David and Carolyn Axelrad v. Dr. Richard Jackson

Affirmed and Majority Memorandum Opinion filed May 15, 2008

Affirmed and Majority Memorandum Opinion filed May 15, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00518-CV

____________

DAVID AND CAROLYN AXELRAD, Appellants

V.

DR. RICHARD JACKSON, Appellee

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 99-52855

M A J O R I T Y   M E M O R A N D U M  O P I N I O N

This medical malpractice case is on remand from the Texas Supreme Court for factual-sufficiency review of the evidence to support the following jury findings: (1) the patient, appellant David Axelrad, was negligent; (2) his negligence was a proximate cause of the occurrence in question; and (3) fifty-one percent of the responsibility for the occurrence was attributable to him.  Based on these findings, the trial court rendered judgment that the Axelrads take nothing.^[1] We affirm.

I.  FACTUAL AND PROCEDURAL BACKGROUND

The two prior opinions in this case contain detailed descriptions of the factual and procedural background.  See Jackson v. Axelrad, 221 S.W.3d 650, 651B53 (Tex. 2007); Axelrad v. Jackson, 142 S.W.3d 418, 421B22 (Tex. App.CHouston [14th Dist.] 2004), rev=d, 221 S.W.3d 650 (Tex. 2007).  We do not repeat them in this memorandum opinion.

On remand, Axelrad challenges factual sufficiency of the evidence to support the jury=s findings.  Specifically, he challenges the jury=s findings on questions one and two of the charge.  In response to question one, the jury found Axelrad=s  Anegligence, if any, . . . proximately cause[d] the occurrence in question.@  In response to question two, the jury found fifty-one percent of the negligence that caused the occurrence was attributable to Axelrad and forty-nine percent was attributable to appellee, Dr. Richard Jackson, who was  Axelrad=s physician.^[2]

II. STANDARD OF REVIEW

When reviewing a challenge to factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding.  See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).  The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.  GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615B16 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).  The amount of evidence necessary to affirm a judgment is far less than the amount necessary to reverse a judgment.  Id. at 616.  After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).  Because we are not the fact finder, we may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence.  Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).  Although when reversing a jury verdict, a court of appeals must detail the evidence and clearly state why the jury=s finding is factually insufficient, it need not do so when affirming a jury verdict.  Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006) (per curiam).

III.  ANALYSIS

A.      Axelrad=s Negligence

In his first issue, Axelrad argues the evidence was factually insufficient to support the jury=s finding that he was negligent under the theory he should have recognized the significance of the origin and location of his pain when he communicated with  Dr. Jackson.^[3] As the supreme court explained when concluding the evidence was legally sufficient under this theory:

Patients have no duty to diagnose themselves (as doctors are licensed and paid to do that), but neither can they demand treatment for a condition they refuse to disclose.  All the trial experts agreed patients have a duty to cooperate in diagnosis by giving an accurate medical history.

Of course, there are cases in which a patient=s condition is so obvious that cooperation is unnecessary, or so debilitating that it is impossible.  But such cases do not suggest there should be no duty to cooperate;  they suggest only that a patient=s condition may discharge it.  Like any reasonable‑person standard, a patient=s duty to cooperate requires only ordinary care under all the surrounding circumstances.

Jackson, 221 S.W.3d at 654.

In our previous opinion, a majority concluded, consistent with a number of sister-state  jurisdictions, that evidence of negligence on the part of Axelrad is not legally sufficient unless there is some evidence he was actually aware of the diagnostic significance of the unreported history.  Axelrad, 142 S.W.3d at 426B27.^[4] The Texas Supreme Court disagreed and stated that the question in this case is:  Awhether there was evidence from which reasonable jurors could infer Axelrad either knew or should have known he needed to report this information.@  Jackson, 221 S.W.3d at 658. Under the supreme court=s ruling, an Aordinary@ patient will not be assessed negligence for what he should have known.  However, the jury is allowed to Ainfer@ that an extraordinary or very intelligent patient  knew the significance of a particular symptom but failed to report it. 

