Chyanne Nichols v. Marc Aaron Wilson, M.D. Alliance Health Partners, PLLC And Alliance Ob/Gyn Specialists, PLLC

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00030-CV
___________________________
CHYANNE NICHOLS, Appellant
V.
MARC AARON WILSON, M.D.; ALLIANCE HEALTH PARTNERS, PLLC; AND
ALLIANCE OB/GYN SPECIALISTS, PLLC, Appellees
On Appeal from the 342nd District Court
Tarrant County, Texas
Trial Court No. 342-301065-18
Before Kerr, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
Appellant Chyanne Nichols1 appeals from a take-nothing judgment in a
medical-malpractice action rendered in favor of Appellees Marc Aaron Wilson, M.D.;
Alliance Health Partners, PLLC; and Alliance Ob/Gyn Specialists, PLLC. 2 A jury
answered “[n]o” to a charge question that asked whether Appellees’ acts were
negligent or a proximate cause of Appellant’s injuries.
Mrs. Dozier raises two issues on appeal. We will address her second issue—in
which she attacks the adverse jury finding on legal- and factual-sufficiency grounds—
first. We overrule this issue because the jury heard a battle of medical experts and
because the record establishes that there is some evidence supporting the jury’s
answer and that the answer is not against the great weight and preponderance of the
evidence.
We also overrule Mrs. Dozier’s first issue that challenges the trial court’s refusal
to permit her counsel to question one of Dr. Wilson’s expert witnesses on a particular
topic. Mrs. Dozier contends that it was error to prohibit questioning the expert about
whether he was biased because he had been sued by Mrs. Dozier’s counsel for
1
We will refer to Appellant as Appellant, Plaintiff, or Mrs. Dozier, which is her
married name and the name by which she was referred to during the trial.
2
With regard to Appellees, we will refer solely to Dr. Wilson as he is the doctor
who performed the procedure that is the subject of Mrs. Dozier’s claims of
negligence; the remaining Appellees are practice groups with which he is affiliated.
2
allegedly previously committing breaches of the standard of care similar to those that
she had alleged against Dr. Wilson. We overrule this issue because Mrs. Dozier never
explains how this one alleged error so tainted the record that it probably caused the
rendition of an improper judgment, i.e., how—in view of the numerous opinions
going both ways—the jury would have changed its answer if it had been privy to the
fact that one of Dr. Wilson’s experts had previously acted negligently or had injured
another patient. Here, the view that this restriction on cross-examination caused the
rendition of an improper judgment is even more unlikely because the expert’s
credibility had already suffered a blow from the cross-examination that resulted when
the expert changed his opinion in front of the jury, switching from his conclusion that
Dr. Wilson had not met the standard of care to one that he had. Further, the trial
court did not abuse its discretion by limiting the scope of cross-examination; to have
permitted cross-examination on the expert’s alleged prior negligence would have
created the real possibility of a lengthy trial within a trial dealing with whether claims
against the expert were similar to those alleged against Dr. Wilson and whether the
proof that would be offered to establish the existence and similarity of the claims was
appropriate. The trial court had the discretion to limit cross-examination of the
expert so as to not spend excessive time dealing with a subsidiary issue.
Based on our disposition of these issues, we affirm the trial court’s judgment.
3
II. Factual and Procedural Background
For six days, the jury heard testimony, including the testimony of twelve
medical doctors who offered opinions on whether the care that Mrs. Dozier had
received met the required standard of care and when and how her injury had
occurred. In the simplest terms, Plaintiff’s theory of the case was that Mrs. Dozier’s
bowel had been perforated during a procedure performed by Dr. Wilson and that the
standard of care required a “meticulous inspection and examination of the surgical
area” before ending the procedure “to ensure [that the surgeon had not] caused an
unintended injury to the surgical anatomy.” According to Plaintiff’s theory,
Dr. Wilson failed to meet this standard of care because he had not examined
Mrs. Dozier’s bowel before ending the procedure, even though the procedure he
conducted involved the bowel. 3
A. The medical procedure that is at issue in this appeal
Mrs. Dozier suffers from endometriosis, which is a condition that occurs when
“[t]he tissue that normally grows inside the uterus [grows] outside of the uterus.” It is
a persistent and painful condition. The procedure that is the focus of the instant suit
was the third procedure that Mrs. Dozier had undergone to treat her condition.
During the procedure at issue, Mrs. Dozier underwent a fulguration, which is a
burning of the uterine tissue growing outside of the uterus. The procedure on
3
The injury occurred to Mrs. Dozier’s transverse colon. For simplicity and
because the record frequently refers to the injury as having occurred to the bowel, we
will use that term when describing the organ involved.
4
Mrs. Dozier was performed laparoscopically. In essence, a laparoscopic procedure
involves using an instrument called a trocar to make small incisions in the patient’s
belly into which instruments are placed. In the procedure at issue, two incisions were
made—one in the belly button and the other below that point above the pelvis. As
the first step in the process, pneumoperitoneum—the introduction of air or gas into
the belly—occurred when carbon dioxide was introduced “in the abdomen to displace
the abdomen so that it’s away from the intestines.”
During the procedure at issue, two sets of instruments were inserted through
the incisions. A camera was inserted in one port, and as the procedure was
performed, the surgeon watched a screen on which the images from the camera were
projected. In this case, the inserted camera took color photographs at various stages
of the procedure, and the record contains sixteen color photographs taken at various
points throughout. The other port was used for the insertion of two other
instruments at different points during the procedure. The first was an endo shear,
which was described as a long stick with a little pair of scissors on the end and a
cautery device that was used to “burn off” any endometriosis that was found during
the procedure. The second instrument was a blunt probe.
During the laparoscopy, the patient’s body was positioned according to a
“steep Trendelenburg” procedure by which the patient’s feet were elevated and the
head was lowered. This procedure was intended to displace organs, including the
bowel, out of the abdominal cavity.
5
A central focus of the litigation was the contact of surgical instruments with
Mrs. Dozier’s bowel during the procedure. As a result of endometriosis and prior
procedures, scar tissue may form in the abdomen of a patient. This scar tissue creates
adhesions, which in this case were “the [bands of] scar tissue that [were] holding the
bowel to the other anatomy.” Because of the presence of these adhesions, even
though Mrs. Dozier was positioned using the Trendelenburg procedure, her bowel
was not completely displaced by the force of gravity. Instead, the adhesions had to be
lysed, i.e., cut through. Dr. Wilson described using both the blunt probe and the endo
shears to separate the bowel from surrounding tissue to “identify the endometriosis.”
The focus of Mrs. Dozier’s questioning of Dr. Wilson involved whether he had
adequately inspected the bowel before ending the surgery when he failed to use a
probe to look within the folded structure of the bowel to determine whether an injury
to it had occurred during the procedure.
B. The course of Mrs. Dozier’s illness that occurred after the
laparoscopic procedure at issue
Another central focus of the trial was Mrs. Dozier’s condition and the
treatment that she received in the days after the laparoscopic procedure performed by
Dr. Wilson. This was a central focus on the question of whether the bowel
perforation that was eventually discovered had occurred during the procedure
performed by Dr. Wilson or whether it had occurred in the days after the procedure.
The basic chronology of events is as follows:
6
8/24/16 Dr. Wilson performed the laparoscopic procedure at issue, and
Mrs. Dozier was discharged.
Same day One hour and 18 minutes after discharge from the surgery center
where the laparoscopic procedure was performed, Mrs. Dozier went to the
emergency room of a local hospital and reported pain at a level of nine out of
ten and nausea and vomiting. She also reported guarding and rebound
tenderness of the area where the surgery occurred.4 Dr. Wilson was consulted,
a sonogram was performed, pain medication was administered, and
Mrs. Dozier was sent home without being admitted to the hospital.
8/26/16 Mrs. Dozier returned to the emergency room again complaining
of severe pain. A CT scan was performed that was read as normal by a
radiologist (who was another defendant in this matter due to allegedly
misreading the scan). A gynecologist on call for Dr. Wilson was consulted but
did not come to the ER. Again, Mrs. Dozier was sent home without being
admitted to the hospital.
8/29/16 Mrs. Dozier returned to the emergency room. One of the new
symptoms that she reported was distension of her abdomen. Mrs. Dozier was
admitted to the hospital.
4
The record explains that “abdominal guarding [is] tensing of the abdominal
muscles to guard inflamed organs within the abdomen” and that “[r]ebound
tenderness is pain [that occurs] after removing pressure from the abdomen when
someone presses hands on the abdomen and then quickly removes them.”
7
8/30/16 In the early morning, another CT scan was performed. This CT
scan was read as “suspicious for developing intra-abdominal abscesses.”
Dr. Wilson testified that at this point, he consulted with Mrs. Dozier and her
mother and told them that he wanted to give the antibiotics that he had
administered time to work, but if there were a change, he would operate the
next morning. Dr. Wilson also testified that he decided to operate when
Mrs. Dozier’s white cell count increased.
8/31/16 Dr. Wilson performed surgery and found that there was a
perforation in Mrs. Dozier’s bowel. Upon discovery of the perforation,
Dr. Wilson called in a general surgeon who had been on standby to repair the
bowel. The surgeon removed the portion of the bowel that was perforated and
performed a colostomy.5
Post-8/31/16 Mrs. Dozier testified that, in the days after the colostomy,
her condition continued to worsen. Mrs. Dozier’s mother demanded that she
be transferred to another hospital, and she was. After transfer, another general
surgeon undertook the care of Mrs. Dozier. This surgeon also operated on
Mrs. Dozier and reported on the state of the infection that he found and how
portions of the wound had pulled apart. This surgeon also described the
5
As noted in the record, “[C]olostomy surgery is cutting the colon and then
reattaching one end to the skin through a hole in the abdomen so it can empty poop
into a bag.”
8
ongoing treatment of Mrs. Dozier over the ensuing months and the procedures
that she had to endure.
