Martin L. Schneider, M.D., P.A. and Diana K. Wise v. Eloise Haws

NO. 07-02-0082-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

OCTOBER 14, 2003
______________________________

MARTIN L. SCHNEIDER, M.D., P.A. AND DIANA K. WISE,

Appellants

v.

ELOISE HAWS,

Appellee
_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 85,387-E; HON. ABE LOPEZ, PRESIDING
_______________________________

Opinion
_______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

Martin L. Schneider, M.D., P.A. (Schneider) and Diana K. Wise (Wise) appeal from

a judgment rendered in favor of Eloise Haws (Haws). Alleging claims sounding in medical

malpractice, Haws sued Wise and Schneider to recover damages for injuries sustained

when she fell and struck her head while walking down a hall in their office. Haws, an 88

year old woman who walked with a cane, was present in the office to undergo testing to

1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t
Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
determine the cause of her dizzy spells.2 She had experienced the spells for more than

a year. Wise, an employee of Schneider, administered the tests, and during them Haws

exhibited signs of dizziness.3 Approximately ten minutes after they were completed, and

after Haws represented that she was no longer dizzy, Wise and Haws exited the

examination room together and proceeded towards the waiting room. Though on one

previous visit Schneider used a wheel chair to move her around his office due to her

dizziness, Haws was not afforded such a device this time. Instead, Wise allowed her to

walk from the examination room, though Wise walked next to the patient. However, before

reaching the waiting room door, Wise left Haws’ side. After Wise did so, Haws became

dizzy, fell, and struck her head against a door or door jamb. The impact opened a “gash”

in her scalp and caused a blood clot to form in her skull. Amelioration of the clot and its

effects necessitated multiple surgeries.

Six issues are presented to us. Each involves the sufficiency of the evidence

underlying the jury’s verdict. That is, Wise and Schneider contend that the evidence was

legally and factually insufficient to establish 1) the applicable standard of care, 2) a

breach of that standard by Wise, and 3) a causal nexus between the breach and Haws’

injuries. We affirm the judgment.

Standard of Review

The standards of review used in assessing the legal and factual sufficiency of the

2
Haws used a cane because she previously fell and injured herself. The fall that eventually
occasioned the need for a cane was unrelated to dizziness, though the record contains evidence illustrating
that her dizziness caused her to fall at other times.
3
Haws sought to hold Schneider liable for the misconduct of Wise via the doctrine of respondeat
superior. Thus, suit was not based upon any purportedly negligent act of his.

2
evidence are well-settled. We cite the parties to Bradford v. Vento, 48 S.W.3d 749, 754

(Tex. 2001), Texarkana Memorial Hospital v. Murdock, 946 S.W.2d 836, 838 (Tex. 1997)

and Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965) for their explanation.

Next, to recover upon a claim of medical malpractice, one must prove four elements.

That is, the evidence must illustrate that 1) the physician had a duty to act according to a

certain standard; 2) the physician breached that particular standard or failed to act in

accordance with it; 3) the plaintiff suffered injury; and 4) the breach of the standard

proximately caused the resulting injury. Krishnan v. Ramirez, 42 S.W.3d 205, 212 (Tex.

App.--Corpus Christi 2001, pet. denied); Day v. Harkins & Munoz, 961 S.W.2d 278, 280

(Tex. App.--Houston [1st Dist.] 1997, no pet.).

Issues One and Two — Standard of Care

Wise and Schneider initially contend that Haws presented no evidence or factually

insufficient evidence of the applicable standard of care Wise was to follow. Their

argument is focused upon the testimony of Haws’ medical expert, Dr. Paschall. Allegedly,

his testimony was too general and left the jury to speculate about the procedures or

mechanics which Wise should have followed viz her interaction with Haws. We overrule

the issues.

In addressing the issues, we note that Haws complains not of how Wise conducted

the audiology test but how she acted thereafter. According to counsel for Haws, their

focus was “on the conduct after the ENG test.” With this in mind, we turn to the record

before us.

