 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Daniels v. Yancey10/25/2005
Kimberly T. and Willie Daniels appeal from a take-nothing judgment in favor of Christopher A. Yancey, M.D., and Diagnostic Clinic of Longview, P.A (collectively, Yancey). The Danielses complain on appeal that the trial court erred in excluding certain testimony from the jury's consideration. We deny all points of error and affirm the judgment of the trial court.
Factual Background
Dr. Christopher Yancey performed a hysterectomy on Kimberly Daniels. Following the surgery, Kimberly began to suffer from abdominal pain and bowel problems. She returned to the hospital. Dr. Lee Merritt, in consultation with Dr. Yancey, determined that it was necessary to remove a section of Kimberly's small intestine to cure her affliction. This surgery, in turn, caused Kimberly further medical problems.
The Danielses allege that Dr. Yancey perforated Kimberly's small intestine during the hysterectomy, thereby breaching the proper standard of care. The Danielses claim that this alleged breach of duty caused Kimberly's subsequent medical problems. This claim is the basis of the underlying lawsuit.
Issues
The trial court prohibited the Danielses' expert witness, Dr. Robert Kovac, from testifying about his observations regarding certain pathology slides relating to Kimberly's surgery. Dr. Kovac is a member of the American Board of Obstetrics and Gynecology. The trial court also excluded testimony regarding a statement purportedly made by Dr. Merritt to Kimberly before the second surgery. These two rulings by the trial court form the basis of the Danielses' appeal.
Motion to Limit Testimony
The Danielses assert that the trial court erred in granting Yancey's motion to limit the testimony of Dr. Kovac because the motion was untimely. In support of this, the Danielses contend the motion was not filed within the time limitations prescribed by the former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 14.01(e). See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 2, Tex. Gen. Laws 988, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, Tex. Gen. Laws 884 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.401(e) (Vernon 2005)). We hold that the Danielses failed to raise this issue at the trial court level and thereby waived any possible error on appeal.
As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a). The record must also show that the trial court ruled or refused to rule on the complaint. If the trial court refused to rule on the complaint, the record must show that the complaining party objected to the refusal. Id.
It is clear from the record that, within the motion to limit expert testimony, and during the hearing on the motion, there was but one issue in contention: whether the Danielses' expert witness, Dr. Kovac, was qualified to testify about pathology slides.
Dr. Yancey, the proponent of the motion, began the hearing by stating, "The basis of our motion is Broders v. Heise, the well-settled law of this state through the Texas Supreme Court, asking that expert witnesses be limited in medical malpractice cases to testify in their area of specialty." Yancey argued that, "Dr. Kovac is not now nor has he ever been even board eligible." Yancey went on to say, " e doesn't even read his own patients' Pap smears . . . . o one in a medical setting, has ever asked Dr. Kovac to review pathology slides and write a report for them, because they know that he's not qualified to do that." Yancey finished the argument by declaring, " e would a
Page 1 2 3 4 5 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|