David and Carolyn Axelrad v. Dr. Richard Jackson

Opinion

Reversed and Remanded and Majority and Dissenting Opinions filed June 29, 2004

Reversed and Remanded and Majority and Dissenting Opinions filed June 29, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-02-00518-CV

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DAVID AND CAROLYN AXELRAD, Appellants

V.

DR. RICHARD JACKSON, Appellee

________________________________________________________

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 99-52855

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M A J O R I T Y   O P I N I O N

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 Axelrad, 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 cancelled 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, Axelrad=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., Dr. 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 after 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 Axelrad=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 C 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.CFort Worth 2003, pet. denied) (patient was 29% at fault); Sloan v. Molandes, 32 S.W.3d 745, 752 (Tex. App.CBeaumont 2000, no pet.) (patient was 49% at fault); Isern v. Watson, 942 S.W.2d 186, 200 (Tex. App.CBeaumont 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]

No Texas appellate court has directly addressed whether a plaintiff=s 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. New York, 323 N.Y.S. 56, 61 (N.Y. App. Div. 1971); Lambert v. Shearer, 616 N.E.2d 965, 977 (Ohio Ct. App. 1992); see Robinson v. Wa. Internal Med. Assocs., P.A., 647 A.2d 1140, 1156 (D.C. 1994) (Mack, J., dissenting); Carreker v. Harper, 396 S.E.2d 587, 589 (Ga. Ct. App. 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, 283 S.E.2d 301, 307 (Ga. Ct. App. 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, 444 A.2d 674, 694 (Pa. Super. Ct. 1982) (in claim that patient failed to fully disclose prior treatments for back, it was questionable whether patient Awas 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. Archbishop Bergan Mercy Hosp., 459 N.W.2d 178, 184 (Neb. 1990); Brown v. Dibbell, 595 N.W.2d 358, 368B69 (Wis. 1999); see Skar v. Lincoln, 599 F.2d 253, 260 (8th Cir. 1979) (applying Nebraska law where patient gave materially false information); Johnston v. Ward, 344 S.E.2d 166, 173 (S.C. Ct. App. 1986) (woman who overdosed on prescription drugs and aspirin denied taking anything but prescription medication); see, e.g., Moodie v. Santoni, 441 A.2d 323, 327 (Md. 1982) (each month, patient indicated no symptoms in response to specific inquiry, although he was experiencing adverse reactions to medication that ultimately led to his death); Davila v. Bodelson, 704 P.2d 1119, 1124 (N.M. Ct. App. 1985) (testimony that patient failed to reveal prior pregnancies when asked). 

A patient has no general duty to volunteer information.  Mackey, 587 S.W.2d at 255; see Favalora, 144 So. 2d at 550.  However, courts have sometimes held a patient must volunteer information Aif the patient is aware that the treating physician has failed to ascertain some aspect of the patient=s medical history which the patient knows involves a risk of harm to the patient during the course of future medical treatment.@  Mackey, 587 S.W.2d at 255; see Haynes v. Hoffman, 296 S.E.2d 216, 217B18 (Ga. Ct. App. 1982); Graham v. Keuchel, 847 P.2d 342, 358 n.78 (Okla. 1993) (patient knew importance of her blood type and need for Rho-GAM shot during pregnancy, but failed to reveal it to her doctor); see, e.g., Jamas v. Krpan, 568 P.2d 1114, 1115B16 (Ariz. Ct. App. 1977) (patient who knew significance of her history of breast lumps failed to reveal such history to physician performing breast examination).

Following our survey of authority from other states, we hold that a patient=s duty to cooperate includes responding truthfully to a physician=s questions.^[4]  A patient has no general duty to self-diagnose or volunteer information.  A duty to volunteer information arises only when a patient knows the significance of unrevealed history and knows the physician has failed to ascertain the history.^[5]

We will determine whether there is legally sufficient evidence to support Dr. Jackson=s contention that Axelrad breached the duty to exercise ordinary care in responding or failing to respond to inquiries regarding his medical history.  Dr. Jackson claims Axelrad was negligent in failing to reveal (1) that his abdominal pain originated in the left lower quadrant of his abdomen, and (2) a 1994 medical examination in which a proctoscopy was conducted because of rectal bleeding and during which a colonoscopy was recommended to be performed within two years.

A.  Standard of Review

When a party challenges legal sufficiency of the evidence supporting an adverse finding relative to an issue on which he does not have the burden of proof, he must demonstrate on appeal that there is no evidence to support the adverse finding.  Price Pfister, Inc. v. Moore & Kimmey, Inc., 48 S.W.3d 341, 347 (Tex. App.CHouston [14th Dist.] 2001, pet. denied) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983)).  We consider all the evidence in the light most favorable to the jury=s verdict, indulging every reasonable inference in favor of the prevailing party.  Id. (citing Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285B86 (Tex. 1998)).  Only the evidence and inferences supporting the finding are considered and we must disregard all evidence and inferences contrary to the jury=s finding.  Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002).  However, this rule may not be expanded to sustain a jury verdict supported only by meager circumstantial evidence from which the jury might Ainfer@ a fact contradicted by direct evidence.