Regarding the expert testimony of Dr. Paschall, he opined that Wise and Schneider

3
had to “devise a protocol, or a method, some way to ensure patient safety and comfort.”

What this “protocol” or “method” should have been went unsaid. Nevertheless, one should

have been in place because, according to Paschall, when a patient “come[s] in the front

door to see you, as soon as they come into your facility, wherever your facility is, they’re

your responsibility, and they’re your responsibility until they leave that facility.” And, when

asked if the physician is “responsible for whatever happens to that patient . . .,” he replied

“yes.” This was allegedly so “[b]ecause if they weren’t coming - - coming specifically to

see that practitioner, they wouldn’t be there.” So, in his view, the standard of care saddled

Wise with the “responsibility to ensure her patient’s safety” and that this duty applied “no

matter what.” This constitutes no evidence of the applicable standard of care for, as

argued by Wise, Paschall effectively imposed upon her and her employer the yoke of strict

liability or the duty of insuring and guaranteeing the safety of their patients. And, in

imposing such a high standard, he required more of Wise and Schneider than that allowed

by law. Simply put, physicians are not insurers against harm. Southwest Texas Methodist

Hosp. v. Mills, 535 S.W.2d 27, 29 (Tex. Civ. App.--Tyler 1976, writ ref’d n.r.e.), overruled

on other grounds by Haddock v. Arnspiger, 793 S.W.2d 948 (Tex. 1990). Quite the

contrary, they need only exercise ordinary or reasonable care and skill under the

circumstances. Id. So, to the extent that Paschall attempted to impose upon them a

standard of care greater than that compelled by law, his testimony constituted no evidence,

as a matter of law, of the applicable standard of care.

4
 Yet, Paschall was not the only medical expert to testify. Wise presented one of her

own (Dr. Dennis), and he too was asked about the standard of care.4 He responded with

the following:

Standard of care is - - is a general concept. It’s the concept of, under similar
circumstances what would other reasonable practitioners have done. In my
opinion, under the same set of circumstances, . . . reasonable practitioners
would have done like Ms. Wise did. It is usual and prudent to escort a
patient to and from the examination room. And in this particular case, I did
not see any circumstances that would indicate that measures beyond that
were reasonably necessary or required.

Thereafter, he underwent cross-examination. While being questioned by Haws’ counsel,

Dennis again acknowledged the need to escort to the waiting room those patients who

underwent ENG testing. The purpose of escorting them was to “ensure . . . safety,” the

doctor further opined. Then, he was asked if the “degree of caution change[d] with the

riskiness of the patient.” The answer was “yes.” Counsel for Haws also inquired if

someone who was “completely useless at escorting this [88 year old] lady - - this lady if

she falls” should be allowed to escort the patient by herself. To that, Dennis replied “no.”

By that time, Wise had already testified and admitted that 1) she “did not have hold of”

Haws as the two walked down the hall and 2) even if she did, she lacked the physical

strength to stop her from falling. So too had she acknowledged that “older people [were

not] as stable as younger people” nor as “steady” and “spry.” And, when asked if an

elderly person who reports dizziness and episodes of dizziness presented a dangerous

4
Wise nor Schneider addressed this testimony in their appellate brief. Yet, because the standard
of review obligates us to peruse the entire record in search of more than a scintilla of ev idence supporting
the verdict, see Texarkana Mem. Hosp. v. Murdock, 946 S.W.2d 836, 838-39 (Tex. 1997), we cannot ignore
it.

5
situation, she replied that “[i]t can be.” To this we add the evidence illustrating that 1)

Haws was 88 years old and walked with a cane due to a prior injury, 2) Haws was known

to have fallen by Dr. Schneider on one or more occasions due to sudden dizziness, 3)

Wise should have known that Haws fell, at times, due to her dizzy spells, 4) on at least one

prior visit, Haws was so dizzy Schneider had her placed in a wheelchair to move her about

the office, and 5) Wise, who obviously knew Haws had historically suffered from sudden

onset of dizzy spells, left the octogenarian’s side as the two proceeded down the hallway.

