Crundwell v. Becker

981 S.W.2d 880, 1998 WL 767673
CourtCourt of Appeals of Texas
DecidedJanuary 11, 1999
Docket01-96-01453-CV
StatusPublished
Cited by15 cases

This text of 981 S.W.2d 880 (Crundwell v. Becker) 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
Crundwell v. Becker, 981 S.W.2d 880, 1998 WL 767673 (Tex. Ct. App. 1999).

Opinions

OPINION ON REHEARING

ERIC ANDELL, Justice.

The motion for rehearing is denied. We withdraw our opinion of August 13,1998, and issue this one in its stead.

Dora W. Crundwell sued Drs. Michael Becker and Richard Brown for medical malpractice. After the trial court granted Becker’s motion for a directed verdict on the issue of informed consent, a jury found for Becker and Brown on the issue of negligence. The trial court rendered a take-nothing judgment against Crundwell. We affirm in part and reverse in part.

Facts

When she was 64 years old, Dora Crundwell consulted Michael Becker, an obstetrician-gynecologist, concerning pelvic abdominal pain. Crundwell was diabetic, was experiencing vascular problems, and had undergone surgery 17 years before to correct diverticulitis, a bowel disorder. Crundwell testified Becker told her she had cancer, and she would not have agreed to the surgery otherwise. Becker denied telling Crundwell she had cancer. None of the tests indicated Crundwell had cancer, and all of the doctors agree she does not have cancer. The doctors also agreed that, had Becker told Crundwell she had cancer, it would have been both incorrect and unethical.

Crundwell signed an informed consent form that states the reason for the surgery was “pelvic abdominal pain.” Becker performed a total hysterectomy, removing Crundwell’s uterus and ovaries. There is some question as to whether a remnant of one ovary remains in CrundweU’s body. Because of her previous surgery, Crundwell’s bowel had numerous “adhesions,” ie., scar tissue that caused parts of the bowel to stick together. During the operation, Becker nicked part of the bowel. He asked Brown, a general surgeon, to repair the tear. Brown did so, removing a small section of bowel and attaching the ends together.

Crundwell claims she was still in pain and believed she had an infection when she left the hospital, although neither Becker’s testimony nor the hospital records confirm this. Crundwell acknowledged she did not convey this information to anyone at the hospital. Two months after the hysterectomy, Crund-well went back into the hospital for vascular surgery to be performed by Dr. Demetrio Boulafendis. When Boulafendis began the surgery, he found sterile pus in Crundwell’s abdominal cavity and small holes in her bowel. He repaired the holes, closed the incision, and delayed the vascular surgery to ensure Crundwell had no infection. He performed the surgery a week later without any problems.

Crundwell’s expert, Dr. David Barnes, testified Becker was negligent in not attempting less radical treatment to control the pain, in performing the hysterectomy before the vascular surgery, and in leaving small tears in the bowel. Becker and his medical expert, Dr. Harold Miller, testified the operation was necessary and properly performed. Brown testified nicking the bowel was a common surgical hazard, and he successfully repaired the bowel. Becker, Brown, Miller, and Barnes testified that, had the tears been caused during the hysterectomy, Crundwell would have shown severe symptoms within days and would almost certainly have died. They also testified the tears could have been created by Boulafendis because of the many bowel adhesions; they described the pus as resulting from dissolved sutures; and they opined that Boulafendis had mistaken scar tissue for a remnant of ovary.

Refused Issues

In points of error one, two, five, and eight, Crundwell argues the trial court erred in refusing to submit questions to the jury on the issues of fraud, constructive fraud, gross negligence, and intentional misrepresenta[883]*883tion. She claims these causes were supported by her pleadings and evidence.

Becker argues a party cannot recover damages from fraud if the damages arise from an improperly performed contract. For support, he relies on Formosa Plastics Corp. v. Presidio Engineers & Contractors, 960 S.W.2d 41 (Tex.1998). However, Formosa does not so hold. In fact, the supreme court held in Formosa that tort damages are recoverable for a fraudulent inducement claim, even if the damages are the same as those recoverable under the breach of contract claim. See id. at 47.

Becker relies on Gaut v. Quasi, 505 S.W.2d 367, 369 (Tex.Civ.App.—Houston [14th Dist.]), writ refd n.r.e., 510 S.W.2d 90, 91 (Tex.1974), to argue Crundwell was not entitled to submit jury issues on fraud or misrepresentation independent of the issue of informed consent. Gaut does not support Becker’s argument. In its per curiam opinion refusing writ, the supreme court disagreed with the Fourteenth Court’s conclusion that submitting an issue on informed consent precludes submission of a fraud issue. See 510 S.W.2d at 91.

In Melissinos v. Phamanivong, 823 S.W.2d 339, 344 (Tex.App.—Texarkana 1991, writ denied), the Texarkana court of appeals held the trial court properly submitted both informed consent and fraud causes of action, because the definition of informed consent under article 4590i does not include misrepresentations. We hold the issue of fraud may be submitted to a jury in addition to, and independent of, the issue of informed consent.

Because the issue of informed consent does not encompass the issues of fraud or negligent misrepresentation, the next inquiry is whether Crundwell was entitled to the submission of fraud and negligent misrepresentation. When evidence raises an issue, it is reversible error for the trial court to refuse to submit it to the jury. See Southwestern Bell Tel. Co. v. Thomas, 554 S.W.2d 672, 674 (Tex.1977). A trial court may refuse to submit an issue only when there is no evidence to support the submission, not merely because the evidence is insufficient to support a judgment. See Brown v. Goldstein, 685 S.W.2d 640, 641 (Tex.1985); Waldron v. Zapata Exploration Co., 878 S.W.2d 349, 350 (Tex.App.—Houston [1st Dist.] 1994, no writ).

Crundwell’s testimony was more than a scintilla of evidence of fraud, constructive fraud, intentional misrepresentation, and gross negligence. We hold the trial court improperly refused to submit these issues to the jury.

We sustain points of error one, two, five, and eight.

Directed Verdict

In points of error six and seven, Crundwell argues the trial court erred in rendering a directed verdict for Becker on the issue of informed consent. Even though Crundwell signed a surgical consent form, she argues the court should have submitted the issue of informed consent.1 Crundwell’s argument is that she was not the ordinary patient facing surgery; because of her compromised physical condition, Becker should have told her that she was more likely than most patients to suffer a tear or cut of the intestines. Crundwell relies on Barclay v. Campbell, 704 S.W.2d 8

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Bluebook (online)
981 S.W.2d 880, 1998 WL 767673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crundwell-v-becker-texapp-1999.