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Magee v. Ulery4/29/1999
Appellants are the surviving spouse, children, and mother of Dan Magee, deceased. They sued the estate of Dr. Jacques Goldberg, deceased, for medical malpractice arising out of the emergency treatment of Dan Magee (Magee) by Dr. Goldberg in the Doctors Hospital-East Loop. Appellants alleged that Dr. Goldberg failed to properly diagnose Magee's heart condition that caused his death six days after he was discharged from the hospital. The jury found no negligence on the part of Dr. Goldberg, and the trial court entered a take nothing judgment against appellants. In three points of error, appellants contend: (1) the jury's failure to find negligence by Dr. Goldberg is against the great weight and preponderance of the evidence; (2) the trial court erred in overruling appellants' objections to testimony concerning the negligence of Dr. Rafael Conte because he was not identified in appellee's interrogatory answers as another person that caused or contributed to Magee's injury; and (3) the trial court erred in refusing to take judicial notice of Dr. Conte's age and status as a general practitioner. We affirm.
I. BACKGROUND.
Dan Magee was a tug boat pilot working on the Houston Ship Channel when he experienced severe chest pain on July 24, 1991. After being stabilized by emergency medical personnel, he was taken by ambulance to the Doctor's Hospital. He was treated at the hospital by Dr. Goldberg who gave Magee an EKG (electrocardiogram) and cardiac enzyme blood tests to evaluate his condition and rule out a heart attack. Magee was kept in the intensive cardiac unit overnight, and was discharged from the hospital the following morning at his request. Dr. Goldberg's admitting diagnosis was "R/O Angina, R/O Chest Pain," and his discharge diagnosis was "heat stroke." Dr. Goldberg's medical reports indicated that Magee's EKG and cardiac enzymes were normal, ruling out a heart attack, and that he was discharged in satisfactory condition.
On July 25, 1991, the date he was discharged from the Houston hospital, Magee returned to his home in Louisiana to see his personal physician, Dr. Marcus Pittman. Because Magee also had diabetes, Dr. Pittman initially told Magee that his attack was probably due to his blood sugar. On July 30, 1991, Magee had more chest pains, and Dr. Pittman sent him to a local hospital for an EKG. After the test, Magee went home where he suffered a heart attack and died at 9:00 p.m., July 30, 1991. The death certificate shows Magee's immediate cause of death as "acute myocardial infarct" [heart attack], and "coronary atherosclerosis" [hardening of the arteries] and "diabetes mellitus" as conditions "leading to immediate cause." The death certificate indicated that Magee had coronary atherosclerosis "years" before his death, and had diabetes "12 years" before his death.
Dr. Goldberg died in a plane crash in 1992, and this suit was brought against his estate. Dr. Rafael Conte, who also treated Magee in the hospital, died in 1994, and his estate was not a party to this suit.
II. STANDARD OF REVIEW.
In point of error one, appellants contend the jury's failure to find negligence on the part of Dr. Goldberg was against the great weight and preponderance of the evidence at the trial. Appellants challenge only the factual sufficiency of the evidence to support the jury's failure to find in their favor, not the legal sufficiency of the evidence.
Only one standard of review is used in reviewing factual sufficiency challenges, regardless of whether the court of appeals is reviewing a negative or affirmative jury finding or whether the complaining party had the burden of proof on the issue. Merckling v. Curtis, 911 S.W.2d 7
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