Burkhardt v. Houston Orthopedic Associates

ROBERTSON, Justice,

dissenting.

Because I believe appellant failed to meet his burden of establishing that appel-lees’ negligence was the proximate cause of his injury, I respectfully dissent.

The supreme court has held that although it is not necessary to use the magic words of “reasonable medical probability” to establish proximate cause in a medical malpractice case, “a jury issue should not be submitted when it is based merely upon speculation and conjecture.” Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988). I believe the evidence in the instant case concerning proximate cause fails to rise above speculation and conjecture.

Both appellant and appellees agree that the issue of proximate cause centers on one passage of the testimony from Dr. Drew. That testimony reads as follows:

Q: In your opinion, Dr. Drew, if Mr. Burkhardt had had the plate removed on July 15, 1982 and then was managed in accordance with the accepted practice of board certified orthopedic surgeons, would in all reasonable probability the osteomyelitis have been cured at that time rather than in a subsequent period of time when you treated Mr. Burk-hardt?

A: There is a probability that the infection could very well have been controlled if the plate had been removed, yes.

Q: In your opinion, had Mr. Burkhardt had the treatment, the removal of the internal fixation device in 1982 during the July hospitalization, what effect would that have had on any necessity of being hospitalized in Boston during 1984?

A: It might have precluded such hospitalization.

Q: In reasonable probability, in your opinion, wouldn’t that have precluded subsequent hospitalization here in Boston? You can answer the question.

A: As I previously stated, I think the removal of the plate at that time might have — and there is a possibility that it would have — precluded the treatment that was later necessary for Mr. Burk-hardt. (emphasis added throughout).

As shown in the testimony above, Dr. Drew never stated he believed appellant’s infection could have been cured any earlier if the internal fixation device had been removed. He merely said it probably could have been controlled. Further, Dr. Drew would go no further than to state there was a possibility that removal of the device would have precluded subsequent hospitalization and treatment for the infection. Based on this testimony, I do not believe appellant’s evidence concerning proximate cause ever rose above mere speculation and conjecture. The judgment notwithstanding the verdict entered by the trial court should be affirmed.

I respectfully dissent.