Wiggins v. Cameron, C14-87-606-CV

• Decision Date: 30 June 1988
• Docket Number: No. C14-87-606-CV,C14-87-606-CV
• Citation: 763 S.W.2d 434
• Parties: William H. WIGGINS, Jr., Appellant, v. Bruce CAMERON, M.D., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 434

763 S.W.2d 434

William H. WIGGINS, Jr., Appellant, v. Bruce CAMERON, M.D., Appellee.

No. C14-87-606-CV.

Court of Appeals of Texas Houston (14th Dist.).

June 30, 1988.

Steve Gano, Houston, for appellant.

Jay H. Henderson, Sam W. Cruse, Jr., John R. Strawn, Jr., Houston, for appellee.

Before JUNELL, SEARS and CANNON, JJ.

OPINION

SEARS, Justice.

This is an appeal from a take-nothing judgment rendered in Appellant's medical malpractice suit for injuries sustained as a result of surgery performed by Appellee. We affirm.

Appellant sought treatment for a large mass behind his right knee. Appellee performed a number of diagnostic procedures to determine the nature of the mass and finally performed exploratory surgery on the knee. During surgery, Appellee discovered that the mass was composed of scar tissue which enveloped the peroneal nerve and pushed it against the bicep muscle in the back of Appellant's knee. Following the surgery, Appellant experienced a loss of the motor function of the muscles that raise the foot, a condition commonly known as "drop foot." Drop foot is caused by damage or injury to the peroneal nerve which interferes with the nerve's conductivity.

Appellee testified at trial that Appellant's injury was probably caused by damage to the peroneal nerve during the exploratory surgery, but explained that even touching the nerve can cause the condition. He further testified that damage to the peroneal nerve is recognized and accepted as a complication of this type of surgery, and that damage may occur despite the surgeon's exercise of ordinary care. Appellant offered no expert testimony.

Appellant asserts four points of error concerning the submission of Special Issue No. 1. In his first point of error, Appellant contends the special issue was duplicitous and required an affirmative finding on two separate questions of fact before the jury could answer the issue affirmatively. In his second point of error, Appellant maintains the trial court erred in submitting this special issue to the jury rather than his requested special issue. In his fourth point of error, Appellant contends the trial court erred in entering judgment on the jury's response to Special Issue No. 1 and overruling Appellant's Motion for New Trial because Special Issue No. 1 was improper.

Special Issue No. 1 reads:

Do you find from a preponderance of the evidence that Dr. Cameron, during surgery, cut and damaged the nerves in Plaintiff's right lower extremety [sic] thereby producing a "drop foot"?

Answer: "Yes" or "No".

ANSWER: No

Appellant's Specially Requested Special Issue reads:

On the occasion in question, did Dr. Cameron damage the peroneal nerve in Mr. Wiggins' right leg?

Answer: "Yes" or "No".

ANSWER __________

Rule 279 of the Texas Rules of Civil Procedure provides in relevant part that, "When the court submits a case upon special issues, he shall submit the controlling issues made by the written pleadings and the evidence." TEX.R.CIV.P. 279 (Vernon 1977). Upon request, the trial court must submit all controlling issues raised by the pleadings and evidence; however, an undisputed proposition of fact need not be submitted. Martin v. U.S. Trust Co. of N.Y., 690 S.W.2d 300, 310 (Tex.App.--Dallas 1985, writ ref'd. n.r.e.). The special issue submitted to the jury tracked the allegations in Appellant's First Amended Original Petition. The petition alleged that, "Defendant during surgery cut and damaged the nerves in plaintiff's right extremety [sic] thereby producing a 'drop foot'." (Emphasis added.) It was undisputed at trial that the nerve was damaged during the surgery performed by Appellee. It is clear that Appellant alleged that Appellee "cut and damaged" the nerve as one theory rather than as alternative theories of the case. Therefore, whether Appellee "cut and damaged" the peroneal nerve was the controlling issue to be submitted to the jury.

Further, the only expert testimony offered at trial was that of Appellee. Appellant did not offer any expert testimony to contradict Appellee's testimony or to establish that Appellee's treatment fell below the required standard of care. In order to establish a cause of action in a medical malpractice case, the plaintiff has the burden to introduce expert testimony to prove that the defendant physician's diagnosis or treatment constituted negligence which was a proximate cause of the injuries. 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). Requested issues are properly refused when they are not supported by competent evidence. PGP Gas Products, Inc. v. Reserve Equipment, Inc., 667 S.W.2d 604, 609 (Tex.App.--Austin 1984, writ ref'd n.r.e.); Ladd v. Knowles, 505 S.W.2d 662, 669 (Tex.Civ.App.--Amarillo 1974, writ ref'd n.r.e.).

Rule 279 requires that requested special issues be tendered to the court in "substantially correct wording". TEX.R.CIV.P. 279 (Vernon 1977). This requires that the requested issue be one that "in substance and in the main is correct, and that is not affirmatively incorrect." Placencio v. Allied Indust. Intern., Inc., 724 S.W.2d 20, 21 (Tex.1987), ...