Opinion
No. 05-06-00220-CV
Opinion Filed June 6, 2007.
On Appeal from the 101st District Court, Dallas County, Texas, Trial Court Cause No. 03-03889.
Before Justices Moseley, O'Neill, and Mazzant.
Opinion By Justice O'Neill.
MEMORANDUM OPINION
Appellants Gary Lynn Long and Debra Long appeal the defense verdict in their medical malpractice case. In five issues, they contend (1) the trial court erred in refusing their motion to strike two veniremen for cause; (2) the trial court erred in striking a venireman who did not demonstrate bias or prejudice as a matter of law; (3) the trial court erred in excluding their medical billing affidavits; (4) the trial court erred in granting appellees' directed verdict regarding past medical expenses; and (5) the jury's "no" answer to negligence was against the great weight and preponderance of the evidence and manifestly unjust. We affirm the trial court's judgment.
Background
On July 23, 2002, while working for North Texas Drywall, appellant Gary Long was standing on a six-foot ladder replacing some drywall inside a house. He fell approximately three feet and fractured several bones in his ankle and talus. Because of the severity of the fracture and bone exposure, he was admitted to the hospital for surgery. Dr. Leslie Jennings originally classified the fracture as a type 1 fracture, began flushing the wound for bacteria, and took Long into surgery to realign the fractures. Upon further inspection of the fracture, Dr. Jennings realized the extensive damage required an orthopedic surgeon.
Dr. Jennings called in appellee Dr. Keith Heier, an orthopedic surgeon specializing in foot and ankle fractures. Dr. Heier classified the fracture as a type 3A open fracture. He then prescribed certain antibiotics to prevent infection, performed the necessary surgery, and used the necessary hardware to realign the fractures. Long remained in the hospital until July 27, 2002 and was discharged on pain medication and oral antibiotics.
A fracture is classified as type 3A when the opening is larger than ten centimeters, has some missing bone, has devitalized bone, or is a "dirty" wound, meaning it has been exposed to an unclean environment.
On July 29, 2002, Long returned to the emergency room complaining of fever, chills, swelling, and redness around his ankle. Dr. Heier concluded he was suffering from cellulitis, a skin infection, and treated him accordingly. Long was discharged from the hospital a few days later with oral antibiotics. On August 9, 2002, in a scheduled follow-up visit, Dr. Heier removed the stitches from the wound, which appeared to be healing properly.
On August 29, 2002, Dr. Heier received a call that Long's wound had opened up around the hardware, which was a sign of infection. He went back for surgery to remove the hardware and eventually received a skin graft to cover the wound. In September, Long was diagnosed with acute osteomyelitis, which is an infection of the bone. Long was treated for the condition, and Dr. Heier continued to monitor the healing of the fractures. Eventually, Long's ankle had to be fused, which limited his everyday activities.
The Longs filed their medical malpractice suit against Dr. Heier and Metrocrest Orthopedics and Sports Medicine, the partnership he worked with, alleging Dr. Heier was negligent in failing to diagnosis and treat osteomyelitis during his July 29 hospital stay and his subsequent treatment, and such negligence resulted in his damages. The case went to trial, and the jury concluded Dr. Heier was not negligent in his treatment of Long. This appeal followed.
Sufficiency of the Evidence
In their fifth issue, the Longs allege the jury's "no" answer to appellees' negligence was against the great weight and preponderance of the evidence and manifestly unjust. When a party attacks the factual sufficiency of an adverse finding on an issue they have the burden of proof, they must demonstrate on appeal the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We must consider and weigh all of the evidence and set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.
The jury was charged as follows: "Did the negligence, if any, of those named below proximately cause the injury in question?" It then listed Keith A. Heier, M.D. and Gary Long. The jury answered "no" to both.
In considering a "great weight" challenge to a jury's non-finding, the Supreme Court of Texas cautions reviewing courts to be mindful the jury was not convinced of liability by a preponderance of the evidence. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988). In such cases, the reviewing court may not reverse simply because it concludes the evidence may preponderate toward an affirmative answer. Id.