                                                         B.  Origination of Pain

Dr. Jackson admitted that a patient=s history is a very important tool for rendering a correct diagnosis.  Regarding Axelrad=s abdominal pain, Dr. Jackson argues that its genesis is a crucial aspect of this case.  He contends Axelrad=s failure to advise him that the pain originated in the left lower quadrant is contributory negligence.  Thus, we examine the record for evidence that Axelrad untruthfully reported his symptoms in response to Dr. Jackson=s questions.

We find no evidence in the record that Dr. Jackson asked a question calculated to elicit the origin of Axelrad=s pain.  Instead, only a few questions by Dr. Jackson are delineated in the appellate record.  For instance, when he spoke to Axelrad via telephone on Monday, August 18th, Dr. Jackson testified that he asked, AWell, tell me exactly what is going on?@  After Axelrad explained that his abdomen was uncomfortable, Dr. Jackson asked him where his discomfort was, and Axelrad responded that his entire abdomen hurt.  Although Dr. Jackson testified, AI asked him some questions about his discomfort and what was happening,@ the record does not reflect that he posed a question about the location of Axelrad=s initial pain.  Instead, our review of the record indicates that Dr. Jackson relied on information volunteered by Axelrad: AI never heard any information about pain in the left lower quadrant and I never realized that he had that, if he did.@

On Tuesday, August 19th, Dr. Jackson first communicated with Axelrad by telephone.  Again, there is no evidence he asked where Axelrad=s pain originated.  Rather, Dr. Jackson testified that Axelrad described his current pain Aon both sides of his abdomen.@  Dr. Jackson also testified that during the office visit on Tuesday, it was Mrs. Axelrad who gave the patient history, punctuated with comments from her husband, who was sitting in a wheel chair. Dr. Jackson again testified that neither Axelrad nor his wife ever volunteered that the pain began in the left lower quadrant.  Jackson=s written notes from that office visit indicate only, Acomplains of abdominal pains for two days, appetite diminished, complains of vague bilateral abdominal discomfort and supra-pubic discomfort; no nausea, no abdominal pain except with certain movements; loose stools for one to two a day.@  Further, during the office visit, there was no questionnaire submitted to the Axelrads about the current complaint or about Axelrad=s medical history.^[6]  Cf. Moodie, 441 A.2d at 327 (patient failed to report symptoms on monthly questionnaires about his reactions to a certain medication).

Finally, Dr. Jackson spoke with the Axelrads twice on Tuesday, August 19th, after the office visit.  In neither instance did he ask about the specific location and genesis of Axelrad=s pain.^[7] Given the questions posed to him, there is no evidence that Axelrad inaccurately or untruthfully described his symptoms.  See O=Neil, 323 N.Y.S.2d at 61 (patient was not negligent in reporting her use of barbiturate, but not her addiction to it, where physician made no inquiry into dosage or duration of use); see also Allman, 667 P.2d at 301.

The question remains whether Axelrad had a duty to volunteer that his pain began in the left lower quadrant when Dr. Jackson did not ask a question designed to elicit that information.  In Haynes v. Hoffman, the trial court instructed the jury:  AIf a patient is aware that the physician is unaware of some aspect of the patient=s medical history which may involve a risk of harm to the patient, then ordinary care requires that the patient volunteer this additional information to the treating physician.@  296 S.E.2d at 217.  AA patient is contributorily negligent only if he knows the physician is unaware of a condition which imposes a risk of danger to the patient and his failure to inform the physician is unreasonable under the circumstances.@  Mackey, 587 S.W.2d at 255.  Implicit in these cases is the patient=s awareness of the significance of the unreported history.  See Graham, 847 P.2d at 358 & n.78 (patient knew the importance of her blood type and receiving Rho-GAM shot during pregnancy, but failed to advise doctors during her fifth pregnancy).  In this case, we note Axelrad=s trial testimony that he revealed to Dr. Jackson left lower quadrant pain, which became diffuse.  However, Axelrad did not testify that he understood the significance of abdominal pain originating in the left lower quadrant when he was questioned by Dr. Jackson.  Dr. Jackson contends Axelrad was negligent in failing to state specifically that his abdominal pain began in the left lower quadrant.  It is Dr. Jackson=s allegation of negligence that guides us to search the record for a specific question calculated to elicit a specific answer.   Notwithstanding our dissenting colleague=s numerous suggestions of what the jury may Ainfer,@ there is no evidence in this record supporting the contention that Axelrad knew about the importance of pain originating in the left lower quadrant of his abdomen when he sought treatment from Dr. Jackson.

