*1 142 testimony concerning challenge
same
as the
could not
the indicted offense and therefore
PARROTT, Roger
L.
Jack
Lee
logically
challenge
to the victim’s
rebut
Lynn Rasbeary,
nee Rhonda
State,
credibility.
Jessup v.
853 S.W.2d
Lynn Parrott, Appellants,
filed);
1993,
(Tex.App.
pet.
Worth
Hill
— Fort
v.
State,
(Tex.App.
v.
El Paso held a identi objection impose duty
cal was sufficient
upon the trial court to conduct a Rule 403
balancing Regardless, test. since the extra
neous conduct was not shown to be relevant consequence
to a fact of aside from criminal
propensity, it was not admissible and no fur analysis necessary pursuant
ther to Tex.
R.CRIM.Evid. 403. The trial court erred
admitting the evidence of extraneous con Appellant bring
duct. did not forward a jury argument.
statement of facts of the
Therefore, I cannot determine whether the by arguing
state increased the harm jury.
extraneous offenses to the Neverthe
less, reprehensible this conduct was in na
ture, type charged of the same as the con
duct, long history and showed a of sexual complainant. say
abuse of the I cannot
its admission had no effect the convic Tex.R.App.P. 81(b)(2).
tion of the accused.
Consequently, I would sustain of error
one and reverse for that reason alone. join majority
I disposition in their
point of error two their reversal.1 it, majority pleteness.
1. The does not address but the state 107. This is not a TexR.Crim.Evid. argues cross-point and raises as a that the trial may appeal. matter which the state TexCode refusing report erred in to admit the entire court of officer (Vernon Supp.1994). art. 44.01 Crim.Proc.Ann. Dill, Dolly the state’s first witness on cross-point We should dismiss the state's for lack case-in-chief. The state contends that the entire statement, See, jurisdiction. Manning, State v. offenses, which mentions extraneous (Tex.App. pet.). S.W.2d 322 1992. no — Waco optional was admissible under the rule of com- *2 plain-
It this instructed verdict is from appeal. tiffs make their THE PRELUDE Factually, L. Parrott Jack is the widower Parrott. two Sandra Jean The other plaintiffs, Lynn Roger Parrott and Parrott, surviving are the Lee adult children Parrott. Sandra Jean Mr. Parrott was who, Navy, serviceman United States 1981, Lufkin, in having retired then moved to Texas. 1981, family Parrott as selected Royce Read, family physician,
their one of the defendants this case. Par- Sandra by Dr. rott was seen Read off and on over years. the next several Mrs. Parrott was employed by Angelina Periodicals in Febru- 1984, ary position in a March required physical labor. Mrs. Parrott suf- injury in employ- fered an the course of her Parrott, July of 1984. ment Mrs. accord- ing to medical records and Parrott, testimony Mr. first saw Dr. Cas- 25, key July According on Mr. to Caskey Parrott went to Dr. Mrs. employer. Upon of her first direction examination, Caskey prescribed medi- cation, therapy physical and directed Mrs. Parrott not to return to work. Mrs. Parrott Caskey again on saw early August began Mrs. Parrott to pain to experience physical began and knots body. appear upon her re- Ament, Jacksonville, appellants. for John Caskey August to of 1984 and turned September of 1984. Braselton, Nacogdoches, Ralph Forrest G. Zelesky, Cornelius, Hallmark, Zelesky,
M. condition Mrs. Parrott’s continued to dete- Hicks, L.L.P., Lufkin, appellees. Roper & riorate that she was taken emergency September on room WALKER, C.J., Before birthday. According to which was her Mrs. BURGESS, JJ. BROOKSHIRE “coming her pain Parrott down from back, head, her into down her shoulders, arm, under her her left side OPINION chest area.” WALKER, Chief Justice. Monday following emergency visit, malpractice is a Parrott saw Dr. in his This action seek- room Mrs. Read damages ing alleged for what to be the office for medical treatment. Dr. Read changed Parrott’s did premature death of Sandra Jean Parrott and Mrs. medication but damages perform her death. breast examination. Mrs. Par- prior incurred by jury, to see Dr. Trial was at the conclusion which rott then returned diagnosed court instructed a favor of who then the trial verdict syndrome, plaintiffs nothing. an inflation of defendants take Tietze great emotional and however, A. This caused her did not cavity, chest suffering because she was a mental On October Parrott’s breasts. examine didn’t person. didn’t —she proud She again went to Dr. Cas- something complain unless she him with key’s treated office and was *3 it didn’t shirk complain [sic]. about She neck injections the shoulder and steroid she had a reason 1984, her duties unless 11, Mrs. Parrott October area. On hurt being at her duties. She was not Caskey at a time when again saw Dr. deeply being portrayed as a below and on her knots were visible job. do her person that wouldn’t her ear. slightly behind was, you Q. saying did what