Klug v. Ramirez

830 S.W.2d 801, 1992 Tex. App. LEXIS 1278, 1992 WL 106837
CourtCourt of Appeals of Texas
DecidedMay 21, 1992
DocketNo. 13-91-076-CV
StatusPublished
Cited by6 cases

This text of 830 S.W.2d 801 (Klug v. Ramirez) 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
Klug v. Ramirez, 830 S.W.2d 801, 1992 Tex. App. LEXIS 1278, 1992 WL 106837 (Tex. Ct. App. 1992).

Opinion

OPINION

BISSETT, Justice (Assigned).

This is a medical malpractice case. Thomas J. Klug, a defendant in the trial court (hereafter referred to as “Dr. Klug”) appeals from a judgment, following a jury trial, in which Hilario Ramirez and Janie C. Ramirez, parents of the minor child Lisa L. Ramirez and plaintiffs in the trial court (hereafter called “appellees”), next friend of Lisa L. Ramirez (hereafter called “Lisa”), were awarded damages in amount of $352,500.00, pre-judgment interest in the [803]*803amount of $66,003.29, post-judgment interest at the rate of 10% per annum, compounded annually until the judgment is paid and court costs. We reverse and render.

Suit was filed on April 9, 1990. The defendants were William Grimes (“Dr. Grimes”), d/b/a Valley Children’s Clinic, Valley Children’s Clinic, P.A., Dr. Klug and Valley Baptist Medical Center. Trial commenced on July 10, 1990. At the close of the evidence, all defendants filed motions for instructed verdict. The motion by Dr. Klug was denied, and the motions of the remaining defendants were granted. Judgment was signed on October 15, 1990. Dr. Klug’s motions for judgment notwithstanding the verdict and for a new trial were denied.

Appellees alleged generally that: on or about February 9,1984, Lisa, then 15 years of age, started having a strong burning pain in her right lower abdomen, and on February 10, 1984, they took her to the Valley Children’s Center (the “hospital”) in Harlingen, Texas, for examination. Dr. Grimes made a quick examination of Lisa and told them that she was suffering from gastroenteritis and sent her home with medication; at about 12:30 a.m. the following day, appellees took Lisa to the hospital where Dr. Grimes suspected that Lisa may have appendicitis. Dr. Grimes then called Dr. Klug, a general surgeon, at about 1:00 a.m. on February 11, 1984 and told him of Lisa’s condition and his suspicions; Dr. Klug scheduled surgery for 10:45 a.m. and performed an appendectomy on Lisa shortly thereafter. Dr. Klug discovered that the appendix had ruptured before the operation and that peritonitis had set in; Lisa was discharged from the hospital by Dr. Klug on February 18, 1984; she was re-admitted to the hospital on February 22, 1984. She was later discharged from the hospital by Dr. Klug, and appellees then sought treatment for Lisa elsewhere.

THE PLEADINGS

Appellees further alleged in some detail that Dr. Klug, in misdiagnosing Lisa’s condition and in administering incorrect, insufficient or no medication and failing to provide prompt surgical treatment and/or making an untimely discharge of Lisa on February 18, 1984, was negligent in one or more of the following particulars which, taken together or separately, constituted a direct and proximate cause of Lisa’s injuries and damages; they further alleged that he failed to use reasonable skill, care and diligence to correctly diagnose the injury to Lisa’s abdomen, or to correctly combat the infection process with antibiotics in a timely manner; that he failed to order and have made all necessary laboratory work “to ascertain the persistent infection during the first period of hospitalization;” he failed to diagnose acute appendicitis and remove the appendix within 2 to 4 hours after consultation with Dr. Grimes; he violated the generally established standards in discharging Lisa from the hospital on February 18, 1984, without a) determining the source of Lisa’s continued infection, and b) without first stabilizing her continued high grade fever and her need for narcotic pain medication for at least 24 consecutive hours prior to her discharge; he also violated the generally established standards in the community when he discharged Lisa within minutes of disconnecting intravenous medication and without supervising for at least 24-48 hours the effects of pills taken orally; he failed to insure that Lisa received the necessary medical care and attention that was necessary with respect to her treatment upon her admission to the hospital; he further violated generally established standards in the community when he failed on February 20, 1984 and/or February 21,1984 to immediately re-admit Lisa to the hospital and order any and all available diagnostic testing to determine the cause of continued infection and high grade fever; and his conduct from February 11, 1984, to February 22,1984, amounted to an abandonment of Lisa.

POINTS OF ERROR

Twelve points of error are presented by Dr. Klug. The jury found in its answer to Question No. 1 that the negligence of Dr. Klug proximately caused injuries to Lisa. Dr. Klug contends in his [804]*804second and third points that the trial court erred in denying his motions for instructed verdict and for judgment notwithstanding the verdict, and in rendering judgment for the appellees on the grounds that “there was legally insufficient evidence” that Dr. Klug was negligent (second point), and that Dr. Klug’s “negligence, if any, was a proximate cause of any harm to appellees” (third point).

The appellate court, in reviewing a “no evidence” point, must consider only the evidence and reasonable inferences that tend to support a jury finding and must disregard all evidence and inferences to the contrary. Lewelling v. Lewelling, 796 S.W.2d 164 (Tex.1990); Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985). However, if there is a complete absence of evidence of a vital fact, or, if the evidence offered to prove a vital fact is no more than a mere scintilla of evidence, a no evidence point of error must be sustained. Lewelling, 796 S.W.2d at 166; Kindred v. Con/Chem., Inc., 650 S.W.2d 61, 63 (Tex.1983).

It has long been established that in a medical malpractice action, the burden of proof is upon the plaintiff to establish negligence on the part of the defendant by a preponderance of the evidence through competent medical expert testimony. Duff v. Yelin, 751 S.W.2d 175 (Tex.1988); Hood v. Phillips, 554 S.W.2d 160 (Tex.1977); Lenger v. Physician’s Gen. Hosp., Inc., 455 S.W.2d 703 (Tex.1970); Hart v. Van Zandt, 399 S.W.2d 791 (Tex.1965); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949). The same is true as to the element of proximate cause. Duff, 751 S.W.2d at 176. To be entitled to submit the issue of proximate cause, the plaintiff must prove a causal connection between the act of negligence and subsequent injury beyond the point of mere conjecture. Lenger, 455 S.W.2d at 706. Absent such evidence as to either issue, the plaintiff cannot survive a motion by the defendant for an instructed verdict. Duff, 751 S.W.2d at 176; Rodriguez v. Reeves, 730 S.W.2d 19, 21 (Tex.App.—Corpus Christi 1987, no writ).

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830 S.W.2d 801, 1992 Tex. App. LEXIS 1278, 1992 WL 106837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klug-v-ramirez-texapp-1992.