Axelrad v. Jackson

142 S.W.3d 418, 2004 WL 1440605
CourtCourt of Appeals of Texas
DecidedAugust 26, 2004
Docket14-02-00518-CV
StatusPublished
Cited by4 cases

This text of 142 S.W.3d 418 (Axelrad v. Jackson) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Axelrad v. Jackson, 142 S.W.3d 418, 2004 WL 1440605 (Tex. Ct. App. 2004).

Opinions

OPINION

CHARLES W. SEYMORE, Justice.

In this appeal, we determine whether a patient, in recounting his or her medical history, may be assessed comparative negligence in a medical malpractice suit. We hold that a patient’s name may be submitted in comparative fault jury questions based on the patient’s response to queries regarding medical history. Because there is no evidence of a query designed to elicit the information that appellant, David Axel-rad, allegedly failed to communicate, no evidence supports appellee, Dr. Jackson’s contention that David Axelrad had a duty to volunteer the information. Accordingly, it was error to submit David Axelrad’s name in the comparative negligence jury questions. We reverse and remand for a new trial.

I. Facts

On Sunday evening, August 17, 1997, David Axelrad, a psychiatrist, began feeling flu-like symptoms and abdominal pain. While he drove home that evening, his abdominal pain increased every time he hit a bump in the road. Overnight, the pain worsened. Axelrad felt so ill that he can-celled his Monday, August 18th psychiatric appointments and called Dr. Richard Jackson. Dr. Jackson suggested that Axelrad might have been suffering from gastroenteritis and recommended Pepto-Bismol.

By Tuesday morning, August 19th, Axel-rad’s pain was worse. He called Dr. Jackson again and scheduled an appointment. Axelrad’s wife drove him to Dr. Jackson’s office. She drove slowly because her husband’s pain intensified with each bump in the road. Upon arrival at Dr. Jackson’s office, she pushed her husband into the office by wheelchair and, with his help, answered Dr. Jackson’s questions. Dr. Jackson examined Axelrad and ordered the following diagnostic tests: (1) ultrasound; (2) blood work; and (3) x-rays of kidneys, ureter, and bladder. He did not take Axelrad’s temperature or perform a rectal examination. The Axelrads returned to their home after the tests. Around 4:30 p.m., Dx\ Jackson called the Axelrads and informed them that the test results were normal. Dr. Jackson instructed Axelrad to take a laxative and perform two enemas. At that point, Dr. Jackson had not received all the results of Axelrad’s blood tests. Subsequently, those tests revealed an elevated white blood cell count, indicative of an infection.

Axelrad took the laxative and attempted to perform the first enema. Immediately [422]*422after administering the enema, he was nauseous and in severe pain. The enema was not productive, and Axelrad fell to the floor vomiting. He experienced rigors and chills. Frightened, Axelrad’s wife first called Dr. Jackson, who urged them to administer the second enema. She chose not to follow Dr. Jackson’s recommendation. Instead, she immediately transported her husband to the emergency room.

In the hospital, tests revealed that Axel-rad’s white blood cell count had increased. Surgery on Thursday, August 21st, revealed diverticulitis and pus, which had escaped into the abdomen through a perforation of his colon. Axelrad had an eleven centimeter portion of his colon removed, a temporary colostomy, underwent three surgeries, and suffered a subsequent drug reaction and infection necessitating intensive care.

Axelrad sued Dr. Jackson for malpractice, contending Dr. Jackson failed to diagnose the diverticulitis and negligently prescribed enemas. The jury assessed fault as follows: 51% Axelrad — 49% Dr. Jackson. The trial court entered judgment in favor of Dr. Jackson because apportionment of 51% fault to Axelrad bars recovery under the comparative negligence statute.

II. Patient’s Negligence

In his first six issues, Axelrad questions whether a patient may be assessed comparative negligence in providing a medical history. Accordingly, Axelrad contends a patient’s duties are limited to certain circumstances not present in this case.1 Axelrad further questions whether there is evidence that he breached a duty, and whether there is evidence of causation sufficient to support the jury’s apportionment of fault.

Texas law allows a jury to consider a patient’s comparative fault in a medical malpractice suit. See Elbaor v. Smith, 845 S.W.2d 240, 245, 251 (Tex.1993) (holding it was error to omit patient’s name in comparative fault question where patient’s refusal to take antibiotics contributed to infection, which was basis of her medical malpractice claim); see, e.g., Marvelli v. Alston, 100 S.W.3d 460, 468 (Tex.App.Fort Worth 2003, pet. denied) (patient was 29% at fault); Sloan v. Molandes, 32 S.W.3d 745, 752 (Tex.App.-Beaumont 2000, no pet.) (patient was 49% at fault); Isern v. Watson, 942 S.W.2d 186, 200 (Tex.App.Beaumont 1997, writ denied) (patient was 35% at fault). A patient has the duty to cooperate with a treating physician. Elbaor, 845 S.W.2d at 245.2

[423]*423No Texas appellate court has directly addressed whether a plaintiffs failure to accurately or completely relate his or her medical history to the treating physician may constitute contributory negligence. But cf. Isern, 942 S.W.2d at 200 n. 7 (noting issue, although jury did not find patient negligent). However, we have reviewed authority from other states in order to analyze the issues in this case.

A patient has no duty to diagnose his or her own condition. Fall v. White, 449 N.E.2d 628, 634 (Ind.Ct.App.1983); Mackey v. Greenview Hosp., Inc., 587 S.W.2d 249, 255 (Ky.Ct.App.1979); O’Neil v. State of New York, 66 Misc.2d 936, 323 N.Y.S.2d 56, 61 (N.Y.Ct.C1.1971); Lambert v. Shearer, 84 Ohio App.3d 266, 616 N.E.2d 965, 977 (1992); see Robinson v. Wa. Internal Med. Assocs., P.C., 647 A.2d 1140, 1156 (D.C.1994) (Mack, J., dissenting); Carreker v. Harper, 196 Ga.App. 658, 396 S.E.2d 587, 589 (1990) (Pope, J., dissenting).3

A patient, generally lacking the specialized training of the doctor from whom he seeks help, has limited capacity to select and communicate pertinent and relevant aspects of his medical history. Mackey, 587 S.W.2d at 255; Favalora v.

Aetna Cas. & Sur. Co., 144 So.2d 544, 550 (La.Ct.App.1962). A patient may rely upon the doctor to ask appropriate questions about the patient’s history. Hawkins v. Greenberg, 159 Ga.App. 302, 283 S.E.2d 301, 307 (1981); Fall, 449 N.E.2d at 634; Mackey, 587 S.W.2d at 255; Favalora, 144 So.2d at 550; see Robinson, 647 A.2d at 1150 (Farrell, J., concurring), 1156 (Mack, J., dissenting); O’Neil, 323 N.Y.S.2d at 61 (it is incumbent upon trained physician to isolate the nature of the patient’s complaints); cf. Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674, 694 (1982) (in claim that patient failed to fully disclose prior treatments for back, it was questionable whether patient “was even asked if he had previously received treatment for his back”). A patient then has the duty to respond accurately and to tell the truth. Rochester v. Katalan, 320 A.2d 704, 709 (Del.1974) (patient was untruthful about his symptoms in order to receive methadone); Mackey, 587 S.W.2d at 254; Jensen v.

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Axelrad v. Jackson
142 S.W.3d 418 (Court of Appeals of Texas, 2004)

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