C. The effect that the bowel perforation had on Mrs. Dozier’s life
At the time of trial, Mrs. Dozier was twenty-five years of age. She testified
poignantly about the pain and anxiety that she had endured after the procedure
performed by Dr. Wilson and the course of treatment that she had also endured to
treat the bowel perforation, including having to wear a colostomy bag. Though she
had married and had given birth to a child after the events at issue, she and her
husband also testified about the lasting pain and effects on her life that the bowel
perforation had caused. For example, Mrs. Dozier’s husband testified that her pain
often reached a level that she had to be taken to the emergency room. Mrs. Dozier
described how the pain she experienced caused her to have panic attacks. She went
on to testify that she was no longer able to pursue activities that she had once
enjoyed, such as riding horses and racing mini sprint cars. She also described her fear
that the physical effects of the bowel perforation would impact her ability to engage in
activities with her daughter.
D. The clash that occurred at trial over whether Dr. Wilson had met
the standard of care when performing the laparoscopic procedure
At the outset of the testimony, Dr. Wilson agreed with Plaintiff’s counsel that
“the standard of care requires meticulous inspection and examination of the surgical
area following fulguration of endometriosis to ensure you haven’t caused an
9
unintended injury to the surgical anatomy, including the bowel.” Over the ensuing six
days of testimony, the jury was presented with a divergence of opinion on whether
Dr. Wilson had met this standard. Both sides’ experts were presented as highly
qualified in their fields and were strenuously cross-examined about their backgrounds,
qualifications, prior service as experts on one side of the docket or the other, and the
tens of thousands of dollars in fees that they had received for serving as experts in this
case.
On Plaintiff’s side of the equation, a gynecological surgeon testified in detail
about the surgical procedure that Mrs. Dozier had undergone. This expert opined
that Dr. Wilson had injured Mrs. Dozier’s bowel “[w]ith the combination of lysis of
adhesions and the fulguration of endometriosis.” He relied heavily on the
intraoperative photographs, which were the “colored pictures that Dr. Wilson actually
took . . . during his surgery.” This expert took the jury through the procedure using
the photos. The expert pointed out the anatomy on which Dr. Wilson had performed
the procedure and criticized his using only endo shears and not some type of grasper
because the endo shears transmitted electricity to cauterize and because using the
shears could cause an injury to the tissue touched by the shears. The expert identified
areas in the photos where he concluded that the endo shears had caused an injury to
the surrounding tissue. The expert also opined that Dr. Wilson had been lysing
adhesions in the area where it was later discovered that Mrs. Dozier’s bowel was
perforated. The expert opined on what Dr. Wilson should have done to meticulously
10
inspect the surgical area and concluded that the matters on which Dr. Wilson had
relied (such as a lack of bleeding—referred to as hemostasis—and watching what he
was doing as he performed the procedure) were not adequate to meet the standard of
care for meticulous inspection.
A general surgeon who operated on Mrs. Dozier after she was transferred to
another hospital also presented opinions of the standard of care for a general surgeon.
This expert operated under a presumption that “if you have a procedure today and
two days or three days from now you have a bowel perforation, until you prove
otherwise, it’s what happened at the time of the procedure.” He further opined that it
was the duty of the surgeon to inspect an area where he had been lysing adhesions
and to “be certain that there [was] no injury to the bowel.” This expert also opined
that hemostasis alone constitutes inadequate inspection of the surgical area. In
essence, the expert concluded that “if you don’t look for it, you won’t find it.”
A defense expert, whose deposition testimony was introduced by Plaintiff,
testified that his “best guess” was that “the injury that caused [Mrs. Dozier’s] bowel to
perforate was in all probability part of [the laparoscopic] procedure.” He also opined
on the “standard of care require[d] . . . for intraoperative repair of serosal [the outer
layer of the colon] injury if it’s identified prior to closure of a procedure” and stated
that the “standard of care requires a gynecologic surgeon to meticulously inspect the
bowel in the operative field to identify full thickness and serosal injuries prior to
closure.” This expert, however, did not provide an opinion on whether Dr. Wilson
11
had violated the standard of care when he performed the laparoscopic procedure on
Mrs. Dozier.
Marshalled against Plaintiff’s experts’ opinions and that of the expert quoted in
the preceding paragraph were those of Dr. Wilson and the other defense experts.
When questioned by his counsel, Dr. Wilson testified that he had met the applicable
standard of care, that he was not negligent, and that his care did not proximately cause
an injury to Mrs. Dozier. In response to questions from his counsel, Dr. Wilson
described the process that he had followed as outlined in his operation report:
Q. Okay. Second page of your operation report, what’s my pen
pointing to?
A. Trendelenburg position. Steep Trendelenburg.
Q. We discussed that already, correct?
A. Correct.
Q. What’s the word it’s pointing to?
A. Pneumoperitoneum.
Q. What is that?
A. [CO2] gas in the abdomen.
Q. Okay. You create a pneumoperitoneum when you put in the
[CO2] gas?
A. Correct.
Q. You talk about a second port. Would you be kind enough to
read that?
12
A. A second port was then placed in the left upper quadrant.
Q. Okay.
A. Was done on direct visualization.
Q. Where would that be?
A. Up here (indicating).
Q. Okay.
A. Yeah.
Q. Read that sentence, please.
A. The Endo Shears were then used to take down the filmy
adhesions and cauterize the endometrial implants noted in the upper
gastric region of the abdomen.
Q. Read that.
A. Good hemostasis was noted.
Q. What is hemostasis?
A. Bleeding. There’s no -- there’s no bleeding whatsoever.
Q. Okay. Now, follow me. I’m going to ask you a question.
A. Okay.
Q. When you are doing the procedure, is -- I asked this earlier --
but is the camera in?
A. Correct.
Q. All right. Every cut with the Endo Shears, is the camera on
the cut?
A. Yes.
13
Q. Okay. Every manipulation or takedown with a blunt-forced
instrument, is the camera there?
A. Yes.
Q. Okay. So when you -- when you say “good hemostasis,”
[your] meaning was obtained or the good hemostasis was noted. What
does that mean?
A. That means that when I did the procedure and once I took
down the adhesions, because of the possibility of bleeding, which is a
very common complication associated with this procedure, we wanted to
make sure that that was not the case, that she did not have any bleeding
after we took down those adhesions.
Q. All right. So if I have a camera pointed on this --
A. Uh-huh.
Q. -- in the abdomen and I’m taking down adhesions along
where the lining is at --
A. Right.
Q. -- my camera is pointing at it, and then I create good
hemostasis, am I looking at exactly where my cutting or blunt-forced
instruments were at?
A. Absolutely.
Q. If you had an injury to the bowel of any sort, would you see it
while you’re verifying your hemostasis?
A. You would.
Q. Okay. Now, you don’t go and say in your report specific
words of “I looked for injury to a bowel,” you don’t say those words, do
you?
A. No.
14
Q. Okay. Why not?
A. Because I didn’t have an injury. I wasn’t -- when we looked at
the adhesions and when we were doing the procedure, I was taking
down the adhesions; so the bowel may have been in the vicinity, but it
was not in the area that I was operating in.
Q. Okay. Every place that you cut, you’ve got a camera?
A. Correct.
Q. Every place there’s a blunt-forced instrument, you’ve got a
camera?
A. Correct.
Q. Every place you do that, you check for hemostasis?
A. Correct.
Q. And if you see nothing, you know there’s no injury there at
all?
A. Correct.
Q. To any structure?
A. Right.
Q. Okay. Did you do anything different in Mrs. Dozier’s
procedure after, whatever it was, 20 years of doing these? Did you do
something -- and you never had one -- did you do something different in
hers?
A. Absolutely not.
Q. Did you get in a hurry in hers?
A. No.
Q. But even though you never had before?
15
A. No.
Q. Did you exercise less skill and less concern and less
observation in hers than you did in any of the other ones for 19 years?
A. Absolutely not.
Q. In reasonable medical probability, can you tell us whether or
not you believe there was a bowel perforation at the end of your
procedure when you finished?
A. No, there was not.
....
Q. Do the pictures show any evidence of a bowel perforation?
A. No.
Q. In the totality of what you saw through the camera during
your procedure, did you ever see any sign or symptom or evidence of a
bowel perf at all that was apparent to you?
A. No, absolutely not.
Q. And during your procedure, did you look in the areas where
you removed or blunt-forced adhesions, did you look, while doing it, for
injury to surrounding structures?
A. Yes.
Q. And did you see it anywhere?
A. No.
Though he had initially agreed with Plaintiff’s counsel that Dr. Wilson had not
met the standard of care, the defense’s first expert on the standard of care stated his
opinion that Dr. Wilson had appropriately evaluated Mrs. Dozier before ending the
16
procedure.6 Emphasizing facts similar to those emphasized by Dr. Wilson, this expert
noted that the operative record showed good hemostasis. The expert then went on to
express why he had concluded that Dr. Wilson had acted within the standard of care:
Q. From your review of the medical records and your review of Dr.
Wilson’s sworn deposition testimony, can you tell us whether or not you
have an opinion as to whether or not he would have, during the
procedure, while lysing adhesions, have been able to see whether or not
injuries to the bowel had occurred?
A. Yes, I have formed an opinion.
Q. And that is what?
A. That Dr. Wilson took pictures before he did the surgery and
he actually took pictures during the surgery while he was actually cutting,
lysing the adhesions, and then he took pictures after the surgery where
you could see the adhesions were now gone. The area that he burned to
get rid of the endometriosis fulgurated, cauterized[,] and you could see
the bowel in there. And then he looked for bleeding or no bleeding, and
since there was no bleeding, he had to evaluate the area.
So, yes, that’s my opinion.
The expert later testified that it was not necessary to look twice at the area where
procedures were performed. He reiterated that Dr. Wilson had looked because
Dr. Wilson had reported good hemostasis, which indicated that he had looked at the
areas that he had lysed because he could not “evaluate hemostasis without looking at
all of the areas where he [had] lysed adhesions.” The expert also noted that the
general surgeon—who had operated on Mrs. Dozier at the second hospital, who had
Whether the trial court erroneously limited the scope of this expert’s cross-
6
examination is the subject of Mrs. Dozier’s first issue.