Without during course of discuss this and she THE TRIAL treating was the time that personally he felt testified that Mr. Parrott her? under her neck and the knots in his wife’s Yes, did. A. we had been under her and that the knots arm your Q. whether or not it’s And state Parrott had August, 1984. Mrs. arm since concern opinion that this caused her having energy and complained not about likewise? late Fall and hurting far back as the Yes, it did. A. 1983, Dr. Read at which time Winter of for her. Mrs. prescribed prenatal vitamins Lyons Mrs. Parrott on No- first saw 18, Caskey on October Parrott last saw 5, on Feb- vember 1984. died 17, 1985, stayed hospital ruary having 5, 1984, until Bay from November in Nassau by Dr. C. Parrott was next seen death, except for one week the date of Lyons Department of Roger at St. John’s Houston, Texas. Bay, Texas. Mr. Defense Clinic at Nassau Parrott, Navy so his retired from the was Bay, pri- Mrs. Parrott’s While at Nassau at eligible for treatment dependents were treating Lyons, mary physician was that “Dr. clinic. Mr. Parrott testified this P. oncologist, David Gill. (his wife) continually that it told her During periods previously of time those and he released her to was all in her mind” Rhonda, discussed, daughter, the Parrott’s This, 18, go on October back to work School, High at Hudson was a senior student Parrott, devastating to according to Mr. was Lufkin. She lived with Mrs. Parrott’s near From the record we observe his wife. Parrott were at parents while Mr. and Mrs. following discord: Bay. how the Mr. related Nassau Parrott, Q. your from observation of Mr. children, Roger, affected Rhonda and were wife, your going into what she without mother confined to during the time their was you, she might have told did she did Bay area. At the time of her the Nassau having final- appear relieved confinement, Roger in the Marine son was wrong her? ly found what with out was training, Corps undergoing basic or “boot camp.” Yes, felt relieved. She sir. She diagnosed. was had —that her illness trial, attorney posed hypo- plaintiffs’ At vindicated. She also felt Parrott, asked question to Mr. thetical that his condition was him to assume wife’s Q. Vindicated? 24,1984, July that she died terminal as sir, Yes, vindicated. doctor February that medical Q. Vindicated what? testify diag- that had her cancer been would telling her that she A. From someone earlier, July and that as of nosed nothing malingerer, and there was was time, at that had treatment been instituted her, it was all in her wrong with prolonged her life for that it would have head. years and based those year or two significance would that assumptions, what Q. your opinion did this cause her played in his consid- prolongation of life have concern? cialists, Objection Gill, who, eration the entire matter? such as Dr. David along hypothetical question surgeon, made to this based with a extracted certain tissue from upon hearsay examined, hypothetical and that such a had the tissue theory diagnosed question entailed the of lost chance. Sandra Jean Parrott as objection. adenocarcinoma of The court sustained the the left breast with exten- layman’s sive metastases of the bone. Caskey’s On cross-examination at- terms, Mrs. Parrott had breast cancer which torney, Mr. Parrott was asked consider spread extensively. records showed office visits for explanations tests, Further of various re- July Mrs. Parrott on October sults, procedures and treatments were made and October all in 1984. Mr. Lyons, merely all of which were cu- Parrott testified that the records were incor- *4 supportive opin- mulative and of the ultimate rect. expressed by ion him testimony. later the Rasbeary, formerly Rhonda Rhonda Par- Lyons Dr. was knowledge asked about his rott, biographical testified as to facts and the been seen doctors relationship between her mother and her. in Lufkin. He stated that these facts had graduated high May from school Lyons been made known to him. Dr. was three months after her mother’s opinion asked his as to whether or not Mrs. Upon cross-examination, death. Rhonda ex- Parrott would have been afflicted with cancer that, plained suit, in this seeking she was reply “[o]h, in October 1984. very His was damages premature “for the loss of her definitely. She it for had some little time they mother.... I don’t believe made her before we saw her. Cancer doesn’t come they stop die. I believe did not it from Lyons’ opinion that fast.” It was Dr. happening.” the disease had been detectable a breast Roger Parrot testified that he was in the mammogram examination or for at least sev- Corps United States Marine from eral months before November and 1984 until June and that he was probably longer. Lyons specifically Dr. then years eighteen age when he left for the that “it present stated would have been for at Corps. Roger’s testimony Marine brief ex- months, possibly least four to six longer.” plained how he found out about his mother’s Lyons explained Dr. that Mrs. Parrott’s impacted terminal illness and how it him. symptoms tipped would have someone off Lyons’ that she had cancer. It Dr. was Lawrence, Wayne Dr. pro- Carl a licensed opinion that Mrs. Parrott would have had counselor, fessional related how the emotion- breast cancer the that it was evident impact al of Mrs. Parrott’s circumstances prior least three months to November Jack, Roger would have affected Rhonda and Parrott. nodule, knot, A on Mrs. Parrott’s neck Roger Lyons by way Dr. C. testified in Dr. was noted medical records on deposition. Lyons
