Opposition Brief — Karp v. Cooley

ARGUMENT IN OPPOSITION TO GRANTING WRIT

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making the records and proceedings of a medical

organization committee confidential and not available

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II. Whether the qualification of a witness out of the

presence of the jury and exclusion of his testimony

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III. Whether a directed verdict denied rights to trial

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LIST OF AUTHORITIES

CASES

Allison v. Blewett, 348 S.W.2d 182 (Tex. Civ. App.—Austin

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Bowles v. Bourdon, 219 S.W.2d 779, 782 (Tex. 1949) ...

Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (1970)

Canterbury v. Spence, 464 F.2d 772, 790 (D.C. Cir. 1972)

Duignan vy. United States, 274 U.S. 195 (1927) ..........

Galloway v. United States, 319 U.S. 372 (1943) .........

Huddleston v. Dwyer, 322 U.S. 232, 237 (1944) .........

MacGregor v. State Mutual Co., 315 U.S. 280 (1941) .....

The Monrosa v. Carbon Black, Inc., 359 U.S. 180 (1959)

Rice v. oy City Memorial Park Cemetery, Inc., 349 U.S.

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Salem v. United States Lines Co., 370 U.S. 31 (1962) ...

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CASES

Thomas v. Beckering, 391 S.W.2d 771 (Tex. Civ. App.—

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Wilson v. Scott, 412 S.W.2d 299 (Tex. 1967) ...........

STATE STATUTES

Minnesota Statutes Annotated §§ 145.61, 145.64 (Supp. 1974)

Texas Revieed Civil Statutes Annotated art 4445, §8 (Supp.

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Texas Revised Civil Statutes Annotated art. 4447d(3) (Supp.

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TEXTS

5 J. Moore, Federal Practice, § 43.11 at 1383 (2d ed. 1974)

Supreme Court of the Huited States

OCTOBER TERM, 1974

NO. 73-2044

SHIRLEY KARP, Individually, as Executrix of the Estate

of Haskell Karp, and as next friend of Joel Karp and

Martin Karp, Minors, and Harry Michael Karp,

Petitioners

v.

DENTON A. COOLEY anp DOMINGO S. LIOTTA,

Respondents

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

OF DENTON A. COOLEY

Respondent, DENTON A. COOLEY, in opposition to

the Petition of SHIRLEY KARP, ET AL, for Writ of

Certiorari to the United States Court of Appeals for the

Fifth Circuit herein would show:

OPINIONS BELOW

The Opinion of the United States District Court for

the Southern District of Texas is reported at 349 F. Supp.

827. -}

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2

The Opinion of the United States Court of Appeals

for the Fifth Circuit is reported at 493 F.2d 408.

JURISDICTION

The jurisdictional requisites are adequately set forth in

the Petition.

QUESTIONS PRESENTED

I. Whether there was a misapplication of a state

statute making the records and proceedings of

a medical organization committee confidential

and not available for court subpoena.

II. Whether the qualification of a witness out of

the presence of the jury and exclusion of his

testimony denied due process of law.

Ill. Whether a directed verdict denied rights to trial

by jury.

STATEMENT OF THE CASE

This Texas diversity action for medical malpractice

arose out of the first clinical use of a mechanical heart.

The case involves unique facts, not law. The legal issues

were decided based upon long-standing Texas precedents

except for the holding that in a therapeutic context, an

action for experimentation is governed by traditional mal-

practice standards and requires expert medical testimony.

While this question had not been previously addressed

by Texas decisions, petitioners do not here complain of

this holding which is the only legal question fairly charac-

terized as novel. As is readily apparent from the opinions

below, the case turns significantly upon its facts, particu-

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3

larly with regard to the requisite issues of proximate cause

necessary to each advanced theory of liability. At the

conclusion of all of the evidence, the trial court directed

a verdict for the defendants which was affirmed by the

Fifth Circuit Court of Appeals.

ARGUMENT IN OPPOSITION TO

GRANTING WRIT OF CERTIORARI

I. There was no misapplication of a state statute.

Petitioners have suggested no special and important

reasons for review of this case by certiorari and there are

none. No important state question has been decided in

conflict with Texas law. No question of federal law was

urged below or decided. Petitioner’s Reasons for Granting

a Writ are essentially a verbatim restatement of their

Petition for Rehearing to the Fifth Circuit renewing

arguments on the relevancy and sufficiency of evidence

that have been rejected twice. No constitutional question

is necessary for decision or involved.