Instead, the jury is the sole judge of witnesses' credibility and the weight to be given their testimony. Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 862 (Tex.App.-Austin 2001, pet. denied). The general rule is that it is entitled to accept or reject any or all testimony. Id. This also includes expert testimony. See, e.g., Diamond Offshore Mgm't, Inc. v. Guidry, 171 S.W.3d 840, 843 (Tex. 2005) (noting jury free to disbelieve plaintiff's expert).
To establish a medical malpractice claim, a plaintiff must prove four elements: (1) a duty by the physician to act according to a certain standard, (2) a breach of the applicable standard of care, (3) an injury, and (4) a causal connection between the breach of care and the injury. Lection v. Dyll, 65 S.W.3d 696, 703 (Tex.App.-Dallas 2001, pet. denied). Here, the Longs allege Dr. Heier's care during his hospital stay on July 29, 2002 and after his discharge, specifically his failure to diagnose and treat osteomyelitis, breached the standard of care and resulted in his injuries.
The Longs do not question Dr. Heier's treatment and repair of the fracture during July 23-27, 2002 or his handling of the infection after August 29, 2002. Further, they do not blame Dr. Heier for the necessary ankle fusion in February 2005.
During trial, the jury heard conflicting testimony between two expert witnesses regarding the appropriate standard of care in treating Mr. Long's possible infection from the fracture and whether the standard of care was breached: Dr. Heier for the defense and Dr. Alexander Doman for the plaintiffs. From this testimony, the jury was free to decide who was more credible. Trinity Indus., Inc., 53 S.W.3d at 862. After applying the appropriate standard of review to the facts below, we conclude the evidence is factually sufficient to support the jury's no negligence finding.
A. The Doctors' Opinions
On July 29, 2002, six days after his original surgery, Long went to the emergency room complaining of fever, chills, swelling, and redness around his ankle. The emergency room doctor performed a culture and sensitivity test on the pin site to determine the presence of any infection. Although Dr. Heier admitted testing the pin site is useless for diagnosing a bone infection because it only grows "bugs" that are normally on the skin, the test came back negative for any "bugs." Dr. Heier surmised the negative test resulted from all of the antibiotics Long had received in the past week.
Dr. Heier examined Long on July 30 and noted no significant erythema, minimal serous drainage, no fever, and noted the area looked remarkably good for the degree of injury. Dr. Heier did not perform a deep wound culture, which would require reopening the wound, because he saw no abscess indicating a deeper infection might exist. He disagreed with the Longs' expert that the standard of care for a reasonably prudent physician, when presented with a grade 3A fracture with redness and swelling, was to re-open the wound to determine the presence of infection. In his experience, redness and swelling a week after surgery was typical for this type of injury.
During this hospital visit, Dr. Heier consulted with Dr. Thakor, a specialist in infectious diseases. Dr. Thakor was concerned about a possible deeper infection, especially osteomyelitis, even though the cultures remained negative. He recommended treating the wound as a deeper infection with IV antibiotics for four to six weeks and monitoring the patients ERS and CRP levels on a weekly basis.
ERS and CRP levels are monitored for signs of infection or inflammation.
Dr. Heier, however, disagreed with Dr. Thakor's recommendations because Long was showing signs of improvement, which he concluded meant there was no deeper infection. Further, after considering Long's symptoms, he determined he was suffering from cellulitis or possible congestion. He admitted that he did not completely rule out osteomyelitis, but concluded it was an unlikely diagnosis because the wound appeared clean and was not secreting any pus. He also testified osteomyelitis does not develop in five or six days; therefore, since the original fracture occurred on July 23, 2002, it was unlikely to have developed by July 29. After further discussing the diagnosis with Dr. Thakor, they reached a consensus that treatment with IV antibiotics was unnecessary. Thus, Dr. Heier sent Long home three days later on oral Levaquin, Vicodin, and Cleocin, which he believed was within the appropriate standard of care.
