Sean C. Woodard and Shaila D. Mulholland v. Brent Wayne Sherwood, M.D.

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-11-00386-CV
SEAN C. WOODARD AND SHAILA D. MULHOLLAND, APPELLANTS
V.
BRENT WAYNE SHERWOOD, M.D., APPELLEE
On Appeal from the 47th District Court
Potter County, Texas
Trial Court No. 97,929-A, Honorable Dan L. Schaap, Presiding
September 23, 2013
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellants, Sean C. Woodard and his wife Shaila D. Mulholland, sued appellee
Brent Wayne Sherwood, M.D., after the death of their nineteen-month-old son Alvee
Woodard. They asserted Dr. Sherwood’s emergency department treatment of their son
fell below the applicable standard of care and such negligence proximately caused the
child’s death. The jury returned a verdict in favor of Dr. Sherwood and the trial court
rendered a take-nothing judgment. Through one appellate issue, Woodard and
Mulholland contend the trial court’s exclusion of certain medical records pertaining to
Alvee’s twin brother Mack Woodard amounted to reversible error. We disagree and will
affirm.
Background
During early May 2008, Alvee, Mack, and Shaila Mulholland were in Amarillo
visiting the boys’ paternal grandparents Tom and Phyllis Ferguson. During the visit,
Mrs. Ferguson noticed that Mack, and on the next day Alvee, were “slowing down.”
Vomiting and diarrhea followed.
On the evening of May 12, and into the early morning hours of May 13, the boys
were treated by Dr. Sherwood in the emergency department of Baptist/St. Anthony’s
Hospital (BSA) in Amarillo. The triage nurse noted on Alvee’s emergency department
record at 6:40 p.m. that his chief complaint was fever, diarrhea and breathing difficulty.
Mack’s chief complaint was fever, diarrhea, vomiting, and lethargy. When asked which
of the twins was more sick Robert Matthews, M.D., an expert presented at trial by
Woodard and Mulholland, opined “Alvee was very much--very much more affected.”
Dr. Sherwood ordered laboratory tests and intravenous fluid for Alvee and Mack.
The test results indicated rotavirus and strep. Based on the lab results an antibiotic to
treat strep throat was given Alvee intravenously. Alvee received some two hours and
forty minutes of bolus intravenous fluid therapy.1 A fluid challenge did not result in
1
According to medical testimony at trial, bolus IV refers to giving intravenous
fluid over “five, ten, twenty minutes, as fast as the IV will accept it.”
2
further vomiting.2 As for the treatment of Mack, Dr. Sherwood agreed that he “gave
Alvee and Mack the same management, same drug, same levels, all of that stuff,
seeing them at basically the same time[.]” Medication to curtail the urge to vomit was
administered. Dr. Sherwood concluded Alvee was suffering strep throat and moderate
volume depletion.
Mrs. Ferguson explained that she, the twins and their mother returned home from
the BSA emergency department at about 2:00 a.m. on May 13. Mrs. Ferguson and
Mulholland attempted to give the boys fluids. Later that morning Alvee was “very whiny
and crying.” He could not seem to sleep.
In an effort to help Alvee relax and sleep, his mother took him for a car ride while
Mrs. Ferguson cared for Mack. During the ride Alvee stopped breathing. Emergency
rescue personnel were immediately summoned but according to Mulholland, Alvee was
not responsive during the approximate ten-minute period preceding the arrival of EMT
personnel.
At trial, a pathologist presented by Dr. Sherwood opined that Alvee was dead
when EMT personnel arrived. An emergency department physician pronounced Alvee
dead at Northwest Texas Hospital (NWTH) in Amarillo. The medical examiner
conducting a court-ordered autopsy concluded the cause of death was complications of
gastroenteritis.
2
It was further explained through medical testimony that a fluid challenge is a
procedure for testing the ability of a patient to keep liquid down over a measured
interval, typically between fifteen and thirty minutes.
3
According to Dr. Matthews, Alvee’s death was caused by severe dehydration
resulting in multi-organ failure. Paul Finkelstein, M.D., a medical expert presented by
Dr. Sherwood, opined the sequence of events resulting in Alvee’s death began with
aspiration causing respiratory failure causing cardiovascular collapse causing death.
Alvee was pronounced dead in the NWTH emergency department at 12:12 p.m.
on May 13. At 1:15 p.m. that day, Mack was taken to the emergency department of
NWTH. He presented with symptoms similar to those seen in Alvee at BSA the
previous night. Later that afternoon, he was admitted to the hospital for volume
depletion. Mack was successfully discharged from the hospital on May 15, following a
course of treatment including intravenous fluid therapy.
Woodard and Mulholland’s suit against Dr. Sherwood alleged he negligently
failed to admit Alvee to the hospital when he treated the twins in the BSA emergency
department.