The trial court instructed the jury that Anegligence,@ as used in relation to Axelrad=s conduct, meant Afailure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.@  The supreme court peered into the penumbra and divined the following from the jury charge: Aasking whether Axelrad exhibited ordinary prudence under the same or similar circumstances[,] at least allowed jurors to consider his training, even if it did not instruct them to do so.@  Id. at 657.  Notwithstanding the absence of a clear jury instruction on whether Axelrad knew or should have known about the significance of a particular symptom, in determining factual sufficiency of the evidence, we are necessarily confined to the supreme court=s pronouncements of Texas law.  Accordingly, on remand, we must also consider whether there is factually sufficient evidence to support the jury=s conclusion that Axelrad failed to report symptoms he Ashould have known@ were significant to accurate diagnosis of his condition.

Axelrad=s experience and training included passing judgment on other doctors as a member of state medical boards in California and Texas, giving more than 150 depositions as an expert in medical negligence cases, and four years practicing as an emergency room physician which included A>a lot of opportunities to examine abdomens.=@ Id. Additionally, his psychiatry practice included pain management.

However,  Axelrad points to the following evidence: he is a psychiatrist, not an internist; he was very ill when Dr. Jackson saw him; his knowledge about the significance of the point of origin of his pain was gained post-treatment; and his areas of litigation expertise were unrelated to the significance of the origin of his pain.  In each of these areas, however, the parties presented differing interpretations of the evidence.  For example, Axelrad characterizes his condition as being Adeathly ill@ and hardly able to speak when he saw Dr. Jackson.  In contrast, Dr. Jackson described Axelrad as looking Auncomfortable, but not deathly sick.@  Dr. Jackson also testified that  AMrs. Axelrad . . . gave most of the history. . . . I listened to her, and he punctuated some information about that.  And they told me about the discomfort . . . he was having.@

Additionally, the jury was presented with conflicts within Axelrad=s testimony. According to Dr. Jackson=s testimony, Axelrad did not tell him the pain originated in the lower left quadrant of his abdomen.  This testimony is consistent with Axelrad=s deposition testimony, which the jury heard.  At trial, however, Axelrad testified he did tell Dr. Jackson the pain originated in the lower left abdominal quadrant. The supreme court noted what Axelrad=s counsel said in opening argument: Aour grandmothers could all diagnose diverticulitis if you came in and said, >I have left lower quadrant pain.= @  Jackson, 221 S.W.3d at 657B58.  The court further suggested that if jurors did not credit this evidence in favor of Axelrad, Ait strengthened an inference that he (Axelrad) failed to exercise ordinary care when he failed to mention it.@ Id.  It was for the jury to judge the credibility of the witnesses and to decide the weight to be given to the testimony.  See Pascouet, 61 S.W.3d at 615B16.  Although we might reach a different answer on the evidence, we may not substitute our own judgment for that of the jury.  See Ellis, 971 S.W.2d at 407.

After considering both the evidence in favor of, and contrary to, the challenged finding, we hold the evidence was factually sufficient to support the jury=s finding that Axelrad was negligent on the theory that he knew or should have known but failed to disclose the specific origin and location of his abdominal pain.  Axelrad=s first issue is overruled.

B.      Proximate Cause

In his second issue, Axelrad argues the evidence was factually insufficient to support the jury=s finding that his negligence was a proximate cause of the occurrence in question.  The elements of proximate cause are cause in fact and foreseeability.  IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).  Cause in fact, or Abut for@ causation, means the party=s negligence was a substantial factor in bringing about the injury in question, and without which no harm would have been incurred.  See S. W. Key Program, Inc. v. Gil‑Perez, 81 S.W.3d 269, 274 (Tex. 2002).  The test for foreseeability is whether a person of ordinary intelligence would have anticipated the danger his or her negligence creates.  Id.  Foreseeability does not require the actor to anticipate just how the injuries will grow out of the particular dangerous situation.  Mo. Pac. R.R. v. Am. Statesman, 552 S.W.2d 99, 103 (Tex. 1977).^[5] The trial court instructed the jury accordingly:

AProximate cause,@ when used with respect to the conduct of David Axelrad, means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred.  In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.  There may be more than one proximate cause of an event.

In response to Axelrad=s legal-sufficiency challenge to proximate cause, the supreme court observed that the jury could have found a causal connection from the following evidence:  AAxelrad=s own expert testified >the only reasonable explanation= for the colon perforation and subsequent events was >the administration of that enema.=   Dr. Jackson testified had he known Axelrad=s pain began in the left lower quadrant, he would have suspected diverticulitis and not prescribed an enema.@  Jackson, 221 S.W.3d at 658.