We see no reason to disagree with the majority of jurisdictions that previously addressed this issue.  Accordingly, Axelrad=s name should not have been submitted in comparative fault questions based on a failure to advise Dr. Jackson that his pain originated in the left lower quadrant of his abdomen.

C.  1994 Medical Examination

The remaining alleged act of comparative negligence is Axelrad=s failure to report a 1994 medical examination in which a proctoscopy was performed and a colonoscopy was recommended to be performed within two years.  Again, there is no evidence Dr. Jackson asked a question calculated to elicit this information.^[8]  There is similarly no evidence that Axelrad understood the significance, if any, of this information when he presented to Dr. Jackson with abdominal pain in 1999.^[9] 

One of the elements of a cause of action for negligence is proximate cause. Accordingly, there must be some evidence or proof of a causal connection between the alleged contributory negligence and the subject injury.  Allman v. Holleman, 667 P.2d 296, 300B01 (Kan. 1983) (no connection between patient=s death and taking birth control pills); LaCombe v. Dr. Walter Olin Moss Reg=l Hosp., 617 So.2d 612, 615 (La. Ct. App. 1993) (no connection between lower back problems, which patient failed to reveal, and sciatica suffered during bladder surgery); Lambert, 616 N.E.2d at 977.  A[T]he contributory negligence of the patient must have been an active and efficient contributing cause of the injury made the basis of the patient=s claim . . . .@  Sendejar v. Alice Physicians & Surgeons Hosp., Inc., 555 S.W.2d 879, 885 (Tex. Civ. App.CTyler 1977, writ ref=d n.r.e.).  Dr. Jackson testified that if he had known Axelrad suffered from an Ainflammatory condition,@ he Awould have taken a different tact.@  Viewed in context, this quoted testimony does not refer to the recommended colonoscopy or the 1994 proctoscopy, which apparently revealed no abnormalities.  Further, while experts testified that such information would have been helpful in forming a differential diagnosis, there is no evidence that knowledge of the three-year-old proctoscopy or recommended colonoscopy would have changed Dr. Jackson=s treatment of Axelrad.  See Pratt, 444 A.2d at 686B87.  Accordingly, there is no evidence of causation.

D.  Lax Care of Health

In his brief, Dr. Jackson mentions that Axelrad=s lax care of his health over the years was contributory negligence:  AInstead of treating a compliant patient who took responsibility for his own health, [Dr. Jackson] was faced with a male patient over fifty years old who had not scheduled a yearly physical exam in six years.@  At trial, Dr. Jackson extensively argued this theory to the jury:

Workaholics, especially in the case of Dr. Axelrad, is [sic] one who didn=t take care of himself and didn=t seek out his own healthcare as he appropriately should have done. 

What we know is there is no time when he got himself into the doctor=s office for a full physical examination between 1991 and 1997.  He=s a man in his fifties.  As the medical testimony has told you, those are people who need to have yearly physical examinations and workups, but he didn=t do that. . . . That=s not what a reasonable and prudent person should do and he bears responsibility for the culmination of what that caused. 

What did it cause in this case? . . . [I]t caused him to begin the process of diverticulitis, which did not get diagnosed until he needed an operation.  That=s what it caused.  In the question we are asked: Was Dr. Axelrad negligent?  The answer to that question is yes.  Why?  Because he didn=t seek out the appropriate medical care in order to avoid the operation.

. . . .

Getting in there early takes responsibility by the patient.  The patient has a duty to seek out medical care and to do that on a routine basis in order to avoid problems that we have in this particular case . . . .

I believe very strongly. . . that the answer to Question No. 2, that the responsibility should rest solely on Dr. Axelrad.  I believe the primary person who could have avoided all of this would have been Dr. Axelrad.

. . . I believe that no amount should be awarded in this case because I don=t think that if we don=t take responsibility for our own health care that we should blame others.

Although a patient=s contributory Anegligence can serve to diminish recovery under modern comparative negligence principles, it is patently clear that such negligence must be contemporaneous with the malpractice of the physician.@  Lambert, 616 N.E.2d at 976.  In other words, the contributory negligence Amust have been simultaneous and co‑operating with the alleged fault of the defendant, must have entered into the creation of the cause of action[,] and must have been an element in the transaction which constituted it.@  Sendejar, 555 S.W.2d at 885 (error to submit contributory negligence question to jury in medical malpractice suit where plaintiff=s car wreck necessitated treatment by defendants).  A[I]f the patient=s negligent act merely precedes that of the physician and provides the occasion for medical treatment, contributory negligence is not a permissible defense.@  Weeda, 521 A.2d at 1167.  AHence, it is improper to suggest, as defendant did at trial, that negligent conduct of the patient prior to coming under the care of the defendant physician could serve to constitute negligence.@  Lambert, 616 N.E.2d at 976.  ASick people deserve the same care whether they smoke, drink, drive too fast, or engage in socially unacceptable behavior.@  Id. Again, we see no reason to depart from standards outlined by sister jurisdictions.  Accordingly, Axelrad may not be considered comparatively negligent for being inattentive to his health before seeking Dr. Jackson=s professional opinion and medical care.

