Lonnie D. Rodgers Sr. v. the Medical Center of Southeast Texas ( 2017 )


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  •                                         In The
    Court of Appeals
    Ninth District of Texas at Beaumont
    ___________________
    NO. 09-16-00276-CV
    ___________________
    LONNIE D. RODGERS SR., Appellant
    V.
    THE MEDICAL CENTER OF SOUTHEAST TEXAS, Appellee
    __________________________________________________________________
    On Appeal from the 60th District Court
    Jefferson County, Texas
    Trial Cause No. B-193,734
    __________________________________________________________________
    MEMORANDUM OPINION
    Seeking to overturn a jury’s decision rejecting his claim that a nurse
    negligently injured his sciatic nerve by giving him an injection in his left hip, Lonnie
    D. Rodgers Sr. appeals from a take-nothing judgment, which the trial court rendered
    in favor of The Medical Center of Southeast Texas (The Medical Center). We
    conclude the evidence authorized the jury to reject Rodgers’ allegation that a nurse,
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    employed by The Medical Center, gave Rodgers an injection in his left hip;
    therefore, we affirm the trial court’s judgment.
    Background
    On October 29, 2010, Rodgers sought treatment for a painful headache at an
    emergency room operated by The Medical Center. The emergency room doctor
    prescribed an injection of pain medicine. Subsequently, a nurse employed by The
    Medical Center (the nurse) gave Rodgers a shot that contained the medication that
    had been prescribed by the emergency room doctor.
    One of the many disputed issues in the trial concerned whether the nurse gave
    Rodgers the injection in his right hip or in his left hip. Rodgers testified in his trial
    that the nurse gave him the injection in his left hip. Additionally, in their testimony,
    Rodgers’ expert witnesses relied on Rodgers’ account that the nurse gave Rodgers
    the injection in a muscle located on the back side of his left hip. According to
    Rodgers’ experts, the nurse should have given Rodgers the injection in a muscle that
    lies more on the upper left or upper right side of the hip to avoid injuring his sciatic
    nerve.
    Rodgers also claimed that the injection caused immediate pain in his left leg.
    He testified that when he got the injection, it felt like “a[n] electric bolt” going down
    his left leg all the way to his toes. During the trial, Rodgers testified that he still has
    pain in his low back and left leg, which causes him to limp. He attributed his ongoing
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    symptoms to the treatment that he received at the emergency room in October 2010,
    and the injection he was given by the nurse. Rodgers explained that eventually he
    saw a neurologist, who began treating him for the symptoms he was having in his
    low back and left leg. Rodgers testified that tests performed by the neurologist
    showed he had a sciatic nerve injury, and that the injury was causing pain in his
    lower back and left leg.
    The accuracy of Rodgers’ account of where on his body the nurse gave him
    the injection and his account regarding when his left leg symptoms started were
    disputed by other witnesses who testified in Rodgers’ trial. The nurse who gave
    Rodgers the injection at the emergency room also testified in the trial. According to
    the nurse, he gave Rodgers the injection in the right upper quadrant of his right hip.
    Medical records that were created when Rodgers was treated were introduced during
    the trial. The medical records from The Medical Center show that the nurse wrote in
    Rodgers’ records that he gave Rodgers the injection that was at issue in the “RDG.”
    According to the nurse, “RDG” stands for the “[r]ight dorsal glute[,]” which is a
    muscle located in the rear part of a person’s hip. A typed notation in The Medical
    Center’s electronic medical records, created by the nurse in the course of charting
    the treatment Rodgers received in the emergency room, also references “RDG” as
    the injection site. The expert witnesses who were asked during the trial agreed that
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    an injection of pain medication in the right hip would not cause a sciatic nerve injury
    in a patient’s left leg.
