dissenting.
Today a medical doctor is prohibited from participating in the trial of a lawsuit in which he is a defendant. This extraordinary and unprecedented maneuver is rooted in the majority’s growing distrust of our jury system — its unfounded belief that twelve ordinary citizens are incapable of assessing facts after full disclosure of all the surrounding circumstances. Plunging helter-skelter into uncharted territory to save another medical doctor that a jury found to have committed malpractice, the majority writes without regard to the chaotic effect of its ruling on both the retrial of this action and other complex litigation pending across Texas. Because today’s decision only serves to inject uncertainty and unfairness into trials, I dissent.
I.
At the outset let it be clear that I am' opposed to litigation agreements in any form that “skew the trial process, mislead the jury” or endanger the public. At 250. A lawsuit is more than a battle of private contestants; it is conducted in a taxpayer-funded forum with the involvement of public employees and invested with a public interest. Careful scrutiny is appropriate for agreements with a potential to distort the search for truth that lies at the heart of the litigation process, and public policy will sometimes require their disapproval. See, e.g., Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 560 (Tex.1990) (orig. proceeding) (invalidating a private agreement permitting one party from purchasing control of an opponent’s expert witnesses).1 Just as litigants can no longer enter legally enforceable agreements to bar the public’s right to know about the dangers to health and safety lurking in discovery documents, see Tex.R.Civ.P. 76a, they should not be permitted to distort their relationship with one another in the courtroom so as to subvert a fair trial. Usually before invalidating such an agreement, however, we first ascertain whether the integrity of the judicial process can be preserved through reasonable procedural safeguards. See Cypress Creek Util. Serv. Co. v. Muller, 640 S.W.2d 860, 866 (Tex.1982) (noting that procedural modifications are preferable to changes in the substantive law in protecting against potentially collusive trial tactics). Here a procedural remedy was adequate; the trial judge handled this matter in a responsible manner. The truth finding *253process was appropriately preserved, but, dissatisfied with the truth determined, the majority once again overrules precedent to achieve a desired result.
A.
Although Carole Smith non-suited Dr. Stephens and Dr. Syrquin, they remained as parties because Dr. Elbaor chose to maintain cross-actions against them. The majority remands for perhaps the first trial in Anglo-American jurisprudence in which a named party is denied a right to participate.2 In so doing, the court has created a precedent which could inflict “malignant effects” on our adversarial system far more severe than those potentially created by the Mary Carter agreements it denounces. See at 249. The majority denies Dr. Syrquin an opportunity to protect his professional standing by participating at trial.3 His reputation in the community as a physician has been hereby declared legally worthless, and any effect a jury verdict attributing significant negligence to him may have on hospital privileges, the cost and availability of malpractice insurance, and their patients is completely ignored. Normally one whose reputation is on trial may assert a right of intervention, see 1 Roy W. McDonald, Texas Civil PRACTICE in DISTRICT and County Courts § 3.47 (rev. 1991), but this doctor is left defenseless on retrial. The majority can point to no legal authority justifying this rash action. Today’s declaration is contrary to every prior Texas decision, all of which have upheld a trial court’s discretion in allowing named defendants to participate at trial in a Mary Carter setting where the nature of their involvement is fully disclosed to the jury. See Adams v. Petrade Int’l, Inc., 754 S.W.2d 696, 718 (Tex.App.—Houston [1st Dist.] 1988, writ denied); American Cyanamid Co. v. Frankson, 732 S.W.2d 648, 655 (Tex.App.—Corpus Christi 1987, writ ref’d n.r.e.); Browning-Ferris, Inc. v. Mack Trucks, Inc., 714 S.W.2d 405, 406-07 (Tex.App.—Corpus Christi 1986, writ ref’d n.r.e.); McAllen Kentucky Fried Chicken No. 1 v. Leal, 627 S.W.2d 480, 484 (Tex.App.—Corpus Christi 1981, writ ref’d n.r.e.). In concluding otherwise, the majority refuses to recognize a central tenet of our judicial system — those called into court should be allowed to answer.
B.
