Thompson v. Stolar, 458 S.W.3d 46

Background

Thompson sued Dr. Stolar, Dr. Marioni, and Alivio (Alivio Treatment Centers, P.A.) for knee injuries alleged to have arisen from treatment; Dr. Stolar was later excluded from trial via directed verdict.
Thompson’s initial knee injury stemmed from a 1999 auto accident, leading to multiple knee surgeries and ongoing pain.
Beginning in 2005, Thompson received chiropractic care from Marioni and refer rental to Stolar for injections; practices were allegedly intertwined with Alivio, which owned Alivio Treatment Centers.
Thompson developed a knee infection in January 2006 and eventual spontaneous knee fusion, followed by a later infection and a surgically fused knee after falls in 2007.
The case was tried to a jury; it found Marioni negligent and apportioned 80% fault to Stolar and 20% to Marioni, with damages for future medical care and loss of earning capacity; other damages were not awarded.
The appellate court reversed in part (as to Marioni) and affirmed in part (damages and directed verdict issues), with remand instructions consistent with the court’s rulings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Marioni breached the standard of care by failing to make an emergent referral on January 16, 2006.	Thompson argues emergent referral was required due to signs of infection.	Marioni contends no emergent referral was mandated by the standard of care.	No; the court held emergent referral was required and breached.
Whether the failure to emergently refer proximately caused further knee injury.	Thompson asserts the delay caused the spontaneous fusion.	Delay could not be proven to cause the fusion.	No; causation not proven by preponderance; damage not shown to be a probable result of the breach.
Whether the evidence supports a directed verdict against Alivio on ostensible agency.	Alivio’s conduct created reasonable reliance on Dr. Stolar’s authority.	No affirmative act by Alivio establishing ostensible agency; directed verdict proper.	Overruled; directed verdict proper against Thompson on ostensible agency.
Whether the Stolar defense and related evidence support the verdict against him.	Jury should have weighed contrary evidence; expert testimony supported negligence.	Insufficient basis to prove negligence; trial errors not preserved.	Overruled; no reversible error; verdict against Stolar stands.
Whether the damages award is factually sufficient or should be remanded for new trial.	There is uncontroverted evidence of injury warranting larger damages.	Damages are within jury discretion and supported by evidence.	No reversal; damages finding sustained for future medical expenses and loss of earning capacity.

Key Cases Cited

Moreno v. M.V., 169 S.W.3d 416 (Tex.App.-El Paso 2005) (standard of care and causation framework in medical negligence)
McIntyre v. Smith, 24 S.W.3d 911 (Tex.App.-Texarkana 2000) (establishes medical negligence elements)
McCombs v. Children’s Med. Ctr. of Dallas, 1 S.W.3d 256 (Tex.App.-Texarkana 1999) (duty, breach, causation framework)
City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005) (legal-sufficiency review standard; restraints on viewing conflicting evidence)
Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508 (Tex.1995) (preponderance of the evidence for causation; substantial factor test)
Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397 (Tex.1993) (causation and medical probability; substantial factor)