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Lesser v. Allums3/7/1996
A judgement was entered adverse to the appellant at the conclusion of a jury trial and the trial court subsequently overruled appellant's motion for new trial. This appeal followed.
A portion of this case has been before us previously. See Lesser v. St. Elizabeth Hosp., 807 S.W.2d 657 (Tex. App.--Beaumont 1991, writ denied). This is a medical malpractice case, and Mrs. Lesser originally filed suit against St. Elizabeth Hospital, Dr. Thomas Pugh, Dr. J. A. Allums, and Dr. Eugene Bebeau, Jr. on November 2, 1987, alleging negligence in the treatment of her husband, Frank Lesser. Mrs. Lesser non-suited two of the doctors and St. Elizabeth Hospital and Dr. Allums filed motions for summary judgment. The trial court granted the hospital's motion, denied Dr. Allums' motion and severed the actions. The granting of the hospital's motion for summary judgement was the subject matter of the prior litigation. On December 13, 1993, a jury trial began in this remaining action against Dr. Allums. The jury found no negligence on the part of Dr. Allums and the trial court entered a take-nothing judgement against Mrs. Lesser.
By way of background, Frank Edward Lesser was admitted to St. Elizabeth Hospital on or about August 21, 1985. He had been having difficulty in walking and pain in his legs, and his physician in Woodville referred him to Dr. Allums. Dr. Allums then had Mr. Lesser admitted to the hospital in order that an arteriogram be performed in an attempt to determine the cause of the problems. Dr. Thomas Pugh performed the procedure. During the arteriogram, Mr. Lesser suffered a stroke and Dr. Pugh took the necessary remedial procedures. Dr. Pugh gave orders that Mr. Lesser was to be monitored every fifteen minutes. At some point in time Mr. Lesser suffered a second stroke. Further medical problems occurred, and as a result Mr. Lesser became completely paralyzed on his right side, could not speak, was totally disoriented, and was vision and hearing impaired. Mr. Lesser required twenty-four hour attendant health care.
Appellant has perfected her appeal and brings forth two points of error.
In the first point of error, appellant alleges that the trial court erred because it denied plaintiff's Motion for New Trial on the grounds of judicial estoppel.
The decision on a motion for new trial is committed to the sound discretion of the trial court. Balias v. Balias, Inc., 748 S.W.2d 253, 257 (Tex. App.--Houston [14th Dist.] 1988, writ denied). A trial judge's denial of a motion for new trial cannot be disturbed on appeal unless appellant can establish a clear abuse of the trial court's discretion. Parker v. Miller, 860 S.W.2d 452, 458 (Tex. App.--Houston [1st Dist.] 1993, no writ); Balias, 748 S.W.2d at 257. The test for abuse of discretion is not whether, in the opinion of the reviewing court, the trial court could have granted a new trial. Rather, it is a question of whether the court acted without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). The mere fact that a trial judge may decide a matter within his discretionary authority in a manner different than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Downer, 701 S.W.2d at 242.
Appellant has not shown that the trial court acted without reference to any guiding rules and principles or that the denial of her motion for new trial was arbitrary or unreasonable. Accordingly, point of error one is overruled.
Appellant argues t
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