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Wise v. Watson5/9/2000
phens v. Felix Mexican Restaurant, Inc., 899 S.W.2d 309, 312 (Tex. App._Houston [14th Dist.] 1995, writ denied).
In a medical malpractice case, the requisite proof of negligence must be established through expert testimony. Shook v. Herman, 759 S.W.2d 743, 747 (Tex. App._Dallas 1988, writ denied) (citing Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex. 1977)). A plaintiff is required to establish through expert testimony:
(1) the standard of care, (2) the facts which show that the physician deviated from that standard, and (3) that the deviation caused the injury . Reynolds v. Warthan, 896 S.W.2d 823, 826 (Tex. App._Tyler 1995, no writ); Rodriguez v. Reeves, 730 S.W.2d 19, 21 (Tex. App._Corpus Christi 1987, writ ref'd n.r.e.).
Initially we note that Wise's pleadings alleged Dr. Watson breached his duty to Wise by "accepting a case he was not qualified for and continuing to try to cure his mistake by additional surgeries which were performed too closely together." No evidence at trial suggested that Dr. Watson was not qualified to perform the type of surgeries he performed on Wise. Further, Wise failed to present expert testimony at trial that Dr. Watson deviated from the standard of care in the way he performed the surgeries, and that such deviation resulted in injury to Wise. Although Wise's expert, Dr. Weinberg, testified that Dr. Watson performed too many surgical procedures over too short a time period, he did not testify that the way Dr. Watson performed the surgeries was below the standard of care or resulted in injury to Wise. In fact, Dr. Weinberg testified that he had no criticism of the technique or manner in which the surgeries were done, just the timing and the fact that some of the procedures were done at all. Thus, we conclude the pleadings and the expert testimony at trial support only the theory, submitted to the jury, that Dr.Watson acted negligently in performing the surgeries too closely together.
We also conclude Wise failed to present expert testimony that Dr. Epker acted negligently in the way he performed the surgeries on Wise. Dr. Weinberg admitted that the end result of Dr. Epker's surgeries was not below the standard of care, and that the surgeries produced a significant improvement in Wise's appearance. When asked whether he could say, in all reasonable medical probability, Wise had pain resulting from Dr. Epker performing the surgeries negligently, he answered that he did not know. When asked if he could attribute any problems that Wise had, in all reasonable medical probability, to Epker's surgery or anything he did negligently, he answered no. He testified that it was below the standard of care for the doctor to fail to obtain informed consent and to explain to the patient the risks and complications that may arise when a foreign body, such as the gortex strip, is inserted surgically. Thus, we conclude the evidence at trial supported only the theory presented to the jury, that Dr. Epker acted negligently in failing to disclose risks of the surgery to Wise.
Because the pleadings and the evidence at trial supported only the issues presented in the negligence instructions, we conclude the trial court did not err in refusing Wise's requested broad
form negligence question. Having concluded Wise presented no reversible error in this appeal, we affirm the trial court's judgment.
ED KINKEADE, JUSTICE
Do Not Publish
Tex. R. App. P. 47
990030.OP
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