Galvan v. Fedder

678 S.W.2d 596, 1984 Tex. App. LEXIS 5803
CourtCourt of Appeals of Texas
DecidedJuly 12, 1984
DocketA14-82-603CV
StatusPublished
Cited by23 cases

This text of 678 S.W.2d 596 (Galvan v. Fedder) 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
Galvan v. Fedder, 678 S.W.2d 596, 1984 Tex. App. LEXIS 5803 (Tex. Ct. App. 1984).

Opinion

OPINION

J. CURTISS BROWN, Chief Justice.

This is an appeal from a take-nothing judgment rendered in a medical malpractice, wrongful death, and survival action instituted by appellants. Upon submission of special issues, the jury found Dr. Larry Fedder negligent in his treatment of the deceased, Joe Galvan. However, it failed to find such negligence a proximate cause of Galvan’s death, and answered zero to the damage issues. In ten points of error, appellant complains of the trial court’s findings as to Dr. Fedder. We reverse and remand.

Joe Galvan was referred to Dr. Larry Fedder, an internal medicine specialist, for evaluation and treatment of a possible diabetic condition. After examining him on March 8, 1978, Dr. Fedder concluded that Galvan was mildly afflicted with Type II diabetes mellitis. Dr. Fedder began Gal-van’s treatment with an oral hypoglycemic agent, Diabinese, prescribing two 250 milligram tablets twice daily, or 1000 milligrams per day. The recommended dosage set out in the drug’s package insert and in the Physicians Desk Reference Manual (or P.D.R.) was 250 milligrams. The manufacturer warned that an initial large dose, known as a loading or priming dose, should not be used, nor should the maximum dosage exceed 750 milligrams per day.

Joe Galvan first began having problems on March 17, 1978, when he developed fever, a severe rash, and muscle soreness. Later that same day, Mrs. Galvan telephoned Dr. Fedder’s office and reported the symptoms. His nurse spoke to Mrs. Galvan. Mr. Galvan was told to stop taking the aspirin he had begun using for his fever and muscle soreness. By that evening, Joe Galvan had a 101 degree fever. On March 18, the fever, rash, and muscle soreness had worsened. Mrs. Galvan took her husband to the doctor’s office. He was seen by Dr. Fedder’s partner, Dr. John Montgomery, who concluded that Joe Gal-van was suffering from either a drug eruption or the measles. He ordered termination of all medication. On March 19, Gal-van developed diarrhea and nausea in addition to his fever and rash. On March 20, Joe Galvan saw Dr. Fedder and complained of nausea, general malaise, weakness, high fever, and diarrhea. After determining that his white blood count was normal, Dr. *598 Fedder prescribed Donnagel and paragoric for Galvan’s symptoms. On March 21, Dr. Montgomery prescribed Lomotil for treatment of Galvan’s diarrhea. On March 22, Galvan’s condition had not improved, so he was admitted to Park Plaza Hospital. Shortly thereafter, he was seen by Dr. Matthew Monroe, an internal medicine specialist, and Dr. A1 Hernandez, a gastroen-terologist. Dr. Monroe performed a rectal examination which was strongly positive for blood. While there was some disagreement as to its specific nature, it was determined that Galvan suffered from an acute inflammatory bowel disease. Galvan’s initial hospitalization lasted until April 27, 1978, during which time Dr. Edward Earle performed surgery on him. The surgery consisted of an exploratory laparotomy with an appendectomy, together with a proctocolectomy and a cholecystectomy. On May 1, 1978, appellant was readmitted to Park Plaza. He died on June 12, 1978. The immediate cause of death was diagnosed as a thrombosis, or blood clot, due to kidney failure, due to multiple abdominal and lung abcesses, stemming from Gal-van’s “acute inflammatory bowel disease,” and resultant complications from the surgeries.

In point of error four, appellants contend the jury’s failure to find that Dr. Fedder’s negligent treatment of Galvan was a proximate cause of his death is against the great weight and preponderance of the evidence. In point of error five, appellants argue that there was no evidence to support the submission of a definition of “new and independent cause” to the jury over their timely objection. We agree with both of these contentions, and will discuss them together.

A “new and independent cause” is defined as an act or omission of a separate and independent agency which destroys the causal connection between the negligent act or omission of the defendant and the injury complained of, and thereby becomes the immediate cause of such injury. Young v. Massey, 128 Tex. 638, 101 S.W.2d 809 (1937). Such cause contemplates that an independent force rather than the alleged negligent acts of the parties was responsible for such injuries. Goldstein Hat Mfg. Co. v. Cowen, 136 S.W.2d 867, 873 (Tex.Civ.App.—Dallas 1939, writ dism’d). The element of “new and independent cause” should not be incorporated into the definition of proximate cause in the court’s charge unless it is in the case under the evidence. Young v. Massey, 101 S.W.2d at 810; North Texas Producers Association v. Stringer, 346 S.W.2d 500, 507 (Tex.Civ.App.—Fort Worth 1961, writ ref’d n.r.e.).

In order to determine whether there is any evidence to raise “new and independent cause,” this court must consider only the evidence and inferences which will support the inclusion of this element and disregard all evidence and inferences to the contrary. See Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). After a careful review of the record, we find no evidence of sufficient probative force to support the inclusion of “new and independent cause” in the court’s charge. Appel-lee contends that such submission was warranted because the record reflects that Gal-van may have died from complications arising from his treatment and surgeries while hospitalized at Park Plaza. We agree that there is some evidence of post-operative complications resulting from Galvan’s surgeries which may have weakened him, thereby hastening his death. Nevertheless, we do not believe this would constitute a “new and independent cause” as defined by our courts. It is well established in this State that one who wrongfully injures another is liable in damages for the consequence of the treatment administered by physicians selected in good faith and with ordinary care by the injured party. This liability was articulated in Hicks Rubber Co. v. Harper, 131 S.W.2d 749 (Tex.Civ.App.—Waco), writ dism’d, 134 Tex. 89, 132 S.W.2d 579 (1939):

... [TJhis is one of the consequences that the Defendant should have anticipated as *599 a probable result of its negligent conduct. Id. at 751.

See also Cannon v. Pearson, 383 S.W.2d 565 (Tex.1964). It is undisputed that Joe Galvan was acutely ill upon admission to Park Plaza Hospital. Any and all subsequent treatment of Galvan while hospitalized was administered in an attempt to halt the deceased’s deteriorating condition, ending in his death. The evidence does not support the inclusion of a definition of “new and independent cause” in the charge.

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Bluebook (online)
678 S.W.2d 596, 1984 Tex. App. LEXIS 5803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/galvan-v-fedder-texapp-1984.