Originating in Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla.Dist.Ct.App.1967), overruled by Ward v. Ochoa, 284 So.2d 385, 388 (Fla.1973), the term “Mary Carter agreement” has been loosely applied to agreements by which a defendant, after settling with the plaintiff, nonetheless participates at trial and obtains an interest in the plaintiff’s recovery. See Robin Renee Green, Comment, Mary Carter Agreements: The Unsolved Evidentiary Problems in Texas, 40 Baylor L.Rev. 449, 451 (1988). Such arrangements appear in myriad forms, with courts disagreeing over which might violate public policy.4 While *254considering whether a Mary Carter agreement from an earlier proceeding is admissible at a later trial in Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1 (Tex.1986), we referenced competing policy concerns involved with such arrangements. Although presenting “the potential [for a jury verdict] being obtained without full and fair litigation,” we concluded that these agreements were advantageous in “encouraging settlements” and should be permitted “for public policy reasons.” Id. at 7. Relying on this endorsement of Mary Carter agreements, Texas litigants have continued to enter into them as a matter of course. Today the majority overrules Smithwick and disregards the practical consequences for those who mistakenly believed that precedent still had meaning in Texas.5
The chief problem associated with a Mary Carter agreement is that a hidden alteration of the relationship of some of the parties will give the jury a misleading and incomplete basis for evaluating the evidence. As is true in so many areas of jurisprudence, secrecy is the first enemy of justice. To address this concern, trial judges have appropriately implemented several procedural safeguards that remove the veil of secrecy from such settlements. Accordingly, we have emphasized the importance of complete disclosure of these arrangements. General Motors Corp. v. Simmons, 558 S.W.2d 855, 858-59 (Tex.1977), overruled on other grounds by Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 427 (Tex.1984). A concurrence to Smithwick suggested a number of specific protections regarding such agreements: discovery of them by the non-settling parties; their pretrial disclosure to the court; thorough explanation of the nature of their terms to the jury at the beginning of the trial; and restriction of a settling defendant’s leading questions of the plaintiffs witnesses. 724 S.W.2d at 9-11 (Spears and Gonzalez, JJ., concurring).6
In the instant case the trial court took great care to safeguard procedurally the adversarial nature and fairness of its proceedings. Nothing about the agreements now under attack was hidden from anyone.7 The court appropriately solicited and welcomed suggestions from Elbaor and the other parties as to what and when to tell the jury about the Mary Carter agreements.8 At voir dire, the court informed prospective jury members that ACH and Syrquin, by participating in the trial, could recover all or a portion of the amounts paid in settlement to Smith, depending bn the size of the verdict.9 An additional warning *255was extended regarding the possibility of witness bias arising from the agreements.10 The implications of the agreements were also explored by various counsel during voir dire.11
To offset any disadvantage to Elbaor resulting from the agreements, the trial court gave him the same number of peremptory challenges as those of Smith and the three settling defendants together. Recognizing that these settling parties effectively were no longer aligned against one another, the trial court denied them the customary right of an opponent to lead each other’s witnesses. Finally, the order of presentation was changed to guarantee that Elbaor always had the final opportunity to present evidence and examine witnesses. While Elbaor specifically complains of a lack of forcefulness in Smith’s assertion of her claim against Syrquin, her counsel criticized Syrquin beginning in voir dire, though crediting his efforts to save Smith’s life. Since in some multi-party suits co-defendants become aligned against one another, Elbaor might have found Syr-quin and Stephens blaming him for Smith’s injury even in the absence of the Mary Carter agreements.12 Despite Elbaor’s concession that “[t]he trial court [correctly] followed Texas law when it disclosed the Mary Carter agreements and implemented the other procedures to protect [him],” 13 the majority rejects these procedures as “misspng] the point,” At 248, thereby renewing its commitment to limit the role of the jury in the truth-seeking process. See LeLeaux v. Hamshire-Fannett Sch. Dist., 835 S.W.2d 49, 56 (Tex.1992) (Doggett, J., dissenting). Simply because jurors may initially expect the plaintiff to have interests adverse to all defendants does not mean that they are incapable of understanding that certain defendants have an incentive for the plaintiff to succeed. Indeed the same may occur in some multiparty litigation where no Mary Carter agreement is involved. The trial cannot be a “sham of adversity,” At 249, when the jury, as here, is fully aware of this shift in alliances. Nor does the trial become less adversarial merely because some of the parties have switched sides — the names may have changed but the struggle is left intact. So long as at least two parties with antagonistic interests remain, the likelihood that the truth will emerge is not diminished.14
*256Accordingly, most jurisdictions allow Mary Carter agreements when trial courts implement similar procedural safeguards to those adopted here. See Simmons, 558 S.W.2d at 858 (“Most courts that have addressed the issue, while not declaring these agreements void, have permitted the disclosure of the contracts to the jury when offered by a nonsettling defendant.”); Slusher v. Ospital, 777 P.2d 437, 441-42 (Utah 1989) (“[t]he current approach is to validate Mary Carter agreements ... but to require that they be fully disclosed”); Bass v. Phoenix Seadrill/78, Ltd., 749 F.2d 1154, 1158 n. 7 (5th Cir.1985) (“properly disclosed Mary Carter agreements serve a legitimate function”). In rejecting the full disclosure approach, today’s opinion embraces a decidedly minority view accepted in only “a couple of states” that have previously chosen to prohibit such agreements. See at 250.15 Indeed, the majority cannot point to a single case in any jurisdiction that has ever approved today’s prohibition of a named party from participating at trial because of a disclosed pretrial agreement.
