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