Summary
The Texas Court of Appeals, Second Appellate District, reviewed a take-nothing judgment in a medical-malpractice action involving an alleged bowel perforation during laparoscopic surgery. The court addressed the legal- and factual-sufficiency of the jury’s negligence finding and the limitation of cross-examination concerning an expert witness’s alleged bias. The court overruled both issues and affirmed the trial court’s judgment.
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Practice areas
Questions Presented
- Whether the evidence was legally insufficient to support the jury's finding that Dr. Wilson's negligence, if any, did not proximately cause Nichols's injury.
- Whether the evidence was factually insufficient because the jury's adverse negligence and proximate-cause finding was against the great weight and preponderance of the evidence.
- Whether the trial court reversibly erred or abused its discretion by restricting cross-examination of a defense expert concerning a prior malpractice lawsuit brought against that expert by Nichols's counsel.
Holdings
- The legal-sufficiency challenge failed because some evidence supported the jury's finding and Nichols did not conclusively establish the contrary position as a matter of law.
- The factual-sufficiency challenge failed because the jury's finding was not against the great weight and preponderance of the evidence.
- Even assuming the trial court erred by restricting cross-examination of Dr. Dulemba about a prior malpractice lawsuit, any error was harmless because Nichols did not show that the restriction probably caused an improper judgment or prevented her from presenting her case.
- The trial court did not abuse its discretion by excluding cross-examination concerning the prior malpractice lawsuit against Dr. Dulemba.
Key quotations
“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.” (34)
“We cannot sit as a thirteenth juror, and we cannot under any circumstances retry the case.” (35)
“Under the circumstances we have outlined, we cannot conclude that the trial court’s challenged action was harmful.” (52)
Factual background
Nichols underwent laparoscopic fulguration of endometriosis performed by Dr. Wilson on August 24, 2016. She returned to an emergency room the same day and again on August 26 with severe abdominal symptoms but was discharged both times; she was admitted on August 29, and surgery on August 31 revealed a bowel perforation requiring resection and colostomy. At trial, the parties presented conflicting medical expert testimony about whether Dr. Wilson breached the standard of care by failing to inspect the bowel adequately and whether the perforation occurred during the laparoscopic procedure or later. The jury credited evidence supporting the defense and found no negligence or proximate cause.
Procedural history
Nichols sued Dr. Wilson and affiliated medical entities over a bowel perforation allegedly sustained during laparoscopic treatment for endometriosis. After an eight-day trial, the jury answered no to the negligence-and-proximate-cause question concerning Dr. Wilson. The trial court signed an amended take-nothing judgment, overruled Nichols's combined motion for new trial and alternative motion for judgment notwithstanding the verdict by operation of law, and Nichols appealed, challenging the legal and factual sufficiency of the evidence and the limitation of cross-examination of a defense expert.