Welch v. McLean
| Decision Date | 02 June 2005 |
| Docket Number | No. 2-02-237-CV.,2-02-237-CV. |
| Citation | 191 S.W.3d 147 |
| Parties | Robert Morrow WELCH, M.D., Appellant v. Simeon Eden McLEAN, Individually and as Heir to the Estate of Delores McLean, Deceased, and Simeon Eden McLean, as Next Friend of Jamila Imari McLean and Imani Zakiya McLean, Minors, Appellees. |
| Court | Texas Court of Appeals |
Cantey & Hanger, L.L.P., and Stephen L. Tatum and Larry Hayes, Fort Worth, for Appellant.
Morgan & Weisbrod, L.L.P., William A. Newman and Les Weisbrod, Dallas, Law Offices of Jenks Garrett, and Jenks Garrett, Weatherford, Law Offices of Deborah Hankinson, Deborah Hankinson and Rick Thompson, Dallas, for Appellees.
PANEL A: CAYCE, C.J.; HOLMAN and GARDNER, JJ.
We withdraw our opinion and judgment of March 25, 2004 and substitute the following in their place. We grant Simeon Eden McLean's motion for rehearing1 and deny his motion for en banc rehearing.
In this medical malpractice case, the primary issues we must decide are whether the evidence is legally and factually sufficient to support the jury's verdict that Robert Morrow Welch, M.D.'s failure to diagnose pulmonary emboli in Delores McLean on April 24, 1996 was a proximate cause of her death from a massive pulmonary embolus two-and-a-half months later; whether the trial court erred in refusing to apply the noneconomic damages cap of the Medical Liability and Insurance Improvement Act to the jury's damages award based on a finding that facts exist that would enable the health care provider to invoke the Stowers doctrine; whether the trial court erred in failing to include prejudgment interest in the damages cap; and whether the trial court incorrectly applied the settlement credit to the capped damages. Because we hold that the evidence is both legally and factually sufficient to support the jury's verdict and that the trial court correctly applied the settlement credit, but that the trial court erred in refusing to apply the damages cap to the jury's damages award and prejudgment interest, we reverse and render.
On April 24, 1996, thirty-year-old Delores called Dr. Mark Godfrey, her primary care physician, complaining of shortness of breath and chest pain. Dr. Godfrey sent Delores to the emergency room at Harris Methodist Hospital HEB (hereafter, the emergency room) for further evaluation. Delores's husband, Simeon, drove her to the emergency room. Simeon observed that Delores seemed to be experiencing pain when she breathed, that she held her chest, and that she struggled to breathe.
When she arrived at the hospital at approximately 12:30 p.m., Delores was assessed by Raenita Pearson, the triage nurse on duty that day. Pearson observed that Delores had a blood pressure of 130 over 72, pulse of 101, and respirations of 28, with a normal temperature. She noted that Delores complained of shortness of breath the week before, headache the day before, vomiting that day, and difficulty breathing. Delores did not, however, complain to Pearson about chest pain.
Delores was then evaluated at 12:40 p.m. by staff nurse Meagan Stillwagoner. Stillwagoner noted that Delores complained of a sinus headache that medication did not improve, nausea, vomiting, and shortness of breath, mainly with exertion. Delores also had shallow and rapid respirations and a low blood oxygen saturation of 90%. Her breath sounds were normal, however, and she was breathing with normal effort.
Dr. Welch first saw Delores about 1:10 p.m. He reviewed her history, which was consistent with her earlier conversations with the nurses and noted the presence of sinus drainage, a productive cough with green mucus, and her complaint of shortness of breath. Delores did not complain to Dr. Welch about chest pain, and he did not observe any physical signs of chest pain. Dr. Welch ordered a chest x-ray, a sinus x-ray, pulse oximetry, and an arterial blood gas test.2 He also examined Delores's legs for evidence of thrombosis (the formation or presence of a blood clot within a blood vessel). Because of Delores's severe obesity, however, he did not consider that examination very useful.
Delores's x-rays were normal. The pulse oximetry, however, showed an oxygen saturation level that was below normal, and the blood gas test showed a low pO2 of 56. Based on Delores's history, physical examination, x-rays, and laboratory data, Dr. Welch diagnosed Delores as suffering from sinusitis, dyspnea, bronchospasm and hypoxemia.3 Dr. Welch believed that Delores's shortness of breath was caused by her obesity, bronchospasm, infection, and mucus plugging in her lungs. He ordered ventilator treatments with drugs to relieve the bronchospasm, antibiotics to treat the infection, and cough medication.