He specifically testified "all the studies on treatment on open fractures say to get [the patient] their 48 hours of IV antibiotics after each wash out, and they do not go home on IV antibiotics."
Long went for a scheduled check up on August 9, 2002. Dr. Heier did not see any abnormal swelling or redness, and it appeared the cellulitis or congestion was resolved. He testified that if an infection was present during Long's July 29 hospital stay, he would expect the symptoms to get worse not improve. In a second follow-up visit on August 23, 2002, Long complained of increased lateral pain, redness of the skin, and reaction to nerve testing. Dr. Heier again thought the redness was attributable to cellulitis and prescribed oral Levaquin and an anti-inflammatory. It was shortly thereafter the wound reopened, osteomyelitis was confirmed, and a skin graft was necessary to close the fracture.
Dr. Doman, the plaintiff's expert, testified Dr. Heier should have performed a deep wound culture on July 23, 2002 because it would have established how well the wound was originally cleaned and what antibiotics would best treat any possible infection. He did not however specifically testify that this was the appropriate standard of care. In fact, Dr. Heier testified to the contrary. He cited a study that found in ninety-two percent of cases, pre-and post-debridement cultures were inaccurate and therefore not recommended. Also, throughout his training, it was not his usual practice to immediately perform deep wound cultures.
Dr. Doman also criticized Dr. Heier for dismissing Dr. Thakor's recommendation for IV antibiotics and sending Long home with oral antibiotics because IV antibiotics are presumed to be more effective at killing bacteria. However, he also testified "quite frankly, there [was] nothing wrong with putting him on oral antibiotics when he was discharged." He stated a doctor wants to insure he uses the drug form that is "good enough," which is individualized.
Dr. Doman testified Long's elevated sedimentation rate of eighty-eight on July 30 should have been a sign of infection to Dr. Heier. He agreed that it could have been elevated because of the original surgery, but did not believe that was the case here because it was extremely elevated. He agreed, however, that Dr. Heier's notes stated the rate dropped from eighty-eight on July 31 to seventy-seven on August 1, which indicated Long was improving. Despite Dr. Heier's testimony to the contrary, Dr. Doman asserted the appropriate standard of care was to return the patient to the operating room for another debridement, take a deep wound culture, and prescribe IV antibiotics for four to six weeks. He claimed this breach of care caused osteomyelitis and the eventual breakdown of the wound.
He specifically opined that osteomyelitis was present on July 29-30 in the acute phase, which lasted for approximately two weeks. By the end of August or beginning of September it would have moved into the subacute phase. However, pathology reports stated Long had acute osteomyelitis on September 9, 2002. According to Dr. Doman's time frame, moving back two weeks from this date to consider the length of the acute phase would not reach July 29 when he claims Dr. Heier should have recognized and treated osteomyelitis. When his time frame was challenged, he later changed his testimony about the length of time between the acute and subacute phases.
Dr. Doman also disagreed with Dr. Heier's diagnosis of cellulitis on July 30 and August 23 because symptoms associated with cellulitis are also an indicator of osteomyelitis. He agreed, however, that Long's symptoms on July 29, such as fever, chills, redness, warmth, and tenderness are signs of cellulitis. He agreed it is not appropriate to culture for cellulitis. He further testified it is within the appropriate standard of care to treat cellulitis with oral antibiotics. He also conceded that Long's symptoms improved under Dr. Heier's care during his July 29 hospital stay and continued to show signs of improvement on his August 9 follow-up visit. He further admitted it is possible for patients such as Long to develop infections without any medical negligence and believed the chance was fifteen to eighteen percent with a grade 3A open fracture. Thus, the jury as the sole judge of witness credibility and weight to be given testimony was free to believe Dr. Heier's expert testimony regarding his diagnosis of cellulitis, his testimony of when osteomyelitis developed, and the appropriate standard of care for treating Long.