17
testified as a Plaintiff’s expert, and whose testimony is outlined above—produced an
operative report that did not “say anywhere in here that at the conclusion of his lysing
of adhesions that he looked all over the bowel and all up and down the bowel for a
double look or a second look before he says my hemostasis was good.” Instead, that
surgeon’s notation—“my hemostasis was good”—was the same as Dr. Wilson’s.
The defense’s second expert who testified on whether Dr. Wilson had met the
standard of care stated that Dr. Wilson was not negligent. The second defense expert
opined that the operative report prepared by Dr. Wilson with respect to the procedure
at issue was excellent. He noted that the report included sixteen photos and described
the taking of that many photographs as going above and beyond. The number of
photographs indicated that “this is someone [who] cares about what [he is] doing and
is taking care during the conduct of the surgery.” The second defense expert on the
standard of care went on to describe his conclusions as follows:
[Q.] If a doctor notes in [his] operative report good hemostasis, what
does that mean to you?
A. It means that there wasn’t bleeding.
Q. If you’re looking at where you’re lysing and you’re taking
down adhesions, and you note good hemostasis, is there any way to do
that, to note good hemostasis without having looked exactly everywhere
you lysed and everywhere you cut adhesion?
A. No. I mean, if you note that, it means you looked.
Q. So when Dr. Wilson’s operative report notes good hemostasis
was noted, and he notes that before the procedure was completed, as a
peer-reviewer at one of the more well thought of institutions in -- I think
18
in the world, does that tell you whether or not Dr. Wilson evaluated and
looked at every single place where he lysed or cut an adhesion?
A. Yeah. I mean, I would say that, you know, he’s -- he
described -- he’s described the steps of the surgery and what he saw very
well, and part of doing surgery is looking at what you’re doing and seeing
it, and knowing if, in fact, you need to go back and look at something
again.
So I’m confident that he’s describing that very well, and that good
hemostasis was noted and that nothing was seen that looked unusual.
And there’s more confidence in that opinion because based on the fact
that there’s 16 pictures. So I mean, there’s a lot here that shows me that
the conduct of the case was good.
The defense’s second expert on the standard of care stated the same opinion
that had been given by the first expert that a “second look” of the surgical area was
not required:
Q. If Dr. Wilson is looking with a camera on the big screen while lysing
adhesions, if he’s further noting in his op report that he has good
hemostasis, meaning there’s nothing seen in that area and that he’s
looking, and if he further has documented bits and pieces of this with 16
pictures, more than what you would have ever seen, do you think
Dr. Wilson has met the standard of care?
A. Yes, I do.
Q. And do you think that there was anything required by the
standard of care for Dr. Wilson, after he had done all of this, to go back
and just re-explore the entire abdomen a second time before he closes?
A. No.
Q. And, in fact, not only do you say that’s not the standard, do
you even see reasonable prudent well-trained doctors at your medical
institution, when they’ve done everything that Dr. Wilson did, and we
know he did, they don’t go back and re-explore for a second look before
they close, do they?
19
A. No.
The defense’s second expert on the standard of care was subject to a lengthy
and dogged cross-examination. The expert agreed that the standard of care required a
meticulous inspection of the surgical area before ending the laparoscopic procedure
and that “[i]f you lyse adhesions on the bowel, you would inspect it.” The expert
conceded that he was not aware that Dr. Wilson had lysed on Mrs. Dozier’s bowel
“prior to coming in here.” A continued back-and-forth exchange ensued, with
Plaintiff’s counsel trying to back the expert away from his opinion that Dr. Wilson
had conformed to the standard of care based on Dr. Wilson’s statement that he had
lysed adhesions on the bowel but not inspected it before ending the procedure and
the expert’s sticking by his opinion that Dr. Wilson had acted within the standard of
care. For example,
Q. And you’ve now learned that contrary to what your thought was,
that [Dr. Wilson], in fact, did cut adhesions on the transverse colon, but
you’re still refusing to change your opinion, right?
A. I mean, he -- you know, it’s -- you’re trying to oversimplify
this. I mean, an adhesion -- the adhesion that he was describing that was
attached to the transverse colon may have actually been eight or nine
inches away from the transverse colon. He may have cut the adhesion at
the abdominal wall. The adhesion may have been six inches away.
So, I mean, again, I didn’t talk to him about the case or hear about
this before, but it’s unlikely that the transverse colon was attached to the
abdominal wall in this area where he was lysing the adhesions. I mean,
the transverse colon lies on the posterior part of the abdominal cavity,
and it would be very unlikely that the whole transverse colon was up
there and he was cutting right on the transverse colon. That’s the
anatomy.
20
At another point, the following exchange occurred,
Q. And that’s the reason that you can’t just rely on looking in one
direction while you’re cutting to make sure you didn’t cause an injury,
because you have to go back and inspect and make sure it’s not in one of
those folds or where the bowel is turned, right?
A. I mean, as I said before and I’ll say again, I mean, he was
looking at the area that he was lysing adhesions on, and he was doing a
meticulous inspection of that area while he was doing it, and that’s what
you need to do.
Another defense theme relied on literature that reported delayed diagnosis in a
large percentage of bowel injuries occurring during laparoscopic surgery. Countering
this literature, Plaintiff’s counsel noted that the literature included a broad range of
procedures and that the types of injuries not found were of a different and more
difficult to find type than the injury that was allegedly caused by Dr. Wilson.
E. The clash that occurred at trial over when and how Mrs. Dozier’s
bowel perforated
Another hotly contested issue before the jury was when the perforation in
Mrs. Dozier’s bowel had occurred. Plaintiff’s theory was obviously that the
perforation had occurred during the laparoscopy and that the meticulous inspection
of the surgical area required by the standard of care would have revealed its presence.
The defense’s theory was that other forces not caused by the procedure, or which
were not apparent during the procedure, caused the perforation and that the
perforation did not occur until shortly before its discovery during the follow-up
surgery conducted by Dr. Wilson and the general surgeon who was called in to
21
perform the colostomy. A host of disputes arose during which each side tried to
support its position and undermine that of its opponent.
The parties clashed as to whether the visits that Mrs. Dozier had to the
emergency room on the day of and two days after the laparoscopic procedure
suggested the existence of a bowel perforation or were more indicative of normal
post-operative complaints. The defense view characterized the symptoms that Mrs.
Dozier manifested as not creating a high index of suspicion—i.e., a doctor would not
consider a certain diagnosis to be a strong possibility—that a perforation was present.
A central feature of this view was that Mrs. Dozier had displayed similar complaints
after a prior laparoscopic procedure when no bowel perforation had been present.
Indeed, the jury heard from another defense expert who testified as follows:
Q. Between your report and your deposition, do you think we’ve
covered all of your opinions?
A. Not quite.
Q. Okay. What haven’t we covered?
A. Well, again, it’s my opinion that three different teams
evaluated [Mrs. Dozier] from the time that she had her initial surgery to
the time that her bowel injury was -- from the time of re-op, let’s say
that. So there was a seven-day period between the surgery Dr. Wilson
performed and the second surgery at which he took part where her
bowel was initially repaired. And it’s -- it’s my opinion that of those
three teams -- you know, the first being the two nurses at post-op, the
next being that first ER encounter[,] and the third team being the ER
encounter 24 hours later, [Mrs. Dozier] was never admitted. So you
could say that all three teams missed a bowel perforation. I think that’s
less likely than the fact that her bowel perforation hadn’t happened yet.
22
She had some pretty vague symptoms that are pretty common; she’s
nauseated, she’s hurting.
And then Team 1 sends her home and Team 2 sends her home
and Team 3 sends her home, but eventually she gets sick. And in my
experience, these patients get very sick. They’re febrile, you can just spot
them across the room. And working in the ER, I make probably one of
these diagnos[e]s every three or four months. I work one day a week as
an ER doctor myself GYN ER, so that -- I don’t think we dove real
deep into that part of things.
Plaintiff’s counsel challenged this view by arguing that the conclusions drawn
were either simply wrong or had failed to account for subtleties regarding why
Mrs. Dozier did not exhibit worrisome symptoms. Plaintiff’s counsel cross-examined
Dr. Wilson on a number of points, such as whether (1) his action in admitting
Mrs. Dozier to the hospital after a prior laparoscopy was consistent with his failure to
admit her when she returned to the ER after the procedure at issue, (2) the fact that
the differential diagnosis during her second visit to the ER included a suspicion of
bowel perforation, (3) Mrs. Dozier’s white blood cell count during her second ER
visit indicated infection, (4) the fact that Mrs. Dozier did not exhibit all the signs of a
bowel perforation in her ER visits before she was admitted to the hospital did not rule
out the possibility that she had a perforation based on the symptoms that she did
exhibit, and (5) Mrs. Dozier had been constipated during the visits to the ER before
her admission. As another example, the defense noted that Mrs. Dozier was not
running a temperature; that fact was countered by the fact that Mrs. Dozier was being
given medication to reduce her temperature. Other challenges to the contention that
23
her symptoms did not create a high degree of suspicion were whether her abdominal
guarding and rebound tenderness were symptoms that should have been viewed as
signs of developing peritonitis.
Counterposed to these challenges, a defense expert opined that Mrs. Dozier
could not have demonstrated the symptomology that she had on her second visit to
the ER if a perforation had been releasing feces into her system for two days before
that visit:
Q. All right. Do you think in reasonable medical probability that
Mrs. Dozier could have had a perforation in her bowel on, let’s take the
26th of August, and had been spilling poop into her abdomen for two
days and gone in and had no fever, no elevated white count, no
abdominal distention, that all of these things could have been normal if
she had been spilling poop into her abdomen for two days?
A. No, I don’t think that that could be possible and/or probable
and -- to the best of my medical decision.
