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Texas Appeals Court Finds Evidence Legally And Factually Sufficient To Support Jury�s Verdict In Battle Of The Experts


HLD, v. 33, n. 7 (July 2005)

Texas Appeals Court Finds Evidence Legally And Factually Sufficient To Support Jury's Verdict In "Battle Of The Experts"

            An appeals court in Texas held that a jury's verdict in a medical malpracitce action was not against the wieght of evidence. In a battle of expert witnesses, a jury must decide who to believe, the appeals court held.

On April 24, 1996, Delores McLean came to the emergency room complaining of various ailments and saw defendant Dr. Welch. After seeing her primary care physician and a period of recovery, she again came to the emergency room on July 8, 1996, where she later died of a pulmonary embolism. Plaintiff Simeon McLean filed a medical malpractice suit in February 1988. A jury found Welch's negligence proximately caused Delores' death. This appeal followed.

At trial, plaintiff's expert witnesses testified that Delores' numerous clinical symptoms were consistent with a pulmonary embolus. One of the experts opined that Delores' normal chest x-ray, occurring as it did in the setting of acute shortness of breath coupled with hypoxemia (deficient oxygenation of the blood), was "highly suggestive" of a pulmonary embolus. She testified that Delores' abnormal A-a gradient was one of the "key factors" that increased the suspicion of pulmonary embolus and stated that she believed Delores's tachycardia and low oxygen saturation level were caused by showers of small pulmonary emboli. This witness opined that, in reasonable medical probability, the breathing problems Delores was experiencing when she presented to the emergency room in April 1996 had the same origin as the breathing difficulties she had when she returned to the emergency room in July.

An autopsy revealed that Delores had a massive "saddle" embolus lodged in her pulmonary arterial trunk. The autopsy further revealed a not-yet-fatal embolus, which another doctor during a later visit to the emergency room had mistaken for pneumonia. During the autopsy, the medical examiner retained random samples of tissue. Two years later, slides were prepared for examination, showing three microscopic emboli in tow of the smaller pulmonary arteries. Based on their size, the medical examiner concluded that these emboli were in Delores' lungs at least four to six weeks before she died.

            On appeal, Welch asserts that the evidence is legally and factually insufficient to sustain the jury's verdict that his negligence in failing to diagnose pulmonary emboli in Delores was the proximate cause of her death. Welch contends that there is no direct physical evidence that Delores was suffering from pulmonary emboli at the time he treated her and that the experts' opinions that she did have an embolism on that date are speculative.

            On a thorough review of the entire record, the Court of Appeals of Texas found that the only evidence contrary to that which proves that Delores had pulmonary emboli on April 24, 1996, was the opinion testimony of the defendant's doctors. Because this case came down to a "battle of the experts," the jury must determine the weight and credibility of the witnesses. Here, the jury believed the plaintiff's witnesses.

After examining all of the expert testimony and other medical evidence, both for and against the jury's verdict in the case, the appeals court could not say that the evidence supporting the jury's finding is so weak, or the evidence to the contrary so overwhelming, that the jury's verdict should be set aside and a new trial ordered.

            Welch v. McLean, No. 2-02-237-CV (Tex. Ct. App. June 2, 2005).


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