Petitioner’s argument that Article 4447d(3), Texas

Revised Civil Statutes Annotated (Supp. 1974), is -un-

constitutional was not made to the trial court or to the

court of appeals in brict, oral argument, or Petition for

Rehearing En Banc. See Assignments of Error, 493 F.2d

at 411. Absent any attempt whatsoever by petitioners to

demonstrate exceptional circumstances referrable either

to Mrs. Karp or the public at large, there is no compelling

reason for consideration of this argument not pressed or

passed on below. E.g., Duignan v. United States, 274 U.S.

195 (1927). Previously, it had merely been asserted that

the Texas statute had no application to the records’

1. The records involved were of a committee appointed by the

Board of Trustees of the Baylor College of Medicine to investigate

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involved and that portions of the records were admissible

for impeachment purposes.

Petitioners urge that the court of appeals misapplied

the Texas statute because it was only intended to protect

the identity of persons treated with venereal or other

communicable diseases. This argument is unmeriiorious

and presents, at most, only a question of the construction

of a local statute rejected by both lower courts, not

justifying certiorari review. E.g., Huddleston v. Dwyer,

322 U.S. 232, 237 (1944); MacGregor v. State Mutual

Co., 315 U.S. 280 (1941). Texas article 4447d(3) is

a portion of the statute designed to reduce morbidity

and mortality and” to sanction and promote candor in

peer review of health care administered by physicians and

hospitals. It is fairly representative of similar state statutes.

E.g., Minnesota Statutes Annotated, §§ 145.61, 145.64

(Supp. 1974). It is apparent that the statute has a broader

and more significant purpose than the narrow objective

suggested by petitioners since the identity of persons

afflicted with venereal disease is given confidential status

by other Texas statutes specifically dealing with the

venereal disease problem. Texas Revised Civil Statutes

Annotated art. 4445, §8 (Supp. 1974); Texas Revised

Civil Statutes Annotated art. 4445c, § 4 (Supp. 1974).

The immunity conferred by the statute in question upon

compliance by the college with guidelines of the National Heart

Institute. (Tr. 1081). The records were voluntarily produced by

counsel for Baylor College of Medicine pursuant to the Court’s

request, not pursuant to a subpoena. No subpoena was quashed.

Counsel for petitioner suggested that the records be sealed and made

available to the Trial Court for the court’s inspection. (Tr. 70).

This in camera examination made evident that no report had been

made by the committee and that what had been produced was a

“draft” of the committee’s counsel and an unsigned rejected summary

of a statement by respondent Cooley. (Tr. 1061, 1063).

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those furnishing information to medical committees is

further illustrative of the broader purpose of the statute

than protecting the identity of communicable disease

patients. For these reasons, the lower courts reasonably

concluded that the statute protected the documents in

question.

Petitioners, without citation of authority, now, for the

first time, obliquely suggest that the statute is unconstitu-

tional, presumably as violative of the 14th Amendment.

The single supporting reason is that the statute denies

“the right to factual testimony”, a function of each and

every common law or statutory privilege which exists.

No constitutional question need be reached, however,

because petitioner’s argument continues to ignore the

rulings of both lower courts, based upon in camera re-

views, that the records were inadmissible and of doubtful

probative value. There is no constitutional right to intro-

duce inadmissible evidence. It is elementary that peti-

tioners could not have impeached respondent Cooley

with a statement made by respondent Liotta. The lower

court rulings on the admissibility of the evidence, standing

alone, are dispositive of the issue raised by the Baylor

Committee Records and accordingly no reason for review

is demonstrated. The Monrosa v. Carbon Black, Ine.,

359 U.S. 180 (1959).

Respondent has discovered no decision suggesting that

such a statute denies due process of law. So strong is the

public policy supporting the confidential nature of such

investigations intending to improve public health care,

courts have sustained the privileged nature of communica-

tions in these proceedings even in the absence of such a

statute. In delineating the valid and reasonable purpose

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of the privilege, the United States District Court for the

District of Columbia stated in Bredice v. Doctors Hospital,

Inc., 50 F.R.D. 249 (1970):

“Confidentiality is essential to effective functioning

of these staff meetings; and these meetings are

essential to the continued improvement in the care

and treatment of patients. Candid and conscientious

evaluation of clinical practices is a sine qua non of

adequate hospital care. To subject these discussions

and deliberations to the discovery process, without

a showing of exgeptional necessity, would result in

terminating such deliberations. Constructive profes-

sional criticism cannot occur in an atmosphere of.