From the evidence we mentioned, a rational factfinder could reasonably deduce

several things. First, the standard of care (as described by Dennis) required Wise to

safely return Haws to the waiting room via the use of an escort. Second, the degree of

caution to be exercised changed depending upon the risk surrounding the patient. Third,

escorting the patient required more than simply walking by her side or in close proximity.

Indeed, implicit in Dennis’ acknowledgment that an escort was to be provided for purposes

of safety and one who was “completely useless at escorting” an elderly lady “if she falls”

should not be allowed to escort her is the reasonable inference that the escort not only be

reasonably capable of preventing the patient from falling but also reasonably prevent the

patient from falling. If this were not so and if all that was needed was for someone to

merely walk in close proximity to Haws, then it would have been of no consequence to

Dennis whether safety was an issue and whether the assigned escort was “completely

useless at escorting . . . if she falls.” But, again, it mattered to him. Thus, there existed

more than a scintilla of evidence of an applicable standard of care to which Wise and

6
Schneider were required to conform and, the jury’s decision so concluding was not

manifestly unjust given the entire evidentiary record.5

Issues Three and Four — Breach of Standard

Next, Wise and Schneider argue that “[t]here is also no evidence or insufficient

evidence that Wise breached the standard of care.” We disagree and overrule the issues.

As we concluded under issue one, evidence illustrated that the applicable standard

of care obligated Wise (given the circumstances before her) to return Haws safely to the

waiting room. Furthermore, this entailed, at the very least, the provision not only of an

escort reasonably capable of preventing her fall but also one who would reasonably

prevent her fall as she journeyed from the examining to the waiting room. Other evidence

illustrated that the escort provided to Haws, i.e. Wise, 1) knew Haws historically suffered

from dizziness, 2) lacked the physical ability to prevent Haws from falling, 3) solicited the

help of no one else when returning Haws to the waiting room, 4) provided Haws with no

mechanical device to assist her return to the waiting room, such as a wheel chair which

Schneider had provided her in the past due to her dizziness, 5) failed to take hold of Haws

5
We agree with the dissent to the extent it suggests that the testimony about the standard of care
was less than clear and unequivocal. Yet, Dennis did testify that an escort was needed due to concerns for
the patient’s safety, or at least a rational juror reasonably could have so interpreted his words. So too could
a rational juror reasonably interpret the doctor’s comments as requiring the escort to be capable of
preventing an octogenarian (who walked with a cane, had a history of dizziness about which her doctors
knew, and had just completed a test for dizziness wherein she manifested dizziness) from falling while
escorting the patient. At this time, the law does not restrict the litigants, at trial, to asking specific questions
in a specific way to prove or disprove claims of medical malpractice. Because it does not, the task is left
to the factfinder (or jury in this case) to use its common sense and experience to interpret and analyze that
which it hears from a witness’ mouth. And, while we may have decided the case differently had we been the
jury, we were not. In short, an appellate court must defer to the jury’s decision so long as some evidence
supports it and its verdict is not clearly wrong or manifestly unjust given the entirety of the record.

7
as she walked towards the waiting room, and 6) left Haws’ side before Haws reached the

waiting room. This constitutes some evidence from which a rational factfinder could

reasonably deduce that Wise breached the standard of care Dennis described by not only

failing to reasonably prevent Haws from falling but also by failing to provide the elderly

lady an escort reasonably capable of preventing her from falling. Furthermore, such a

finding would not be so against the great weight and preponderance of the evidence as

to render it manifestly unjust.

It is suggested that some expert had to testify that a breach occurred. Furthermore,

none allegedly did because the only expert whose testimony was legally cognizable

(Dennis) opined that reasonable practitioners would have done like Wise did. Yet, the

record also illustrates that Dennis said more. As previously mentioned, he acknowledged

that the duty to escort was tied to the need for safety and that one who was physically

incapable of preventing the patient from falling should not be allowed to escort the patient

alone. Moreover, Wise admitted that she lacked that physical capability, failed to secure

the help of no one who had that capability, and provided Haws with no device to assist her

safe return. So, we have before us the requisite expert testimony of breach in the guise

of one expert’s testimony (that of Dennis) setting forth the applicable standard of care and

another expert’s testimony ( that of Wise) illustrating that she could and did not comply

with it as she and Haws walked down the hall.