C.
The imprecise form of today’s condemnation of Mary Carter agreements for “makpng] litigation inevitable,” At 248, ensures that litigation will indeed be inevitable.16 For cases pending “where error has been preserved”, and in the future, agreements that call for settling defendants with a financial stake in the plaintiff’s recovery to participate at trial are declared “void.” Id. at 250. Since the type of objection sufficient to preserve error is never explained, neither litigants nor trial courts will be certain for which particular cases this holding applies. Nor is the mandate of this holding clear. For any pending litigation in which a defendant has already compensated the plaintiff, must this fruit of a “void” contract be returned? If so, in order to avoid reexposure to liability may the settling defendant reject this repayment? May a plaintiff who obtains a judgment refuse with impunity to pay the “void” but previously agreed portion to the settling defendant? If only that portion of the agreement calling for the defendant’s participation at trial is void, has settlement been negated by failure of consideration? Litigants will waste their own resources and those of the judicial system while exploring the implications of today’s rulings on such questions, which the majority deliberately refuses to answer.
Furthermore, the majority seeks to expand the scope of its writing with an offhand notation attempting to restrict an attorney’s ethical ability to present the testimony of a settling defendant. Id. at 247 n. 14. Application of Disciplinary Rule 3.04(b) when such testimony constitutes vital proof is, however, highly questionable. Settling *257defendants may have retained a financial stake in the case in return for compensation, their help in procuring discovery, preparing for trial, and testifying. Their payment is not contingent solely on their status as a witness. Moreover, the testimony of an employee of a settling entity who does not personally retain any financial stake in the outcome of the case should not trigger the rule.
II.
A further basis for the majority’s rejection of this jury verdict is the supposed trial court error in not submitting a contributory negligence question based on the purported evidence that Smith’s failure to take her antibiotics “preceded the onset of infection in the ankle.” At 243. Yet Dr. Elbaor himself refutes any causal connection between this conduct and the injury which he admits “is attributable to the infection which developed in the ankle while Ms. Smith was under the care of Dr. Syrquin.” App. for Writ of Error at 4 (emphasis added). Smith first declined antibiotics on the very day that Dr. Elbaor assumed responsibility for her care.17 The record contains no expert testimony establishing within reasonable medical probability that the infection developed during this limited window of time, foreclosing any possibility that Smith’s conduct caused it. See Lenger v. Physician’s Gen. Hosp., Inc., 455 S.W.2d 703, 707 (Tex.1970) (evidence of “a possible cause of the condition cannot ordinarily be treated as evidence of reasonable medical probability”).
Nor is there any evidence that the infection would have healed if Smith had faithfully taken her antibiotics and stopped smoking. Smith contends that her bone loss was caused by Elbaor’s failure to perform necessary surgical procedures including debridement of the infected bone. Elb-aor’s own testimony established that antibiotics alone, without surgery, could not have cured the infection, but perhaps “could” have made the infection harder to treat. Moreover, both he and other medical experts testified that antibiotics would have had difficulty reaching the infection in the bone because the blood supply to that area had been substantially restricted. Conceivably Smith’s conduct affected the spread of infection, but this evidence would only support a jury instruction regarding her failure to mitigate damages rather than a submission of contributory negligence. See Kerby v. Abilene Christian College, 503 S.W.2d 526, 528 (Tex.1973). This is precisely the course that the trial court adopted. While Smith may arguably have aggravated the injury, there is no evidence that she caused all of the damages. While some of Smith’s alleged conduct may have occurred during the same nineteen days she lay at the hospital without Elbaor attempting surgery, she certainly did not prevent or interfere with his undertaking appropriate treatment.
