*1 right judgments and the my informed of constitutional The are reversed been building, prem are remanded to the trial court. made of the causes to have search vehiele(s)_” added). ises, (emphasis and/or however, showing, no that the
There was explained appellant form was read he the The read understood same. appellant’s falls of first factor on side ledger. of The second factor the Brown WINKLE, Joy Appellant,
analysis
temporal
of
proximity
is the
detention and the consent to search. The
record,
TULLOS,
by
Hugh
M.D., Appellee.
exact
is not revealed
but
time
S.
it appears that the consent followed “hard on
No. 14-93-00995-CV.
illegal
This
the heels” of the
detention.
sec
Texas,
reasoning
Appeals
ond factor is based on the
of
Court
(14 Dist.).
time,
likely
shorter the
the more
Houston
illegal
of the
arrest has not been
taint
Nov.
1995.
Juarez,
purged.
Brown
Juarez,
phasis.
The actions of the indicated with narcotics, pur- “quality of regard to the posefulness” undertaking hope “in the and an Brown, might up.”
something turn U.S. Juarez, 2262; at S.Ct. at appellant’s on All four factors fall at 783. ledger. side conclude, circumstances, as a Given the law, obtained matter of that the cocaine was illegal by exploitation of an arrest and by not shown the State detention sufficiently dis- have been obtained means рurged primary tinguishable to be failing trial taint. The court erred Howe, at suppress the evidence. Appellant’s point of error based second is sustained. For on the Fourth Amendment reasons, appellant’s first the same I, section 9 error based Article is sustained. Texas Constitution *5 Houston, Holoway, appellant. for
John Norton, Dallas, Keith, Kevin J. David R. Dallas, appellee. EDELMAN, LEE,
Before AMIDEI and JJ.
OPINION
EDELMAN, Justice. case, malpractice Joy
In this medical Win- appeals judgments from two rendered kle Tullos, Hugh grounds M.D. on the favor S. (1) relating claims to her first sur- the limitations, (2) the gery were not barred (3) erroneous, charge limitations was on improperly trial on limitations was bifur- (4) cated, governing statutory provisions con- risks and informed disclosure of medical (5) unconstitutional, portions of sent are jury charge on and informed consent (6) invalid, jury’s re- were consent, negli- sponses on lack of informed supported by damages gence were (7) evidence, improper- evidence affirm. ly excluded. We 6, 1984, per- Dr. Tullos On Nоvember surgery on replacement formed Winkle. knee 16, 1985, revi- July performed Dr. Tullos On part surgery on her cement loose sion bone. In both the artificial device tourniquet was used on Win- procedures, a recovery from leg. while in kle’s surgery, signs the second delayed Winkle showed Because her contentions of discovery poor of her claim and con George circulation in her foot. Dr. fraudulent Noon, cealment were the nature of affirmative surgeon, a vascular was called in for defense, defenses to Dr. Tullos’ limitations arteriogram consultation. After an showed a proof Winkle bore the burden of on those knee, blockage per- above the Dr. Noon prevail challenging legal issues. To bypass surgery formed attempt in an to al- sufficiency findings of the adverse on these problems. leviate Winkle’s circulation proof, issue on which had the burden of day, following рerformed Dr. Noon another Winkle must demonstrate that the evidence surgical procedure blockage. to remove the conclusively sup established all vital facts surgeries unsuccessful, These were port of the issue. Sterner Marathon Oil amputated right leg Tullos below Co., S.W.2d When 25,1985. July the knee on (1) reviewing point, such a “matter of law” 13, 1987, July we examine the record for against On evidence that Winkle filed suit supports finding, ignoring all evidence to complaining Dr. Tullos of the revision sur- (2) contrary, if there is no evidence 16,1985. gery performed July August On support finding, we then examine the 14, 1990, Winkle filed a second amended entire contrary record to determine if the petition in which negli- she added a claim for proposition is established as a matter of law. gence relating original replace- knee contrary proposition Id. If the is established performed ment Dr. Tullos on No- conclusively, point. Meyer we sustain the 6,1984.1 vember Community Improvement land Ass’n v. the trial sepa- court conducted a Temple, 700 (Tex.App. rate trial on whether Winkle’s claims con- n.r.e.). —Houston[1st Dist.] writ ref'd cerning the first in 1984were barred *6 attacking In sufficiency the factual by verdict, limitations. Based on a the concerning evidence issues on which she court interlocutory judgment entered an that proof, had the burden of Winkle must dem 1993, those claims were barred. a second finding onstrate that the against adverse is trial liability was held on the issues of and great weight preponderance the and of the damages arising from surgery the second Bain, 175, 176 evidence. Cain v. 709 S.W.2d jury verdict, 1985. Based on a the trial court deciding challenge, this we take-nothing judgment entered a in favor of must examine the entire record to determine appeal Tullos. This is an from both if there is support some evidence to the judgments. finding, if finding contrary the is so to the
overwhеlming weight preponderance and clearly wrong the evidence as to be and I. TRIAL LIMITATIONS manifestly unjust, great preponder or if the In points of through eight, three ance of supports the evidence its nonexis challenges sufficiency the of the evi party complains tence. Id. aWhen of the support dence to jury's the failure to find jury’s fact, may to find failure reverse (1) that not oppor did have a reasonable only great weight when the of the evidence tunity to discover her cause of action for the supports an affirmative answer. Herbert v. surgery first and file suit applica within the Herbert, 141, (Tex.1988); 754 144 S.W.2d see (2) period, ble time Dr. Tullos fraudu Co., Cropper Caterpillar also v. Tractor 754 lently concealed the (Tex.1988) cause of action from her. 646, 647 (holding S.W.2d that, She point also contends in appeals authority nine as a court of has to review law, jury’s matter of limitations was “tolled” the “failure to find” in same it manner as jury findings). “continuous reviews exception treatment” set forth in Liability the Medical Im Insurance Application A 10.01 Section (the “Act”). provement Act See Tex.Rev.Civ. 4590i, (Vernon § Supp. art. 10.01 provides, Section 10.01 of the Act in rele- Stat.Ann. 1995). part: vant 1. Dr. Noon was not sued in this lawsuit.