E.  No Reasonable Inference

The dissent concludes Axelrad negligently failed to reveal relevant medical history.  First, based on a conflict between Axelrad=s deposition and trial testimony, the dissent suggests that Axelrad had a duty to volunteer information regarding the specific origin of his abdominal pain.  Axelrad failed to mention that he informed Dr. Jackson about the origin of pain in the left lower quadrant of his abdomen during his pre-trial deposition.  However, Axelrad gave the following contradictory trial testimony:  AI told [Jackson] that it started off with left lower quadrant pain initially Sunday night, then became diffuse . . . .@  The dissent concludes this testimony provides the basis for the jury to infer that Axelrad understood the diagnostic significance of abdominal pain originating in the left lower quadrant when he called Dr. Jackson.^[10]

Although circumstantial evidence may be used to establish any material fact, it must transcend mere suspicion.  Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001) (Phillips, C.J., concurring & dissenting).  An inference is a deduction from proven facts.  Id. (citing Joske v. Irvine, 44 S.W. 1059, 1064 (Tex. 1898)).  Any inference drawn from circumstantial evidence must be fair and reasonable.  See Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995).  Otherwise, the inference is merely a guess and is, in legal effect, no evidence.  Lozano, 52 S.W.3d at 148.^[11]  Here, Axelrad=s testimony that he reported left lower quadrant pain tells us nothing, one way or another, about whether he recognized its significance.  Any inference from this testimony is simply a guess.

Further, there are at least three items of direct evidence which render unreasonable and implausible the dissent=s suggestion that circumstantial evidence will support the inference Axelrad understood the diagnostic significance of left lower quadrant pain and the 1994 recommendation of a colonoscopy, but failed to timely provide the information to Dr. Jackson: (1) the mere fact that Axelrad was in excruciating pain when he contacted Dr. Jackson and sought treatment; (2) testimonyCfrom both Axelrad and Dr. JacksonCthat Axelrad=s erroneous self-diagnosis at the time he called Dr. Jackson was a condition called Arebound,@ cf. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 710 (Tex. 2003) (inference about plaintiff=s lack of knowledge was unreasonable in light of undisputed evidence); and (3) Axelrad=s answer to the following questions during direct and cross examination:

Q.        Now, since that night, since youBafter you go to the hospital, then what happens?  What do you learn?

A.        Well, Mr. Chandler, I learned that I had been suffering from diverticulitis for a significant period of time

           * * * * *

Q.        (By Mr. Sprott) And, in fact, Doctor, I asked you on that Monday what you were feeling and you said diffuse abdomen pain, correct?

A.        Correct.

Q.        I asked you if it was in the upper and lower quadrants.  And you answered what?

A.        I don=t have the B

Q.        You answered yes?

A.        Yes.

Q.        I asked you if it was on the left and the right and you answered yes, didn=t you?

A.        Yes.

Q.        Now, you knowBat least I hope by nowBthat that=s not a classical finding for diverticulitis, is it?

A.        No.

Q.        A classic finding for diverticulitis based upon your knowledge is you are going to have left lower quadrant pain, correct?

A.        Correct.   

This direct evidence flies in the face of the dissent=s conclusion that there is some circumstantial evidence from which the jury may reasonably infer Axelrad understood the significance of unreported history when he was in excruciating pain.  Accordingly, the dissent=s suggestion that we must defer to the jury finding under the equal inference rule is misplaced.  Lozano, 52 S.W.3d at 147.  In the instant case, there is no equal inference when direct evidence trumps and supervenes the purported inference from circumstantial evidence. Any such inference is patently unreasonable.

In cases of only slight circumstantial evidence, something else must be found in the record to corroborate the probability of the fact=s existence or non-existence. Id.  We must consider the totality of the known circumstances in determining legal sufficiency of the circumstantial evidence and the reasonable inferences to be drawn therefrom.  See Felker v. Petrolon, Inc., 929 S.W.2d 460, 464 (Tex. App.BHouston [1st Dist] 1996, writ denied).

Moreover, hospital records indicate that Axelrad complained: AI have a belly ache.@ Nothing in Axelrad=s words or actions supports an inference that he knew the significance of left lower quadrant pain.  Inferences that are not reasonable and logical cannot support a jury=s finding.  See Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997).