III.
Texas has today become the first state in the nation to lock the courthouse door on a party solely because of a pretrial contract involving a partial settlement which the majority dislikes. The elitist view that ordinary people acting as jurors are incapable of determining the facts after full disclosure has once again prevailed. While protecting the litigation process from deleterious agreements, this court should avoid precipitous action with uncertain consequences for so many litigants, particularly when, as here, the parties have exercised considerable care and the trial court has conscientiously monitored the proceedings.
MAUZY and GAMMAGE, JJ., join in this dissenting opinion.
. In a number of differing circumstances we have also found otherwise freely-entered contracts to be void as contrary to public policy. See Williams v. Patton, 821 S.W.2d 141, 147-48 & n. 11 (Tex.1991) (Doggett, J., concurring).
.In an attempt to escape this extraordinary effect of its writing, the majority shifts responsibility for excluding Dr. Syrquin to the trial court. Under today's writing, Dr. Syrquin may defend himself only if he gives up his stake in the recovery or the trial court compels Smith to return the equivalent of the $350,000 she received over three years ago, at the start of this protracted lawsuit, which today's holding may prolong for many more years. By invalidating only those agreements that both give the settling defendant a financial stake in the plaintiffs recovery and require its participation at trial, the majority creates a confusing array of choices for the trial court, all of which appear to involve unjust results. Among these potential outcomes are that a named party cannot participate at trial, a settling party must return all of its settlement proceeds, or a settling defendant must give up the financial stake that was an integral part of its consideration for settling.
. In their brief Drs. Syrquin and Stephens emphasized an “interest in this case based on their need to protect their professional reputations.”
. See Abbott Ford, Inc. v. Superior Court, 43 Cal.3d 858, 239 Cal.Rptr. 626, 633, 741 P.2d 124, 131 (1987) (noting the "enormous variety of contractual arrangements” that are considered Mary Carter agreements); Cox v. Kelsey-Hayes Co., 594 P.2d 354, 354 (Okla.1978); David Jonathan Grant, Comment, The Mary Carter Agreement—Solving the Problems of Collusive Settlements and Joint Tort Actions, 47 S.Cal.L.Rev. 1393, 1409 (1974); see also General Motors Corp. v. Lahocki, 286 Md. 714, 410 A.2d 1039, 1042 (1980) ("It is probably safe to say that no two *254pacts dubbed [a] 'Mary Carter Agreement’ have been alike."). For an example of a dispute over whether an agreement constitutes a Mary Carter agreement, see City of Houston v. Sam P. Wallace & Co., 585 S.W.2d 669, 673-74 (Tex.1979).
. Ignoring our unequivocal approval of Mary Carter agreements in Smithwick, the majority disguises its disavowal of precedent with the claim that “[o]ur inaction has created confusion.” At 248. The suggestion that anyone outside this court was "confused" is insupportable. Neither Adams v. Petrade Int'l, Inc., 754 S.W.2d 696 (Tex.App.—Houston [1st Dist.] 1988, writ denied), nor Lubbock Mfg. Co. v. Perez, 591 S.W.2d 907 (Tex.Civ.App.—Waco 1979, writ dism'd by agr.), purports to say that this court has not approved such agreements.
. Citing Simmons, 558 S.W.2d at 858-59; Sam P. Wallace & Co., 585 S.W.2d 669 (Tex.1979); Clayton v. Volkswagenwerk, 606 S.W.2d 15 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ ref'd n.r.e.); Greiner v. Zinker, 573 S.W.2d 884 (Tex.Civ.App.—Beaumont 1978, no writ); David R. Miller, Comment, Mary Carter Agreements: Unfair and Unnecessary, 32 Sw,L.J. 779 (1978). See also Richard Casner, Note, Admission into Evidence of a Mary Carter Agreement from a Prior Trial is Harmful Error, 18 Tex.Tech L.Rev. 997, 1004-05 (1987).
. The settling parties appear to have been open regarding these Mary Carter agreements from the outset, fully disclosing their arrangements to Elbaor and the court prior to trial. While ruling on pretrial motions, the trial court explained its intent to “minimize [any] possible adverse effect [by making] known the essential elements of the Mary Carter agreement to the jury.”