The jury also heard testimony about the findings of the CT scan conducted
during Mrs. Dozier’s second visit to the ER, and the conflicting evidence regarding
whether the level of air and fluids or indicators of an abscess in that scan suggested
the presence of a perforation. One of the defendants who settled with Mrs. Dozier
during trial was the radiologist whom she claimed had misread the CT scan, and
Mrs. Dozier presented expert testimony that the findings in the scan were much more
dire than the radiologist had reported. But before his dismissal, the radiologist
defendant strenuously defended his reading of the scan and his conclusion that the
scan did not betray the signs of infection suggesting a perforation.
24
The jury also heard about what was revealed during the surgery on August 31
when the perforation was discovered. Dr. Wilson described the fecal matter
discovered during the surgery as “fresh.” The general surgeon who performed the
colostomy during the August 31 surgery was more explicit in his opinion that the
perforation was recent. The surgeon stated this opinion in response to a question
asked of him by Dr. Wilson’s counsel:
Q. Let me just stop right there for a second.
You said it was fresh -- it was a fresh perforation of the bowel.
Upon what did you -- what did you see, what did you observe that tells
you that this was a fresh perforation of the bowel, and what time are you
talking about?
A. Well, when a bowel perforates and you get spillage of bowel
contents into the abdomen, when it’s initially there, it’s just that, it’s just
stool that’s within the abdominal cavity. It hasn’t had time to set up a
significant infectious inflammatory process.
When people have had a perforation of their bowel that is partly
contained by the normal healing processes in the abdomen, you get the
development of a thick, yellowy, infected material, and we didn’t see
that. We saw just some cloudy fluid, which was the start of an infection.
Might have been leftover fluid from the original operation Dr. Wilson
did, but we didn’t see any signs that there was any several-day history of
ongoing infection.
So we saw that stool. The immediate step is to stop that stool
from leaking, which we did, and then we cleared all of the stool from the
abdominal cavity, cleared it out completely, and then I made the decision
that a colostomy would be the best option for her.
In terms of the timing, I’m not sure. That’s how we progressed
with the operation. Do you mean the timing of -- what I think the
timing of the perforation was?
25
Q. Yeah. You said it was a fresh perforation of the bowel and
you now explained why, and I -- I don’t even know what you’re going to
say, but what time period do you think this perforation existed?
A. A few hours. Probably at or about the time she would have
come back to the emergency room that evening.
The surgeon also supported his position about the age of the perforation and what
caused the perforation by the nature of the necrosis—dead tissue—associated with
perforation. When challenged that it takes time for necrosis to develop, the surgeon
opined that the necrosis indicated that there had been tissue death rather than
penetration by an instrument.
The surgeon’s conclusions that he gained from seeing the necrosis illustrated
another conflict in the testimony about the cause and timing of the perforation. The
pathologist who examined the section of bowel removed by the surgeon testified that
the necrosis that she saw was possibly inflicted by an instrument:
Q. Then you say sections of the transmural defect show focal bowel
necrosis with acute inflammation in keeping with the clinical perforation.
So let’s break down a little bit of that. We already talked about
the transmural defect being the through-and-through hole from the
outside all the way through the inside layer, right?
A. Correct.
Q. And then . . . show focal bowel necrosis, tell us what that is.
A. Focal bowel necrosis means part of the bowel wall is dead.
Q. And that would be from a lack of blood supply being able to
get to it?
26
A. You know, many things cause tissue to be dead, but ultimately,
that’s -- that’s the underlying cause.
Q. But you could have that focal bowel necrosis from an
instrumental injury, you would still have that focal bowel necrosis; is that
right?
A. Yes.
Q. And so, for instance, if there was a surgical instrument that
caused that focal transmural defect, those are the types of findings you
could have, would be the focal bowel necrosis?
A. Correct.
In the following exchange, Plaintiff’s counsel also highlighted that the
surgeon’s opinion was at odds with that of a pathologist who had reviewed the bowel
section:
Q. And when [the pathologist] was asked, “There’s nothing in your
findings that would indicate that it’s not a bowel perforation from an
instrument seven days before,” what was her answer?
A. She said, “Correct.”
Q. And you are in no position to challenge her pathology
findings in that regard, right?
A. I believe I am[] because I believe that the tissue necrosis
occurred and then later the bowel perforation occurred.
In his redirect of the surgeon, Dr. Wilson’s counsel then highlighted other responses
from the pathologist by which she acknowledged that she could not state the cause of
the injury and could only date it within a reasonable medical probability to be at least a
day old.
27
With respect to the timing of the perforation, the jury also heard from a
gynecological pathologist presented by the defense who stated his opinion as follows:
Q. Okay. Can you date the bowel injury in this case to be any older
than 24 hours?
A. I think, if I want to, based on the . . . pathologist report[ of]
Dr. Hopkovitz, and the bowel injury probably was within a day or so.
Q. Okay. Bowel injury probably occurred within a day or so?
A. Uh-huh.
Q. Yes or no?
A. Yes.
Q. Why?
A. Because there is only focal necrosis and acute inflammation
mentioned in that area.
Q. All right. Bowel injury, if you aged it, from your perspective
and probability, it’s within a day or so; and you base that upon the report
of focal necrosis and acute inflammation. Did I say that correctly?
A. Correct.
Of course, if Mrs. Dozier’s bowel were not perforated during the laparoscopy,
the question became what caused it to perforate. This presented the jury with another
clash of expert opinions. The defense presented a theory of a spontaneous
perforation. Dr. Wilson thought perhaps the wall of the bowel was weakened during
the procedure and later perforated. He explained this possibility in response to a
question by Plaintiff’s counsel:
28
Q. Okay. So you have no evidence there was endometriosis. You have
no evidence there was weakening. You have no evidence that this
spontaneous perforation happened, you’re just guessing that, right?
A. So, no. So, again, when you think about the anatomy and the
fact that the bowel is extremely thin, and you have the bowel that’s
extremely thin attached to the adhesion, this stuff there, so it’s not
inconceivable to think that once you tease that bowel away that you
could get a potential injury to the bowel in that area once you tease it,
because the bowel is attached to the adhesion.
So if I’m moving the adhesion down and the bowel is attached
there, then that could certainly happen.
Other defense experts echoed similar opinions. For example, the following
quote from a deposition was read to the jury:
“Doctor” – [P]laintiff’s counsel -- “so how is it you believe the
perforation occurred to [Mrs. Dozier’s] transverse colon?” That was his
question. 22, line 23 by [P]laintiff’s counsel. Answer, “I think that -- I
think that, you know, something happened. I think that there is some
validity to the theory that she had a weakened bowel wall from
endometriosis, that somehow lysed adhesions weakened further. I think
that’s my -- that’s my -- that’s the theory they would go with, that you
know the surgery that was done, the lysis of adhesions and fulguration
somehow weakened and already -- what was possibly an already weak
bowel wall, and, you know, it caused it to eventually rupture.” That’s the
totality of his answer.
Another defense expert responded to the following question on cross-
examination:
[Q.] Now, you have an opinion that what may have happened[] was
there was an endometriosis on the transverse colon that spontaneously
ruptured sometime after surgery, right?
A. That’s my conclusion, yes.
29
Plaintiff’s counsel attacked these opinions because of an absence of evidence of
endometriosis on Mrs. Dozier’s bowel and the fact the medical literature recorded no
prior incident of a spontaneous bowel perforation due to endometriosis. Another
Plaintiff’s expert opined that he could “rule out in reasonable medical probability that
there was a spontaneous rupture of endometriosis that caused this [bowel]
perforation.”
Plaintiff’s counsel also noted that the pathologist who examined the section of
Mrs. Dozier’s bowel that was removed during the August 31 colostomy identified
certain types of cells associated with inflammation but did not identify those as the
type of cells associated with endometriosis. In turn, this opinion was challenged by
the defense pathologist who testified that the first pathologist had not done the
necessary testing of the cells to determine whether they were endometrial or not.
Based on Mrs. Dozier’s clinical history, the defense pathologist testified that the
likelihood of endometriosis involvement in her bowel was high.
F. The jury’s verdict that Dr. Wilson’s actions were not negligent or a
proximate cause of Mrs. Dozier’s injuries
The charge’s definitions of negligence, ordinary care, and proximate cause were
routine:
14. “Negligence,” when used with respect to the conduct of
[Dr. Wilson,] means failure to use ordinary care, that is, failing to do that
which an obstetrician gynecologist of ordinary prudence would have
done under the same or similar circumstances or doing that which [an]
obstetrician gynecologist of ordinary prudence would not have done
under the same or similar circumstances.
30
15. “Ordinary care,” when used with respect to the conduct of
[Dr. Wilson], means that degree of care that an obstetrician gynecologist
of ordinary prudence would use under the same or similar
circumstances.
16. “Proximate cause,” when used with respect to the conduct of
[Dr. Wilson], means a cause that was a substantial factor in bringing
about an injury, and without which cause such injury would not have
occurred. In order to be a proximate cause, the act or omission
complained of must be such that an obstetrician gynecologist using
ordinary care would have foreseen that the injury, or some similar injury,
might reasonably result therefrom. There may be more than one
proximate cause of an injury.
There were no objections to the charge.
The jury answered only one question in the charge:
QUESTION NO. 1:
Did the negligence, if any, of those named below proximately
cause the injury in question?
Answer “Yes” or “No” for each of the following:
1. [Dr. Wilson]: No
The trial court signed an amended final judgment that Mrs. Dozier take
nothing from Dr. Wilson. Mrs. Dozier filed a “Combined Motion for New Trial and
Alternative Motion For Judgment Not Withstanding [sic] the Verdict,” which was
overruled by operation of law. Mrs. Dozier then filed a notice of appeal.
31
III. Analysis
A. Mrs. Dozier’s legal- and factual-sufficiency challenges to the jury’s
response to Question No. 1 of the charge fail.
