Duff v. Yelin

MAUZY, Justice,

dissenting.

I respectfully dissent. I disagree with the majority’s holding that the trial court properly instructed a verdict in favor of St. Luke’s Episcopal Hospital.

The standard of review for an instructed verdict requires a determination of whether the record contains any probative evidence that would raise a fact issue on material questions. Collora v. Navarro, 574 S.W. 2d 65, 68 (Tex.1978). Undeniably the material question at issue in this case is proximate cause. In determining whether Duff sufficiently raised a fact issue on proximate cause, this court is obligated to consider all evidence in a light most favorable to Duff, disregard all conflicts and give Duff the benefit of all reasonable inferences. Collora, 574 S.W.2d at 68. If the record contains any probative evidence on proximate cause, the question is one for the jury to decide and the instructed verdict cannot stand. White v. Southwestern Bell Telephone Co., 651 S.W.2d 260, 262 (Tex. 1982); Texas Employers Insurance Ass’n v. Page, 553 S.W.2d 98, 102 (Tex.1977).

In medical malpractice cases, the law requires proof of a causal connection between the injury and the defendant’s negligence. Lenger v. Physician’s General Hospital, Inc., 455 S.W.2d 703, 706 (Tex.1970). In Lenger, this court identified the following circumstances under which the trier of fact may decide the issue of causation:

(1) when general experience and common sense will enable a layman fairly to determine the causal relationship between the event and the condition;
(2) when scientific principles, usually proved by expert testimony, establish a traceable chain of causation from the condition back to the event; and
(3) when probable causal relationship is shown by expert testimony. 455 S.W.2d at 706.

The court then explained that in determining whether an issue should be submitted to the jury, a reviewing court should not consider only evidence of one type to the exclusion of additional evidence falling into the other categories. Id. at 706.

This appears to be exactly what the majority has done in this case. The majority has concluded that Duff failed to produce any expert testimony of the probable cause of this injury. Although I disagree that the record is devoid of any expert testimony on the probable cause, I am not convinced that this case requires an expert’s testimony to establish causation. The cases relied on by the majority do not support the proposition that in every case *178medical expert testimony is the only means of proving causation.

In Insurance Company of North America v. Myers, 411 S.W.2d 710, 713 (Tex. 1966), this court held that a scientific determination was necessary to support the contention that a preexisting tumor was activated and the deadly effects of a malignancy accelerated by an injury. Such a “question of science” could only be determined by expert medical testimony. Id. As noted in both Lenger and Insurance Co. of North America v. Kneten, 440 S.W.2d 52 (Tex.1969), expert testimony need only establish a possible causal relationship where the jury can fairly determine causation through general experience and common sense. Lenger, 455 S.W.2d at 706. Kneten, 440 S.W.2d at 53-54. See also Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex.1984) (lay testimony adequate to prove causation where general experience and common sense will enable a lay person to determine a causal relationship).

In the present case the evidence establishes that the injury to Duffs right ulnar nerve occurred while he was hospitalized for neck surgery. The surgery was completely unrelated to the ulnar nerve injury. The evidence supports two possible explanations: first, the injury could have occurred while Duff was anesthetized and being handled by hospital personnel; or second, he could have injured the nerve while moving about in his room after he awoke from the anesthetic.

In spite of the fact that Duff failed to produce his own expert, the testimony of the defendant Dr. Yelin placed the more probable time of injury while Duff was anesthetized and being handled by hospital personnel. Dr. Yelin testified:

Q: Would the man be more prone to injury to the ulnar nerve when he is under anesthetic than when he is awake?
A: He would because he would have no control. [S.F. 207].

Dr. Yelin later contradicted this statement by testifying that the probable cause of the injury was Duff’s moving around his hospital room while awake. Nevertheless, in considering only the evidence that would support submission of the issue on causation, Dr. Yelin’s testimony that Duff was more prone to injury while under anesthetic supports the contention that the injury probably occurred while Duff was being handled by hospital personnel.

Even if Dr. Yelin had successfully couched this testimony in terms of possibilities, the general knowledge and experience of a lay person could lead to the conclusion that the injury occurred while Duff was under anesthetic. In Insurance Company of North America v. Kneten, 440 S.W.2d 52 (Tex.1969), this court concluded that a jury could reasonably conclude that a claimant’s heart attack was caused by a prior electrical shock. 440 S.W.2d at 53-54. The medical expert in Kneten concluded that the shock was only a possible cause of the heart attack. The court held that the jury could make the ultimate determination in light of the prompt onset of the attack following an event capable of precipitating it. Id.

I would therefore hold that in this case a jury could reasonably conclude through general experience and common sense that an ulnar nerve injury does not usually occur by an accidental bump, nor does leaning on an elbow generally cause permanent damage. Also there was sufficient expert testimony that the injury probably occurred while Duff was anesthetized and under the care of hospital personnel. Accordingly, the trial court improperly instructed a verdict in favor of the hospital. I would reverse the judgment of the court of appeals and remand the case to the trial court.

RAY and KILGARLIN, JJ., join in this dissent.