Sears v. Cooper

574 S.W.2d 612, 1978 Tex. App. LEXIS 3930
CourtCourt of Appeals of Texas
DecidedNovember 15, 1978
Docket1874
StatusPublished
Cited by11 cases

This text of 574 S.W.2d 612 (Sears v. Cooper) 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
Sears v. Cooper, 574 S.W.2d 612, 1978 Tex. App. LEXIS 3930 (Tex. Ct. App. 1978).

Opinion

CIRE, Justice.

This is a medical malpractice case.

Ernest M. Cooper, in the capacity of guardian of the person and estate of his wife, Emma Jane Cooper, instituted this suit against appellant, Dr. Ernest S. Sears. The voluminous record in this case may be summarized as follows.

Dr. Sears had been Mrs. Cooper’s physician for approximately twenty years at the time of the treatment which is the basis for this suit. On October 12,1972, Mrs. Cooper complained to Dr. Sears of not feeling well and of having a slight puffiness, or edema, in her face and hands. Dr. Sears prescribed Enduron, a moderate diuretic manufactured by Abbott Laboratories 1 for treatment of the edema. He instructed her to take one tablet a day. Mrs. Cooper called Dr. Sears’ office shortly after this visit and told the nurse that the Enduron made her ill. The nurse instructed her to discontinue the medication until Dr. Sears returned to the city on October 20.

Mrs. Cooper saw Dr. Sears on October 20, at which time she had the same general complaint of not feeling well, in addition to nausea and the continued edema. Dr. Sears later noted in the hospital record that she acted strangely on that date. He instructed her to resume the Enduron.

*614 On the evening of October 21 Mrs. Cooper called her husband at work and asked him to return home, as she was ill. On Sunday morning, October 22, Mr. Cooper called Dr. Sears and advised him of his wife’s illness. Dr. Sears told him to discontinue solid foods, give her liquids, and bring her to his office on Monday. Mr. Cooper gave Mrs. Cooper a glass of tea, and shortly thereafter found her unconscious. He rushed her to Heights Hospital where she was admitted in a comatose state. It was subsequently determined that she had sustained permanent brain damage. Dr. Sears’ final diagnosis on discharge was anoxic encephalopathy due to coma caused probably by severe electrolyte imbalance. Mrs. Cooper is currently institutionalized, and the testimony showed that she will require custodial care for the rest of her life.

The Coopers sued Dr. Sears on several counts of negligence. The primary grounds of negligence urged were the initial prescription of Enduron and the subsequent instructions to resume the drug without performing electrolyte imbalance testing. Other grounds included prescription of En-duron in combination with another drug and inappropriate treatment upon Mrs. Cooper’s admission to Heights Hospital. The jury found Dr. Sears negligent in ordering the resumption of Enduron and in failing to perform electrolyte testing on October 20; however, only the first of these was assigned as a proximate cause of Mrs. Cooper’s injuries. She was awarded $500,-000.00 for reasonable medical and institutional expenses.

The primary thrust of Dr. Sears’ appeal is that there is no evidence, or insufficient evidence, to support the jury’s findings of negligence and proximate cause. In passing on the “no evidence” points, we must consider the evidence in the light most favorable to appellant and reject all contrary evidence and inferences. The “insufficiency of the evidence” points require us to weigh and consider all the evidence in the case. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The trial, which took three weeks, produced an extensive record replete with expert testimony. The Coopers’ primary expert witness was Dr. George David Lund-berg, a California physician specializing in pathology. He testified that Mrs. Cooper suffered from electrolyte imbalance which was aggravated by the diuretic Enduron, and that this aggravation resulted in her brain damage.

Briefly, electrolytes are electrically charged substances, such as sodium and potassium, which are found in the blood. A particular balance or concentration of these substances in the blood stream is necessary for sustaining life. An imbalance produces detrimental results ranging from disorientation and weakness to coma and death. An imbalance may result from increased ingestion of fluids or rapid loss thereof, as by continued vomiting or diarrhea. The use of a diuretic, such as Enduron, which causes the body to lose fluids, may also cause an imbalance. Laboratory tests performed on a blood sample can determine whether there is a proper concentration of electrolytes in the system. These tests were not performed on Mrs. Cooper until after her admission to the hospital. Dr. Sears’ own records showed that Mrs. Cooper was admitted to the hospital with “severe electrolyte imbalance”. It was primarily on Dr. Sears’ records that Dr. Lundberg based his opinion.

Dr. Sears produced a number of medical experts who gave their opinions as to the possible causes of Mrs. Cooper’s condition. These causes included hepatic coma, menin-gial disease, cerebral hemorrhage, encepha-lomelitis, and stroke.

After examining the record, we feel that there was sufficient evidence to support the jury’s verdict, and so affirm the judgment of the trial court.

On the issue of negligence, the evidence indicated two departures from accepted practice, the instructions to resume the drug after it had made Mrs. Cooper ill and the prescription of Enduron in the absence of a diagnosis. Dr. Sears himself, as well as the expert witnesses called by both sides, *615 testified that a physician should know a patient’s condition before prescribing a drug. Expert witnesses on both sides indicated that if a drug makes a patient ill it should be discontinued, or at the very least an investigation should be made into the cause of the illness.

Appellant attacks much of this testimony on the ground that the standard of care of specialists differs from that of general practitioners, and as a result the testimony of appellee’s expert is insufficient as to Dr. Sears. According to appellant, this is contrary to the rule in Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949), which requires testimony by a doctor of the same school as the defendant that the diagnosis or treatment was negligent and a proximate cause of the patient’s injuries.

The Bowles rule was qualified by Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933 (1953). There the Texas Supreme Court held that where the subject of inquiry is common to and equally recognized and developed in all fields of practice, then any physician familiar with the subject may testify as to standard of care. Doctor Lund-berg testified that the standards relating to the use of a diuretic are uniform throughout the areas in which he had practiced, Alabama, Texas, Hawaii, and California, and do not vary among the states. He classified this standard as a national and not a local one. He further stated that the standard does not vary in the approaches taken by specialists and general practitioners. See also Simpson v. Glenn, 537 S.W.2d 114 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.).

Appellant did not challenge the qualifications of appellee’s experts on this ground at the trial level.

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574 S.W.2d 612, 1978 Tex. App. LEXIS 3930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sears-v-cooper-texapp-1978.