. For instance, in response to the court's request for “any ideas about a specific instruction,” Elb-aor’s counsel responded that “the way to handle this is just telling [the jury] that depending upon the amount of money that is awarded, Dr. Syr-quin stands to get all of his money back and the hospital stands to get a percentage of it, a third of their money back.”
. The court explained:
You are informed that the settlement agreement between Carole Smith and Defendants *255Abraham F. Syrquin, M.D. and [ACH] provides that these Defendants will be paid back all or a portion of the amount which they have paid in settlement to Carole Smith in the event the jury returns a verdict that exceeds a certain size. The formula by which these Defendants will be paid back ... is calculated on the basis of the amount by which the verdict exceeds a floor amount.
.The court informed the panel:
If you are selected as a juror in this case, you will have a responsibility to evaluate the testimony of witnesses. In making that evaluation, you should know that some of the parties have, in effect, made a settlement and that they stand to receive a portion or all of that settlement back, depending on the answers the jury makes to the special issues in this case.
Counsel for Elbaor on voir dire also addressed this issue:
Now, the settlement, as the Judge said to you, Ms. Smith has filed this lawsuit against all of these Defendants, and they are all called Defendants, but as you may have noticed, and I am sure you did, the other lawyers who have spoken to you so far all have a common theme_ Dr. Elbaor done it. Why? Well, that again goes back to motivation. Credibility of witnesses. They’ve got a stake in the outcome.
Elbaor's attorney again stressed this reason for bias in his closing argument.
. A specific query was made as to whether “there [was] anybody on the jury panel who would have any difficulty in following Judge Crowley’s instructions” regarding the agreement.
. While deploring the "distorted” nature of the jury trial and verdict, the majority never considers the jury’s findings that Dr. Syrquin’s substandard medical care caused twelve percent of Smith’s damages; this is a circumstance hardly suggestive of jury bias in favor of Dr. Syrquin.
. App. for Writ of Error at 35. Elbaor adds that ”[n]o party to this appeal is complaining that the trial court erred in adopting procedures to minimize the harmful effect of the Mary Carters_” Id.
. "The theory of the system is that in the contest between the parties, each interested to demonstrate the strength of his own contentions and to expose the weakness of his opponent’s, the *256truth will emerge." Edmund M. Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177, 185 (1948).
. Nor with the safeguards adopted here would these particular agreements likely be voided even under the two cases cited by the majority. In Lum v. Stinnett, 87 Nev. 402, 488 P.2d 347 (1971), the court focused on the presence of "sham defendants.” Id. 488 P.2d at 352. Here there was a direct cross-claim brought by Elb-aor against Syrquin and Stephens. Trampe v. Wisconsin Tel. Co., 214 Wis. 210, 252 N.W. 675 (1934), concerned the secretive manner in which an agreement was entered into and kept from the jury, the public and the press, facts clearly not present here.
. Counsel for Elbaor admitted at oral argument that "a ruling in this case will be significant in terms of the impact that it’s going to have on a lot of pending lawsuits." Between June 1991 and June 1992, there were eight reported court of appeals decisions involving Mary Carter agreements. See Contemporary Health Management, Inc. v. Palacios, 832 S.W.2d 743 (Tex.App.—Houston [14th Dist.] 1992, no writ); Barras v. Monsanto Co., 831 S.W.2d 859 (Tex.App.—Houston [14th Dist.] 1992, writ denied); Mi-Jack Products, Inc. v. Braneff, 827 S.W.2d 493 (Tex.App.—Houston [1st Dist.] 1992, no writ); Fletcher v. National Bank of Commerce, 825 S.W.2d 176 (Tex.App.—Amarillo 1992, no writ); Texas Utilities Elec. Co. Through Texas Power & Light Div. v. Gold Kist, Inc., 817 S.W.2d 749 (Tex.App.—Eastland 1991) rev’d by 830 S.W.2d 91 (Tex.1992) (per curiam); Mt. Hawley Ins. Co. v. Ragland, 1991 WL 159193 (Tex.App.—Austin 1991, vacated on settlement); Highlands Ins. Co. v. New England Ins. Co., 811 S.W.2d 276 (Tex.App.—San Antonio 1991, no writ); C & H Nationwide, Inc. v. Thompson, 810 S.W.2d 259 (Tex.App.—Houston [1st Dist.] 1991, writ granted).
. Syrquin turned Smith over to Elbaor’s care on the afternoon of May 17. Only a few hours earlier that very morning Smith had first refused antibiotics to which she said she was allergic.