Though we have tried to be thorough in our factual background, a summary
cannot capture the give and take that occurred in the 1,300 pages of testimony in the
reporter’s record that chronicled the bout in the trial court. Appellant’s brief’s second
issue predicates its sufficiency analysis on the several punches that Plaintiff’s counsel
threw during the bout that landed hard. But it fails to acknowledge that the jury sat
through the bout and scored the punches of the contestants that were hard hits,
glancing blows, or failed to connect at all. In the end, the jury scored the bout in
Dr. Wilson’s favor. The legal- and factual-sufficiency standards of review do not
permit us to rescore the jury’s determination, especially since Plaintiff had the
handicap of bearing the burden of proof.
B. Standards of Review
1. We set forth the legal-sufficiency standard of review.
When a party attacks the legal sufficiency of an adverse finding on an issue on
which the party had the burden of proof—as Mrs. Dozier does in this appeal—the
party must demonstrate on appeal that the evidence establishes, as a matter of law, all
vital facts in support of the issue. Cath. Diocese of El Paso v. Porter, 622 S.W.3d 824, 834
(Tex. 2021). In reviewing a “matter of law” challenge, we must first examine the
record for evidence that supports the finding, while ignoring all evidence to the
32
contrary. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). If no evidence
supports the finding, then we will examine the entire record to determine if the
contrary position is established as a matter of law. Id. We will sustain the issue only if
the contrary position is conclusively established. Id. Evidence conclusively
establishes a fact when the evidence leaves “no room for ordinary minds to differ as
to the conclusion to be drawn from it.” Int’l Bus. Mach. Corp. v. Lufkin Indus., LLC,
573 S.W.3d 224, 235 (Tex. 2019).
2. We set forth the factual-sufficiency standard of review.
When a party attacks the factual sufficiency of an adverse finding on an issue
on which she has the burden of proof, that party must show that the adverse finding
is against the great weight and preponderance of the evidence. Francis, 46 S.W.3d at
242. When reviewing an assertion that the evidence is factually insufficient to support
a finding, we set aside the finding only if, after considering and weighing all the
pertinent record evidence, we determine that the credible evidence supporting the
finding is so weak, or so contrary to the overwhelming weight of all the evidence, that
the finding should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715
S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
33
3. We set forth the burden of proof in a medical malpractice
suit and how conflicting medical expert testimony creates a
battle of the experts that is within the purview of the jury to
decide.
The elements of a medical malpractice suit are simply stated as follows:
A medical malpractice plaintiff bears the burden of proving “the
existence of a legal duty, a breach of that duty, and damages proximately
caused by the breach.” Windrum v. Kareh, 581 S.W.3d 761, 768 (Tex.
2019) (quoting Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017)).
Establishing a breach of a duty requires proof of the applicable standard
of care, which is defined as “what a doctor of ordinary prudence in that
particular field would or would not have done under the circumstances.”
Id.Collins v. Vivanco, 603 S.W.3d 843, 847 (Tex. App.—El Paso 2020, no pet.).
It is axiomatic that expert testimony is usually necessary to establish the
standard of care in a medical malpractice suit. Carl J. Battaglia, M.D., P.A. v. Alexander,
177 S.W.3d 893, 899 (Tex. 2005) (stating that “as in most health care liability cases,
[the standard of care] must be established by competent expert testimony”); St. John v.
Pope, 901 S.W.2d 420, 423 (Tex. 1995) (observing that the “standard of care demanded
in medical malpractice cases requires skills not ordinarily possessed by lay persons”
and “typically requires expert testimony to establish the medical standard of care”
(citing Hood v. Phillips, 554 S.W.2d 160, 165–66 (Tex. 1977))). The same is true with
respect to evidence of causation—“[i]n medical malpractice cases, expert testimony
regarding causation is the norm: ‘The general rule has long been that expert
testimony is necessary to establish causation as to medical conditions outside the
34
common knowledge and experience of jurors.’” Jelinek v. Casas, 328 S.W.3d 526, 533
(Tex. 2010).
As we have explained, medical malpractice cases often present a “battle of the
experts,” and it is the jury’s role to sort out which expert’s testimony it credits:
In a battle of competing experts, it is the sole obligation of the jury to
determine the credibility of the witnesses and to weigh their testimony.
See Welch v. McLean, [191 S.W.3d 147, 160 (Tex. App.—Fort Worth 2005,
no pet.) (op. on reh’g), disagreed with on other grounds by Phillips v. Bramlett,
288 S.W.3d 876 (Tex. 2009);] Warner v. Hurt, 834 S.W.2d 404, 408–09
(Tex. App.—Houston [14th Dist.] 1992, no writ). It is particularly
within the jury’s province to weigh opinion evidence and the judgment
of experts. Cruz[ v. Paso del Norte Health Found.], 44 S.W.3d [622,] 647
[(Tex. App.—El Paso 2001, pet. denied)] (citing Pilkington v. Kornell, 822
S.W.2d 223, 230 (Tex. App.—Dallas 1991, writ denied)). The jury
decides which expert witness to credit. Id.Morrell v. Finke, 184 S.W.3d 257, 282 (Tex. App.—Fort Worth 2005, pet. denied); see
also Gunn v. McCoy, 554 S.W.3d 645, 665 (Tex. 2018) (“Like many medical-malpractice
cases, this case involved a battle of the experts. In such cases, jurors are the sole
judges of the credibility of the witnesses and the weight to give their testimony.”
(citation omitted)).
In Morrell, we also noted the constraints that we operate under when reviewing
a record that presents a conflict—such as battling expert opinions—for the jury to
resolve:
When we review evidence, we are not free to reweigh the evidence and
set aside a jury verdict merely because we feel a different result is more
reasonable. Pool . . . , 715 S.W.2d [at] 634 . . . . We may not merely
substitute our opinion for that of the trier of fact and determine that we
would reach a different conclusion. Cruz, 44 S.W.3d at 647; Merckling v.
35
Curtis, 911 S.W.2d 759, 763 (Tex. App.—Houston [1st Dist.] 1995, writ
denied). We cannot sit as a thirteenth juror, and we cannot under any
circumstances retry the case. See Warner, 834 S.W.2d at 408–09.
184 S.W.3d at 282.
Certainly, there are avenues to challenge whether an expert opinion has
probative value. In the context of whether expert testimony supported a plaintiff’s
verdict, the Texas Supreme Court has held that a conclusory expert opinion will not
support the judgment:
To establish breach of a duty, the plaintiff must establish an applicable
standard of care. See generally Nabors Drilling, U.S.A., Inc. v. Escoto, 288
S.W.3d 401, 404–05 (Tex. 2009); Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 879–80 (Tex. 2001). In a medical malpractice
negligence case, the standard of care is what a doctor of ordinary
prudence in that particular field would or would not have done under
the circumstances. See James v. Brown, 637 S.W.2d 914, 918 (Tex.
1982) . . . . “Whether a defendant breached his or her duty to a patient
cannot be determined absent specific information about what the
defendant should have done differently.” Palacios, 46 S.W.3d at 880.
Conclusory testimony cannot support a judgment in a medical
malpractice case. See City of San Antonio v. Pollock, 284 S.W.3d 809, 816
(Tex. 2009). As such, we must examine the record to determine whether
[the patient’s surviving spouse] provided non-conclusory expert
testimony to support the jury’s verdict that [the neurosurgeon] breached
a duty owed to [the patient]. See id.Windrum, 581 S.W.3d at 768. Here, Mrs. Dozier highlights certain opinions that
support her sufficiency arguments but leaves unacknowledged those to the contrary.
She does not state that the opinions to the contrary lack probative value. Thus, she
offers no reason why the jury could not credit the expert opinions that undermine her
view of the record.
36
C. We set forth why we reject Mrs. Dozier’s sufficiency challenges.
1. The concessions by Dr. Wilson that are noted in Appellant’s
brief fail because they pay no heed to the portions of the
record that support the verdict.
As we noted in the introduction to our analysis of Mrs. Dozier’s sufficiency
challenge, she emphasizes the punches landed by her counsel, the first of which was
Dr. Wilson’s concession that “the standard of care requires meticulous inspection and
examination of the surgical area following fulguration of endometriosis to ensure you
haven’t caused an unintended injury to the surgical anatomy, including the bowel” and
that he did not go back over Mrs. Dozier’s bowel before ending the procedure.
Though Appellant’s brief correctly quotes the testimony, the brief simply
ignores the various opinions offered by both Dr. Wilson and his experts that what he
did by checking for hemostasis and watching what he was doing while performing the
procedure via the inserted camera met the standard of care and that under these
circumstances, a second look before closing was not required. We have outlined this
testimony in our recitation of the factual background.
From a legal-sufficiency standpoint, this is some evidence to support the jury’s
answer to charge question number one. Thus, Mrs. Dozier does not meet the first
step in the legal-sufficiency challenge for an issue upon which she bore the burden of
proof.
From a factual-sufficiency standpoint, Mrs. Dozier’s argument offers one side’s
perspective of one skirmish in the battle between the experts that the jury heard. As
37
we have noted, when faced with such a battle, it is the jury’s prerogative to decide
whom to believe. The jury’s verdict is not against the great weight and preponderance
of the evidence.7
Appellant’s brief is equally circumscribed with its attack that the perforation
must have occurred during the laparoscopic procedure. This attack highlights
Dr. Wilson’s concession that the absence of a high white blood cell count immediately
after the surgery did not exclude the possibility that her bowel had been perforated.
Of course, highlighting this fact in isolation simply ignores the volume of evidence on
the other side of the question, such as whether Mrs. Dozier’s symptoms revealed a
high index of suspicion of a bowel injury, or the results of the CT scan during her
second visit to the ER, or the testimony of the general surgeon who operated with
Dr. Wilson that the perforation was recent. These pieces of evidence are some
evidence that the perforation did not occur during the laparoscopic procedure and
show that there was some evidence to support a finding in that regard. Further, this
mix of evidence shows that the record is not so tilted that the jury’s conclusion—that
the perforation occurred after the procedure—is against the great weight and
preponderance of the evidence.