written Dr. testified that 18,1984. These records were exam- a.m., first he met Sandra Parrott at 11:18 Lyons. Lyons ined Dr. Dr. then ex- Department November plained significance the of the node and the Having Defense Clinic. taken a brief histo- proper protocol determining impor- its ry, Lyons briefly Dr. examined Mrs. Parrott Lyons tance. Dr. was asked whether the hospital and referred her to the for tests. failure to follow “[0]n examination the left was breast consid- examination, the which revealed a hard nod- erably right.” Lyons firmer than the ule, accepted was deviation from the stan- noted other in that abnormalities area and Lyons replied dard of care. Dr. in the affir- referred Mrs. Parrott for a blood count and Lyons mative. Dr. felt sure that someone time, mammogram immediately. At that changes would have found the in the breast Lyons malignan- felt that Mrs. Parrott had a they taken the time to examine it. cy Lyons in her breast. Dr. further found lymph Lyons swollen nodes under her left arm. opinion was asked his if the Lyons explained examination, spe- then that he perform called failure to a breast un- ion, probability, such as found sur- based on reasonable medical
der circumstances were rounding Mrs. was deviation from as to or not Dr. should have whether replied the of care. He accepted physical standard examination the certainly have “you lady. would examined that he responded had no Gill Lyons testimony is best objection breast.” Dr. performing a limited histo- following up quote: direct ry summed from physical specific -and to treat problem by prescribing Motrin and that it patient any Any time that a has com- discomfort, go they away. should Dr. Gill was further asked plaint pain, or think just anywhere belly to assume the facts stated add to found a knot disrobed, they that Mrs. came back on put are 30 with presence essentially complaint. Dr. hospital gown, in the same Gill opinion both if in doctor nurse there examined front asked should have you’re thorough physical because not sure. conducted a more exami- back and breast nation at His answer that time. was that he Q. way. it this not do Let me ask To history thorough physi- believed more that, your opinion, negligence? performed. cal should have been Dr. Gill it, Well, if I didn’t do I would be explained physician has to that a listen to the negligent. *5 patient of and look for the source the com- Gill, Dr. in David P. board certified inter- plaint. physical When asked if a examination oncology, nal medical medicine and testified included of Mrs. Parrott would have a breast that familiar with the he was standards examination, replied Dr. that it would Gill pertaining general practition- to medical care have. small, relatively ers in cities in mid-sized early questioned Texas. that Dr. Gill Dr. Gill testified detection was follows: cancer, especial- treatment of care and Doctor, Q. opinion you do have an toas cancer, ly is crucial. breast When Sandra who whether or not the doctor saw Mrs. Gill, Dr. he Parrott first visited July July Parrott on 25th 30th and physical examination her and took a up in again then on—on complete history. Dr. Gill was asked according to perhaps testimony that’s any if he opinion had an as whether or not August, although been here elicited reasonably prudent physician should conduct it’s not documented —as to whether or physical pa- their examination own with a physician not that deviated the ac- tient, replied opinion which he that in his cepted of medical standard care? they testified should. Dr. Gill that he knew say yes. I would that, when saw Mrs. Parrott he first without Q. Doctor, opinion you have an do as to any anything, biopsies or she had far ad- what affect that had on Mrs. Parrott? going and that vanced breast cancer she was affect,” say And I “what I when what to die cancer. Dr. Gill of breast testified long, mean is how or did this probably present condition been hasten her death? period years. if in When asked his Well, opinion again, probabili- Parrott had I to talk in detectable cancer have was, year, clearly a period response of a his ties But at the I here. time saw “yes.” Parrott, the cancer was far ad- going to be vanced and was curable propounded hypothetical Dr. Gill was anything with that we had. Based on question asked him to that Dr. assume my reading of the records what had Lufkin, practitioner general was a before, gone I on believe Mrs. Par- Texas, July that Mrs. Parrott saw him on July per- rott back was incurable 1984, complaining pain of a the left side haps springtime even in the when she blade, her back near the shoulder and that findings. had some of those I don’t company Dr. was the doctor for Mrs. know. employer present- and that she Parrott’s therapy But for even ed for medical treatment at that time and modern advanced opin- per- date. asked if he effective a fair Dr. Gill was had an breast cancer is