The trial evidence centered on the differing opinions of Drs. Matthews and
Finkelstein concerning the ultimate issues of the case including the claim of Woodard
and Mulholland that Dr. Sherwood’s decision not to admit Alvee to the hospital fell
below the applicable standard of care. For example, Dr. Matthews believed it would be
“dangerous” to send anyone home with laboratory test results like Alvee’s. He
explained:
No, I can’t see any rationale, knowing what we know about his diagnosis.
You know, the presence of strep throat, which makes it tough for him to
drink. You know, if you guys have had strep throat in the past, or have
had children with strep throat, you know, it’s very hard to get them to drink
or drink yourself. The fact that he had rotavirus, it means he’s going to
have trouble absorbing fluids orally. Rotavirus affects your intestinal tract
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in a way that you’re just not going to reliably absorb fluids well. Plus, if
diarrhea comes back again--it sounds like there was a little window there
where there wasn’t much diarrhea, but if it comes back again, you just
can’t keep up. Intravenous fluids are really necessary on a continual
basis.
In Dr. Matthews’ opinion, Alvee would have survived had he been admitted to the
hospital for continuous intravenous fluid therapy.
As for whether Alvee met the “appropriate” discharge criteria, Dr. Finkelstein told
the jury:
Well with the presumed diagnosis of dehydration, the known diagnosis of
the rotavirus test that was positive causing the diarrhea, the known
streptococcal rapid swab that was positive, he received appropriate
therapy for that, meaning he received the antibiotic that was appropriate
for the strep pharyngitis. He received IV bolus therapy followed by
maintenance therapy. He was given a PO challenge, a fluid challenge, at
the end to ensure that he could continue to take fluids at home and
hydrate himself.
So everything that I’ve found has been consistent with a patient that meets
the criteria for discharge from the emergency department. His vital signs
additionally normalized . . . in all categories. So I absolutely think--that
would have been a patient I would have discharged on any given day.
Dr. Finkelstein concluded that Dr. Sherwood’s conduct was within the standard of care
and therefore not negligent.
According to the trial court’s order in limine, the jury was not told of Mack’s
NWTH admission and treatment. Through an offer of proof, Woodard and Mulholland
offered Mack’s NWTH emergency department and hospital records. These records
document a course of evaluation and treatment commencing about one hour after Alvee
was pronounced dead.
5
The jury answered “no” to a single question inquiring, “Did the negligence, if any,
of Dr. Sherwood proximately cause the death of Alvee Woodard?” This appeal followed
the trial court’s take-nothing judgment.
Analysis
On appeal, Woodard and Mulholland argue the trial court erred by failing to admit
Mack’s NWTH records. The nub of the argument is the records were wrongfully
excluded from evidence on the ground of relevancy.
A trial court’s decision to admit or exclude evidence is reviewed for abuse of
discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A court abuses its
discretion if it acts without reference to any guiding rules and principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We will uphold a
trial court’s evidentiary ruling if the record presents any legitimate basis for the ruling.
Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
Relevant evidence is that having a “tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” See Tex. R. Evid. 401.
Woodard and Mulholland support their argument for the relevance and
admissibility of Mack’s NWTH records with the decision in Farr v. Wright. 833 S.W.2d
597 (Tex.App.--Corpus Christi 1992, writ denied). In that case, Farr suffered severe
pain after Dr. Wright performed a discogram. Several months later another doctor
found that the discs on which Wright performed the discogram were infected causing a
condition known as discitis. In Farr’s later suit against Wright, discovery showed that
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during his career of three to four years, Wright then had performed between thirty and
fifty discograms, and that between ten and sixteen percent of his patients had suffered
discitis. Wright had experienced three or four cases of discitis in the two-month period
during which he treated Farr. In studies, the rate of discitis experienced by the studies’
authors was less than one percent of all discograms performed. Based on the high
incidence of discitis, and other evidence, Farr’s expert concluded that Wright
consistently breached sterile technique during this period, and that, to a reasonable
medical probability, also breached sterile technique when he treated Farr. Id. at 598-99.
He further concluded Wright negligently failed to diagnose Farr’s discitis, based in part
on the frequency with which his patients had suffered that condition.
At trial, Farr offered the evidence of the other cases of discitis as a basis for her
expert’s opinion Wright was negligent. When the offer was denied, the expert testified
during Farr’s bill of exceptions, explaining his opinion that the frequency of discitis in
Wright’s practice was unusually high, compared with the expert’s own experience and
that reflected in studies. Id. at 599. When the jury found Wright was not negligent, Farr
appealed and the court of appeals held exclusion of the evidence of other cases of
discitis was harmful error. It agreed with Farr the excluded evidence of Wright’s other
cases of discitis was relevant to show knowledge, negligence and causation, and was of
such substantial similarity to Farr’s case as to authorize its consideration by her expert
in reaching his opinion. The appellate court found Wright’s prior cases of discitis were
substantially similar to Farr’s and should have been admitted. Id. at 603.