7
The argument also spends much of its time discussing that the perforation of
Mrs. Dozier’s bowel produced an infection and required her to undergo a colostomy.
This was not disputed at trial. But what was highly contested was whether
Dr. Wilson’s treatment was negligent and proximately caused Mrs. Dozier’s injuries.
38
2. The isolated portions of other experts’ testimony that
Appellant’s brief cites ignore the full record and cannot
sustain a legal- or factual-sufficiency challenge.
Next, Appellant’s brief adopts an approach of citing snippets of testimony
from defense experts that are favorable to her case and ignoring the unfavorable
portions. Again, this approach does not present a viable legal- or factual-sufficiency
challenge.
Appellant’s brief cites the first defense expert on the standard of care in
performing the laparoscopic procedure who appeared to concede that Dr. Wilson had
not inspected Mrs. Dozier’s bowel in accordance with the standard of care. Again,
the brief accurately quotes the testimony of the expert. But what the brief does not
note is how the expert later recanted this opinion.
The following exchange during Plaintiff’s counsel’s redirect of the defense
expert highlighted this change of heart:
Q. Dr. Dulemba, when I talked to you this morning, you told us and in
no uncertain terms that Dr. Wilson [had] breached the standard of care
in failing to look at the transverse colon prior to closing, right?
A. Well, that’s what I stated, but there were some things that I
did leave out, when I realized I hadn’t discussed the entire aspect.
Q. And then, Doctor, after we took a break for lunch, and you
went and had lunch with the attorneys for Dr. Wilson, who paid you
$32,000 to defend your friend, that you called him, Dr. Wilson, you
come in here after lunch and now your opinion is he didn’t breach the
standard of care, right?
A. No, that’s incorrect.
39
Q. So your opinion is still that he breached the standard of care?
A. No.
Q. Okay. So you changed your opinion after you had lunch?
A. No, my opinion initially on my -- on the expert opinion and
also in my deposition that I gave, he did not breach the standard of care,
because he looked at it several times. What -- you have me confused,
and I admit, you did, you had me confused this morning when you said
that he said that he didn’t look and then he said that I -- that you had to
look twice. He did. He had pictures. He looked while he was doing it[,]
and he took pictures afterwards. I didn’t realize it when I said it this
morning. I didn’t come in and say, hey, I want to change my testimony.
But no, if you ask me the question again, I’m going to tell you he did not
breach the standard of care.
Appellant’s brief both fails to mention this event or to tell us why it presented the jury
with anything more than a question of the expert’s credibility. To the extent that
Appellant’s brief argues that the snippet it cites was conclusive evidence of a breach
of the standard of care, the quote shows that it was not.8
8
Appellant’s brief also makes an additional argument based on the expert’s
testimony: “[Dr.] Dulemba also admitted that there was no evidence of endometriosis
on the transverse colon during [Dr.] Wilson’s surgery and that there was no evidence
of endometriosis there during subsequent surgeries. This testimony entirely
undermines his alternate ‘theory’ that there was endometriosis on the transverse colon
that spontaneously ruptured.” [Record citations omitted.] The testimony cited is not
as certain as it is portrayed in the brief:
Q. Okay. So we can rule that out as well. All right.
Now, you have an opinion that what may have happened, was
there was an endometriosis on the transverse colon that spontaneously
ruptured sometime after surgery, right?
A. That’s my conclusion, yes.
40
Q. Okay. So let’s -- let’s put that here. Endo on transverse colon
that spontaneously ruptured. So let’s talk about some of that. We know
that Dr. Wilson didn’t identify any endometriosis on the transverse
colon during his August 24th surgery, right?
A. Correct.
Q. Okay. And we know that there was no evidence of
endometriosis identified on Dr. Wilson’s and Dr. Mosier’s [the general
surgeon called in by Dr. Wilson to perform the colostomy on August 31]
surgeries to wash out the infection from the perforation and to put the
colostomy in, right?
A. Well, there’s so much inflammation during that process of
what they dealt with, there’s no way you would be able to identify any
endometriosis almost anywhere.
Q. Okay. But there’s no evidence of endometriosis on the
transverse colon surgery, right?
A. Correct.
Q. No endo on transverse colon during [Dr.] Wilson and
Dr. Mosier, 8/31 surgery.
Okay. And we know that Dr. Aronoff [the surgeon treating Mrs.
Dozier after her transfer to another hospital] did a number of surgeries
in the ensuing weeks where he didn’t identify any endometriosis on the
transverse colon, right?
A. That’s correct, but I wouldn’t have expected him to be looking
for it.
Q. Now, let’s get to the important one. Dr. Hopkovitz reviewed
pathology of the bowel where the actual perforation was, right?
A. I assume that’s the pathologist’s name?
Q. Yes, sir. Dr. Hopkovitz was the pathologist at Presby Denton
that reviewed the actual bowel and the hole that was there, okay?
A. Yes.
41
Appellant’s brief adopts the same narrow-viewed strategy with respect to the
defense’s second expert on the standard of care involved in performing the
laparoscopic procedure. The brief cites one page of the expert’s more than 100-page
testimony. The cited testimony focuses on the fact that the expert did not know until
he testified that Dr. Wilson had lysed adhesions on the bowel. As we have noted, this
expert was subject to intense cross-examination because of this concession. But we
have also noted the expert’s opinion that the procedures that Dr. Wilson followed still
met the standard of care. This opinion is encapsulated in a simple answer that we
have already quoted: “I mean, as I said before and I’ll say again, I mean, he was
looking at the area that he was lysing adhesions on, and he was doing a meticulous
inspection of that area while he was doing it, and that’s what you need to do.” Again,
a complete view of the record demonstrates that the snippet cited in Appellant’s brief
does not represent the full extent of the record.
Another example of turning a blind eye to testimony that is contrary to an
argument is Appellant’s brief’s description of the testimony of the pathologist who
examined the portion of Mrs. Dozier’s bowel that was removed during the colostomy.
Q. And she didn’t document any endometriosis on the pathology
study, right?
A. Correct.
Further, Appellant’s brief notes that the expert conceded that a bowel
perforation had caused injury to Mrs. Dozier and that there was a need for subsequent
surgical procedures. As we have noted, that fact is not what was at issue during trial.
42
The short snippets of testimony referenced in Appellant’s brief note that the
pathologist found no endometriosis on the bowel and that there was nothing in her
findings that was inconsistent with the injury to the bowel being caused by an
instrument seven days before the bowel’s removal. Of course, this view of the record
ignores the defense pathologist’s testimony that the pathologist who had examined
the bowel did not perform the necessary tests to determine whether the cells on the
bowel were endometrial or not. It also ignores that on cross-examination, the
pathologist who had examined the bowel stated that she could not state in reasonable
medical probability “that the perforation [was] any older than a day old.” It further
ignores the testimony of the surgeon who performed the initial colostomy that the
injury to Mrs. Dozier’s bowel was not caused by an instrument.
Appellant’s brief ends by highlighting the testimony of the general surgeon who
treated Mrs. Dozier after her transfer to another hospital from the one in which the
colostomy was performed. The quoted testimony sets forth the doctor’s opinions
dealing with the standard of care of a general surgeon and states that (1) in a
laparoscopic procedure, meticulous inspection of the surgical area requires finding
and fixing any bowel perforations that may have been caused; (2) failing to identify
the perforation intraoperatively is a breach of the standard of care; and (3) the
proximate cause of Mrs. Dozier’s bowel perforation was the laparoscopic surgery
performed before she was transferred to the doctor’s care. We have catalogued the
host of opinions concluding that Dr. Wilson’s actions during the procedure did
43
conform to the standard of care. Again, highlighting favorable evidence and ignoring
the unfavorable is an attempt to argue that the jury mis-weighed the evidence when it
was within its purview to decide which experts to credit and which to not. This
approach cannot sustain a legal- or factual-sufficiency challenge.
We overrule Mrs. Dozier’s second issue.
D. We set forth why we reject Mrs. Dozier’s claim that the trial court’s
refusal to permit one area of cross-examination of a defense expert
constituted harmful error.
In her first issue, Mrs. Dozier argues that the trial court erred by limiting her
cross-examination of one of Dr. Wilson’s experts. The cross-examination involved
the contention that the expert had been previously sued by the same law firm that
represented Mrs. Dozier for an act of malpractice similar to that alleged against
Dr. Wilson in causing a perforation and in failing to identify it intraoperatively. Being
sued for a similar wrong allegedly gave the witness a bias to protect himself by
testifying that Dr. Wilson’s actions were not negligent.
We take Mrs. Dozier’s issues out of the order that she presents them. We do
this because by addressing Mrs. Dozier’s sufficiency issue first, we can convey the
blizzard of expert opinions that the jury had to sort through to reach its verdict and
why Mrs. Dozier’s sufficiency challenge offered no grounds for us to second-guess
the verdict. The state of the record prompts our second somewhat unorthodox
approach of assuming error and addressing whether the trial court’s ruling—which
44
limited the scope of cross-examination—was harmful before addressing whether the
trial court’s ruling was an abuse of discretion.
Mrs. Dozier offers no harmful-error analysis in her opening brief. Though
Dr. Wilson challenges whether any error was harmful in his brief, Mrs. Dozier offers
no analysis regarding why it was harmful in her reply, other than stating a conclusion
that the error was harmful. Even assuming that the trial court erred, we conclude that
error was not harmful. First, Mrs. Dozier never explains how the foreclosed topic of
cross-examination would have caused the jury to reweigh its resolution in this intense
battle of the experts. Nor does Mrs. Dozier explain how the topic of cross-
examination that the trial court did not let her pursue would have so undermined this
expert’s credibility—after he changed his opinion from one unfavorable to Dr. Wilson
to a favorable one—that a different verdict would have resulted. And beyond the
question of harm, the trial court did not abuse its discretion by denying the proposed
cross-examination topic.
1. We set forth the topic upon which Plaintiff’s counsel sought
to cross-examine the expert.