147 centage patients. percent or replied more of 1984. Dr. Gill respond very dramatically years will to chemo- several would be reasonable. treatments, therapy and we can control On examination lawyer, know, you get years good some out her — Dr. Gill stated that had he had an additional they respond of it when well. eighteen days to treat Mrs. he could “bought years have prolongation her” two opinion was further asked his as to Gill life. On further cross-examination July whether not detection as of Caskey’s attorney regarding performing a would have made the treatment —the cancer mammogram, replied way you Gill “the in Mrs. Parrott more treatable him. Dr. you detect breast cancer is examine the responded that “[i]t Gill would have marked- mammogram adjunct breast. A is a useful ly improved her odds.” Gill testified that that, but it is percent known to miss to 6 upon probability, based had Mrs. Parrott’s tumors. You will not see guys them. These cancer been detected on 30 or therea- right [indicating here fingers] are bouts, won- longer she would have lived than she instruments, diagnostic derful especially in a did. fixed, huge, case like this with this rock hard specific testimony Dr. Gill’s was that Mrs. breast. I don’t mammogram care what the couple years Parrott could have lived a lady biopsy shows. That needs a then and patients and that he had who had lived much there.” that, longer up years. than to ten re-direct, On Dr. Gill testified that it was Read, Sep- Gill testified that Dr. his criticism of the defendant doctors that tember 24 or per- should have “nobody looked,” meaning the defendants physical formed a examination on Mrs. Par- had not looked at the breasts. Dr. Gill ex- rott’s breasts. He further testified that it *6 plained patient that Mrs. Parrott was a who opinion was his that Dr. Read should have repetitive complaints that were not re- complete a physical examination sponding types to normal therapy with a so, and that had he done he would have presumed diagnosis, initial there were problems found with her breasts. follow-ups nobody done and ever exam- part ined the On hurt. It was Dr. cross-examination Gill’s Read’s attor- opinion ney, that the defendant doctors deviated Gill was asked what the odds of proper from the increasing standard of care. Dr. Mrs. Parrott’s life were Gill had the expressed opinion appropriate that Mrs. Parrott’s care started sooner. Dr. Gill period likelihood of for an replied young, healthy that in a survival extended patient with cancer, time was based ability advanced breast reasonable medical to shrink probability. existing types the tumor with of chemothera- py fifty treatments are on the order about
percent. response Overall rates for breast APPELLANTS’ COMPLAINT fifty percent. cancer are about This was Appellants bring points two of error which contrasted with the effectiveness of chemo- we determine should be set forth verbatim. debilitated, therapy treating pa- bedridden pre-existing thrombocytopenia tient with POINT OF ERROR NUMBER ONE probably percent; which is under ten there- trial granting court erred in defen- fore, the odds or chances are about 30 to 40 dants’ motions for instructed verdict because: percent early with detection. Dr. Gill testi- 1. There was in the evidence admitted be- fied that he would have been able to do a jury fore the sufficient evidence to raise job treating Septem- better questions upon following fact ele- November, than ber he could have done in plain- ments of the cause asserted actually
when he saw her. He stated that he tiffs: would have done a lot better and controlled Negligence longer. her Gill was asked Read’s B. Proximate cause attorney long prolonged how he could have her life had Damages treatment been started in late C. (Tex.1993) appellants’ effectively abrogates action alleged a cause of plaintiffs
2. The
Phillips, au-
wrongful
of action. Chief Justice
causes
negligence for the
for medical
the issue “of
opinion, presents
thor of that
Parrott and
Jean
death
Sandra
liability
negligent
there is
whether
proximately caused
damages that were
patient’s ehance
treatment
that decreases
negligence.