However, as Axelrad correctly represents, Dr. Jackson did not make so direct a connection.  Instead, Dr. Jackson=s testimony can more accurately be summarized as indicating (1) the specific signs and symptoms of diverticulitis include fever, left lower quadrant abdominal pain, and usually constipation; (2) if Axelrad had presented with those symptoms, Dr. Jackson would have looked at the case quite differently; (3) if Dr. Jackson had known Axelrad had diverticulitis, Dr. Jackson would not have ordered an enema; but (4)  Axelrad reported no fever, reported diarrhea rather than constipation, and reported diffuse abdominal pain, the Avirtual[] opposite@ of the constellation of symptoms related to diverticulitis.

Nevertheless, the jury also heard evidence that the symptoms Axelrad actually presented were not so clearly defined and  mere suspicion of diverticulitis would have alerted  Dr. Jackson not to order an enema.  Dr. Jackson=s expert, Dr. Nicholas Sollenne, testified as follows:

Q       Now, also assume with me B and you have read the depositions B one thing all the doctors in this case agree on, sir B that=s Dr. Reardon, Dr. Dobbs and Dr. Canter and indeed Dr. Jackson B is that if you suspicion diverticulitis, it is never appropriate to order an enema, right?

A       I agree.

Q       So that is one thing that we all are in full agreement on in this case.  That=s not even an issue in your mind?

A       I agree.

Additionally, although Dr. Jackson=s record indicated Axelrad reported no fever, Axelrad testified he had reported low grade fever when he called the night before he was examined, and Dr. Jackson did not take Axelrad=s temperature during the examination.  Finally, although Axelrad may have reported diarrhea, Dr. Jackson stated he could not say Axelrad had constipation because his KUB (kidneys, ureter, and bladder x-ray) showed stool in two locations.

In sum, after examining the entire record and considering both the evidence in favor of, and contrary to, the finding in question one, we conclude the evidence was factually sufficient to support the jury=s finding that Axelrad=s negligence was a proximate cause of the occurrence in question (i.e., administration of the enema, which in turn caused damage to Axelrad=s colon).  See Pool, 715 S.W.2d at 635.  Accordingly, we overrule Axelrad=s second issue.

C.      Proportionate Responsibility

In his third issue, Axelrad argues the evidence was factually insufficient to support the jury=s finding that Axelrad was proportionately more responsible than Dr. Jackson.  In question two, the jury found forty-nine percent of the negligence causing the occurrence attributable to Dr. Jackson and fifty-one percent attributable to Axelrad.

The jury is given wide latitude in performing its sworn duty to serve as fact finder in allocating responsibility.  Ramirez v. Fifth Club, Inc., 144 S.W.3d 574, 589 (Tex. App.CAustin 2004), rev=d in part on other grounds, 196 S.W.3d 788 (Tex. 2006); see Tex. Civ. Prac. & Rem. Code Ann. ' 33.003 (Vernon Supp. 2007).  Even if the evidence could support a different percentage allocation of responsibility, we may not substitute our judgment for that of the jury.  See Samco Properties, Inc. v. Cheatham, 977 S.W.2d 469, 478 (Tex. App.CHouston [14th Dist.] 1998, pet. denied).

In his argument on this issue, Axelrad essentially characterizes himself as a non-physician patient.  Although Axelrad cites Dr. Jackson=s credentials to argue AJackson=s knowledge of the relevant medical science involved was superior to Axelrad=s,@ Axelrad virtually ignores evidence of his own credentials.  However, as the supreme court stated, AHaving presented himself to jurors as a person with superior knowledge, he [Axelrad] cannot complain that jurors might have taken him at his word.@  Jackson, 221 S.W.3d at 657.

In this case of first impression, the Texas Supreme Court has prescribed the patient=s legal duty relative to communication of medical history in a misdiagnosis case.  On remand, we have duly regarded the parameters of that duty in determining whether the evidence is factually sufficient to support the jury=s verdict.  We also note that the case law on which Axelrad relies involves non-physician patients and is therefore inapposite given the supreme court=s  instruction that jurors, in analyzing the Asame or similar circumstances@ are allowed to consider a physician patient=s special knowledge.  See id. 

Having considered and weighed all the evidence, we conclude the jury=s apportionment of responsibility is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  See Cain, 709 S.W.2d at 176.^[6] Because the evidence is factually sufficient to support the jury=s finding on this question, we overrule Axelrad=s third issue.