310 law, Conaway, 156
Notwithstanding any other health also Chambers v. 883 S.W.2d no Hunsucker, (Tex.1993); liability may Rowntree v. 833 care claim be commenced un- (Tex.1992). However, 103, it action two 5.W.2d 105-06 years [1] less the is filed within was inappropriate tort is where the act from occurrence of breach or care treatment [2] from date the medical or health that is the subject ver, surgery itself. 448, See, e.g., 449-50 (Tex.1995) Gormley v. Sto (hold years ing filed than two hospitalization claim or that a suit more [3] the for which surgical procedure where completed.... is after was barred the claim made is any negligence during surgery and occurred 4590i, § art. 10.01 Tex.Rev.Civ.Stat.Ann. afterwards).6 fоllow-up treat not Nor does (Vernon Supp.1995). surgical procedure ment after a extend however, case, Importantly, each period complaint con limitations when the period limitations not run does from surgical procedure. cerns the Marchal i.e., dates, later, three of these whichever is Webb, 408, (Tex.App 859 S.W.2d . —Hous applicable from the one which is but denied); ton writ Thames v. [1st Dist.] particular circumstances. Where the Dennison, (Tex.App.— date on which breach or tort occurred is denied). Austin writ case, facts of the ascertainable from the case, only complaint In this Winkle’s period limitations runs from that Kim date. surgery un that it was about the first was (Tex. Brothers, ball v. age necessary inappropriate due to her 1987).2 ascertainable, is not Where date alleg this weight. surgery Because was injury during and the a course of occurs edly unnecessary, Winkle claimed condition, particular limi treatment for a un follow-up care for it was also rendered period the date that treat tations runs from complain necessary, but did otherwise completed. ment was Id.3 given. follow-up care about sur complaint as to the first Since of Treatment Continuous Course itself, gery and the related to the error,4 argues ninth In her readily on a ascertainable occurred period that the limitations for her first sur- date, course treatment rule the continuous governed by gery was the continuous course inapplicable, period for and the limitations period there was a of treatment rule since *7 surgery, began that claim on the date of the surgery continuous treatment between 6, 1984. We therefore overrule November 6,1984 surgery on November and the second point of error nine. 16, 1985, timely July and she filed suit years surgery.5 the second within two of Open 2. Courts six, points through three Win- of еrror The continuous treatment rule often that she misdiagnosis kle the evidence established alleging arises in suits or mis claims Kimball, 372; opportunity to at did not a reasonable 741 S.W.2d see have treatment. i.e., Maxwell, geiy original petition, to the 909 889 "relate back” 2. See also Bala v. S.W.2d (1995). “wholly on a was not based that the amendment new, distinct, different transaction or occur or & Rem.Code Ann. rence.” See Tex.Civ.Prac. here, Similarly, although applicable where 3. not Etessam, (Vernon 1986); Bradley § 703 v. 16.068 itself, hospitalization a claim is based on the 5, 237, (Tex.App.—Dallas writ S.W.2d 240 98 period the date limitations runs from the relevant n.r.e.). dref Kimball, hospitalization completed. 741 was at 372. S.W.2d 244, Desiga Scheffey, v. 874 S.W.2d 6. See also 1994, (Tex.App. no [14th Dist.] 248 — Houston understanding, points 4. For ease of of writ) surgery applicable (holding date of is subject nu- will be addressed rather than in commencing aas date statute of limitations for merical ordеr. Cohen, law); v. S.W.2d 201 matter Martin 804 of 1991, writ) (Tex.App. [14th Dist.] no — Houston error, analysis inapplicable (finding of course of treatment In order to sustain this alleged negligence in and imme allegations where occurred that the would also have to conclude diately surgery). concerning after petition the first sur- in the amended 3H weight, age, someone of her and with her discover her cause action for the first However, surgery statutory peri- history problems. within the limitations of circulation od, already and that suit 'within a she filed reasonable these known to considerations were discovery. time of her asserts Winkle. She testified that before she visited originally, Tullos, when she filed she did not surgeons her suit Dr. two had told her other surgery unnecessary know the first was surgery replacement that knee should be re- old, that there was reason to sue Dr. Tullos years they 60 served for those over surgery. complains for the her, first She that Dr. pеrform would not it on and she needed amputation Tullos never told that her her weight considering such sur- lose before was his fault he was because Moreover, gery. admitted that she unnecessary. surgery first con- She expert report filing origi- had no before her George tends it was not after Dr. until Sib- Therefore, surgery. nal suit on the second ley’s report attorney was mailed her in we see no could not have reason Winkle January possible she of 1990 that knew of brought a claim to the first related malpractice against Dr. Tullos for claim years. adopt argu- within two To surgery. Sibley first stated that re- two-year statute should not ment that trial, port, testimony and in at the his first Sibley’s run until date received Dr. that Winkle did need the total not knee discovery report reinstate the would replacement surgery. clearly abrogated rule in section 10.01 of the Act,8 plaintiff but would also allow to con- discovery rule has been abol running by electing trol the of limitations governed by ished in cases the Act. Morri investigation pursue possible when to of a Chan, 205, (Tex.1985). son v. 699 208 S.W.2d so. claim. We decline to do impossible it where an in jured plaintiff injury Accordingly, application her discover within we hold years, application Open two of Section 10.01 vio Section 10.01 does not violate the case, Open lates the Courts Provisions of the Tex Courts Provision in this overrule Const, I, points through as Constitution. six. See art. error three Tex. 13;7 Morrison, § 207; Neagle S.W.2d at 699 3. Fraudulent Concealment Nelson, 11, (Tex.1985); see Mateo,
