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Isern v. Watson

3/20/1997



This is a medical malpractice case which arises out of appellees Helen and Rix Watson's claim that appellant, Dr. Reuben A. Isern, was negligent in failing to properly diagnose and treat Mrs. Watson, or to seek a consultation from a specialist, during her visit to a hospital emergency room after a fall. The Watsons claimed at trial that the alleged acts or omissions of Dr. Isern caused Mrs. Watson's leg to be later amputated at the knee.


This appeal is from a retrial of this case and is the second time the case has been appealed to this Court. In the first trial, the jury awarded zero damages to the Watsons and the trial judge rendered judgment that the Watsons take nothing. Watson v. Isern, 782 S.W.2d 546 (Tex. App. -- Beaumont 1989, writ denied) (Brookshire, J., writing).


In the second trial, the jury found that Dr. Isern was negligent in failing to hospitalize Mrs. Watson for further evaluation and negligent in failing to do a "Doppler" exam to assure that there was no major damage to a blood vessel. The jury awarded Mrs. Watson $1,432,600 and Mr. Watson $9,000 in damages. With reduction of the damages by 35% for contributory negligence, the trial court rendered judgement for damages, with prejudgment interest, in the amount of $3,091,495.43, plus post-judgment interest and cost.


Dr. Isern has appealed asserting eight points of error. The Watsons, in five cross-points, have appealed the jury's 35% apportionate finding that Mrs. Watson was negligent in failing to return to the emergency room or seek other medical care prior to seeing another doctor on Tuesday, following her injury on Saturday. We affirm.


Evidence


On May 1, 1982, Mrs. Watson fell and injured her right leg. She weighed 270 pounds at the time. She arrived at the emergency room of a Beaumont hospital at 11:50 p.m. where Dr. Isern saw her. She complained of pain in the right knee, lower leg and ankle.


After X-raying her and finding that the leg was not broken, but finding that there was some damage to the knee joint area, Dr. Isern discharged Mrs. Watson. She was to remain in bed for two or three days, applying ice packs to the knee. Tylenol pain medication was prescribed.


The hospital records reflect her discharge at 1:50 a.m. Sunday morning; it took her family about 30 to 40 minutes to get her into a car to go home. The Tylenol prescription was filled early Sunday morning and she took it for pain, kept the ice packs on her leg as instructed, and remained in bed except to be helped to the bathroom by her family.


Mr. Watson talked with Dr. Isern or his office early Monday morning, and while Mrs. Watson could not detail the two-sided telephone conversation, it was her understanding she was to continue with the prescribed treatment by Dr. Isern.


On Tuesday morning, Mrs. Watson called her orthopedic doctor, Dr. Shorkey. He was unavailable, so she went to see his partner, Dr. Alfred Bessell. Dr. Bessell referred Mrs. Watson across the street to St. Elizabeth Hospital. At St. Elizabeth, she was seen by a vascular surgeon, Dr. Gordon. He referred her to John Sealy Hospital in Galveston where she arrived on the evening of Tuesday, May 4, 1982.


Mrs. Watson spent almost a month at John Sealy. After several procedures on her leg, the Galveston doctors finally removed it, because of lack of proper blood supply due to a ruptured popliteal artery.


At trial, the Watsons contended that Mrs. Watson's ruptured popliteal artery was a result of the fall on the night of May 1, 1982, before she came to see Dr. Isern and that Dr. Isern was negligent in his examination, his diagnosis and treatment of Mrs. Watson, an

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