Duff v. Yelin , 31 Tex. Sup. Ct. J. 401 ( 1988 )

ROBERTSON, Justice.

This is a medical malpractice action in which we must determine the propriety of an instructed verdict in favor of a hospital. James Duff brought suit against Dr. Frank Yelin and St. Luke’s Episcopal Hospital in Houston, claiming, among other things, that the negligence of the defendants resulted in an injury to the ulnar nerve in his right arm. At the close of Duff’s case, the trial court granted the hospital’s request for an instructed verdict on all grounds. The trial court also granted an instructed verdict for Dr. Yelin on all grounds except informed consent. This matter, however, is not before us on appeal. The court of appeals, with one justice dissenting, affirmed that judgment. 721 S.W.2d 365. We affirm.

Duff was admitted to St. Luke’s on November 7, 1977, complaining of pain in his left shoulder and arm. Three days later, on November 10th, Dr. Yelin operated on Duff. Hospital records indicated that on November 14th Duff complained of numbness and tingling in his right hand. After being discharged from St. Luke’s on November 17th, Duff entered Houston’s Methodist Hospital on December 5th to undergo elbow surgery by Dr. Yelin. Duff last saw Dr. Yelin on February 28, 1978.

Thereafter, Duff sued Dr. Yelin, J. Freeman, Dr. Mahmud Ali, and St. Luke’s. Freeman is a student nurse and Ali is an anesthesiologist. Both of these parties were granted summary judgments and severed from this cause. Duffs pleadings claimed that the initial surgery on his neck and shoulder performed on November 10, 1977, was unnecessary, and that the defendants were negligent in failing to properly pad his arms in order to protect him from an injury to his ulnar nerve during surgery. Finally, Duff alleged that Dr. Yelin negligently performed the surgery of November 10th and that he failed to obtain Duffs informed consent.

During trial, Duff and his wife testified that Duff first complained of numbness in his right hand upon regaining consciousness on November 10th. On cross-examination, however, Duff conceded that he previously testified that he did not know when he first reported the tingling and numbness in his hand. Indeed, the hospital records showed that Duff did not complain about the discomfort until November 14th, four days after surgery.

In affirming the propriety of an instructed verdict, this court must find that there was no evidence presented which could have raised a fact issue concerning a fact proposition essential for the plaintiffs recovery. Watts v. St. Mary’s Hall, Inc., 662 S.W.2d 55, 59 (Tex.App.—San Antonio 1983, writ ref d n.r.e.). However, if there is any conflicting evidence of a probative nature, then the jury must pass on the issue. Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 640, 253 S.W.2d 422, 425 (1952).

Inasmuch as this case involves allegations of medical malpractice, additional considerations come into play concerning our review of the evidence in light of the instructed verdict. In a medical malpractice case, the plaintiff must prove, by competent testimony, that the defendant’s negligence proximately caused the plaintiffs injury. Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965); Bowles v. Bourdon, 148 Tex. 1, 5, 219 S.W.2d 779, 782 (1949). Additionally, and of great importance in this case, the plaintiff must establish a causal connection beyond the point of conjecture; proof of mere possibilities will not support the submission of an issue to the jury. Lenger v. Physicians’s Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex.1970); Hart, 399 S.W.2d at 792. Applying these settled principles of law to the facts of this case, it is clear that the court of appeals correctly affirmed the instructed verdict in favor of St. Luke’s.

Although Duff, during trial, presented portions of Dr. Ali’s deposition, and did call Dr. Yelin as an adverse witness, he presented no independent expert medical testimony. Dr. Yelin repeatedly testified that there were two possible causes of Duffs ulnar nerve injury: (1) while Duff was unconscious, lying on a bed in the recovery room, his right arm could have fallen off the side of the bed and caused trauma to the ulnar nerve or (2) after regaining consciousness in his hospital room, Duff may have injured his elbow while moving around in his hospital bed. On numerous occasions, Dr. Yelin refused to state that either of these events could have caused Duffs injury within a reasonable medical probability. Although this court has held that it is not absolutely necessary that an expert couch his opinions in terms of a “reasonable medical probability,” we still embrace the principle that a jury issue should not be submitted when it is based merely upon speculation and conjecture. Otis Elevator Co. v. Wood, 436 S.W.2d 324, 331-32 (Tex.1968); Insurance Co. of N. Am. v. Myers, 411 S.W.2d 710, 713 (Tex.1966); PERDUE, THE LAW OF TEXAS MEDICAL MALPRACTICE § 7.03, at 281 (2d ed. 1985). After reviewing the testimony presented, we conclude that the only evidence presented to the jury, on the issue of proximate cause, was Dr. Yelin’s testimony as to the two possible causes of Duff’s injury; therefore, the trial court correctly granted an instructed verdict for St. Luke’s. Bowles, 148 Tex. at 5, 219 S.W.2d at 785; Pekar v. St. Luke’s Episcopal Hospital, 570 S.W.2d 147, 148 (Tex.Civ.App.—Waco 1978, writ ref’d n.r. e.).

The dissent in the court of appeals asserted that there was some evidence that hospital personnel were negligent in handling Duff in the recovery room. We disagree. Although Dr. Yelin did state that it was a “necessity” for the nurse to ensure proper positioning of Duffs arm so as to avoid undue pressure on the elbow, he also testified that based upon a reasonable medical probability, Duffs injury could have indeed occurred even if the nurses and all other hospital personnel had taken all the necessary precautions.

The dissent also seeks to distinguish Pe-lear by stating that the plaintiff’s theory in that case rested upon the “defendant hospital [being] guilty of an affirmative negligent act,” whereas the instant case did not require Duff to prove an affirmative act by St. Luke’s. A closer reading of Pekar, however, clearly reveals that the plaintiff in that case charged that the defendants “negligently did or failed to do some act ” which resulted in the plaintiff’s injury. Pe-kar, 570 S.W.2d at 148 (emphasis added).

Finally, the dissent states that because it was undisputed that the injury to Duff’s elbow was caused by some external pressure to the elbow area, the medical reason for the trauma was established. Although this statement is, by itself, correct, it ignores the principal reason behind this case going to trial — to affix liability upon the negligent party. Just because the jury knew that pressure to the elbow caused Duffs injury, this knowledge in no way enabled them to find out how this pressure was applied, and, more importantly, who was responsible for the event in the first place.

The court of appeals judgment is therefore affirmed.

MAUZY, J., dissents, joined by RAY and KILGARLIN, JJ.