Clearly, the dissent believes Axelrad is untruthful.  Our colleague gleans Ainferences@ for the jury from inconsistencies in medical records, deposition and trial testimony.  However, inferences must be deduced from the evidence.  Lozano, 52 S.W.3d at 149.  Discrepancy between pre-trial and trial testimony is not, in and of itself, evidence.  Instead, the discrepancy goes to Axelrad=s credibility, which solely the jury assesses.  Gorges Foodserv., Inc. v. Huerta, 964 S.W.2d 656, 670 n.9 (Tex. App.CCorpus Christi 1997, no pet.) (discrepancy between interrogatory answer and trial testimony); see Kratz v. Exxon Corp., 890 S.W.2d 899, 903 (Tex. App.CEl Paso 1994, no writ) (conflicts between statements); Gray v. Ford, 783 S.W.2d 214, 217 (Tex. App.CHouston [1st Dist.] 1990, no writ) (discrepancy between deposition and trial testimony).  At most, the discrepancy reflects that Axelrad learned the importance of left lower quadrant pain by the time of trial and adjusted his testimony accordingly.

Next, the dissent imputes knowledge to Axelrad from other physicians= testimony that left lower quadrant pain is a classical symptom of diverticulitis.  From these physicians= testimony, the dissent infers that (1) medical doctors know the classic presentation of diverticulitis, and (2) because Axelrad, as a psychiatrist, has a medical degree, he too knew the significance of left lower quadrant pain.  This is an impermissible stacking of inferences and is not legally sufficient evidence.  Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003) (also noting that Asome suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence.@)

The dissent refers to a three-year-old proctoscopy for rectal bleeding (that is, hemorrhoids) in which no abnormalities were found.  At that time, the physician recommended that a colonoscopy be performed within two years.  From this, the dissent suggests the jury could reasonably infer that Axelrad was aware of Aproblematic bowel history@ which he should have reported without any prompting.  Additionally, the dissent suggests the record reflects that Dr. Jackson could have accurately diagnosed Axelrad=s condition if he had been Aaware@ of Aadditional medical history@ that was documented after Axelrad was admitted to the hospital.  Notably, Dr. Jackson ordered a CT-scan after becoming Aaware@ of this purported Aadditional history.@   However, the record reflects that after reviewing additional history and the CT-scan results, Dr. Jackson=s impression was Adiagnosis probably not diverticulitis.@

Lastly, the dissent=s reliance on Elbaor is misplaced.  She suggests that the court avoid attempts to identify and define the duty relative to Dr. Jackson=s claim of comparative negligence against Axelrad. Respectfully, our dissenting colleague unnecessarily raises concerns about Aunwieldy and imprudent legal standards@ in professional malpractice cases.  We have not altered the standard of care for physicians in Texas.  We have confined our analysis to a determination of whether there is any evidence to support the duty element of an ordinary negligence claim against a patient.  Consistent with the standard of review for legal sufficiency, we have searched the record for evidence supporting Dr. Jackson=s claim that Axelrad breached a legal duty.  Accordingly, it was necessary for us to define Axelrad=s duty under the facts of this case.

Succinctly, our dissenting colleague believes the negligence finding against Axelrad is supported by an inference from circumstantial evidence.  Consistent with our standard of review, have searched the record for any direct or circumstantial evidence which supports a negligence finding against Axelrad.^[12]  We find no evidence to support assessment of comparative negligence against Axelrad.

III.  Pathologist=s Testimony

In issues seven through ten, Axelrad challenges the qualifications of Dr. Mary Schwartz, a pathologist, and the reliability of her testimony.  A two‑part test governs whether expert testimony is admissible: (1) the expert must be qualified; and (2) the testimony must be relevant and based on a reliable foundation.  Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001).  Axelrad contends Dr. Schwartz was not qualified to render an opinion that Axelrad suffered a single bowel perforation before seeking Dr. Jackson=s help.  Axelrad=s contention is based on the assertion that Dr. Schwartz did not have sufficient knowledge regarding the etiology of diverticulitis.  We disagree that Dr. Schwartz=s testimony should have been excluded.

A.  Qualifications

AWhether a witness is qualified to offer expert testimony is a matter committed to the trial court=s discretion.@  United Blood Serv. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997).  The trial court determines whether the expert has Aknowledge, skill, experience, training, or education@ that would Aassist the trier of fact.@  See Tex. R. Evid. 702.  It is a proponent=s burden to establish an expert=s qualifications.  Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996).  Further, a proponent must show that the expert possesses special knowledge on the very matter on which he or she proposes to give an opinion.  Id. at 152B53.  We gauge abuse of discretion by whether the trial court acted without reference to any guiding rules or principles.  E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).