also Hellman v. eight, points Winkle attacks seven and (Tex.1989) curiam); Krusen, (per Nelson v. sufficiency supporting of the evidence jury’s failure to find fraudulent concealment first trial. Three at the case, In this Winkle discovered her injury, amputation leg, July The doctrine fraudulent con years within two of the first provides cealment that where a defendant is November 1984. still had over She fifteen disclosure, duty under a to make but fraudu months, investigate until November *8 lently conceals the existence of a cause of Yet, despite further and file suit. that she party belongs, action from whom it was herself a and that her nurse medical relying estopped defendant is from on the available, records from the were first party defense of limitations until learns expert opin she did not choose obtain an action, right of the of or should have learned 1990, years ion until over four after her through of it of reasonable dili exercise amputation, and after her suit related to the Inc., gence. Sterling Drug, Moreno v. 787 nearly second had been on file two (Tex.1990) 348, (citing n. 1 Bor S.W.2d 352 years. and a half (Tex. Peck, 907, derlon v. 661 908 S.W.2d 1983)). duty a expert replace- physician
Her
that the knee
A
to disclose a
testified
has
injury
that an
performed
ment should not
been
on
act or the fact
has
have
Morrison,
Open
provides:
at
7. The
8. See
occurred, entirety. Corp. v. and 10.01 does not abolish Island Recreational Dev. Section Ass’n, equitable fraudulent as es- Republic concealment an 710 Texas Sav. S.W.2d of (Tex.1986). toppel to the defense of limitations under 555 Error is reversible Borderlon, if, totality that statute. 661 at light S.W.2d in of of when viewed circumstances, it a these amounted to such complaining party rights denial of the case, adamantly In this Tullos reasonably calculated cause and as was any negligence in denied his treatment probably improper did rendition of an cause and believed Winkle testified he never Tex.R.App.P. 81(b)(1). judgment. negligent, that he was so he not have would told Winkle that he was. Dr. Tullos testified point ten, In argues Winkle that the question that whenever asked him a Winkle jury erroneously court asked treatment, did an about her he his best to discovery “injury” her in about her Two it truthfully swer as well and as as he could. action.” claims stead of her “cause of She purpose stated a He he never had fixed question prejudicial. this is incorrect any wrong conceal or other information from However, inquiry discovery of the as to the only contrary was Winkle. The evidence injury rather than the cause of action was that Dr. told Tullos never Winkle that he was Morrison, 699 at 207- correct. See S.W.2d negligent. hold that this is both We evidence point of error ten. 08. We overrule legally factually support sufficient to eleven, point complains In that the Winkle jury’s to find failure fraudulent concealment. in- refusing requested court erred in eight. points We overrule of error seven and only requests on struction limitations. made at thе first trial our record instruct Charge B. Error misrepresentation. ar- on fraud Winkle twelve, ten, In points eleven and “necessary guide- gues these instructions are complains charge about the on court’s lines,” authority but that these ten- cites no limitations. A trial court’s submission of substantially dered instructions are correct. theory recovery by questions or defense supported by argument Points of error not an instructions should be reviewed under Tex.R.App.P. waived. and authorities are test, recognizing abuse of discretion 74(f); Ratcliff, 646 Trenholm v. S.W.2d presumption there is a in favor of broad-form (Tex.1983). addition, Winkle fails to 277; questions. submission of Tex.R.CivP. harmed failure to show how was E.B., Dept. Texas Human Serv. v. in this manner. We over- instruct (Tex.1990); S.W.2d Mobil Chem. Co. point rule of error eleven. Bell, 245, 256 Fail question twelve, complains ure to submit on the re “if point which questing party proof any” has burden of Three is before only if re question reversible error unnecessary, prejudicial. Win- incorrect substantially correct quested writing authority proposition, no for this kle cites harm, party form. 278. The com showing Tex.R.Civ.P. no and has and makes request plaining judgment also point. must Id. therefore waived error this omitted or instruction sub an definition overrule of error twelve. We stantially revers correct form. Id. It is not submit and various
ible to fail to “other Trial C. Bifurcation of Limitations ques phases or different shades of the same *9 twenty-nine, point In of tion.” Id. in granting trial erred claims the court limita- jury motion the trial on To have a case reversed on Tullos’ to bifurcate separate error, may A a trial of charge shown. tions. court order harmful error must be Houston, conve- Bailey, “in furtherance of Inc. v. 609 claim issue Boatland of (Tex.1980). 743, prejudice.” Tex.R.Civ.P. To deter or to avoid 749-50 nience S.W.2d 174(b). or oral found no written requested if a instruc We have mine failure to submit reversible, objectiоn the to the bifurcation the record tion is we must consider evidence, This error is charge in its trial on limitations. claimed and the the pleadings, the