apprehension that one doc:or’s suggestion will be

used as a denunciation of a colleague’s conduct in

a malpractice suit. The purpose of these staff meet-

ings is the improvement, through self-analysis, of the

efficiency of medical procedures and techniques. They

are not a part of current patient care but are in the

nature of a retrospective review of the effectiveness

of certain medical procedures. The value of these

discussions and reviews in the education of the

doctors who participate, and the medical students

who sit in, is undeniable. This value would be

destroyed if the meetings and the names of those

participating were to be open to the discovery

process. The public interest may be a reason for not

permitting inquiry into particular matters by discovery

. . . There is an overwhelming public interest in

having those staff meetings held on a confidential

basis so that the flow of ideas and advice can con-

tinue unimpeded.”

The purpose of article 4447d(3) is eminently reason-

able, it was correctly applied by the local court, and the

evidentiary ruling on the privileged records was not

manifestly erroneous.

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II. There was not a denial of due process in the

qualification of Dr. DeBakey and the exclusion

of his testimony.

Respondent is uncertain how the action of a federal

trial judge in the qualification of a witness and the

eventual exclusion of his evidence relates to the depriva-

tion of 14th Amendment rights. First, this reason for

certiorari merely calls upon this Court to review evidence

and analyze specific facts which two courts below held

did not raise a Texas malpractice submission to the jury.

There is not even a suggestion that the ill-founded allega-

tions of error relate in any fashion to the public or to

other potential litigants so as to justify the exercise of

certiorari jurisdiction. Rice v. Sioux City Memorial Park

Cemetery, Inc., 349 U.S. 70 (1954).

Secondly, there are independent grounds sustaining,

indeed necessitating the directed verdict below. Even if

Dr. DeBakey’s testirnony had been admitted, the record.

simply contained no evidence that the ventriculoplasty,

the orthotopic cardiac prosthesis, or the biological trans-

plantation was a proximate cause of injury to or the

-death of Mr. Karp. 493 F.2d at 423-25. To the contrary,

all of the physicians who testified were of the universal

opinion that the respondent’s treatment was not a proxi-

mate cause of the death of Mr. Karp. 493 F.2d at 422.

The more likely causes of pneumonia and renal shutdown

resulting in the patient’s death were unrelated to the

mechanical heart. This evidence compelled a directed

verdict under Texas law notwithstanding the testimony

of Dr. DeBakey. Bowles v. Bourdon, 219 S.W.2d 779,

782 (Tex. 1949).

Thirdly, there was no error in the qualification of the

witness or in the exclusion of Dr. DeBakey’s testimony.

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The trial court’s discretion to consider the relevancy and

admissibility of evidence outside the presence of the jury

is clear. 5 J. Moore, Federal Practice, § 43.11, at 1383

(2d ed. 1974). Conducting the proceedings in chambers

dispelled the possibility that jurors would receive in-

admissible evidence from lay media reporting. Reviewing

the proceedings, the Fifth Circuit rejected the assertion

that there was a “judicial coercion” of the witness.

493 F.2d at 424. Nor was the trial court’s exclusion of

evidence clearly or manifestly erroneous. Salem v. United

States Lines Co., 370 U.S. 31 (1962). Dr. DeBakey

had no opinions referrable or relevant to Mr. Karp’s

treatment. After reading Mr. Karp’s medical records at

the court’s suggestion, he answered no hypothetical ques-

tions and declined to give opinions on the pump used

in Mr. Karp’s operation. The authority cited by petitioners

in support of the proposition that Dr. DeBakey could be

compelled to testify has application only to the situation

where an expert witness appears voluntarily at trial and

offers expert testimony and then refuses to answer addi-

tional questions without compensation. Petitioner’s argu-

ment, moreover, ignores the fact that this witness did not

have an expert opinion® which could be compelled by the

2. Prior to any questions of the witness when judicial coercion

was suggested, the court stated:

“Tf the record reflects that I have intimated to Dr. DeBakey

anything or have indicated one way or the other as to what I

will permit him to testify to in front of the jury, then somebody

reading the record will have to find it . . . It’s a void in the

record insofar as I am concerned . . . I have made no deter-

mination as to whether or not Dr. DeBakey will be permitted

to testify before the jury .. .” (Tr. 1365).

3. (Tr. 1394) “Q. Dr. DeBakey, at this time, sir, if I agree to

pay your fee to testify as an expert in this case, would you agree

to examine these records and testify as an expert? A. No. I thought

I made my position clear about this Judge, and I would like to make

it clear again. I made it at the deposition I want to make it here

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court. Under this record, there was neither error in

exclusion of evidence nor denial of petitioner’s rights.

