 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Winkle v. Tullos11/16/1995
In this medical malpractice case, Joy Winkle appeals from two judgments rendered in favor Hugh S. Tullos, M.D. on the grounds that (1) the claims relating to her first surgery were not barred by limitations, (2) the jury charge on limitations was erroneous, (3) the trial on limitations was improperly bifurcated, (4) the statutory provisions governing disclosure of medical risks and informed consent are unconstitutional, (5) the portions of the jury charge on informed consent and negligence were invalid, (6) the jury's responses on lack of informed consent, negligence and damages were not supported by the evidence, and (7) evidence was improperly excluded. We affirm.
On November 6, 1984, Dr. Tullos performed knee replacement surgery on Winkle. On July 16, 1985, Dr. Tullos performed revision surgery on her to cement a loose part of the artificial device to the bone. In both procedures, a tourniquet was used on Winkle's leg. However, while in recovery from the second surgery, Winkle showed signs of poor circulation in her foot. Dr. George Noon, a vascular surgeon, was called in for consultation. After an arteriogram showed a blockage above the knee, Dr. Noon performed bypass surgery in an attempt to alleviate Winkle's circulation problems. The following day, Dr. Noon performed another surgical procedure to remove the blockage. These surgeries were unsuccessful, and Dr. Tullos amputated Winkle's right leg below the knee on July 25, 1985.
On July 13, 1987, Winkle filed suit against Dr. Tullos complaining of the revision surgery performed on July 16, 1985. On August 14, 1990, Winkle filed a second amended petition in which she added a claim for negligence relating to the original knee replacement surgery Dr. Tullos performed on November 6, 1984.
In 1991, the trial court conducted a separate trial on whether Winkle's claims concerning the first surgery in 1984 were barred by limitations. Based on a jury verdict, the court entered an interlocutory judgment that those claims were barred. In 1993, a second trial was held on the issues of liability and damages arising from the second surgery in 1985. Based on a jury verdict, the trial court entered a take-nothing judgement in favor of Dr. Tullos. This is an appeal from both judgments.
I. LIMITATIONS TRIAL
In points of error three through eight, Winkle challenges the sufficiency of the evidence to support the jury's failure to find that (1) she did not have a reasonable opportunity to discover her cause of action for the first surgery and file suit within the applicable time period, and (2) Dr. Tullos fraudulently concealed the cause of action from her. She also contends in point nine that, as a matter of law, limitations was "tolled" by the "continuous treatment" exception set forth in the Medical Liability and Insurance Improvement Act (the "Act"). See TEX. REV. CIV. STAT. ANN. art. 4590i, Section(s) 10.01 (Vernon Supp. 1995).
Because her contentions of delayed discovery of her claim and fraudulent concealment were in the nature of affirmative defenses to Dr. Tullos' limitations defense, Winkle bore the burden of proof on those issues. To prevail in challenging the legal sufficiency of the adverse findings on these issue on which she had the burden of proof, Winkle must demonstrate that the evidence conclusively established all vital facts in support of the issue. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). When reviewing such a "matter of law" point, (1) we examine the record for evidence that supports the finding, ignoring all evidence to the contrary, and (2) if there is no evidence to support the finding, we then examine the entire record to determine if the contrary
Page 1 2 3 4 5 6 7 8 9 10 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|