by such medical
conditions
avoiding
or other medical
death
incorrectly held that the
The trial court
probably
the adverse result
in cases where
a cause of action
did not assert
plaintiffs
anyway.”
would have occurred
regard
to this sub-
cognizable at law.
(cid:127)
error,
trial
point of
impression,
of the
our Texas
section
of first
In this case
plain-
incorrectly concluded that
recovery
court
Supreme
held that such
Court
upon the
action was based
Wrongful
tiffs’ cause of
Death
by the Texas
not authorized
Tex.Civ.PRAg.
chance of survival.
§§
of loss of
Act,
doctrine
71.-
Ann.
& Rem.Code
(Vernon
as a mat-
1986),
was incorrect
conclusion
and should not
§
Such
71.004
002 &
pled and
plaintiffs
Survivorship
ter of law because
permitted under the Texas
that:
admitted evidence
Statute,
offered
Ann.
& Rem.Code
Tex.Civ.Prac.
(Vernon 1986),
separate
§§
or under a
71.021
ap-
violated the
The defendant doctors
cause of action.
common law
care;
of medical
plicable standard
proxi-
care
such violations medical
B.
KRAMER FACTS
mately
the decedent to die
caused
intriguingly simi-
The facts in Kramer are
years prior to the time
least two
present appeal.
to the facts
lar
upon rea-
have died based
she would
visited Dr. Bruce
August
Ms. Kramer
probability; and
sonable
Eich,
gynecologist, because she was ex-
her
de-
damages were incurred
C.
discharges
intermedi-
periencing unusual
anguish before her
for mental
ceased
days
bleeding a few
before
after
ate
damaged
plaintiffs
death and the
were
Eich, observing that
period. Dr.
menstrual
premature
death
as a result
inflamed, diagnosed her con-
her cervix was
Jean
Sandra
Parrott..
yeast
per-
Dr. Eich
infection.
dition as
microscope
pap
sent a
formed a
smear and
ERROR NUMBER TWO
POINT OF
to Lewisville Memorial
slide of the smear
sustaining
court erred in
The trial
*7
screening. Cytoteehnologist,
Hospital
for
striking
exception and
the
special
defendants’
laboratory
Nightingale,
hospital’s
Francis
the
plain-
pleading pertaining to the
plaintiffs’
director,
the slide and detected
screened
upon the doctrine
tiffs’ cause of action based
cancer.
might
indicate
abnormal cells
in instruct-
of survival
of loss of chance
pathologist employed
Burgess,
Richard
a
no cause of
ing
upon the basis that
a verdict
Nightingale’s super-
by
hospital, was Ms.
the
chance
in Texas for the loss of
action exists
Burgess’
found the
examination
visor.
survival, thereby effectively prohibiting
negative for cancer.
slide
recovery
seeking
based
plaintiffs
the
bleeding,
irregular
Ms.