    Testimony before the jury also contradicted Rodgers’ claim that he had an
    adverse reaction to the shot while he was in the emergency room. According to the
    nurse, Rodgers was observed approximately thirty minutes in the emergency room
    to make sure that he did not have an adverse reaction to the injection. According to
    the nurse, Rodgers did not have an adverse reaction, and the medical records of
    Rodgers’ October 2010 emergency room visit are consistent with the nurse’s
    testimony.
    In his petition, Rodgers alleged that The Medical Center and its nurse
    negligently injured his sciatic nerve by injecting pain medicine into his left hip. The
    jury, the entity asked to resolve the discrepancies that existed in the testimony that
    was introduced during Rodgers’ trial, refused to find that The Medical Center1 was
    negligent. The jury also refused to find that The Medical Center’s nurse had caused
    Rodgers’ alleged injury. In a broad-form charge, the jury was asked: “Did the
    negligence, if any, of The Medical Center of Southeast Texas proximately cause
    Lonnie D. Ro[d]gers, Sr.[’s] injury?” The jury answered the issue “No.” Relying on
    1
    The nurse who gave Rodgers the injection was no longer a party to the suit
    when the case was tried.
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    this finding, the trial court rendered a take-nothing judgment in The Medical
    Center’s favor.
    Burden of Proof and Standard of Review
    By its verdict, the jury determined that Rodgers failed to prove, by a
    preponderance of the evidence, that The Medical Center was negligent and that The
    Medical Center caused Rodgers’ alleged sciatic nerve injury. In proving a medical
    malpractice claim, the plaintiff must prove (1) that the medical provider was under
    a duty to conform to a certain standard of care, (2) that the provider failed to conform
    to that required standard, (3) that the plaintiff was actually injured by the provider
    based on the provider’s deviation from the standard of care that applies to the
    medical provider, and (4) that a causal connection exists between the medical
    provider’s conduct and the plaintiff’s injury. See Methodist Hosp. v. German, 
    369 S.W.3d 333
    , 338 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). With respect
    to causation, the plaintiff must prove, to a reasonable degree of medical probability,
    that the medical provider caused the plaintiff’s alleged injury. Park Place Hosp. v.
    Estate of Milo, 
    909 S.W.2d 508
    , 511 (Tex. 1995); Duff v. Yelin, 
    751 S.W.2d 175
    ,
    176 (Tex. 1988). Proving causation requires proof that the medical provider’s
    negligent acts or omissions were “a substantial factor in bringing about the harm and
    without which the harm would not have occurred.” Park Place Hosp., 
    909 S.W.2d 5
    at 511 (quoting Kramer v. Lewisville Mem’l Hosp., 
    858 S.W.2d 397
    , 400 (Tex.
    1993)).
    In his appeal, Rodgers argues that the jury’s verdict for The Medical Center
    is against the greater weight and preponderance of the evidence and that it is
    manifestly unjust. As the plaintiff, Rodgers had the burden to prove his claims, and
    he must demonstrate that the jury’s “No” finding is “against the great weight and
    preponderance of the evidence” to overturn the verdict on appeal. City of Keller v.
    Wilson, 
    168 S.W.3d 802
    , 826 (Tex. 2005) (internal citations omitted); Cain v. Bain,
    
    709 S.W.2d 175
    , 176 (Tex. 1986). Generally, evidence is sufficient to support a
    jury’s finding on an issue if it “would enable reasonable and fair-minded people to
    reach the verdict under review.” City of 
    Keller, 168 S.W.3d at 827
    . Generally, in the
    absence of conclusive evidence proving that an injury occurred, a jury is allowed to
    determine which of the witnesses who testified in a trial gave reliable and credible
    testimony regarding the circumstances that led to an alleged injury. See City of
    
    Keller, 168 S.W.3d at 819
    .
    In reviewing a jury’s verdict, we are required to defer to the jury’s decision
    regarding the weight the jury gave to the evidence that was presented during a trial.