IV.  CONCLUSION

On remand, consistent with the supreme court=s determination of Axelrad=s legal duties in this medical-malpractice misdiagnosis case, we overrule Axelrad=s three issues.  Accordingly, we affirm the judgment of the trial court.

/s/      Charles Seymore

Justice

Judgment rendered and Majority Memorandum Opinion filed May 15, 2008.

Panel consists of Justices Anderson, Seymore, and Guzman. ( Guzman, J.,  concurs without opinion).

---

^[1]  Although Axelrad is also a physician, we will follow the convention of the prior opinions and refer only to Jackson by his professional title.

^[2]  See Tex. R. App. P. 47.4 (stating, if issues are settled, court should write brief memorandum opinion no longer than necessary to advise parties of court=s decision and basic reasons for it).

^[3]  At trial, Dr. Jackson proposed two additional theories under which Axelrad was allegedly negligent.  Jackson argued Axelrad was negligent for not taking care of his own health in the years preceding the occurrence in question and for not reporting he had undergone a proctoscope in 1994 with a resulting recommendation for a colonoscopy.  See Axelrad v. Jackson, 142 S.W.3d 418, 425, 428 (Tex. App.CHouston [14th Dist.] 2004), rev=d, 221 S.W.3d 650 (Tex. 2007).  This court held (1) Axelrad could not be considered comparatively negligent in relation to the former, and (2) there was no evidence of causation in relation to the latter.  See id. at 427B29.  In the supreme court, Jackson did not contest either of these holdings.  See Jackson v. Axelrad, 221 S.W.3d 650, 652 (Tex. 2007).  Our factual-sufficiency review is therefore confined to the claim that Axelrad was negligent in failing to recognize and report the origin of the pain.

^[4]  See Graham v. Keuchel, 847 P.2d 342, 358 (Okl. 1993) (holding patient=s knowledge of importance of her blood type and need to receive Rho-GAM shot during pregnancy but failure to advise doctors during her fifth pregnancy was some evidence of contributory negligence); Haynes v. Hoffman, 296 S.E.2d 216, 217 (Ga. Ct. App. 1982) (AIf a patient is aware that the physician is unaware of some aspect of the patient=s medical history which may involve a risk of harm to the patient, then ordinary care requires that the patient volunteer this additional information to the treating physician.@); Mackey v. Greenview Hosp., Inc., 587 S.W.2d 249, 255 (Ky. Ct. App. 1979) (AA patient is contributorily negligent only if he knows the physician is unaware of a condition which imposes a risk of danger to the patient and his failure to inform the physician is unreasonable under the circumstances.@). Although not cited in our earlier opinion, a number of other jurisdictions also seem to require actual knowledge. Fall v. White, 449 N.E.2d 628, 632B34 (Ind. Ct. App. 1983) (finding trial court correctly instructed jury on contributory negligence when evidence demonstrated patient knew of importance in giving complete and accurate information to physician); Jamas v. Krpan, 568 P.2d 1114, 1115B16 (Ariz. Ct. App. 1977) (holding testimony that patient who knew significance of breast lumps due to past history of breast lumps and treating physician=s instruction to return to have breasts examined raised jury question regarding contributory negligence); but cf. Moodie v. Santoni, 441 A.2d 323, 325B26 (Md. 1982) (holding contributory negligence instruction should be given to the jury when patient may have had actual knowledge of the importance of reporting certain symptoms but applying a Aknew or should have known@ standard).

^[5]  Axelrad does not contend the analysis of foreseeability in relation to duty is different from the analysis of foreseeability in relation to proximate cause.  See Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 663 (Tex. 1999) (Baker, J., concurring) (expressing concern about improper bootstrapping of proximate‑cause foreseeability into the threshold duty question).  Instead, Axelrad argues only that the evidence of foreseeability was factually insufficient for the same reasons the evidence was factually insufficient to support the jury=s finding he should have known the significance of the origin of his pain.  In section III. A., above, we held the evidence was factually sufficient to support this finding.  

^[6]  Axelrad also argues that the jury=s verdict was the result of bias and prejudice, rather than evidence.  After reviewing the entire record in which each party vigorously attacked the credibility of the other, we cannot conclude that the jury=s verdict was clearly wrong or unjust.  See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).