Due to continued
of action.
upon such cause
Burgess,
Dr. Michael
who
Kramer consulted
action for loss of chance
A. The cause of
Dr. Rich-
nor affiliated with
was not related
recognized by Texas Courts
has been
diag-
Burgess
Burgess. Dr. Michael
ard
Appeal;
condition as normal.
nosed Ms. Kramer’s
of chance of sur-
B.
the doctrine of loss
bleeding
more severe
Kramer’s
became
Ms.
adopted by
the Courts
vival should
har-
1985 she detected a
and in December
of Texas.
to Dr.
dening in
cervix. She returned
who,
Burgess
spite
of thése new
Michael
MEMORIAL
KRAMER Y. LEWISVILLE
nothing
further
developments, concluded
HOSPITAL
February,
after
’needed to be done.
bleeding,
irregular
Ms.
episodes of
question
this Court is
continued
primary
before
vagina.
spot
in her
Kramer detected
hard
of Kramer v. Lewis
whether or not the case
Burgess
again
to Dr. Michael
returned
Hospital, 858 S.W.2d
She
ville Memorial
tion,
biopsy
diag-
negligent
who
cervical
conduct
ais
cause of harm
if,
nosed her condition as cancer. Ms. Kramer
to another
in a natural and continuance
ultimately
sequence,
produces
event,
died
and with-
negligent
out the
conduct such event would
Kramer, individually,
represen-
Mr.
and as
not have occurred.
estate,
tative of Jennie Kramer’s
and as next
children, brought
friend of their
suit under
which those defined beneficiaries THE DEATH WRONGFUL ACT may seek redress. find no We evidence that alleged negligent conduct of Drs. appellants’ We first address claim for deprived anything and Read recovery under Wrongful the Texas Death more than a less-than-even chance of surviv- forego any Act. We detailed discussion of al. We do find the evidence medical testi- applicability Wrongful of the Death Act mony supportive prolongation of Mrs. in situations similar to the one before us. eight years Parrott’s life two to but for did, length, extinguish any Kramer and all negligent diagnosis appellants. possibilities appellants recovery under Phillips, writing this act. Chief Justice portion appellants’ understand We majority, following: sets forth the contending of error one as *8 Act, Wrongful the liability Under Death negligence appellees wrongfully of may predicated only injury on ‘an brought about the of death Sandra Jean Par- First, an causes individual’s death.’... the Appellants rott. contend that there was suf- recovery injuries Act solely authorizes for supportive ficient evidence of their cause of death, injuries that cause that cause Wrongful action under the Death Act to show the loss of a less-than-even of chance negligence, proximate damages. cause and avoiding Hence, death. Act the on its Appellants must fail this contention due to recovery terms does not authorize under lacking a total of causation evidence. For separate injury approach the to loss of argument agree sake we the record chance. exhibits sufficient evidence to raise a fact Second, only question regarding the Act authorizes claims for appellees’ negligence and actually However, actions that perhaps damages. cause death. In con- without the statute, struing Legislature proximate if the does cause connector for these two ele- term, apply ments, not define a we will its ordi- directing the trial court was correct in nary meaning_ this Under construc- a verdict in favor of the defendants that Supreme rea- understand our Court’s Wrongful We nothing under their appellants take refusing adopt the loss of chance ap- overrule son Act claim. We therefore Death concern for re- to be based the relates to doctrine one as same pellants’ point of error certainty required in ducing degree of Wrongful the recovery under the claim for their judicial phi- establishing causation. Whether Act. Death liberal, or the one losophies be conservative transcending threat should be THE STATUTE common and SURVIVAL proof by adopt a standard of the refusal to appellants’ claim un now examine We of possibility. To reduce the standard mere § 71.021 der Tex.Civ.PRAC. Ann. & Rem.Code likely “more proof as to causation from the (Vernon 1986), as the Survival Stat known dangerous would set a than not” standard does not create a ute. The Survival Statute precedent. action, provides “[a] cause of but new injury personal to the action for cause of in Kramer discusses majority injured health, person of an reputation, or and this truth-seeking function of the law injured the death of the person” survives certainly the mandate of all courts. should be heirs, legal of the party “to and favor before us is that The truth the matter injured estate of the representatives, and in the record to there was sufficient evidence person.” wrong Parrott suffered a show that Mrs. trigger Equity legal remedy provided. of action to In order for a cause which no Statute, wrong go remedy, applicability of the to without Survival will not suffer however, principles apply law. do not equitable action must exist at common cause of Assuming recovery law for a cause of is disallowed as a matter of a common basis where action, simply allows Statute Survival law. of of action to survive the death