Additionally, while authority holds that expert testimony is generally needed to

determine whether a duty was breached in a medical malpractice case, that is not a hard

and fast rule. As stated by the Texas Supreme Court, “[t]he burden of proof is on the

8
patient to establish that a breach has occurred . . . and, unless the mode or form of

treatment is a matter of common knowledge or within the experience of the layman, the

patient must tender expert testimony to meet the burden.” Chambers v. Conaway, 883

S.W.2d 156, 158 (Tex. 1993) (emphasis added). In other words, if the purported breach

involves circumstances which a juror can analyze through application of common

knowledge or experience, then the patient need not tender expert testimony explaining

whether a breach occurred. And, we believe that rule applies here. Whether the duty (as

described by Dennis) to provide a safe escort (to an 88 year old patient walking with a

cane after undergoing a test for dizziness) was breached when her escort was physically

incapable of safely escorting her if she fell is a matter within the realm of common

knowledge and experience. So, expert testimony was unnecessary, even though it

appears of record.

Issues Five and Six — Causation

In their final two issues, Wise and Schneider argue that no evidence or factually

insufficient evidence supports the decision that any breach on their part proximately

caused the injury suffered by Haws. This is so because “Haws did not establish cause in

fact” and her “accident was not foreseeable.” We disagree and overrule the issues.

As previously mentioned, one must also prove, in a medical malpractice case, that

the negligent act or omission proximately caused the harm alleged. Sisters of St. Joseph

of Tex. Inc. v. Cheek, 61 S.W.3d 32, 35 (Tex.--Amarillo 2001, pet. denied). For an act or

omission to be such a cause, two elements must be established. That is, the plaintiff must

establish that the act or omission was a cause-in-fact of the injury and that the injury was

9
reasonably foreseeable. Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex. 1998).

Next, to be a cause-in-fact, there need only be a reasonable probability that the act or

omission gave rise to the harm. Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397,

399-400 (Tex. 1993). And, such a probability exists if the conduct is a substantial factor

in bringing about the result, without which the result would not have occurred. Sisters of

St. Joseph of Tex. Inc. v. Cheek, 61 S.W.3d at 35.

Here, Wise and Schneider initially suggest that the standard can only be met

through the presentation of expert testimony. They are mistaken for “[n]ot every medical

malpractice case requires expert testimony to demonstrate causation.” Traut v. Beaty, 75

S.W.3d 661, 668 (Tex. App.--Texarkana 2002, no pet.). Indeed, an expert may be needed

at times to calculate the probability that a certain result arose from particular conduct. Yet,

a trier of fact nonetheless may assess causation when the relationship between the act

and result come within the factfinder’s general experience and common sense. Lenger v.

Physician’s Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970); Parker v. Employers Mut.

Liability Ins. Co., 440 S.W.2d 43, 46 (Tex. 1969); Traut v. Beaty, 75 S.W.3d at 668. And,

that is the situation here. Whether the failure to provide Haws with an escort or

mechanism capable of safely returning her to the waiting room resulted in her striking her

head is something within the general experience and common sense of a factfinder. No

scientific theorems or concepts outside the general intelligence of a juror are implicated

in that assessment. So, expert testimony on the matter was not needed.

Next, that Wise had to abide by the standard of care described above, that she

lacked the physical strength to stop Haws from falling, that she failed to secure the help

10
of anyone else to assist her, that she failed to provide Haws with a device (such as a

wheel chair) that would prevent Haws from falling and despite the fact that such a device

had previously been provided her, that Wise left Haws’ side as the two walked towards the

waiting room, and that Haws fell and struck her head is some evidence from which a

reasonable factfinder could deduce that the failure to provide the requisite escort was a

substantial factor in bringing about the harm suffered, without which the harm would not

have occurred. And, such a determination would not be against the great weight and

preponderance of all the evidence.