313 Tex.R.App.P. CiyStatAnn. 6.07(b) (Vernon 4590i, § art. preserved for our review. 52(a). Supp.1995). duty This is the same as that point twenty- We overrule of error act, is, imposed 6.02 of the “to Section nine. disclose all risks or hazards which could in- II. SECOND TRIAL person making fluence a reasonable a deci- procedure.” sion to consent to the Peterson trial, jury In the second failed to find Shields, (Tex.1983). 929, v. consent, Dr. Tullos liable for lack of informed misrepresentation, negligence, gross negli- risk, involving cases disclosure of In gence damages in and connection with the longer necessary provide expert it is no revision on Winkle’s knee. testimony regarding the standard of in a care Id, Instead, community. certain Section A. Informed Consent replaces 6.02 of the Act this common law A claim for fаilure of a doctor to rule, locality person” rule with a “reasonable fully patient inform a of the risks of ie., whether the risks were disclosed action, gov is a cause of and is person would influence reasonable decid McKinley erned the Act. Stripling, ing proposed whether to consent to a medical 407, The Act procedure. Id. The creation of the Panel created the Texas Medical Disclosure Panel expert also for eliminates need medical (the “Panel”) to determine which risks and testimony regarding materiality of the patients hazards must be disclosed to under risk in most cases. Id. going surgical procedures. medical care and 6.03(a) 4590i, § art. Tex.Rev.Civ.Stat.Ann. 1. Constitutional Issues (Vernon Supp.1995). prepares The Panel surgical procedures lists and treatments one, point of error Winkle raises several risks, that do require and do not disclosure of arguments attacking сonstitutionality respectively, and establishes form procedure Act’s determining and dis- degree required of disclosure for each. Id. risks, closing presumption and its rebuttable 6.04(b). § non-negligence complied where the Act is recently with. we have addressed compliance Disclosure of risks in with the arguments these same Act found the Act creates a presumption rebuttable Christensen, be constitutional. See Penick v. physician was not in failing to (Tex.App.—Houston 6.07(a)(1). § disclose risks. Id. Similarly, a requested). [14th Dist.] writ Accord- compliance failure to disclose in with the Penick, ingly, we follow our decision statute presumption creates rebuttable overrule of error one. thereby negligent. the doctor was Id. 6.07(a)(2). § Charge 2. Error procedures
As to for which Pan el points eighteen, argues regarding has made no determination two disclosure, duty incorrectly that informed consent was physician sub- is under the “duty law.” Tеx.Rev. mitted to imposed by otherwise One.9 She One, accompanying escaping possible with its instruc- d. Fat from bone with dam- tions, age organ. asked: to a vital e. Failure of bone to heal. Did DR. TULLOS fail to disclose to WIN- JOY f. Bone infection. g. surgery per- KLE the risks and hazards of the replacement any implanted Removal or July formed on 1985? device or material. requires The law DR. TULLOS to disclose physician The failure of a to disclose those following JOY WINKLE the risks and hazards form, signed by risks and hazards on a written surgery performed July 1985: patient person aor authorized to consent Impaired shortening a. function such as witness, patient competent for the and a deformity leg, limp of an arm or or foot presumed to constitute a failure to disclose *10 drop. presumption may such risks. This be over- injury. b. Blood vessel nerve physician adequately or come if the disclosed c. Pain or discomfort. such risks and hazаrds in some other manner. the in to informed con-
asserts that trial court erred overrul- Winkle’s burden submit the objections ing informed substantially her to the consent sent in correct form. See issue requested in question refusing her in- Moreover, 278. it was bur- TexR.CivP. on structions informed consent. objectionable point distinctly den to out the objection. grounds matter and the See objected particular, In to Winkle 274. TexR.Civ.P. it ground One on the that failed to jury obligation concerning advise the the of a Where, here, objection request an or is as risks, hazards, physician to “all or disclose objec by obscured voluminous unfounded dangers” surgery. inherent in the This ob unnecessary requests, tions or numerous the jection properly was overruled because the objection request is waived. See Tex by duty imposed Act is not to the disclose all 274; Farms, Goodpas v. Jon-T Inc. .R.Civ.P. risks, could a but those that influence (Tex.Civ. ture, Inc., 743, 751 person making in a tо reasonable decision n.r.e.). Ac App.