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Daniels v. Yancey10/25/2005
Dr. Kovac at times reviewed pathology slides, that it was his pattern to review a slide of the bowel in the course of gynecologic surgery, and that he usually reviewed the slides with a physician who was board certified in gynecologic pathology. During the trial, the Danielses offered, and the trial court excluded, a report written by Dr. Kovac opining that the pathology slides of Kimberly confirmed his previous belief that the hysterectomy was unnecessary and that an unrecognized bowel perforation led to the removal of a substantial amount of her small bowel. Even though the Danielses presented some evidence of Dr. Kovac's qualifications to interpret pathology slides and therefore the issue was not waived, the evidence on that subject was very abbreviated. When the report of Dr. Kovac was offered and excluded, his curriculum vitae had also been admitted into evidence, but it did not contain specific information regarding pathology credentials. Dr. Kovac may be qualified to interpret pathology slides. However, based on the record before the trial court as summarized above, the trial court acted within its discretion in finding that the evidence was inadequate to establish that Dr. Kovac had the requisite knowledge, skill, experience, training, or education regarding the interpretation of pathology slides to qualify him to give an opinion on that specific subject. See Broders, 924 S.W.2d at 153.
Even if the testimony of Dr. Kovac was improperly excluded, we do not believe that such an error would be harmful. "No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of: (1) probably caused the rendition of an improper judgment." Tex. R. App. P. 44.1(a)(1).
The Danielses argue that the exclusion of Dr. Kovac's testimony concerning the pathology slides resulted in the "exclusion of Appellants' only witness to the issue of causation of a bowel perforation . . . ." We disagree. Dr. Kovac testified at length concerning his opinion that a bowel perforation occurred during Dr. Yancey's surgery of Kimberly. An excerpt of that testimony follows:
A: I strongly believe that there was a hole that was in the intestine of this -- was made which caused her subsequent problems.
Q: You think the hole occurred during Dr. Yancey's surgery?
A: I think it did.
Dr. Kovac further testified that the adhesion disease and obstruction and the necessity to remove fifty centimeters of Kimberly's small bowel were due to an unrecognized perforation of the small bowel at the time of the hysterectomy, which caused leaking into the abdominal cavity. He further stated that, at the time of the surgery to remove part of the intestine, Dr. Yancey and Dr. Merritt opened the intestine looking for a perforation. This evidence was utilized by the Danielses' counsel in his argument to the jury when he stated that puncturing of the bowel was a breach of the standard of care. The only limitation placed on Dr. Kovac's testimony was that he was not allowed to interpret the pathology slides.
Considering all the evidence from Dr. Kovac that was admitted, even if the limitation of Dr. Kovac's testimony was error, we do not find that such limitation "probably caused the rendition of an improper judgment." See id. Accordingly, we deny the Danielses' second point of error.
Exclusion of Hearsay Testimony
The Danielses asserts that the trial court erred in excluding certain testimony from Yancey's witness, Dr. Merritt. We hold that the trial court did not err in excluding the testimony.
The Danielses' counsel sought to ask Dr. Merritt whet
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