Watson v. Isern

782 S.W.2d 546, 1989 Tex. App. LEXIS 3213, 1989 WL 163546
CourtCourt of Appeals of Texas
DecidedDecember 21, 1989
Docket09-88-210 CV
StatusPublished
Cited by7 cases

This text of 782 S.W.2d 546 (Watson v. Isern) 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
Watson v. Isern, 782 S.W.2d 546, 1989 Tex. App. LEXIS 3213, 1989 WL 163546 (Tex. Ct. App. 1989).

Opinions

OPINION

BROOKSHIRE, Justice.

This is a medical malpractice case. Mrs. Watson had experienced a fall hitting the back of her right knee across railroad ties, thereby twisting her leg. The record reflects she weighed about 270 pounds at the time. She was immediately taken to the emergency room of a Beaumont hospital where the Appellee, Dr. Isern, saw her. After X-raying her and finding that the leg involved was not broken, but finding that there was some damage to the knee joint area, Dr. Isern discharged Mrs. Watson to return to her home. She was to remain in bed for two or three days, applying ice packs to the knee. Pain medication was prescribed.

The record reflects that the knee cap had turned to the side and acquaintances of Appellant pulled on her leg so that the kneecap popped back into place. Mrs. Watson reported that she had broken her leg, was suffering severe pain and had a sensation similar to that of ants crawling on her leg. She could not move her foot or toes.

The Appellants argue that the testimony of independent medical experts and treating doctors established that she had suffered a ruptured popliteal artery and had suffered severe damage to the stability of the leg. Thus, she should have been admitted for immediate surgery. However, due to a delay of about three days, she suffered massive leg damage due to the lack of blood supply to the leg, resulting in an amputation of a part of her leg below the knee.

Special issue number one was the only issue that was submitted unconditionally. The remaining nine special issues were conditioned on the first issue and were unanswered. Several of the issues had as many as eight subparts.

Appellants seek a reversal and remand based on twelve points of error. The first point is that the trial court abused its discretion and erred in denying Appellant the right to impeach one Dr. Barbee concerning his relationship with defense counsel, the number of suits that defense counsel had handled for him and the malpractice claims against Dr. Barbee. Appellant argued such error was calculated to be prejudicial to her and to deny her state constitutional right to impeach an adverse witness so as to obtain a fair and impartial trial. Dr. James Barbee was called as the defendant’s independent expert medical witness. He supported the defendant’s testimony that the patient’s condition did not reflect a sufficient injury to require her hospitalization. Appellant sought to impeach this medical doctor by showing bias. In considering this point the entirety of the questioning of Dr. Barbee is to be analyzed.

Dr. Barbee testified that he had experience in diagnosing knee injuries, and especially experience in the emergency treatment of knee injuries. He defined the emergency injuries as limb threatening injuries. Dr. Barbee, himself, had experienced personally three dislocated knees. This doctor testified at some length about his own personal knee injuries, describing [548]*548those generally as a twisting injury, a hy-perextension injury involving the anterior cruciate ligament, the medial collateral ligament and the medial meniscus of the right knee.

In addition, Dr. Barbee had reviewed the depositions of Dr. Wolma, Dr. Ivey and Dr. Isern. He expressed his opinion based on reasonable medical probability that Mrs. Watson did not have a ruptured popliteal artery at the time she was seen in the emergency room by the Appellee. He further stated that in his opinion she did not have a torn anterior or specifically posteri- or cruciates. In non-medical terms, she did not have a swinging door leg. Dr. Barbee further testified that if Mrs. Watson had a ruptured popliteal artery when seen in the emergency room, then signs of gangrene would have been evident when she was later seen in Galveston.

Dr. Barbee testified that he had studied the Galveston records and that there was no indication that she was suffering from any gangrene at the time she was seen in Galveston. The cross-examination of Dr. Barbee before the jury was vigorous and piercing. Dr. Barbee conceded that Dr. Wolma was better equipped by both knowledge and skill to diagnose a ruptured popli-teal artery than was the Appellee. A careful analysis of the cross-examination shows that at least some of the questions and answers were acrimonious. The cross-examination went something like this:

“Q. So, you’re talking about the longest period of time, with a ruptured popliteal artery that you could expect to even have any chance of salvaging the leg would be seventy-two (72) hours after that injury.
“A. There have been survival of legs with train severance or even surgical ligation of the popliteal artery and nothing else. I don’t know if you realized that. In World War II, they used to just tie an artery off.
“Q. Sure. And, they lost seventy-two percent (72%) of all legs that they tied off.
“A. Correct.
“Q. Meaning that’s not a [sic] too good a surgical 'procedure by some nut who would tie off the artery, does it?
“A. Meaning that the surgeons in World War II didn’t have vascular clamps. They weren’t nuts. That’s your bias.
“Q. I’m talking about that’s kind of a nutty thing to do is to tie off an artery to the leg, because if you’re going to get seventy-two percent (72%) amputation, they ought to do something else, shouldn’t they?
“A. Maybe you should restate your question. I thought your question meant that a leg was for sure, a hundred percent (100%), going to be gone in a day or two (2) if the popliteal artery was inju-ried [sic]. Isn’t that what you said?
“Q. No, Doctor, I—
“A. Yeah, that’s what you said.
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“Q. Let’s go back to question and answer and I’ll try to accommodate whatever answer you want to give me....” (Emphasis added)

Many of Dr. Barbee’s answers contain the same tenor. We find further in the record this:

“Q. And, when I said that some nut might tie off an artery, I’m talking about anybody under those circumstances, if they could salvage it, would be more or less a nut to tie it off, wouldn’t they?
“MR. WHITTENBURG: Your Honor, it’s improper for him to ask Dr. Barbee what was going on in his mind when he called those doctors nuts. I don’t know why he called them nuts, but it’s improper for him to ask Dr. Barbee why he did it. He did it and we heard it and he shouldn’t ask Dr. Barbee about that.
“THE COURT: Sustain the objection.” (Emphasis added)

And further, it seems that the cross-examination in its vigorous give-and-take was personal as to both the doctor and the cross-examiner:

“Q. Well, the Vietnam conflict was over in ’67. That’s nine (9) or ten (10) years—
“A. ’67? You better check your facts.
“Q. Is that right? So, your — you believe that the Korean conflict was going on at the time you were there.
[549]*549“MR. WHITTENBURG: Your Honor, that’s not what he asked him.

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Related

Stam v. MacK
984 S.W.2d 747 (Court of Appeals of Texas, 1999)
Isern v. Watson
942 S.W.2d 186 (Court of Appeals of Texas, 1997)
Winkle v. Tullos
917 S.W.2d 304 (Court of Appeals of Texas, 1996)
Harvey v. Stanley
803 S.W.2d 721 (Court of Appeals of Texas, 1991)
Watson v. Isern
782 S.W.2d 546 (Court of Appeals of Texas, 1989)

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Bluebook (online)
782 S.W.2d 546, 1989 Tex. App. LEXIS 3213, 1989 WL 163546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watson-v-isern-texapp-1989.