Nor can we say that there existed a dearth of evidence upon which the jury could

hold that the harm was foreseeable. To be reasonably foreseeable, it is not necessary that

the particular accident or injury be predicted, only that the harm be of a general character

that might reasonably have been anticipated. Scott Fetzer Co. v. Read, 945 S.W.2d 854,

869 (Tex. App.--Austin 1997), aff’d, 990 S.W.2d 732 (Tex. 1998). This does not permit

simply viewing facts in retrospect and theorizing an extraordinary sequence of events by

which the defendant’s conduct caused the injury. Read v. Scott Fetzer Co., 990 S.W.2d

at 737. Rather, the question involves a practical inquiry based on experience applied to

human conduct. Id. And, whether practical inquiry based on experience applied to human

conduct authorized the factfinder to conclude that Haws’ injury was foreseeable is quickly

resolved by simply looking at Dennis’ testimony. If, according to Dennis, an escort is

needed for purposes of safety and if that escort must be capable of preventing a patient

like Haws from falling, then logic compels that the risk of falling unless a capable escort

11
is provided is foreseeable. If this was not so, then there would be no rationale for Dennis

to imply that the escort must be capable of preventing a fall.

To Dennis’ testimony we also add that illustrating that Haws had previously fallen

due to the sudden onset of dizziness, that Schneider knew of this and Wise should have,

and that Schneider had provided Haws with a wheel chair on at least one prior visit due

to her dizziness. This, coupled with the words of Dennis, constitute more than a scintilla

of evidence permitting the jury to rationally conclude that the injury suffered by Haws as

a result of the breach by Wise and Schneider was reasonably foreseeable. Furthermore,

we cannot say, given the entirety of the record, that the factfinder’s holding to that effect

was or is against the great weight and preponderance of the record.

Having overruled the issues posed by Wise and Schneider, we affirm the judgment

of the trial court.6

Brian Quinn
Justice

6
We caution against interpreting the result in this case as insinuating, in any way, that physicians
generally have the duty to escort or provide escorts to their patients. It was because of the particular
testimony of Dr. Dennis that the appellants were saddled with that responsibility at bar. In short, we limit our
ruling to the facts and circumstances of this particular case. And, if we were permitted under the rules of
appellate procedure from withholding publication of this opinion we would do so given the unique testimony
in this case.

12
 NO. 07-02-0082-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

OCTOBER 14, 2003
______________________________

MARTIN L. SCHNEIDER, M.D., P.A. AND DIANA K. WISE,

Appellants

v.

ELOISE HAWS,

Appellee
_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 85,387-E; HON. ABE LOPEZ, PRESIDING
_______________________________

Before QUINN and REAVIS, JJ. and BOYD, SJ.7

DISSENT

Although I agree with the majority that evidence of the appropriate standard of care

was legally sufficient to support the trial court’s judgment, in my opinion the evidence was

7
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

13
factually insufficient to establish the appropriate standard of care or a breach of the

standard of care as presented in issues two and four. Accordingly, I respectfully dissent.

Among other contentions, Haws argues that even if no medical expert testimony

was presented, the general negligence standard of care would apply. However, because

Haws elected to submit her case on a medical malpractice theory, she is limited to that

same theory on appeal. Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 444 (Tex.App.-

-Fort Worth 1997, pet. denied); see also Davis v. Campbell, 572 S.W.2d 660, 662 (Tex.

1978) (holding that parties are restricted on appeal to theory on which the case was tried).

The mere occurrence of an event causing injury does not constitute evidence of

negligence. Allsup’s Convenience Stores v. Warren, 934 S.W.2d 433, 436 (Tex.App.--

Amarillo 1996, writ denied). Where, as here, the pleadings assert a medical malpractice

cause of action, as a threshold requirement, a plaintiff must prove the applicable standard

of care by expert testimony. See Johnson v. Berg, 848 S.W.2d 345, 348 (Tex.App.--

Amarillo 1993, no writ). Further, causation may not be established by guess, conjecture,

or speculation and expert testimony must be legally and factually sufficient to enable the

jury to avoid guessing or speculating on its answers. Sisters of St. Joseph of Texas v.