In this case, the record^[13] reveals that Dr. Schwartz is a board certified pathologist at Baylor University, where she is a full professor and holds an endowed chair.  Her sub-specialties include anatomic pathology and cytology, the study of cells taken in biopsy.  She has written several articles about gastrointestinal cytology, and she is familiar with pathology of the gastrointestinal tract.  She testified that it is within a pathologist=s area of expertise to estimate the age of a perforation based on examination of cells taken from a colon.  Specifically, Dr. Schwartz testified that a pathologist looks for Aacute inflammatory cells@ (pus), which appear within one to two days after an injury; macrophages, which appear after the third day of injury; new blood vessels, and chronic inflammatory cells and fibroblasts, which appear a week or two after injury.  Further, the surgeon who operated on Axelrad testified that Apathologists know more about@ dating such perforations.  Finally, Dr. Schwartz discounted Axelrad=s theory of a microperforation followed by a larger perforation based on the amount and location of chronic inflammatory cells and fibroblasts versus acute inflammatory cells.

Based on this evidence, we conclude that the trial court did not abuse its discretion in finding Dr. Schwartz qualified to testify about the age of Axelrad=s perforation.  Lack of specialized training about the disease process of diverticulitis is not fatal to Dr. Schwartz=s qualifications to testify in this case.

B.  Reliability

Next, Axelrad challenges the reliability of Dr. Schwartz=s opinion that pathological findings were the result of a single perforation occurring at least a week before surgery.  According to Axelrad=s expert, Dr. Steven Kanner, Axelrad likely suffered a microperforation before he sought Dr. Jackson=s help.  According to Dr. Kanner, the enema prescribed by Dr. Jackson then caused a macroperforation to occur for the first time or caused the microperforation to enlarge significantly, spilling pus into Axelrad=s abdomen.  However, based on pathology revealing the presence of chronic inflammatory cells and fibroblasts, Dr. Schwartz concluded that Axelrad suffered a perforation before he sought Dr. Jackson=s help and before his enema.

Although the trial court serves as an evidentiary gatekeeper by screening out irrelevant and unreliable expert evidence, it has broad discretion to determine the admissibility of that evidence.  Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002).  Some of the factors a trial court should consider in determining reliability include: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and publication; (4) the technique=s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non‑judicial uses that have been made of the theory or technique.  Robinson, 923 S.W.2d at 557.  In gauging reliability, the trial court evaluates the methods, analyses, and principles relied upon in reaching the opinion, ensuring Athat the opinion comports with applicable professional standards outside the courtroom and that it will have a reliable basis in the knowledge and experience of the discipline.@  Helena Chem. Co., 47 S.W.3d at 499 (quoting Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 725B26 (Tex. 1998)).

Axelrad contends that Dr. Schwartz=s methodology was fallacious because she assumed all pathological findings were related to a single perforation.  After reviewing the evidence, we do not agree that Dr. Schwartz=s methodology rendered her opinion unreliable.  Dr. Schwartz observed acute inflammatory cells on specimen tissue taken from Axelrad=s colon.  She also saw new blood vessels, histiocytes, chronic inflammatory cells, and fibroblasts.  Based on her observations, she estimated a perforation that was one to two-and-a-half weeks old.  When questioned whether Axelrad may have suffered a microperforation, which partially healed, followed by a larger perforation in the same site after the enema, Dr. Schwartz discounted such a theory.  For such an event, she would expect the acute inflammatory cells to be located differently and a lesser amount of granulation tissue, which is created by fibroblasts.  Further, Dr. Schwartz explained it was unlikely that a larger perforation occurred near an earlier microperforation: AIf there were a second perforation nearby, I would expect to find an area of neutrophils without the surrounding granulation tissue, which I do not see.@  In short, she saw no microscopic evidence of a more recent perforation.

Additionally, at trial, Dr. Schwartz testified that since her deposition, she reviewed six major texts (four on gastrointestinal pathology) and five articles (including the standards of the American Society for Colorectal Surgeons), but Amicro-perforation@ was not a term of common usage in those writings.  She simply disagrees with Axelrad=s expert, Dr. Kanner, who used the term microperforation in his conclusions.

We agree with Dr. Jackson=s contention that Axelrad is actually appealing the truth of Dr. Schwartz=s conclusions, not the reliability of her opinion.  However, A[t]he trial court=s role is not to determine the truth or falsity of the expert=s opinion.@  Robinson, 923 S.W.2d at 558; see Weingarten Realty Investors v. Harris County Appraisal Dist., 93 S.W.3d 280, 285 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  In this case, Dr. Schwartz did not merely assume a single perforation, but explained her opinion by the pathology results she viewed in Axelrad=s slides.  She described the pathology that is expected to be found if a microperforation occurs and is followed by a larger perforation, either at the same site or within close proximity.  Further, Axelrad extensively cross-examined Dr. Schwartz about her opinions and limitations of pathology.  Such cross-examination remains the traditional and appropriate means to attack admissible, though perhaps shaky, evidence.  Gammill, 972 S.W.2d at 727.  The trial court did not abuse its discretion in admitting Dr. Schwartz=s testimony as reliable.