B. The Doctors' Qualifications
The jury was also free to consider the two experts' qualifications when determining the credibility of their testimony. Dr. Heier testified he is a board certified orthopedic surgeon specializing in the foot and ankle. After completing medical school, he spent one year receiving specialized training in foot and ankle surgery. During this time, he was mentored by one of the top five foot and ankle physicians in the country. He currently performs approximately ten to fifteen surgeries a week with ninety-five percent involving the foot and ankle. He also published an article in 2003 in the Journal of Bone and Joint Surgery discussing the treatment of open fractures and how in grade 3 type open fractures there was an eighteen to fifty percent chance of infection and a twenty-seven percent chance of osteomyelitis.
In contrast, Dr. Doman, who is also a board certified orthopedic surgeon, completed a one year fellowship in sports medicine focusing on knee and shoulder injuries. Although he has worked on serious ankle fractures, he devotes only about ten percent of his practice to foot and ankle surgery. Over the past sixteen years, he has performed two to four talus fracture surgeries and could not remember if any involved multiple bone fractures similar to Long's injury. Thus, the jury could have determined Dr. Heier's opinions were more credible based on his expertise in foot and ankle fractures.
Further, the jury heard testimony that Dr. Doman has served as an expert witness at least twenty-five times over the past fifteen years and has never testified on behalf of a doctor or healthcare provider. He further admitted that he would receive approximately $55,000 for testifying in this case. Therefore, the jury was also free to consider this when weighing the credibility of his testimony. Hooper v. Chittaluru, 2006 WL 1766002, *5 (Tex.App.-Houston [14th Dist.] 2006, pet. denied) (noting hired experts risk being perceived by the jury as interested in providing testimony helpful to the party paying them).
After reviewing the record, we cannot conclude the no negligence finding is against the great weight and preponderance of the evidence or so weak that it is clearly wrong and unjust. The jury considered the conflicting expert testimony and qualifications of the doctors and was free to accept or reject any or all of it. As such, we overrule Long's fifth issue.
Exclusion of Medical Billing Affidavits and Granting of Directed Verdict on Past Medical Expenses
In their third and fourth issues, the Longs contend the trial court abused its discretion in excluding medical billing affidavits and subsequently granting a directed verdict on their past medical expenses. Because we have concluded the evidence is factually sufficient to support the verdict on liability, error if any in the exclusion of such evidence and granting a directed verdict is harmless.
When a jury finds no negligence and its finding is supported by the evidence, any failure to submit or to award damages is immaterial or harmless. See, e.g., Merckling v. Curtis, 911 S.W.2d 759, 767 (Tex.App.-Houston [1st Dist.] 1995, writ denied); Dion v. Ford Motor Co., 804 S.W.2d 302, 306 (Tex.App.-Eastland 1991, writ denied) (noting in the absence of liability, the damages question becomes immaterial). As such, the Longs cannot establish any harm from the exclusion of the medical billing affidavits. Thus, we overrule their fourth issue.
Texas courts have also found any error in directing a verdict on a particular claim becomes harmless when jury findings negate the defendants' liability. See Cortez v. HCCI-San Antonio, Inc., 131 S.W.3d 113, 122 (Tex.App.-San Antonio 2004) (holding jury's finding that party was not acting within scope of employment negated plaintiff's claim against defendant; therefore, any error in directed verdict was harmless), aff'd in part and rev'd in part on other grounds, 159 S.W.3d 87 (Tex. 2005); Group Hosp. Servs., Inc. v. One and Two Brookriver Ctr., 704 S.W.2d 886, 889 (Tex.App.-Dallas 1986, no writ) (holding any error in granting a directed verdict harmless in view of the fact that in response to other issues, the jury found in favor of defendant's interpretation of the contract). Because the evidence supports the jury's no liability finding, error if any in granting a directed verdict on Long's past medical expenses is harmless. Thus, we overrule the Longs' third issue.