Cheek, 61 S.W.3d 32, 37 (Tex.App.--Amarillo 2001, pet. denied).

Because the general negligence standard of care is not controlling and the “mode

or form of treatment” applicable here is not a matter of common knowledge within the

experience of laymen, expert medical testimony is required to provide evidence by which

14
the trier of fact may determine whether the standard of care was breached. Hood v.

Phillips, 554 S.W.2d 160, 165 (Tex. 1977); see also Denton Regional Medical Center v.

LaCroix, 947 S.W.2d 941, 951 (Tex.App.--Fort Worth 1997, writ dism. by agt); see

generally American Transitional Care v. Palacios, 46 S.W.3d 873, 876 (Tex. 2001)

(holding that expert testimony is required to establish “want of skill and attention”).

Further, cause in fact must be established by a “causal connection between the negligent

act and the injury based on reasonable medical probability.” Hodgkins v. Bryan, 99

S.W.3d 669, 673 (Tex.App.–Houston [14th Dist.] 2003, no pet. h.).

In its analysis, after reviewing the expert testimony presented by Dr. Paschall,

Haws’s expert, the majority concludes his testimony constituted no evidence of the

applicable standard of care. However, upon reviewing the testimony of Dr. Dennis, expert

for Schneider and Wise, the majority concludes his testimony is legally and factually

sufficient to support the judgment. Although I agree with the analysis of the majority as to

the testimony of Dr. Paschall and that the evidence from other sources was legally

sufficient, I disagree the evidence is factually sufficient.

Factual Sufficiency of the Evidence
Issues Two and Four

15
 Per the charge of the court,8 the jury was required to determine whether the

evidence established “the failure to use ordinary care, that is, failing to do that which a

clinical audiologist of ordinary prudence would have done under the same or similar

circumstances or doing that which a clinical audiologist of ordinary prudence would not

have done under the same or similar circumstances.” In conducting a factual sufficiency

analysis, we apply the standards set out in Pool v. Ford Motor Co., 715 S.W.2d 629, 635

(Tex. 1986) and Raw Hide Oil & Gas v. Maxus Exploration, 766 S.W.2d 264, 276

(Tex.App.--Amarillo 1988, writ denied).

Wise testified that after the test was concluded, she assessed Haws’s physical

appearance and concluded she did not show any signs of dizziness and was able to “get

off of the table, hold herself steady, walk out the door and down the hall.” She also

testified Haws did not use a wheelchair when she entered the office and in response to a

question stated, “she did not need to exit in a wheelchair.” On cross-examination by

Haws’s attorney, Dr. Dennis testified in part as follows:

Standard of care is–a general concept. It’s the concept of, under
similar circumstances what would other reasonable practitioners have done.
In my opinion, under the same set of circumstances, because of the reasons
that I have outlined, reasonable practitioners would have done like Ms. Wise
did. It is usual and prudent to escort a patient to and from the examination
room. And in this particular case, I did not see any circumstances that would
indicate that measures beyond that were necessary or required.

8
Neither party presented any objections to the charge and none are presented on
appeal.

16
The term “escort” has multiple definitions, including to guide, protect, or pay honor.

Webster’s II New Riverside University Dictionary 443 (1984). At trial however, Dr. Dennis

did not explain his definition of the term “escort” for these purposes. Even though his

comment that “reasonable practitioners would have done like Ms. Wise did” could be

considered as his definition of the standard of care by example, his testimony lacked

specificity and the jury could only guess or speculate as to whether the term “escort” was

used to mean escort as a guide or escort for protection or safety. As a result, the

information provided to the jury was insufficient to enable it to answer the questions

without guessing or speculating.

Accordingly, in my opinion, the expert medical evidence is factually insufficient. I

would sustain issues two and four and reverse and remand the cause for a new trial.

Don H. Reavis
Justice

17