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Ocomen v. Rubio6/8/2000
This is a medical malpractice case involving claims of negligence, gross negligence, and failure to inform a patient of the risks and hazards of resection surgery. After a jury found in favor of defendant on all claims, the trial court entered a judgment that plaintiffs take-nothing. We affirm.
FACTS
On March 20, 1994, at approximately 7:00 a.m., Judy C. Ocomen, plaintiff and appellant, went to the HCA Medical Center Hospital emergency room complaining of severe abdominal pain. Pedro Rubio, M.D., a general surgeon, was consulted by the emergency room physician, and he examined Ms. Ocomen around 10:00 a.m. Dr. Rubio is the defendant and appellee. Various tests were conducted, including an electrocardiogram, chest and abdominal x-rays, and a barium enema. Ms. Ocomen was also examined by a gynecologist, Lee White, M.D. A pelvic ultrasound revealed a large amount of pelvic fluid with an unknown etiology, but resulting from an inflammatory process in the pelvis.
Dr. Rubio's pre-operative diagnosis was that Ms. Ocomen had an "acute abdomen." She then signed a consent form which authorized Dr. Rubio and Dr. White to perform "exploratory surgery," laparoscopy and possible laparotomy. After Dr. White found inflammatory disease of the small bowel during the laparoscopy, Dr. Rubio performed a laparotomy and resection of Ms. Ocomen's bowel by removing 85 centimeters. The post-operative diagnosis of Dr. Rubio was Crohn's disease of the ileum, a portion of the bowel. Most recently, Ms. Ocomen was diagnosed with intestinal tuberculosis after she continued to experience abnormal symptoms.
Plaintiffs sued Dr. Rubio alleging that he was negligent and grossly negligent in diagnosing Ms. Ocomen with Crohn's disease and for surgically resecting her bowel. Plaintiffs also allege that Dr. Rubio did not inform Ms. Ocomen of the risks and hazards associated with resection surgery.
The petition alleged in part:
A. Negligence/Gross Negligence
Plaintiffs would show that a physician-patient relationship existed between Judy Ocomen and Defendant Pedro A. Rubio, M.D. The care and treatment (and/or lack of care and treatment) which Judy Ocomen received from Dr. Rubio was performed in a negligent and grossly-negligent manner, including, but not limited to, Dr. Rubio's failure to properly evaluate and diagnose Plaintiff Judy Ocomen's condition; failure to obtain appropriate consults; failure to try a course of medical treatment prior to surgery; and inappropriately removing approximately 85 centimeters of her distal ileum, her cecum, and her ileocecal valve. Such negligence and gross negligence was and remains a proximate cause of Plaintiffs' damages.
B. Failure to Provide Adequate Treatment and Failure to Monitor
Dr. Rubio's diagnosis of Crohn's disease was incorrect, negligent, and grossly negligent. Dr. Rubio failed to adequately monitor and assess Plaintiff Judy Ocomen's problem prior to rushing into a surgical procedure. Furthermore, based on his assessment, he failed to prescribe and/or administer appropriate medications in lieu of performing a surgical procedure and failed to use a course of medical management before performing a radical surgical procedure. Dr. Rubio also failed to use and improperly used medical devices and/or medical equipment in rendering care to Judy Ocomen.
DISCUSSION
In seven issues, appellants contend: (1) the trial court abused its discretion by allowing testimony from appellee's surgical expert because he is not qualified; (2) the evidence is legally and factually insufficient to support the jury's finding of no negligence; and (3) the evidence is legally
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