Objections to Voir Dire
In their first and second issues, the Longs argue the trial court erred in refusing their motion to strike two veniremen for cause and in striking a venireman who did not demonstrate bias or prejudice as a matter of law. We conclude the Longs have not properly preserved these issues for review.
In order to preserve error when the trial court overrules a challenge for cause or incorrectly strikes a venireman, a party must give the trial court notice of two things prior to exercising any peremptory challenges. First, the party must inform the trial court he will exhaust all peremptory challenges, and then the party must inform the trial court that after exhausting all his peremptory challenges, specific objectionable jurors will remain on the jury list. Hallett v. Houston Northwest Med. Ctr., 689 S.W.2d 888, 890 (Tex. 1985); Brown v. Pittsburgh Corning Corp., 909 S.W.2d 101, 102 (Tex.App.-Houston [14th Dist.] 1995, writ denied).
Here, the record indicates the Longs failed to inform the trial court prior to exercising their peremptory strikes that they would be required to exhaust their peremptory strikes and that specific objectionable jurors would remain on the list. The Longs' motion regarding use of their peremptory strikes was as follows:
Court:
All right. In 20 minutes have your strikes to the bailiff so he can determine who the jury will be.
(The lawyers made their peremptory strikes, and the jury list was compiled.)
Court:
I understand the plaintiff has a motion?
Mr. Berger [Appellants' attorney]: Yes, your Honor, we do.
Court:
Please present your motion.
Mr. Berger:
. . . Because the Court refused to strike on plaintiffs' motion to strike number 15 and number 21, and because the Court did strike number 14, that plaintiffs had to use peremptory strikes for number 18, number 30 —
(discussion off the record)
Mr. Berger:
I'm sorry. I would have had to — I would have had additional peremptory strikes — these people would not — we would have used peremptory strikes for numbers 18, 30, and 25. Thus, we were not able to use peremptory strikes for those people that are selected to be on the jury, and those people are on the jury because of not being able to use our peremptory strikes for those three because of the Court's failure to grant the plaintiffs' motion to strike number 15 and 21 for cause and the Court striking number 14 for cause.
Court:
Any response?
Mr. Bell:
My only response would be that we agree with the Court's ruling in that regard and stand by the Court's ruling and our motions in that regard.
Mr. Berger:
I have no other response, Your Honor. No other thing to say.
Court:
All right.
Mr. Berger:
That's my motion, that we would have not-
Court:
All right. Thank you for your input.
Mr. Berger:
Okay.
The Longs rely on Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87 (Tex. 2005) to support their argument that their issues have been properly preserved despite making their complaint to the trial court after presenting their peremptory strikes. In Cortez, the court stated error was barely preserved when the record was unclear whether Cortez gave his notice to the trial court before or after he delivered his strike list, but it appeared "the two events were roughly contemporaneous." Id. at 91. The court also noted the trial court stated on the record "it's preserved." Id.
Here, unlike Cortez, the record clearly establishes the Longs failed to inform the trial court prior to exercising their peremptory strikes they would be required to exhaust their peremptory strikes and that specific objectionable jurors would remain on the list. Further, there is no statement from the trial court that error is preserved. In fact, the trial court failed to even rule on the Longs' motion. Thus, this is further grounds for concluding the Longs' issue is not properly preserved for review. Tex. R. App. P. 33.1(a)(2) (noting trial court must rule on objection or motion or refuse to rule before presenting a complaint on appeal). Because the Longs failed to properly preserve their arguments, we overrule issues one and two.
Although the Longs assert we should consider the jury was not sworn in yet when they made their motion; therefore, the trial court had the opportunity to correct any harm by granting them additional strikes, the Longs failed to request any additional strikes. Thus, the trial court did not err in failing to do something not requested of it.
Having overruled all of the Longs' issues, we affirm the trial court's judgment.