    
    Id. In a
    trial, the jurors have the right to choose to believe one witness over others,
    and to reach a verdict by deciding that some witnesses were credible and that others
    were not in the course of deciding who should prevail. See McGalliard v. Kuhlmann,
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    722 S.W.2d 694
    , 697 (Tex. 1986). With respect to the testimony of a parties’ experts,
    “[e]ven uncontroverted expert testimony does not bind jurors unless the subject
    matter is one for experts alone.” City of 
    Keller, 168 S.W.3d at 820
    . Nonetheless, jury
    verdicts are not incapable of being overturned on appeal if the evidence from the
    trial shows that the jury ignored “undisputed testimony that is clear, positive, direct,
    otherwise credible, free from contradictions and inconsistencies, and could have
    been readily controverted” in reaching a verdict. 
    Id. However, absent
    a record from
    the trial showing that the decision the jury made contradicts the overwhelming great
    weight and preponderance of the evidence, we are not allowed to merely substitute
    our judgment for the jury’s. See Cropper v. Caterpillar Tractor Co., 
    754 S.W.2d 646
    , 651 (Tex. 1998).
    Analysis
    In a single appellate issue, Rodgers argues that the greater weight and
    preponderance of the evidence demonstrated that a nurse employed by The Medical
    Center caused him to suffer a sciatic nerve injury in his left leg on October 29, 2010,
    when he received an injection in his left hip. According to Rodgers, there was no
    dispute in the trial over whether he has a sciatic nerve injury that is causing
    symptoms in his low back and left leg. In his appeal, Rodgers argues that the
    overwhelming weight of the evidence shows that the nurse gave him the injection in
    an improper location based upon the standard of care that applies to nurses.
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    While the record does contain evidence that might have supported a verdict in
    Rodgers’ favor, the evidence that was before the jury in the trial reflects that a bona
    fide dispute existed about which hip the nurse used when he gave Rodgers the
    injection. The opinions that Rodgers’ experts offered on causation and negligence
    are all premised on the assumption that Rodgers was given the injection into his left
    hip. However, given the nurse’s testimony and medical records, the jury was
    authorized to conclude that Rodgers was given the injection in his right hip, and that
    an injection on that side would not have caused any symptoms or injury to Rodgers’
    left leg.
    The evidence also authorized the jury to conclude that Rodgers’ complaints
    about the symptoms he was having on the left side of his low back and left leg
    resulted from conditions that existed before he was treated at the emergency room.
    Evidence before the jury in Rodgers’ trial showed that Rodgers had complained
    about symptoms in his back and left leg to another doctor two days before the date
    that he was seen in the emergency room.
    There was also conflicting expert witness testimony on negligence and
    causation, allowing the jury to decide which experts it wanted to believe. A
    neurologist called by The Medical Center testified that Rodgers, in his opinion, did
    not suffer a sciatic nerve injury from the injection he received in the emergency
    room. According to the neurologist, the standard of care that applies to nurses allows
    8
    a nurse to give a patient an injection into the upper right or left quadrant of the
    dorsogluteal muscle of the hip. As the factfinder, the jury was authorized to credit
    the nurse’s testimony, and to credit the medical records, both of which show that
    Rodgers was given the injection in his right hip. In our opinion, the jury’s verdict
    was reasonable in light of the authority given juries to resolve inconsistencies that
    exist in the testimony admitted during a trial.
    Having carefully reviewed the evidence that was before the jury in Rodgers’
    trial, we conclude that the jury’s determination that the nurse was not negligent and
    did not cause Rodgers’ alleged sciatic nerve injury was reasonable given the
    evidence presented to it during the trial. See City of 
    Keller, 168 S.W.3d at 819
    . We
    overrule Rodgers’ issue, and we affirm the trial court’s judgment.
    AFFIRMED.
    ______________________________
    HOLLIS HORTON
    Justice
    Submitted on September 11, 2017
    Opinion Delivered November 16, 2017
    Before McKeithen, C.J., Horton and Johnson, JJ.
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