Ill. There was not a denial of the right to trial by

jury.

Petitioner’s third reason for granting the writ is a re-

newed complaint that the evidence was factually sufficient

to raise an issue for jury submission on informed consent

or fraud.* The assigned error relates only to this cause,

is unrelated to the public generally, and as before ignores

the fact that the lack of legal causation is an independent

ground supporting the trial court’s decision. The Texas

requirements of a medical standard for disclosure estab-

lished by expert evidence was not met and a breach of

duty not shown. Wilson v. Scott, 412 S.W.2d 299 (Tex.

1967). Secondly, the medical evidence did not establish

that an unrevealed ri. .: materialized to the patient’s harm.

See Canterbury v. Spence, 464 F.2d 772, 790 (D.C. Cir.

1972). It must be remembered at this point that the

undisputed medical evidence established that Mr. Karp

faced imminent death prior to any surgery and that his

heart would not support life after the conventional repair

was performed. Whether measured objectively or sub-

once and for all. I am not in a position to give expert testimony

about Mr. Karp. I do not know Mr. Karp. I never saw him before.

I had no observations, clinically, about him. I cannot therefore give

expert testimony about a patient I never saw. I know from past

experience that reading the records does not provide me with that

kind of knowledge. I have read the records of this man and feel the

same way I felt before I read the records, that 1 am not in a

position to give expert testimony about what should have been done

or not done in that particular patient. The Court: Or whether it

was done skillfully or unskillfully? A. I am unable to say.”

4. This section of the Petition for Certiorari is a verbatim recita-

tion of the Petition for Rehearing in the Court of Appeals, then

suvmitted under the caption “Informed Consent”.

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jectively, no evidence was presented to indicate that the

patient would not have consented to the operation. Peti-

tioners simply failed to introduce evidence of the requisite

elements of a common-law cause of action for informed

consent and the trial court’s action was accordingly correct

and denied no 7th Amendment rights. Galloway v. United

States, 319 U.S. 372 (1943).

If the cause of action is classified as fraud, there was

no showing of any relationship of causation between the

absence of a donor heart or any other alleged misrepre-

sentation and any harm to the patient. Absent causation

or detriment a substantive cause of action for fraud was

not established by Texas standards. Thomas v. Beckering,

391 S.W.2d 771 (Tex. Civ. App.—Tyler 1965, writ

ref'd n.r.e.); Allison v. Blewett, 348 S.W.2d 182 (Tex.

Civ. App.—Austin 1961, writ ref’d n.r.e.).

Ultimately, petitioner’s reasons for granting a writ may

be reduced to questions of relevancy and sufficiency of

evidence. Phrasing these issues in constitutional terms

does not obscure the fact that in each instance, the trial

court’s evidentiary rulings were correct and that the deci-

sion is additionally sustainable upon independent grounds.

The decision below was clearly correct. Medical science

and the unique skills of the surgeons offered a victim of

end-stage heart disease two chances at survival, conven-

tional surgical repair and cardiac transplantation. While

ultimately unsuccessful, the three staged procedure repre-

sents an historic medical effort. The evidence of nine

physicians called by petitioners raised no issue of breach

of duty or causation. The directed verdict of the trial

court was properly affirmed, a fair and just result.

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CONCLUSIONS

For the reasons above stated, the Petition for Writ of

Certiorari to the United States Court of Appeals for the

Fifth Circuit should be denied.

Respectfully subgnitt

donk

THOMAS B. WEATHERLY

PAUL E. STALLINGS

VINSON, ELKINS, SEARLS,

CONNALLY & SMITH

20th Floor, First City National

Building

Houston, Texas 77002

Attorneys jor Respondent,

Denton A. Cooley

Of Counsel:

VINSON, ELKINS, SEARLS,

CONNALLY & SMITH

20th Floor

First City Nat’l Bank Bldg.

Houston, Texas 77002

CERTIFICATE OF SERVICE

True and correct copies of the foregoing brief have

been served upon Mr. John H. Holloway, 926 North

Wilcrest Drive, Houston, Texas 77024 and Mr. A. J.

ime 3 The Main Building, Houston, Texas 77002 on

this day of August, 1974.

Ak ES lett’

PAUL E. STALLINGS

DELEON ANP ROTO GG AIEEE INA BRE gaa, Se ee