The trial court granted a motion in limine that restricted the discussion of
“inquiry of [Dr. Wilson] or any other physician called as a witness, with respect to any
lawsuits or claims as the result of prior or subsequent unrelated incidents.” At the
end of the testimony of Dr. Dulemba (whom we have described above as
Dr. Wilson’s first defense expert on the standard of care), Plaintiff’s counsel made an
45
offer of proof “regarding Dr. Dulemba’s previous similar -- substantially similar
lawsuits.” The offer began with the question to Dr. Dulemba regarding whether he
“had an incentive in this case in defending Dr. Wilson to give the opinion that it was
okay to miss a bowel perforation and not fix it intraoperatively during a laparoscopic
endometriosis surgery.” The alleged incentive was that at the time that Dr. Dulemba
wrote his expert report in the underlying matter, the counsel representing Mrs. Dozier
“had a lawsuit, representative client, in a lawsuit against [Dr. Dulemba] for failing to
identify a perforation intraoperatively to the bowel on a patient, and the patient
resulted in a similar, very similar situation to [Mrs.] Dozier.”
In response, Dr. Dulemba vigorously challenged that the evidence in the case
against him showed a bowel perforation; that challenge produced a four-page
discussion in the reporter’s record of what the evidence showed in the suit against
Dr. Dulemba and the sources that Plaintiff’s counsel had relied on to support the
claim. Further, Dr. Wilson challenged the document that Plaintiff’s counsel used as
the basis to impeach Dr. Dulemba. When the trial court sought to focus the
questioning on Dr. Dulemba’s incentive to testify as he did on behalf of Dr. Wilson,
another three-page discussion ensued regarding whether the facts of the case brought
against Dr. Dulemba and whether the allegations made in that suit were similar to
those alleged against Dr. Wilson, including whether the procedures were similar and
whether the injuries were similar. The trial court denied the request to cross-examine
Dr. Dulemba about the suit against him by Mrs. Dozier’s counsel.
46
2. We set forth the standard in civil cases for determining
whether an error is harmful.
Not every error that occurs during trial warrants reversal; thus, Rule 44.1(a)(1)
of the Texas Rules of Appellate Procedure provides that in civil cases, “[n]o 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 . . . probably
caused the rendition of an improper judgment.” Tex. R. App. P. 44.1(a)(1). Whether
an error is harmful or harmless “is based on our understanding that ‘a litigant is not
entitled to a perfect trial for, indeed, few trials are perfect.’” Gunn, 554 S.W.3d at 668
(quoting Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818, 819 (Tex. 1980)). The
determination regarding “whether the error probably caused the rendition of an
improper judgment ‘necessarily is a judgment call entrusted to the sound discretion
and good senses of the reviewing court.’” Id. (quoting McCraw v. Maris, 828 S.W.2d
756, 759 (Tex. 1992)).
Appellate courts apply a harmful-error analysis in deciding whether limiting the
scope of the cross-examination of an expert warrants a case’s reversal. See Watson v.
Isern, 782 S.W.2d 546, 549–50 (Tex. App.—Beaumont 1989, writ denied) (showing
that appellate court questioned whether trial court had acted properly in denying
cross-examination on defense counsel’s representation of expert in malpractice cases
filed against expert but concluded that in view of the entirety of the direct
examination and cross-examination of the expert, appellate court did not think “that
47
the bill of exception presented error that amounted to such a denial of the rights of
the [a]ppellants as was reasonably calculated to cause and probably did cause a
rendition of an improper judgment in the case”); see also C.H. v. Tex. Dep’t of Family &
Protective Servs., No. 03-19-00900-CV, 2020 WL 2786864, at *3 (Tex. App.—Austin
May 28, 2020, no pet.) (mem. op.) (“However, even if a trial court erroneously limits
cross-examination, we will not reverse unless the error ‘probably caused the rendition
of an improper judgment’ or ‘probably prevented the appellant from properly
presenting the case’ to this [c]ourt.” (quoting Tex. R. App. P. 44.1(a), and citing
Davidson v. Great Nat’l Life Ins. Co., 737 S.W.2d 312, 314 (Tex. 1987))); Chavez Constr.,
Inc. v. McNeeley, 177 S.W.3d 593, 602–05 (Tex. App.—Houston [1st Dist.] 2005, pet.
granted, judgm’t vacated w.r.m.) (holding harmless under Texas Rule of Appellate
Procedure 44.1(a) refusal to permit cross-examination on changed deposition answers
because jury had heard in general terms that witness had changed his answers); Stam v.
Mack, 984 S.W.2d 747, 751 (Tex. App.—Texarkana 1999, no pet.) (holding harmless
trial court’s refusal to permit cross-examination on the topic that defense counsel had
previously represented expert in malpractice action because party was able to put the
issue of expert’s bias before the jury); Harlow v. Hayes, 991 S.W.2d 24, 29 (Tex. App.—
Amarillo 1998, pet. denied) (“However, even assuming arguendo [that] the trial court
erred in excluding [expert’s] cross-examination with regard to the standards, the
excluded examination would not present an error of sufficient magnitude that it
probably caused the rendition of an improper judgment or prevented appellant from
48
properly presenting her case.”); Am. Cyanamid Co. v. Frankson, 732 S.W.2d 648, 654–55
(Tex. App.—Corpus Christi–Edinburg 1987, writ ref’d n.r.e.) (stating that “[a] trial
court has considerable discretion in permitting cross-examination of a witness to
show bias or prejudice” and holding that “in this instance[,] the trial court should have
allowed the questioning, because of the great latitude that should be allowed on cross-
examination, but its failure to do so was not reversible error in this case”).
To show harmful error in the admission or exclusion of evidence, we apply the
following standards:
• “[W]e review the entire record.” Interstate Northborough P’ship v. State, 66
S.W.3d 213, 220 (Tex. 2001) (op. on reh’g).
• “Typically, a successful challenge to a trial court’s evidentiary rulings
requires the complaining party to demonstrate that the judgment turns
on the particular evidence excluded or admitted.” Id.• “And, ordinarily, this [c]ourt will not reverse a judgment because a trial
court erroneously excluded evidence when the evidence in question is
cumulative and not controlling on a material issue dispositive to the
case.” Id.• “If erroneously[ ]admitted or []excluded evidence was crucial to a key
issue, then the error was likely harmful, but not conclusively or per se
harmful.” In re A.P., No. 02-22-00180-CV, 2022 WL 16646478, at *14
49
(Tex. App.—Fort Worth Nov. 3, 2022, no pet.) (mem. op.) (citing Gunn,
554 S.W.3d at 668).
• But “‘likely’ does not mean ‘definitively,’” and “we apply the same
standard—whether the erroneous exclusion of evidence probably caused
the rendition of an improper judgment—even when the excluded
evidence related to a key issue.” Id. at 668–69, 671; JLG Trucking, LLC v.
Garza, 466 S.W.3d 157, 165 (Tex. 2015).
3. We explain why we conclude that any error in prohibiting
Plaintiff’s counsel from cross-examining the expert about
the lawsuit brought against him was not harmful error.
Here, addressing whether harmful error occurred by the trial court’s actions in
restricting the expert’s cross-examination, Dr. Wilson notes the mix of testimony
heard by the jury—a mix that we have highlighted in our discussion of Mrs. Dozier’s
sufficiency issue and in the factual background:
Moreover, in no way could exclusion of this amount to harmful error.
[Dr.] Dulemba was hardly the only defense witness. And, as to timing of
the perforation (the issue about which Appellant sought to impeach
[Dr.] Dulemba), not only did [three other experts] testify to similar
timing, even . . . [P]laintiff’s expert pathologist . . . was unable to time the
perforation as any older than a day prior to [the] August 31 surgery, a
week after Dr. Wilson’s laparoscopic procedure. [Dr.] Dulemba was also
not the only standard[-]of[-]care defense expert. Dr. Wilson himself and
[another defense expert] are described above. [Record reference
omitted.]
Appellant’s reply brief does not mention the harmful-error standard of Rule 44.1(a)
nor pay much more than lip service to the question in Dr. Wilson’s brief regarding
50
whether the error raised was harmful. The reply brief states, “Because the bias of this
expert was necessarily material, it defies logic to assert as [Dr. ]Wilson does that the exclusion of
this evidence did not affect the jury’s verdict. To vindicate these universal and unquestionable
principles, this [c]ourt should reverse the judgment in this case.” [Emphasis added.]
The reply brief never explains how Dr. Wilson’s harmful-error analysis defies
logic. In essence, Mrs. Dozier seeks to retry a case that lasted eight days because of a
single error in restricting the scope of one expert’s cross-examination. And in doing
so she does not even try to answer two pivotal questions regarding harm—one
general to the overall record and one specific to the expert in question.
Generally, in light of the raft of opinions regarding whether Dr. Wilson’s
actions conformed to the standard of care and whether the perforation occurred
during the laparoscopic procedure performed by Dr. Wilson, how can we conclude
that the limitation on cross-examination probably caused the rendition of an improper
judgment? In other words, what logical force is there to the argument that if the jury
had only heard that one of the experts who opined favorably to Dr. Wilson had also
been sued for acts similar to that of Dr. Wilson, the jury would have been swayed by
that fact alone to rebalance its view of all the other opinions it heard and reach a
different verdict?
And that possibility—that hearing of the suit against Dr. Dulemba, the jury
here would have turned its disposition of the case upside down—is even more remote
in this case. The specific question that is not answered in Appellant’s brief and in her
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reply brief is how the jury’s view of the evidence would have been completely
upended by the excluded information when Dr. Dulemba’s credibility had already
been subject to strenuous attack. Dr. Dulemba is the expert who, as we referenced in
our sufficiency analysis, initially testified that Dr. Wilson had failed to examine
Mrs. Dozier’s bowel in accordance with the standard of care before ending the
procedure and then returned after lunch to give the opposite opinion. As we have
noted, this seeming about-face produced a cross-examination regarding whether the
doctor had changed his testimony in essence because of being coached by
Dr. Wilson’s lawyers at lunch, because he was a friend of the doctor, and because of
the tens of thousands of dollars he had been paid in expert-witness fees. Thus, to
find harmful error, we must conclude that in light of the various opinions heard in
this hotly contested battle of the experts and the blows that Dr. Dulemba’s credibility
had already suffered, the inability to cross-examine Dr. Dulemba on the excluded
topic probably caused the rendition of an improper judgment, i.e., the jury would have
answered the first question of the charge differently to find that Dr. Wilson was
negligent and that his actions were a proximate cause of Mrs. Dozier’s injuries. Under
the circumstances we have outlined, we cannot conclude that the trial court’s
challenged action was harmful.