Altogether, Dr. Welch saw Delores five or six times on April 24. He noted slow improvement after the prescribed therapy and that Delores reported feeling almost normal. At 4:00 p.m., Dr. Welch noted that Delores was "[d]oing well"; however, her 4:00 p.m. oxygen saturation reading gave him the impression that her bronchospasm was returning. Dr. Welch did not see Delores between 4:00 and 5:25 p.m., when he discharged her after discussing with her his diagnosis, prescribing medication to relieve the symptoms of bronchospasm, giving her an instruction sheet for home treatment of asthma (the hospital had no instructions for bronchospasm), and suggesting that she see her primary care physician in a day or two. Dr. Welch never saw Delores again.
Following Dr. Welch's instructions, Delores made an appointment with Dr. Godfrey on April 29, 1996. Delores told Dr. Godfrey that she had been treated at the emergency room and was slowly getting better, although she still became short of breath upon exertion. Although Delores showed Dr. Godfrey the asthma instruction sheet she had been given, he received no other information from the emergency room about Delores's April 24 visit. Dr. Godfrey examined Delores and concluded that she had a sinus infection and that her shortness of breath was caused by bronchospasm or reactive airway disease, which can develop suddenly after a bout of bronchitis. He extended her antibiotics and gave her an inhaler. If Dr. Godfrey had known of Delores's April 24 pO2 level of 56, however, that might have made a difference in his evaluation of her, because he knew that catastrophic problems, such as heart attack and pulmonary embolism, could result from such a low level of oxygenation.
Dr. Godfrey next saw Delores on May 1, 1996, when she complained of chills, sore throat, headache, and ear pain. On May 7, 1996, Delores again sought treatment from Dr. Godfrey for cold sweats, nausea, vomiting, diarrhea, labored breathing, chills, and a low-grade fever. She told Dr. Godfrey on that visit that her respiratory symptoms were improving and that her main problems were gastrointestinal.
On May 13, 1996, Delores consulted Dr. Drake, another physician in Dr. Godfrey's group, regarding breathing difficulties, which then improved until the Sunday before July 3, 1996. On July 3, Delores again saw Dr. Godfrey and complained of a recent onset of cough, congestion, wheezing, and shortness of breath. Dr. Godfrey told Delores to restart her medications, which he had previously prescribed for use only as needed, and also gave her additional medications.
On July 8, 1996, Delores returned to the emergency room, complaining of cough, congestion, fever, headache, sore throat, and difficulty breathing, which she reported had been intermittent since April. She also reported coughing up red-tinged mucous and complained of tightness in her chest when she breathed. A chest x-ray showed an abnormality in the upper right lobe of her lung, and based on Delores's history, Dr. Jerome Novotny, the treating ER physician, concluded that she had pneumonia.
Late in the evening on July 9, Delores collapsed at home and was taken to the emergency room by ambulance. She was pronounced dead shortly after midnight on July 10, 1996. Autopsy results revealed that the cause of Delores's death was a massive "saddle" embolus that had lodged itself in her pulmonary arterial trunk. The autopsy further revealed evidence of left deep leg vein thrombosis and showed that Delores had another, not-yet-fatal embolus in the upper lobe of her right lung, which Dr. Novotny had mistaken for pneumonia.
During the autopsy, Deputy Chief Medical Examiner Dr. Marc Krouse retained random samples of Delores's normal-appearing lung tissue and a section of the right upper lobe of the lung that appeared abnormal. Two years later, Dr. Krouse prepared slides from the normal-appearing tissue for microscopic examination. One slide showed three microscopic emboli in two of the smaller pulmonary arteries. Based on their size, it was Dr. Krouse's opinion that, in reasonable medical probability, these emboli were in Delores's lungs at least four to six weeks before she died.4 Two other slides showed emboli that were seven days to two-and-one-half weeks old when Delores died.
Simeon filed his medical malpractice suit on February 1, 1998. After a mistrial, Simeon's claims against Dr. Welch were retried to a jury, which returned a 10-2 verdict on February 2, 2002. The jury found that Dr. Welch's negligence had proximately caused Delores's death and that Simeon had suffered past and future noneconomic damages of $5,154,000. The trial court rendered judgment on the verdict, and this appeal followed.
In his first and second issues, Dr. Welch asserts that the evidence is legally and factually insufficient to sustain the jury's verdict that his negligence in failing to diagnose pulmonary emboli in Delores was the proximate cause of her death. He contends that there is no direct physical evidence that...
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