King v. Bauer

GONZALEZ, Justice,

dissenting.

I respectfully dissent. Mrs. King failed to offer any evidence that Dr. Bauer deviated from the proper standard of care. I would therefore affirm the judgment of the court of appeals.

In a medical malpractice case the plaintiff has the burden to prove by expert testimony the standard of care. In Hood v. Phillips 554 S.W.2d 160, 165 (Tex.1977), the court held that the plaintiff has the *847burden to prove that the doctor undertook a mode or form of treatment which a reasonable and prudent member of the medical profession would not have undertaken under the same or similar circumstances. (Emphasis added).

Various physicians testified as expert witnesses. Their testimony clearly established the common form of radiological treatment. Dr. Bauer’s treatment differed from the common form of treatment. The expert witnesses, however, also testified that a number of factors such as type of cancer, location of cancer, individual susceptibility to radiation, size of the patient, and other individual characteristics of the patient would vary the form of treatment a patient should receive. None of the doctors gave an opinion as to what Dr. Bauer should have done, taking into consideration the particular facts of this case. The testimony establishes only that radiologists in general administer 200 rads per treatment, and that in general 300 rads per dose is “unusual. ”

The expert testimony in my opinion failed to establish that Dr. Bauer’s treatment constituted the type of treatment that a reasonable and prudent physician would not have administered in the same or similar circumstances. Guidry v. Phillips, 580 S.W.2d 883, 886 (Tex.Civ.App.—Houston [14th Dist.] 1979, writ ref’d n.r.e.). For these reasons, I dissent.