any such heart disease. At the trial, the judge excluded much of the testimony of the plaintiffs' medical expert. Upon the defendant's motion at the conclusion of the evidence, the trial court withdrew the case from the jury and rendered judgment in favor of the defendant as a matter of law, because (inter alia) there was no testimony in the case which established any standard of practice which had been violated by the defendant, and there was no expert testimony upon which to base any issue to be submitted to the jury. On appeal, the appellants contend, basically, that there was sufficient evidence to go to the jury despite the excluded testimony of their medical expert and that the medical expert's excluded testimony was admissible.

We affirm the judgment of the trial court.

In March of 1971, Jeanette Smith was admitted to Glenview Hospital by her psychiatrist, Dr. B. Rousch. While making rounds for Dr. Rousch, Dr. Aubrey Guthrie II saw Mrs. Smith for the first time. She complained of chest pains; accordingly, Dr. Guthrie ordered an E.K.G. test, the results of which were abnormal.

In November of 1971, Mrs. Smith, suffering from chest pains, was readmitted to the hospital by Dr. Rousch. Feeling that Mrs. Smith was having a heart attack, he called in Dr. Guthrie. After ordering that certain tests be administered, Dr. Guthrie concluded that the tests indicated arteriosclerotic heart disease and myocardial ischemia. At that time, he considered performing an arteriogram; however, Dr. Rousch advised against the administering of that test, due to the patient's mental state. Later, Dr. James R. Osborn was called in to examine Mrs. Smith. After performing an arteriogram, his diagnosis was that she had never had any heart disease. Plaintiffs then instituted this suit for damages against Dr. Guthrie for his misdiagnosis (inter alia) of Mrs. Smith's condition.

At the trial, plaintiffs' attorney introduced into evidence ten hospital charts covering Mrs. Smith's admissions to the hospital. Dr. Arthur Grollman, an internist and pathologist on the staff of the University of Texas Medical School at Dallas, reviewed these charts; he was offered as a witness by the plaintiffs. Upon objection by defendant's counsel, the trial court excluded most of Dr. Grollman's testimony.

By their first two points of error, the appellants contend that the trial court erred in removing the case from the jury and rendering a take-nothing judgment against them, since there were fact issues for the jury's consideration.

When a case is withdrawn from the jury, the reviewing court must view the evidence in the light most favorable to the losing party. Anderson v. Moore, 448 S.W.2d 105 (Tex.1969); Vincent v. Vincent, 320 S.W.2d 217 (Tex.Civ.App. Beaumont 1958, writ ref'd n. r. e.). However, the appellate court must affirm the trial court's withdrawal of the case from the jury, if the record establishes any ground which entitles the movant to judgment as a matter of law. Granato v. Bravo, 498 S.W.2d 499 (Tex.Civ.App. San Antonio 1973, no writ).

The appellants contend that there were five fact issues for the jury's consideration, which were:

"A. In Dr. Guthrie's diagnosing Jeanette Smith as suffering from arteriosclerotic heart disease during each and all of his admissions of her to Glenview Hospital when in truth she was not.

B. In Dr. Guthrie's falsely representing to Appellants that he was consulting with a heart specialist concerning Jeanette Smith's medical condition prior to her admission to Glenview Hospital on November 8, 1972.

C. In Dr. Guthrie's failure to place Jeanette Smith in the hands of a heart specialist before November 11, 1972.

D. In Dr. Guthrie's representing to Appellants that Jeanette Smith was experiencing heart attacks and had a serious heart disease prior to November 8, 1972.

E. In Dr. Guthrie's failure to have a coronary arteriogram performed on Plaintiff Jeanette Smith before November 11, 1972."

Appellee strenuously contends that each of these enumerated subpoints contain what is essentially an allegation of negligence on the part of the defendant-physician. In order to establish a cause of action in a medical malpractice case, a plaintiff must demonstrate by expert testimony that the acts or omissions of the physician constituted negligence. Wilson v. Scott,412 S.W.2d 299, 302 (Tex.1967); Hart v. Van Zandt, 399 S.W.2d 791, 797 (Tex.1965); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949). Thus, it is necessary for a plaintiff to introduce evidence through a medical expert that will establish a medical standard of care. This medical standard of care must be established so that the factfinder can determine whether the doctor's acts or omissions deviated from the standard of care so as to constitute negligence or malpractice.

This court has examined the record to determine whether there was any evidence that established a medical standard. On direct examination, Mrs. Smith testified that after learning that she didn't have heart trouble and wasn't going to die, she asked Dr. Guthrie, "What am I going to tell my relatives and friends? Here they've been expecting me to die at any minute. Now all of a sudden I'm going to live." Then, she testified that Dr. Guthrie told her: "Just tell them you have a dumb, stupid doctor." Appellants urge that the last sentence in this testimony established the medical standard. It is true that the defendant in a medical malpractice case can establish the medical standard by his own testimony. Wilson v. Scott, supra. We note that it is Mrs. Smith's (rather than Dr. Guthrie's) testimony that the appellants rely upon to establish the medical standard. Even if it were Dr. Guthrie's testimony, it would not have established the requisite standard of care.

We hold that the record is lacking of any evidence establishing a medical standard of care; accordingly, we overrule points of error # 1 and # 2.

In points of error # 3 through # 10, the appellants contend that the trial court erred in excluding from the jury's consideration most of the testimony of Dr. Arthur Grollman, their medical expert.

The following are illustrative of the testimony of Dr. Grollman that the trial court, upon objection by defendant's counsel, excluded from the jury:

1. That a reasonably prudent doctor could not reach a firm diagnosis of arteriosclerotic heart disease, myocardial ischemia or myocardial infarction, based upon Plaintiffs' Exhibit 2, the Glenview Hospital Chart of November 1, 1971.

2. As to what he would have done as a treating doctor in describing a...