We overrule issues seven through ten.

IV.  Conclusion

We have overruled issues seven through ten because the trial court did not abuse its discretion in finding Dr. Schwartz qualified and in admitting her expert testimony as reliable.  Following our survey of authority from sister jurisdictions, we sustain appellant=s first six issues, and hold as follows: (1) a patient may rely upon a physician to ask appropriate questions about medical history; (2) a patient=s duty to cooperate involves responding truthfully to a physician=s questions; (3) a patient has no general duty to self-diagnose or volunteer information; (4) the duty to volunteer information arises only when a patient understands the diagnostic significance of unrevealed history and recognizes the physician has failed to ascertain that history; and (5) in a misdiagnosis case, the patient may not be assessed comparative negligence for being inattentive to his health before seeking the physician=s professional opinion and care.

Viewing all the evidence and any reasonable inference supporting the jury=s verdict, we find as follows: (1) there is no evidence Dr. Jackson inquired about origination of Axelrad=s abdominal pain in the left lower quadrant before Axelrad performed the enema; (2) there is no evidence Dr. Jackson asked a question reasonably calculated to timely elicit a report of the 1994 examination for hemorrhoids and recommendation that a colonoscopy be performed within two years; (3) there is no direct evidence and no reasonable inference from circumstantial evidence that Axelrad was aware of the diagnostic significance of left lower quadrant pain or his 1994 examination before he performed the enema; and, finally, (4) there is no evidence in the record that Axelrad untruthfully described his medical history before performing the enema. 

Accordingly, we hold that the trial court erred by including Axelrad=s name in the comparative fault jury questions.  We reverse and remand for a new trial.

/s/        Charles W. Seymore

Justice

Judgment rendered and Majority and Dissenting Opinions filed June 29, 2004.

Panel consists of Justices Anderson, Seymore, and Guzman.  (Guzman, J., dissenting.)

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^[1]  The dissent contends the majority opinion creates a Anew legal standard for analyzing contributory negligence.@  On the contrary, this case involves assessment of negligence and our legal sufficiency review requires us to determine whether there is evidence sufficient to establish all of the four elements of an ordinary negligence claim against Axelrad, one of which is Aduty.@  See Edward D. Jones & Co. v. Fletcher, 975 S.W.2d 539, 542B43 (Tex. 1999).  The existence of a legal duty is a threshold question of law based on the specific facts of a case.  Kukis v. Newman, 123 S.W.3d 636, 639 (Tex. App.CHouston [14th Dist.] 2003, no pet.); see Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999).  A party cannot be found negligent where no duty exists.  See Thapar, 994 S.W.2d at 637.  This case does not involve a Anew standard of care@ because we are dealing with the duty of ordinary care assignable to a layman and gauged by conduct society expects from a reasonably prudent person.  Accordingly,  in this case of first impression, we will outline the patient=s duty to cooperate when the physician requests the patient=s medical history.

^[2]  In Elbaor, the physician contended the patient was negligent for failing to follow orders and take medication.  Ordinarily, the patient=s duty to follow the physician=s order and take medication would be triggered if the physician simply prescribed medication.  Absent evidence of miscommunication by the physician or misunderstanding attributable to the patient, there is no obvious contingency or condition precedent relative to the patient=s duty to follow the doctor=s orders or take prescribed medication.  Accordingly, the patient=s duty is fully outlined under the standard definition of ordinary care. However, in a misdiagnosis case where the physician claims the patient was negligent for failing to disclose specific events or physical conditions in his medical history, it is necessary for the court to identify the circumstances under which a patient might breach the duty of ordinary care.  For example, if the physician fails to ask a particular question regarding origin or chronology of symptoms, should the patient be assessed negligence if he does not volunteer the information?  What if the patient fails to report specific events in his medical history because he does not understand the diagnostic significance of the information? Obviously the patient=s duty under an ordinary negligence standard is more difficult to define.  However, no Anew standard of care@ is created when the court defines circumstances under which a patient breaches the duty to cooperate in a misdiagnosis case.

^[3]  Dr. Jackson cites Carreker for the proposition that a patient has a general duty to fully disclose his or her symptoms.  In the plurality opinion, the court fails to detail the questions asked of the patient who was misdiagnosed with gastroenteritis instead of appendicitis.  Further, in this nine-judge opinion by the Georgia court, four dissented and four concurred.