—Amarillo writ ref'd procedure. the consent to See Tex.Rev.Civ. objections cordingly, find that Winkle’s (Vernon 4590i, Supp. § art. 6.02 Stat.Ann. preserved requests informed on consent Peterson, 1995); at 931. review, point of no error for and overrule eighteen. error objected that Winkle also the statute unconstitutional, complaint we is a have al twenty-four, point of error Win In ready point of error Final overruled one. (2) (1) Questions kle that Four contends complained question ly, the Winkle that as misrepresenta on and intentional prejudicial was submitted because the accom party complaining prejudicial. tion were that panying instruction advised the disclo required object is to when the court submits presumed comply sure made was to with the instruction, question, that a or definition is objection properly law.10 This was overruled party TexR.Civ.P. 274. The erroneоus. See specifically provides Act a because the that may rely previous request, a even if in compliance made with is disclosure the Act request proper a submission. John claiming neg admissible evidence in a suit Ins., v. Farm Auto. son State Mut. disclose, it ligent failure creates a (Tex.App.—San Antonio S.W.2d presumption require rebuttable denied). Here, timely is no writ there satisfied, of the Act ments have been objection Four reflected presumption be that “this shall included again Accordingly, any is record.12 charge jury.” to the See Tex.Rev.Civ. Tex.R.App.P. 52(a). waived. We over See 6.07(a)(1) (Vernon 459Qi, § art. Stat.Ann. point twenty-four. rule Supp.1995).11 point We overrule of error two. Sufficiency 3. of the Evidence eighteen, of error Winkle refers twenty, points nineteen and questions nineteen different and instructions sufficiency the evidence to proposed challenges on informed consent. It was complica- patient signed by tourniquet was a factor her vascular A written consent a which thus, is, arguable this specifically risks tions. evidence states the above and hazards It amputation, presumed raised that the risk of constitute disclosure an inference compliance though risks and with law. even not listed on Panel's disclosure such is a form, based on the have been disclosed should This, particular case. was used circumstances in this 10. The same disclosure form for both turn, justified replacement surgeries. may instruction to have further and revision concerning statutory pre- dispute jury question or the rebuttal of the does not that this form However, sumption. no to the such instruction was submitted contained disclosure requested. specified the Act. below, requested concerning expert an instruction as noted Winkle’s wit- 12.Nor was ness, case, Deceptive possible Sibley among Trade this violation Texas Dr. tеstified in knowing misrepresentation history things, phlebitis Practices Act other warranty particular express result. signalled investigate of a Tullos to breach of should have Rhodes, 239, 243 performing See condition further before Sorokolit her vascular surgery, and that use of the the revision *11 every jury’s impossible to disclose support the failure to find a lack of and that it is complication during informed consent. Winkle contends that she that occur possible could amputation was not informed that was a risk surgery. this evidence was We hold that surgery, of artificial knee revision and she factually sup- legally both and sufficient to surgery would not have consented to the had One, port jury’s Question and answers to she been informed of this risk. The stan- twenty. points overrule of error nineteen and reviewing jury’s dards for to find failure points twenty-five twenty-six, Win complaining party matters on which the sufficiency of the evidence to kle attacks already proof bears the burden of have been support jury’s to find or failure opinion.13 set forth earlier this misrepresentation of facts as to intentional jury’s supporting Evidence fail necessity surgery or the risks of the ure to find a lack of informed consent can be already recognized, in involved. As we have signed found Winkle’s admission that she against a suit a doctor for failure disclose disclosure and consent form for the knee risks, only adequately or medical disclose surgery.14 undisputed It that ar- revision theory recovery may on which be obtained is throplasty, joint replacement, or is one of the failing to disclose risks or haz procedures promul for which the Panel has ards. art. 4590i See Tex.Rev.Civ.Stat.Ann. disclosed, gated risks be these (Vernon Supp.1995); McKinley, § 6.02 risks are those listed on form. It is Winkle’s Thus, at 409. to the extent undisputed also the disclosure form inquired negligent misrepresentation as to requirements meets statute’s other risks, question duplicative creating presumption the rebuttable of non- supported and the same evidence addition, negligence. Dr. Tullos testified jury’s negative answer both. videotape that Winkle was shown before surgery explaining procedure and dis We, thus, have left to consider the cussing acknowledged the risks. Winkle concerning negligent evidence or intentional she had initialled the disclosure form indicat necessity video, misrepresentation of the of sur ing that she had seen the but testified gery, misrepresenta explaining did not remember the video and that of intentional surgery. the risks of tion of risks. contends that the evi supporting claims Dr. dence these were Moreover, Dr. Noon testified that the risk Sibley’s surgery, condemnation of the amputation tourniquet from use of a dur- complications patient and suffered ing surgery knee is “almost zero.” While option Dr. Tullos’ statement that one avail expert previous Winkle’s testified that her able to Winkle before the revision problems thrombophlebitis with in- would nothing simply was to do and leave it alone. risk, crease the Dr. Noon testified that the these facts nor others neither thrombophlebitis nothing had to do with we can find the record raise an inference circulatory problems surgery. after misrepresented the that Dr. Tullos necessi thrombophlebitis He testified that affects the ty veins, or the risks involved. blockages and Winkle suffered in her Accordingly, points we overrule of error arteries. Noon testified that risks disclosed, twenty-six. frequency twenty-five that occur with some are Impaired shortening 13. See Section I above. function such as 1. drop. deformity leg, limp of arm or or foot part, 14. In relevant the disclosure stated: injury. 