Woodard and Mulholland contend Mack’s NWTH records were relevant to show
the standard of care for patients who have the symptoms the twins presented at BSA’s
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emergency department, and to show causation. But the information given the trial court
here differed significantly from that described in Farr. The court of appeals in Farr
pointed out that the existence of the other cases of discitis was “an important
component of the [plaintiff’s] expert’s opinion.” Id. at 603. By contrast, no expert
testified that Mack’s NWTH records were significant to an opinion on the cause of
Alvee’s death or the standard of care. Dr. Matthews did not list Mack’s NWTH records
among the records he had reviewed in formulating his opinions, nor did he discuss
Mack’s NWTH hospitalization in his testimony. Dr. Sherwood’s expert Dr. Finkelstein,
called to testify during the plaintiffs’ offer of proof, testified he received the NWTH
records but was not asked to opine on them and merely “skimmed” the “basic ER
portion.” Dr. Matthews and Dr. Finkelstein rendered their opinions without resort to
Mack’s NWTH records. No proof before the jury or outside its presence indicated that
the parties’ expert physicians were hindered or limited in formulating their respective
opinions on the standard of care, any breach, or causation of any resulting harm, by the
exclusion of Mack’s NWTH records.
Moreover, the trial court heard testimony from which it could have concluded
Mack’s admission and treatment at NWTH did not present circumstances substantially
similar to those Dr. Sherwood faced when he decided to send Alvee and Mack home
from BSA’s emergency department. During Dr. Finkelstein’s testimony during the offer
of proof, Woodard and Mulholland adduced the following testimony:
Q And, in fact, what we know is that Mack was admitted to [NWTH] and
maintained on IV therapy, correct?
A That’s correct.
Q And he survived?
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A That’s correct.
Q Survived 12 hours after--I mean, he was admitted 12 hours after
discharge [from BSA’s emergency department], correct?
A That’s correct.
Q So we have a circumstance here where we have patients that are
virtually identical, similar if not identical, on presentation clinically to the
two respective emergency rooms, correct?
A Similar, yes.
Q We had two patients that are twins, born about five minutes apart; do
you understand that?
A I do.
Q Same size person, same illness, correct?
A That's correct.
Q And we have one twin who was treated, as our expert Dr. Matthews
says, should have been treated, and he survived, correct?
A That’s correct.
***
Q So what we know is that the presentation of Mack is clinically very
similar; the laboratory presentation is similar; the diagnosis is similar; the
treatment is as Dr. Matthews says it should have been for Alvee, right?
A Yes, sir.
However, the trial court also heard Dr. Finkelstein give the following testimony in
response to questions inquiring about similarities between the histories given in the BSA
emergency department on May 12 and Mack’s history given on his presentation at
NWTH:
A Well, they were a bit dissimilar, because again . . . Mack had already
been to the [BSA] emergency department, received IV fluid therapy,
continued to take oral hydration. So that historical feature alone makes
the two cases almost incomparable.
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Q How about the historical history that Mack’s brother, who had similar
symptoms, had suddenly and unexpectedly died; is that an important
piece of history?
A I think that’s exquisitely an important piece of history.
Q Does that history make these two presentations similar or very
different?
A Completely different.
The trial court thus heard evidence that the NWTH treatment team who saw
Mack on May 13 had the benefit of hindsight from the twins’ treatment the previous day
at BSA; that Mack had received bolus intravenous therapy and antibiotics the previous
day, in addition to oral hydration during the intervening hours; and from Alvee’s tragic
death an hour earlier. From this evidence, the trial court reasonably could have
determined the circumstances under which Dr. Sherwood made his treatment decisions
lacked substantial similarity with those under which decisions regarding Mack’s
treatment were made at NWTH. The law permits juries to draw inferences from the
occurrence of other substantially similar events. See Nissan Motor Co. v. Armstrong,
145 S.W.3d 131, 138 (Tex. 2004); Daseke v. Daseke, No. 05-96-00119-CV, 1998
Tex.App. Lexis 3, at *11-12 (Tex.App.--Dallas, January 6, 1998, no pet.) (not designated
for publication); McKee v. McNeir, 151 S.W.3d 268, 270 (Tex.App.--Amarillo 2004, no
pet.). The degree of similarity required for the admission of such evidence depends on
the issue the evidence is offered to prove. Nissan, 145 S.W.3d at 138. In this case, the
testimony supporting a conclusion the events sought to be compared were not
substantially similar, coupled with the absence of expert testimony explaining how and
why records from Mack’s later hospital admission and treatment shed light on the
causes of Alvee’s death, combine to satisfy us that the trial court’s exclusion of the
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records was not an abuse of discretion.3 We overrule the issue of Woodard and
Mulholland.
Conclusion
Having overruled the sole issue of Woodard and Mulholland, we affirm the
judgment of the trial court.
James T. Campbell
Justice
3
Dr. Sherwood also contends that even if relevant the records of Mack’s NWTH
treatment were properly excluded under Rule of Evidence 403, and contends their
exclusion was in any event not reversible error because the case did not turn on the
excluded records. See Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000).
We do not address those contentions.
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