^[4]  The dissent misinterprets our holding with the following assertion: ARequiring physicians to ask specific questions in excess of those required by the applicable standard of care would impose unnecessary burdens on the doctor-patient relationship and add inefficiencies to the healthcare system.@  Respectfully, our colleague has focused her concern on an issue which is not presented by the litigants or addressed in this opinion.  Apparently, our colleague refuses to acknowledge that assessment of negligence against a physician is based on standards of care which are the subject of expert testimony.  In a medical malpractice case, the physician=s liability is measured by standards of care in the profession whether the patient is comatose or capable of reporting, in explicit detail, all of his medical history.  This case involves assessment of negligence against the patient under the Aperson of ordinary prudence@ standard.  We reject our colleague=s contention that the majority has created a Anew legal standard of care.@  By suggesting that a Anew standard@ will impose new duties on doctors to ask precise questions of their patients, the dissent fails to understand that our legal sufficiency review involves a search of the appellate record for evidence to support Dr. Jackson=s specific allegations of negligence against Axelrad.  In determining whether the evidence is legally sufficient to support assessment of any negligence against Axelrad, we are properly searching the record for evidence supporting Dr. Jackson=s contention that his patient breached a duty to report abdominal pain originating in the left lower quadrant and to report a 1994 visit to another physician.  As in all negligence cases, we must determine if there is any evidence establishing duty, the first element of a negligence cause of action.   In this case, the patient=s duty to truthfully report history and symptoms is triggered when the physician asks a question reasonably calculated to elicit the information needed for an accurate diagnosis.  Our determination of whether there is any evidence that a duty was breached is based on the well-known legal sufficiency standard of review; not, as the dissent suggests, create an Aunwieldy and imprudent legal standard for determining the legal sufficiency of the evidence of contributory negligence in professional malpractice cases.@       

^[5]  Disregarding chronology, the dissent labors long and hard with references to Axelrad=s deposition and trial testimony in an effort to demonstrate that the record supports the following inference:  on the occasion in question, Axelrad understood the significance and had a duty to report that his abdominal pain originated in the left lower quadrant.

^[6]  In contrast, at Healthsouth, where Axelrad underwent an ultrasound on Tuesday, a patient questionnaire was completed.  In the Healthsouth questionnaire, Axelrad responded to a question regarding his initial symptoms.  He wrote that his symptoms began with Aonset of malasia [sic] followed by pain.@  AMalaise@ means a feeling of bodily discomfort.

^[7]  The dissent effectively concedes there is no evidence in the appellate record that Dr. Jackson asked appellant about origin of pain in the left lower quadrant of his abdomen.  However, our colleague believes Dr. Jackson=s testimony that he routinely asks patients about any other problems they may have experienced since their last visit provides some evidence that Axelrad was Aafforded@ the Aopportunity to respond, disclosing both his pain and his history.@   Our colleague seems most willing to allow an open-ended question by the physician to serve as a trigger establishing the patient=s duty to provide relevant and learned responses that fit a diagnostic protocol obviously known only to a qualified expert.  Based on our survey of authority from sister jurisdictions and proper application of the standard of review for legal sufficiency, we respectfully disagree.

^[8]  The dissent does not refer to any evidence in the record that Dr. Jackson timely asked a question reasonably calculated to elicit information pertaining to Axelrad=s 1994 proctoscopy where the problem was identified as hemorrhoids.

^[9]  The dissent believes there is evidence sufficient to support a reasonable inference that Axelrad understood the importance of certain symptoms but failed to volunteer that information.  Our colleague concludes: ADr. Axelrad did not disclose his history of bowel problems to Dr. Jackson during his initial presentation.@  Notably, in her search for evidence to support this inference, our colleague disregards Dr. Jackson=s trial testimony regarding Mrs. Axelrad=s statements during the August 19, 1997 office exam.  Dr. Jackson testified as follows: AMrs. Axelrad, in talking to me, said Dr. Axelrad has spent long times in the bathroom, like 30 and 45 minutes at a time.  And he--she characterized it as weird bowel habits.  I asked a little bit further, and it sounds like he was having a lot of action even before this time I had seen him, more than she thought was normal, and that=s why I assume she characterized it as weird.@

^[10]  According to the dissent, the jury could disbelieve Axelrad=s trial testimony that he informed Dr. Jackson about the left lower quadrant pain, but paradoxically infer from his incredulous assertion the unsupportable conclusion that he understood the diagnostic significance of left lower quadrant pain, when he first contacted Dr. Jackson. Such inference is patently unreasonable.

^[11] Application of the equal inference rule in Lozano involved conduct and contradictory testimony of several witnesses.  This case involves the impeached or contradictory testimony of one witness. 

^[12]  We have considered all the evidence in a light most favorable to the jury=s verdict.  Our reference to specific items of evidence and testimony which do not favor the jury=s verdict should be viewed as responses to the dissent=s conclusion that the jury may infer certain facts from circumstantial evidence.

^[13]  The record includes both pre-trial and trial evidence pertinent to Axelrad=s motion to exclude.