2. Blood vessel or nerve (we) surgical, I realize that common to medi- 3. Pain or discomfort. diagnostic procedures cal and is the and/or escaping possible dam- 4. Fat from bone with infection, potential for blood clots in veins and organ. age to a vital reactions, lungs, hemorrhage, allergic 5. Failure of bone to heal. (we) even death. I also realize that the follow- 6. Bone infection. ing may risks and hazards occur in connection replacement any implanted Removal particular procedure: with this Arthroplasty device or material. joints de- of all with mechanical vice *12 277; Negligence of a cause of action. ment B. Tex.R.Civ.P. E.B., of Dr. at 649. The issue Charge 1. Error surgery in negligence the second Tullos’ objects jury charge to the on also Winkle However, con form.15 submitted in broad to submit negligence the court’s refusal submis trary directive on broad-form to the aspects of the questions on different various sion, appeal that complains on Winkle thirteеn, point In of error negligence issue. ad submitted several trial court should have to submit complains of the court’s refusal she specific inquiring about questions ditional Dr. Tullos’ of issues” on whether her “series negligence. See negligence gross or acts of pre-surgery negligence failing in to obtain a Isern, 546, 554-55 v. Watson of proximate was a cause vascular evaluation denied). (Tex.App. writ — Beaumont fourteen, injuries. point In she contends her refusing questions in her trial court erred in rejected questions Four of these or of negligence diagnosis in treatment on Dr. Tullos in sub negligence of quired about point complications.” In “post-vascular surgery in face of risks mitting to Winkle fifteen, in the trial court erred she asserts surgery to her vascular to the due attendant questions and instruc- refusing proposed her Dr. question asked about A fifth condition.16 surgery necessity of the tions on the “diagnosis, care and treatment” Tullоs’ subjecting alleged negligence in her Tullos’ surgery second in connection with the Winkle risk surgery she was at increased to when question Another refused and thereafter. problems. vascular amputation due to her for delay in Dr. Tullos’ conduct asked whether sixteen, complains that issues point In she post-surgery vas ing treatment Winkle’s failing negligence in instructions on gross negligence. complications was cular amputation should advise her of the risk of inquired remaining question refused seventeen, point In have been submitted. broadly. All of these issues negligence about in court erred refus- complains she that the ques form encompassed in the broad were gross negli- ing questions negligence, on her negligence. negligence gross tions on consent in lack of informed gence, fraud and submitting surgery with increased her addition, pro one of Winkle’s Finally, amputation. risks of to the posed questions is identical trial twеnty-one, complains the error actually sub negligence which was Five on objections the overruling her court erred may not invite case. Parties mitted in this negligence. Five on objects issue and then by requesting an Corp. Chem. exist, ing to its submission. General extraordinary circumstances Unless (Tex. Lastra, 916, 920 De La requires submission broad-form Rule 1993). points Accordingly, overrule ele- separate questions on each rather than proximately cause tion or vascular test Negligence follows: was submitted as 15. Joy damage by Winkle as a injury suffered or following question, you answering are to surgery July submitting on to the result of diagnosis, treat- care and consider 1985? July surgeiy with the ment in connection existing at the time Under the circumstances diagnosis, care of treatment 1985 and the question, was Dr. Tullos prior to the July after 1985. of JOYWINKLE Joy submitting negligent, any, Winkle if QUESTION 5NO. component in view tibial to revise the any, negligence, of DR. TULLOS if Did surgeiy dangers or inherent in risks or of the cause, any injury any, or dam- proximately if complications post-operative of the vascular age suffered JOYWINKLE? being leg system necessitate her which could or "No.” Answer "Yes” proxi- amputated, and was such cause, damages any, injury if mate questions were: four refused 16. These amputation? by Joy due to the suffered existing time at the existing Under the circumstances at the time Under the circumstances surgeiy question, was there a prior to the surgeiy question, was there an prior to the submitting Joy necessity amputation Joy medical possible increased risk dangers inherent surgeiy of the risk or in view leg revision sur- she underwent the if complications surgeiy post-operative in the geiy? system could necessitate which any, of the vascular negligence, of Dr. Tullos in if Did the leg being amputated? pre-surgeiy vascular evalua- failing to obtain condition, Dr. Noon through ation of her vascular error thirteen seventeen and twent y-one.17 thrombophlebitis had testified that Winkle’s nothing problems after the to do with her Sufficiency of the Evidence congeni- surgery. He instead found revision *13 vessels, three, tal anomalies in Winkle’s blood which points twenty-two twenty predicted at sufficiency could not have been and were attacks the of the evidence Winkle jury’s negli- partly