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4. The trial court did not abuse its discretion by restricting the
scope of Dr. Dulemba’s cross-examination.
At the end of Plaintiff’s case, the trial court was faced with a claim that an
expert had been sued for similar acts of negligence as Dr. Wilson and that this fact
showed a bias that caused him to shade his expert report. In response, the expert
strenuously denied that the claims against him were similar to those alleged against
Dr. Wilson. The record in the offer of proof showed that permitting this issue to be
raised in front of the jury could well have prompted a round robin of Plaintiff’s
counsel raising the issue, the expert defending himself by claiming that the claim was
dissimilar and invalid, and Dr. Wilson’s counsel challenging the proof that Plaintiff’s
counsel relied on to establish the allegedly similar occurrence. Further, the trial court
had—as had the jury—witnessed the challenges made to Dr. Dulemba’s credibility
when he was accused of changing his opinion in midstream. The trial court had the
discretion and, in this case, did not abuse its discretion by denying cross-examination
on this topic to avoid a time-consuming trial within a trial of the claim against
Dr. Dulemba.
A trial court has considerable control over the scope of cross-examination; the
parameters of that control are described as follows:
“A witness may be cross-examined on any matter relevant to any issue in
the case, including credibility.” Tex. R. Evid. 611(b). The trial court has
reasonable control over the mode and order of interrogating witnesses
and presenting evidence. [Tex. R. Evid.] 611(a). Considerations include
the effective ascertainment of the truth, avoiding needless consumption
of time, and protecting witnesses from harassment or undue
53
embarrassment. Id. A trial court abuses its discretion if it unduly
restricts cross-examination regarding a key issue in the case. In re
Commitment of Campbell, No. 09-11-00407-CV, 2012 WL 2451620, at *6
(Tex. App.—Beaumont June 28, 2012, pet. denied) (mem. op.).
In re Commitment of Smith, 422 S.W.3d 802, 809 (Tex. App.—Beaumont 2014, pet.
denied). Thus, we must decide whether the trial court abused its discretion—whether
it acted “with disregard of guiding rules or principles or [acted] in an arbitrary or
unreasonable manner”—by not permitting the cross-examination of Dr. Dulemba
sought by Appellant’s counsel. In re Acad., Ltd., 625 S.W.3d 19, 25 (Tex. 2021) (orig.
proceeding) (stating standard for abuse of discretion).
Indisputably, a witness may be cross-examined “on any relevant matter,
including credibility.” Tex. R. Evid. 611(b). It is also indisputable that an appropriate
topic of cross-examination for an expert witness is bias. See, e.g., In re Plains Mktg.,
L.P., 195 S.W.3d 780, 782 (Tex. App.—Beaumont 2006, orig. proceeding)
(per curiam) (“To establish bias or prejudice, ‘an expert medical witness may be cross-
examined regarding the number of times he has testified in lawsuits, payments for
such testifying and related questions.’ . . . Furthermore, ‘[p]roof of bias may be
offered to impeach the credibility of a witness.’” (first quoting In re Weir, 166 S.W.3d
861, 864 (Tex. App.—Beaumont 2005, orig. proceeding) (per curiam); and then citing
Tex. R. Evid. 613(b))).
Here, the alleged bias-producing event was a prior lawsuit filed by
Mrs. Dozier’s counsel against Dr. Dulemba for perforating a bowel while performing
54
a surgical procedure. Courts generally question the admissibility of impeachment by
allegations that a party may have been negligent on another occasion, and the
Beaumont Court of Appeals applied that rule to an attempt to impeach an expert
witness with the claim that he had been sued for malpractice:
As the bill of exception [on the other suits against the expert] was
presented, we decide that there was no error in excluding the testimony
from the jury. [The doctor] was a witness—not a defendant. Reasoning
by analogy, we think that on an issue of whether a person—in this case a
medical doctor—was negligent at a certain time and on a certain
occasion, is not usually provable or susceptible of proof by other alleged
acts of negligence at other times under other circumstances. A habit or
custom of either careful or negligent conduct in respect to a particular
act in question would apparently have some probative force. But the
courts have usually excluded even habit or custom on one or two
theories. The first theory is that such habit or custom is really equivalent
to character or disposition and is therefore inadmissible in evidence
under the rule against the use of character in civil cases; or, secondly,
that such habit or custom or such other acts amount to nothing more
than an attempt to prove negligence or lack of ordinary care by
testimony or proof of particular acts of negligence on other occasions
under other circumstances which is likewise disallowed. . . . If such
evidence is not admissible against a party, we perceive the same should
not be admissible against an expert witness. On the theory of bias, [the
doctor] was not asked about particular facts or acts.
Watson, 782 S.W.2d at 549.
In a different context, the Amarillo Court of Appeals noted that opening the
door to whether a defendant was negligent on a different occasion may raise a host of
satellite evidentiary issues on whether the other events were similar. In determining
whether it was error to deny rebuttal evidence that challenged a defendant doctor’s
opinions with proof of prior malpractice suits, the Amarillo court explained,
55
[T]o the extent that evidence of similar wrongs may be admissible,
despite Rule 404(b), it is clear that, at the very least, the circumstances of
the incidents and conditions under which they occurred must be
reasonably similar. Nissan Motor Co. v. Armstrong, 145 S.W.3d [131,] 138
[(Tex. 2004)] (involving unintended acceleration of a vehicle); Farr v.
Wright, 833 S.W.2d 597, 601 (Tex. App.—Corpus Christi[–Edinburg]
1992, writ denied) (involving a malpractice claim). And, the degree of
similarity required depends upon the fact or issue in dispute. Nissan
Motor Co. . . . , 145 S.W.3d at 138. Yet, even if similar, the evidence
remains subject to exclusion if it creates undue prejudice, confusion, or
delay. Id.
McKee v. McNeir, 151 S.W.3d 268, 270 (Tex. App.—Amarillo 2004, no pet.).
The Amarillo court also noted that allegations of similar acts of negligence may
spark issues such as whether there is proof that the other event actually occurred:
Additionally, inherent in both Nissan and Farr is the requirement that the
proponent of the evidence illustrate that the supposedly similar incident
actually occurred. Simply put, if the incident did not happen, then it
could hardly be admissible to prove the occurrence of some other act or
event. And, therein lies the problem here. The only evidence of record
purporting to illustrate the existence of the extraneous incidents of
malpractice were copies of pleadings and final orders issued by various
courts. Yet, most anything can be said in a pleading, whether true or
not. Consequently, including an allegation favorable to the pleader in
such a document is seldom evidence of its occurrence. See In re [Marriage
of] M.C., 65 S.W.3d 188, 193 (Tex. App.—Amarillo 2001, no pet.)
(stating that “generally, pleadings are not admissible as proof of their
contents in favor of the pleader”).
Id.And the Rules of Evidence give a witness the right to defend against a charge
of bias. Specifically, Texas Rule of Evidence 613(b)(1) requires that “[w]hen
examining a witness about the witness’s bias or interest, a party must first tell the
witness the circumstances or statements that tend to show the witness’s bias or
56
interest.” Tex. R. Evid. 613(b)(1). Rule of Evidence 613(b)(3) then provides that a
witness charged with bias may offer a defense to that charge: “A witness must be
given the opportunity to explain or deny the circumstances or statements that tend to
show the witness’s bias or interest. And the witness’s proponent may present
evidence to rebut the charge of bias or interest.” Tex. R. Evid. 613(b)(3).
Here, after days of testimony, the trial court was confronted with a situation
regarding whether it would open the door to cross-examination on whether
Dr. Dulemba had committed a similar wrong to that alleged against Dr. Wilson—an
act that Dr. Dulemba vehemently denied that he had committed. Though Plaintiff’s
counsel had filed suit alleging a similar act of negligence against Dr. Dulemba, it was
apparent that Dr. Dulemba would claim that there had been no perforation in that
suit. And in the offer of proof itself, Dr. Wilson’s counsel was already challenging the
basis for the claim by attacking whether Plaintiff’s counsel was relying on the
allegations of an expert report or an actual pathology report showing that there had
been a bowel perforation. If, as the Amarillo court states, pleadings are not sufficient
to establish that a similar act occurred and Dr. Dulemba has the right to defend
himself under Rule 613(b)(3), then the trial court was faced with a situation in which,
if it permitted the cross-examination, it would have to let Dr. Wilson’s jury decide
whether there was a bowel perforation in Dr. Dulemba’s case. Further, the trial court
was already well aware of the intense cross-examination to which Dr. Dulemba had
already been subjected when he appeared to change his opinion on whether
57
Dr. Wilson had met the standard of care. As we have noted, a trial court may restrict
cross-examination for various reasons, including to prevent the excessive
consumption of time. Commitment of Smith, 422 S.W.3d at 809. Faced with the
situation below, the trial court acted within the bounds of its discretion in avoiding
the sideshow that would have resulted if it had permitted an attack on the credibility
of an expert whose credibility had already been strenuously attacked.
We conclude that the trial court’s actions in limiting the scope of
Dr. Dulemba’s cross-examination was neither harmful error nor an abuse of
discretion. Accordingly, we overrule Mrs. Dozier’s first issue.
IV. Conclusion
Having overruled Mrs. Dozier’s two issues, we affirm the trial court’s
judgment.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: March 2, 2023
58