Full title: James E. ELBAOR, M.D., Petitioner, v. Carole Mercer SMITH, Respondent
Court: Supreme Court of Texas
Date published: Jan 20, 1993
Facts
At 2:00 a.m. on May 8, 1985, Carole Smith was seriously injured in a single-vehicle accident when the Corvette she was driving left the highway and collided with a tree. She received emergency treatment at the Dallas/Fort Worth Medical Center-Grand Prairie (“D/FW Medical Center”) from Dr. Abraham Syrquin for multiple injuries including a compound fracture of her left ankle. To stop the bleeding, Dr. Syrquin performed emergency surgery closing the ankle wound. Ms. Smith remained under Dr. Syrquin’s treatment for eight days at D/FW Medical Center after which time she was transferred to the care of Dr. James Elbaor, an orthopedic surgeon, at Arlington Community Hospital (“ACH”).
While Ms. Smith was at ACH, she was treated by a team of physicians including Dr. Elbaor, Dr. Joseph Stephens, a plastic surgeon, and Dr. Bienvenido Gatmaitan, an infectious disease specialist. Upon admission to ACH, Ms. Smith was evaluated by Dr. Gatmaitan and placed on intravenous antibiotics. During her stay, Dr. Stephens performed two debridements of the ankle wound. Although the issue of whether Ms. Smith’s ankle was infected was hotly contested at trial, Dr. Stephens’ progress notes following both debridement procedures indicated that there was no active infection present in the ankle. On June 3, Ms. Smith was transferred to the care of Dr. Wayne Burkhead at Baylor University Medical Center (“Baylor”). Four days after admission, Dr. Burkhead removed a two-inch section of bone from Ms. Smith’s ankle. Ms. Smith received treatment from several orthopedic specialists over the next three years which ultimately led to the fusion of her ankle joint.
Ms. Smith’s medical records from D/FW Medical Center and ACH indicate that she refused to cooperate with the instructions of her doctors and nurses. She frequently refused to take her antibiotics and directed family members to remove weights from her femoral traction device. Sometime later, Ms. Smith was transferred to another hospital for surgery to shorten and fuse the bone, leaving her permanently disabled.
Ms. Smith filed suit against D/FW Medical Center, ACH, Drs. Syrquin, Elbaor, Stephens, and Gatmaitan. Sometime before trial, Ms. Smith entered into Mary Carter agreements with Dr. Syrquin, Dr. Stephens, and ACH. The Mary Carter agreements provided for payments to Ms. Smith of $350,000 from Dr. Syrquin, $75,000 from ACH, and $10 from Dr. Stephens. Under the terms of each agreement, the settling defendants were required to participate in the trial of the case. The agreements also contained pay-back provisions whereby Dr. Syrquin and ACH would be reimbursed all or part of the settlement money paid to Ms. Smith out of the recovery against Dr. Elbaor.
Ms. Smith nonsuited her claim against Dr. Gatmaitan and settled and dismissed her claim against D/FW Medical Center. Dr. Elbaor filed a cross-claim against Dr. Stephens, Dr. Gatmaitan, Dr. Syrquin, and ACH. He alleged that in the event he was found liable to Ms. Smith, he was entitled to contributions from these defendants. Furthermore, Dr. Elbaor requested that the trial court hold the Mary Carter agreements void as against public policy, and alternatively, to dismiss the settling defendants from the suit. The trial court denied this request. The suit proceeded to trial against Dr. Elbaor and the cross-defendants.
At trial, the jury found that Ms. Smith’s damages totaled $2,253,237.07, of which Dr. Elbaor was responsible for eighty-eight percent, and Dr. Syrquin for twelve percent. After deducting all credits for Dr. Syrquin’s percentage of causation and settlements with other defendants, the trial court rendered judgment against Dr. Elbaor for $1,872,848.62.
Issue
Decision
The majority rejected a jury verdict in a case involving Smith’s failure to take her antibiotics, citing a trial court error in not submitting a contributory negligence question. Dr. Elbaor refuted any causal connection between Smith’s failure to take antibiotics and the ankle infection. Smith declined antibiotics on the day Dr. Elbaor assumed responsibility for her care, and there is no expert testimony establishing a reasonable medical probability that the infection developed during this time. Smith argues that her bone loss was caused by Elbaor’s failure to perform necessary surgical procedures, but Elbaor’s testimony established that antibiotics alone could not cure the infection, but could have made it harder to treat. The trial court adopted a course of instruction regarding Smith’s failure to mitigate damages rather than a submission of contributory negligence.