responsible for the lack of circu- supporting the failure to find least he gence in her foot. Dr. Noon testified that answer to Five. lation to the blood clots did not know what caused argues first the tourni Winkle circulation, saw that blocked but Winkle’s quet tight long was too and was left on too nothing inappropriate might Tullos that Dr. during surgery, causing of circula the loss blockage. cause the Dr. Noon have done to leg. tion in her lower Dr. Tullos testified he poor a candidate for testified Winkle was not negligent tourniquet was not and that a nor- surgery, and that no further studies are usually kept on for no more than three hours surgery patient a mally done before unless during surgery. He that most said doctors symptoms poor circulation. Winkle shows tourniquet leave a on for two hours without temperature leg in had normal color and “letting down” to restore circulation. This agreed surgery. Dr. Tullos and foot before minutes, surgery twenty lasted one hour and artery problems nothing had to that Winkle’s margin. well within this Dr. Tullos also tes thrombophlebitis. do with her pressure tified that the used on the tourni standard, quet was at 350 of mer by millimeters Contrary provided evidence was Dr. Noon, cury. surgeon attempted Dr. the who Sibley history of who testified that Winkle’s problems, to correct Winkle’s vascular also phlebitis flag” was a “red that should have stop testified that it is common to the blood investigate Tullos to vas- caused Dr. Winkle’s supply during surgery for two to two and a surgery. Dr. cular condition further before half He hours. saw no evidence that use of Sibley that revision also testified tourniquet problems report caused Winkle’s necessary, although his initial was not artery. Sibley, that Dr. Tullos cut an opinion. his express did not that It was expert, Winkle’s conceded that he had no tourniquet opinion that use of the was surgical technique criticism of Dr. Tullos’ complications, factor Winkle’s vascular Thus, post-operative care this ease. there delay performing vascular sur- was evidence that Dr. Tullos’ use of the leg. gery contributed to the loss of her tourniquet during surgery was within reason addition, Dr. Tullos admitted that able medical standards. tourniquet used on was not calibrat- Winkle also contends that Dr. Tullos was ed, faulty leaving open possibility of a negligent performing unnecessary revision reading causing pressure on the excessive However, surgery on her knee. Winkle tes- However, leg. tourniquet if the had been pain tifiеd that she was continued seven damage place long, and nerve too muscle replacement months after her knee and was resulted, damage an ar- would have fully unable to use the knee. Dr. Tullos tery. had no Dr. Tullos testified Winkle x-rays testified that from June of 1985 damage, no evidence of nerve and there was loosening showed subtle the device that the damage. muscle Dr. Noon admitted growing prosthesis. that no bone was into the surgery indicated that Win- records before During surgery, he confirmed that pedis pulses posterior kle’s tibial and dorsalis prosthesis was loose. palpable at maximum in her foot were not levels, that this did not neces- regard allegations but asserted
With Winkle’s circulation sarily presence performed Dr. Tullos should not have revi- indicate problems. a more extensive evalu- sion without contrast, By proposed negligence. It is also unclear how Winkle cоuld have been individual acts of harmed the broad-form submission since it submission on agree required jurors any ten or more if would have allowed Dr. Tullos be found negligence. jurors he act on the same act of ten or more believed committed would have established Dr. Tullos told claims this evidence testified that perform un “tendency” of Dr. Tullos to amputation required “because
her that necessary surgery. this evidence tight and for too tourniquet was on too offered to making inadmissible because it was long.” this state was Dr. Tullos denied Tullos acted in con him. that Dr. jury apparently believed demonstrate ment and the finder, formity prior with actions. See this court is not a fact Because Tex.R.Civ. Watson, 404(b); at credibility see also may of the wit Evid. not review (sustaining of evidence of 549-50 exclusion judgment for the nesses or substitute our by physician). alleged negligence previous Corp., Brine trier of fact. v. Texas Lofton properly trial court exclud We hold point of error this evidence and overrule ed jury’s failure to find *14 We conclude that the thirty. by supported is that Dr. Tullos was foregoing, affirm both on the we factually Based legally both and sufficient evidence. judgments of the trial court. twenty-two and points of error We overrule twenty-three. Justice, AMIDEI, dissenting for on motion rehearing. Damages
C. agree respectfully dissent. I with I jury’s finding of attacks the duty dis majority appellee had the damages points twenty-seven zero in of error a only that could influence close those risks twenty-eight. the answers and making in a decision to person imma reasonable damage questions were rendered Peter procedure question. in consent to the findings liability. no by terial See (Tex. Shields, 929, 931 Stores, Inc., 652 S.W.2d son v. Ramsey Lucky v. 1983). case, however, not submit This was (Tex.App. Dist.] [1st — Houston jury to denied). way permit in such a as damages pres ted A zero award writ were dis whether those risks jury determine when the finds ents no reversible error closed. not on evidence the defendant was sufficient Accordingly, we overrule
negligent.