that cause recovery authorizes The Survival Statute heirs, party in aggrieved favor his/her injured party, if damages of all Prior to legal representatives and estate. provides in living, The Act could recover. Kramer, spe- Appellate Court had no Texas part as follows: cifically adopted doctrine of loss of (a) injury personal A cause of action footnote, Kramer, recognized in a chance. health, person of reputation, or appear sympathetic to Texas cases that two injured person does not abate because at 402. However the doctrine. 858 S.W.2d injured person or death of the be- be, may Kramer sympathetic those cases person liable for cause of the death of a recognize clearly refuses to specifically and injury. part chance doctrine as a adopt the loss of of Texas. 858 S.W.2d of the common law Although Kramer forecloses any pos in Kramer presents at dissent 403. The any proceed under appellants sibilities theory arguments supportive of the five least chance, we do not believe theories loss Each of these of loss of chance of survival. Kramer forecloses the decedents cause arguments present credible address damages resulting period from that action for opening door to the loss of for an need Drs. Read and should of time which recovery. Presently, theory even chance condition, un determined her cancerous have gross negligence is negligence or where properly diagnosed til time that she was such established, recovery not be al- clearly will previously have set cancer. We lowed. *9 early August Mrs. that of forth physical pain and began experiencing Parrott Kramer majority expresses its seri- The body. sought Parrott upon her which the knots concern for the overall effect ous Caskey in Au from Dr. medical evaluation of chance doctrine would adoption of the loss gust September and in of 1984. On malpractice area. of 1984 the medical have outside taken September Mrs. Parrott was do agree potential that such exists. We We experiencing pain in emergency room nor reason to the this to be the concern not believe head, to her through her adopt the down for the Kramer Court’s refusal to shoulders, arms, her left under her theory recovery. back and loss of chance
151 BURGESS, Monday Justice, area. following side and chest concurring. emergency room visit Mrs. Parrott saw wholeheartedly I concur with the Chief Dr. Read at his office for medical treatment. downheartedly Justice’s reversal and concur perform Dr. Read did not a breast examina- only the affirmance. I write to lament the Finally, in tion. November 1984 Mrs. Par- sorry jurisprudence state of our as evidenced properly diagnosed rott was can- by Kramer v. Hospital, Lewisville Memorial Lyons cer. Dr. testified that Mrs. Parrott (Tex.1993), 397 majori- S.W.2d wherein a point would have breast cancer to the ty supreme remedy of our court denies a it was evident at least three months family of Sandra Jean Parrott. While prior to November each of the unique survivors suffered a loss mother, the death of a wife and why appellants We see reason should loss Lynn suffered Rhonda pursue not be able to an action under the particularly poignant. August personal injuries Survival Statute for suf- when sought Sandra Parrott first alleged fered decedent from the date of Caskey, treatment and advice from Dr. negligence of Drs. Read and to the just Lynn Rhonda beginning her senior finally properly date that Mrs. Parrott was year high school. Sandra Parrott died in medically diagnosed. only The Statute not February leaving Lynn moth- provides personal injury to the health of high erless three months grad- before school reputation but also to the uation and all the functions and events sur- Mrs. Parrott.1 rounding such a momentous occasion in a young girl’s Justice dictates life. All of Phillips’ this Court sustain Chief Justice (1) justifications point failing adopt portion of of error one the “loss of doctrine, Kramer, chance” contends there was evidence S.W.2d admitted 405-406, pale light jury Lynn’s of Rhonda ques- before the sufficient to loss.1 raise fact negligence, proximate tions elements of On family of Jen- damages. sustaining cause and Our of that day nie Kramer lost their in court forever. portion point requires of error one a re- If voters of this state become incensed mand to the trial court for trial on the merits enough injustice, perhaps about that the fam- regarding peri- these stated elements for the ily of Sandra Jean Parrott will not suffer the negligent diagnosis od time of the injustice.2 same proper diagnosis. time of the remaining portion We overrule the ap-
pellants’ point of error one and further over- entirety.
rule of error two in its PART,
AFFIRMED IN REVERSED
AND REMANDED IN PART. possible
1. Evidence at trial indicated
malpractice.
accusations
ed the cause of action to medical
problems
Kramer,
that Mrs. Parrott’s
indicating
were “in her head”