Bauer v. King

674 S.W.2d 377, 1984 Tex. App. LEXIS 5555
CourtCourt of Appeals of Texas
DecidedMay 24, 1984
DocketNo. 13-83-283-CV
StatusPublished
Cited by4 cases

This text of 674 S.W.2d 377 (Bauer v. King) 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
Bauer v. King, 674 S.W.2d 377, 1984 Tex. App. LEXIS 5555 (Tex. Ct. App. 1984).

Opinion

OPINION

NYE, Chief Justice.

This is a medical malpractice case. Ap-pellee, Estle King, brought suit against Dr. James Bauer and Victoria Radiological Associates, claiming negligence on Bauer’s part in administering radiation therapy to her after surgery was performed to remove the lower left lobe of her lung. Trial was to a jury which found appellant negligent and awarded Mrs. King damages. The trial court entered judgment for King, plus prejudgment interest at a rate of six percent and post-judgment interest at the legal rate. Dr. Bauer appeals this judgment.

Appellant asserts five points of error on appeal. First, he claims that the trial court erred in awarding prejudgment interest from April 6,1978 to May 23,1983. Prejudgment interest is that interest calculated on a sum payable from the time of a loss or injury to the time of judgment. Republic National Bank of Dallas v. Northwest National Bank of Fort Worth, 578 S.W.2d 109 (Tex.1979). It is the general rule in Texas that prejudgment interest cannot be allowed eo nomine unless provided for by contract or statute. Roylex, Inc. v. Langson Bros. Construction Co., [379]*379585 S.W.2d 768 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ ref'd n.r.e.). One who seeks to recover prejudgment interest as damages must ask for it specifically or include it in the aggregate amount sought. J.M. Hollis Construction Co. v. Paul Durham Co., 641 S.W.2d 354 (Tex.App. — Corpus Christi 1982, no writ); Gulf States Paint Co. v. Komblee Co., 390 S.W.2d 356 (Tex.Civ.App.—Texarkana 1965, writ ref d, n.r.e.).

Prejudgment interest is recoverable as a matter of right where an ascertainable sum of money is determined to have been due and payable at a date certain prior to judgment. Republican Nat’l Bank of Dallas v. Northwest National Bank of Fort Worth, 578 S.W.2d at 116; Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480 (Tex.1978). The damages pleaded and determined by the jury in this case were not ascertainable and determined to have been due and payable prior to the judgment being rendered. As such, they were improperly awarded by the trial court. Appellants’ first point of error is sustained.

In appellants’ second and third points of error, they allege that the trial court erred in overruling their motion for judgment Non Obstante Veredicto and entering judgment for appellee because there was no evidence or, alternatively, insufficient evidence upon which the jury could find that the doctor was negligent in the treatment of Mrs. King.

In considering a “no evidence” or “insufficient evidence” point of error, we will follow the well established test set forth in Glover v. Texas General Indemnity Company, 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Company v. Garza, 626 S.W.2d 120 (Tex.Civ.App.—Corpus Christi 1981, writ ref d n.r.e.); CALVERT, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361 (1960). We will review the facts of the case with these standards in mind.

In 1978, appellee was hospitalized, and the lower left lobe of her lung was removed. Dr. Dee Williams diagnosed her condition as cancer and determined that one of thirty lymph nodes which were removed at the time of her lung surgery was also found to be malignant. Thereafter, appellee underwent radiation therapy as a precautionary measure to ensure that no microscopic cancer cells remained in her body. This therapy was administered under the direction of Dr. Bauer, the appellant herein. Appellee later developed radiation myelopathy and complete paralysis of her lower body. She contends that the paralysis was proximately caused by the negligent treatment she received from Dr. Bauer. Radiation myelopathy is the degeneration of the spinal column secondary to the effects of exposure to radiation.

The record shows that Mrs. King began radiation treatments on February 27, 1978. She was involved in a “split course” treatment. This type of treatment involves the patient receiving radiation treatment each day for a number of days, followed by a rest period of a certain number of days, and then the resumption of treatments for another period of time. Dr. Bauer testified that Mrs. King suffered from “broncho-alveolar” carcinoma, which he described as an unusual sub-type of lung cancer. The radiation treatment he prescribed was designed to kill any residual cancer cells. For her first treatment, she received 250 RADS.1 Thereafter, she received 300 RADS for three days. The second week, she had a treatment of 300 RADS each day for five days. She then had a break from March 11, 1982 through March 27, 1982. On March 27, 28, 29 and 30, she received an additional 300 RADS per treatment; and on April 3rd through the 6th, she received 300 RADS each day. The last three treatments that she received were rotational arc-type treatments. The total dose Mrs. King re-[380]*380eeived was 5,398 RADS. Dr. Bauer claimed that the total exposure to the spinal cord was about 4,650 RADS. At an earlier point, Dr. Bauer calculated the exposure to the spinal cord to have been 4,848 RADS.

The burden of proof in a medical malpractice case is on the patient to prove that the physician has undertaken a mode or form of treatment which a reasonable and prudent member of the medical profession would not have taken under the same or similar circumstances. Hood v. Phillips, 554 S.W.2d 160 (Tex.1977). Expert testimony is required to meet this burden of proof. The medical standard of care must be established so that the fact finder (in this case, a jury) may determine whether the doctor’s acts or omissions deviated from the standard of care as to constitute negligence. Smith v. Guthrie, 557 S.W.2d 163 (Tex.Civ.App.—Fort Worth 1977, writ ref d n.r.e.).

An expert witness in a medical malpractice case should first state what the standard of care for a specific treatment is and then state the facts which show what the defendant doctor did. See Coan v. Winters, 646 S.W.2d 655 (Tex.App.—Fort Worth 1983, writ ref d n.r.e.). The jury can then determine whether the defendant doctor met the standard of care. Burks v. Meredith, 546 S.W.2d 366 (Tex.Civ.App.—Waco 1977, writ ref d n.r.e.).

Here, appellee introduced the deposition testimony of Dr. Joe Rector, Director of Radiation Therapy at St. Luke’s Hospital in Kansas City, Missouri. He testified that he had never examined the appellee, Mrs. King, but had read the records concerning her case. Dr.

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834 S.W.2d 404 (Court of Appeals of Texas, 1992)
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Bluebook (online)
674 S.W.2d 377, 1984 Tex. App. LEXIS 5555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bauer-v-king-texapp-1984.