Id.
proce-
conclude that the
I would instead
twenty-
twenty-seven and
points of error
not one for
performed in this case was
dure
eight.
promulgated
risks have been
which
surgery in
The second
Disclosure Panel.
of Evidence from
D. Exclusion
joint
arthroplasty,
this
case was not an
Surgery
the First
procedure to re-
replacement,
instead a
but
thirty,
In
type
pair
an artificial knee.
or cement
trial court erred
ex
complains that
pre-
in the blank
procedure
filled
relating
in the second trial
cluding evidence
“redo
signed in this case was
printed form
alleged
to Dr. Tullos’
fraud
form listed the
right
The disclosure
knee.”
surgery. For the
connection with the first
A,
List
on the Panel’s Disclosure
risks found
to constitute reversible
exclusion of evidence
system
heading “Musculoskeletal
under the
(1)
error,
party must
complaining
show
under the
procedures,” and
treatments and
(2)
error,
committed
that the trial court
joints
“Arthroplasty of all
sub-heading for
reasonably calculated to
that the error was
Tex.Reg.
device.” 6
mechanical
with
the rendition of
probably
did cause
cause
(1981).
per-
arthroplasty
not
As
was
Maris,
judgment.
improper
an
McCraw
pro-
surgery, this
during the second
formed
Tex.R.App.P.
(Tex.1992);
756, 757
List
might
classified instead under
be
cedure
determination,
81(b)(1).
making
this
B,
procedures to the
includes
which also
McCraw, 828
review the entire record.
must
Tex.Reg.
system.” 6
“Musculoskeletal
at (1981).
form mention
the disclosure
Nowhere does
is found
The excluded evidence
during the
used
tourniquet would be
testimony
exception
that a
Sibley’s
by bill of
amputation
or that
the risk
procedure,
did
medical records
that the facts Winkle’s
tourniquet. Yet a
use of a
accompanies the
replacement. Winkle
justify
a total knee
instructions,
One,
its
used,
leg
jury.” Question
with
appellant’s
tourniquet was
prejudicial comment on
highly
undisputed
appellee
It
constituted
amputated.
weight
Appellant sub-
ampu-
of the evidence.
appellant
advised
of the risk of
never
questions, either of
surgery, mitted two alternative
tation. Because this was revision
by the
have been submitted
in- which should
appellant’s
amputation
risk for
had
trial court.1
Appellant’s expert
that be-
creased.
testified
problems
pre-existing
of her
vascular
cause
addition,
objected to the con-
appellant
leg, appellant
an
risk
was at
increased
an
ditioning Questions Two and Three on
required to
amputation
if she was
have
Question
Be-
answer to
One.
affirmative
that if
surgery. Appellant
revision
testified
to answer
cause the
had no choice but
associated
she had been aware
the risks
Onе,
op-
Question
it
had the
“No” to
never
possible
tourniquet, including
with use of a
Two,
portunity
to answer
com-
amputation, she
not have submitted to
would
charge. Question
pounding
in the
the error
original surgery or the revision
either the
person
a reasonable
Two asked whether
“could
surgery.
clearly
This risk is
one that
surgery “if those risks
would have refused
person
making
influence a reasonable
disclosed,”
referring
to the list
had been
procedure.”
to consent to the
Peter-
decision
“Arthroplasty” in
One.
of risks for
*15
son,
sure could be rebutted form, risks, not included should other Appellant objected to have been disclosed. charge, specifically pointing out that the Ap- presumption prejudicial. instruction was pellant’s argued counsel that the court was
“instructing as a matter law submitting rather than a matter of fact to the you you Do find that a 1. Refused No. 3: Do find that a Refused No. 6: person reasonable would have refused the sur- patient, or similar reasonable under the same fully gery question patient if the had been Joy circumstances as involved in the case of risks, dangers, hazards or com- advised as to all Winkle, undergo would have refused to the sur- surgeiy, togeth- plications in connection with gery question if advised that there existed surgical to such treat- er with the alternatives amputation patient’s leg? risk ment.