holding that plaintiff did not meet burden of proof merely by showing that procedure “was not compatible with that utilized by other doctors in Harris County”
How later courts described this case
- holding that plaintiff did not meet burden of proof merely by showing that procedure “was not compatible with that utilized by other doctors in Harris County”
- holding that damage limit in Chapter 74’s predecessor statute was affirmative defense that must be pleaded, or else it is waived
- holding that defendant waived the liability cap in former article 4590i by failing to plead the cap
Written by the judges who cited it.
The opinion
DUNN, Justice,
dissenting.
I agree with the majority that the appel-lee failed to establish that the appellant’s operative treatment was outside of what a reasonable and prudent doctor would have provided. However, I disagree with the majority’s holding that the appellant “did not act reasonably or prudently in failing to remove the Marlex mesh earlier and in failing to provide adequate nutritional care to avoid malnutrition.” The reason for my disagreement is that the appellee failed to establish the medical standard of care.
In Texas, it is well settled that a patient has no cause of action against his doctor for malpractice, either in diagnosis or in recognized treatment, unless he proves by a doctor of the same school of practice as the defendant that the diagnosis or treatment complained of was such as to constitute negligence and that it was a proximate cause of the patient’s injuries ... [T]he testifying expert cannot establish the standard by stating what he would have done and what he thought was a proper use of the diagnostic tools available to Dr. Westbrook (the defendant) in examining the plaintiff.
Stanton v. Westbrook, 598 S.W.2d 331, 333 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ ref’d n.r.e.); see also Martin v. Petta, 694 S.W.2d 233, 238 (Tex.App.—Fort Worth 1985, writ ref d n.r.e.); Coan v. Winters, 646 S.W.2d 655, 657-58 (Tex.App.—Fort Worth 1983, writ ref d n.r.e.).
Likewise, the witness’ personal preference for treatment does not establish a standard of care. Smith v. Guthrie, 557 *890 S.W.2d 163,167 (Tex.Civ.App.—Fort Worth 1977, writ ref d n.r.e.). The testifying expert cannot establish medical standards of care by testifying as to what he would have done. Hersh v. Hendley, 626 S.W.2d 151, 159 (Tex.Civ.App.—Fort Worth 1981, no writ).
In the case before us, with respect to the removal of the Marlex, Dr. MacFadyen testified as follows:
(Plaintiffs Counsel): Do you have an opinion, Doctor, then, based on what you have told us whether or not on or about September 10th, at the time that the resection work was done, that you would have considered removing the Marlex mesh?
(Dr. MacFadyen): I—
(Plaintiffs Counsel): Consistent with the standard of care in Harris County, Texas?
(Dr. MacFadyen): I think that would have been my personal preference to have removed the Marlex at that particular time.
(Emphasis added.) Similarly, with respect to the appellee’s nutritional care, Dr. MacFadyen testified as follows:
(Plaintiff’s Counsel): Doctor, I want you to assume in that regard that Dr. Webster told Mrs. Zabodyn, even after this November or — let me get the chart here — September 10th admission, the point where you said earlier in your testimony that you would have considered taking some action. I want you to assume from that point forward that all Dr. Webster told her, and despite — you see the other indications here as to the subphrenic abscess — told her to just eat what she wanted and take some vitamins, but that she vomited up the vitamins and she told Dr. Webster this and he did nothing else in regards to that nutritional care. Do you think that is consistent with the standard of care in Harris County, Texas, considering what you saw? Also, putting into that equation, when you saw the extent of the fistula and the effect when you saw her on November 17th, plus, together with the state of her nutritional care; that is, she was severely malnutritioned, as you’ve testified. Did you think that would be good nutritional care to tell her that?
(Dr. MacFadyen): Well, I think I might have been more specific about what she needed to take in, and if she was not able to take those things in, I think that, you know, something had to be done; either supplements had to be provided or somehow vitamins needed to be given preemp-torily as injections or something else. She was not able to take those types of things in by mouth.
(Emphasis added.)
Because the appellee failed to establish the standard of medical care, the trial court erred in denying the appellant’s motion for an instructed verdict. I would reverse and render this case in favor of the appellant.