WILLIAM D. UNSETH FROM A DISTRICT COURT AND DOROTHY UNSETH, APPELLANTS, v. GEORGE BARRY ARNOLD, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01183-CV
 
WILLIAM D. UNSETH FROM A DISTRICT COURT
AND DOROTHY UNSETH,
 
        APPELLANTS,
 
v.
 
GEORGE BARRY ARNOLD,
 
        APPELLEE.OF COLLIN COUNTY, TEXAS
 
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES COLEMAN FN:1 AND SCALES FN:2
OPINION BY JUSTICE COLEMAN
MAY 8, 1989
 
        This is a personal injury case stemming from an automobile accident. Appellant alleged that appellee struck him in the back while appellee was backing up his vehicle.
        Trial was to a jury. The jury found that appellant, William D. Unseth, was ninety percent responsible for the accident and that his negligence was a proximate cause of the accident.
        Appellant, William D. Unseth, sued to recover for the injuries he sustained as a result of the accident. Appellant, Dorothy D. Unseth, sued to recover damages she incurred as a result of loss of consortium. The trial court entered a take-nothing judgment against both appellants based on the jury's answers to the liability issues. The judgment will be affirmed.
        As their only point of error, appellants assert that the trial court erred in admitting into evidence Defendant's Exhibits Nos. 1-10. Exhibits 1-10 were medical records concerning appellant which appellee had obtained by depositions upon written questions, as provided for under Rule 208 of the Texas Rules of Civil Procedure. Included in these records were doctors' reports containing expert medical testimony. Appellants concede that appellee laid a proper predicate for the introduction of medical records into evidence except for their objection that the appellee's failure to designate any expert witnesses bars the use of any opinion material that might be contained in the medical record.
        Exhibit 6 was a letter from a Dr. Guyer to counsel for appellants. This letter was dated immediately before appellant, William D. Unseth, saw Dr. Mackenzie, the plaintiff's testifying expert. In this letter, Dr. Guyer stated that William D. Unseth could return to work and that there were no plans for surgery.
        Dr. Mackenzie first saw Mr. Unseth on January 15, 1987. Mr. Unseth reported to Dr. Mackenzie that he had been treated by other doctors, including Dr. Richard Guyer. After reviewing a CAT-scan apparently ordered previously by Dr. Guyer, Dr. Mackenzie ordered a myelogram. Based on the results of the myelogram, Dr. Mackenzie recommended that the disc be removed surgically.
        Appellants contend that Exhibit 6, the Guyer letter to appellants' lawyers, was the equivalent of calling Dr. Guyer as an expert witness to testify to the opinion stated in the letter. They contend that it was error to permit the introduction of this exhibit because appellee failed to list Dr. Guyer as an expert witness in response to proper interrogatories concerning expert witnesses.
        Appellants also contend that the admission of these records into evidence were directly linked to the jury's finding with respect to the issue of negligence, and therefore, harmful error. It is their theory that Dr. Guyer's letter appears to assert that Mr. Unseth was fully healed by the time his treatment by Dr. Guyer ended. They assert that it would be easy for the jury to conclude that the injury Dr. Mackenzie treated Mr. Unseth for must have been the result of another incident, and not the accident made the subject of appellants' suit.
        Despite these contentions, the Unseths have not challenged the jury's answers to the negligence issues on this appeal. They are bound by these findings. St. Paul Mercury Insurance Co. v. Tri-State Cattle Feeders, 628 S.W.2d 844 (Tex. App.--Amarillo 1982, writ ref'd n.r.e.).
        This appeal was taken on a partial statement of facts. The evidence bearing on the question of negligence is not before us. In the absence of a full statement of facts, we cannot attempt to determine the effect of the admission of the exhibits in question on the jury's answers to the issues on negligence and proximate cause. The erroneous admissions of evidence will not require a reversal, unless a record as a whole affords a substantial basis for the reasonable belief that such evidence may well have caused the rendition of an improper judgment. Galvin v. Gulf Oil Corporation, 759 S.W.2d 167 (Tex. App.--Dallas 1988, no writ).
        Rule 50(b), Rules of Appellate Procedure, provides: "The burden is on the appellant, or other party seeking review, to see that a sufficient record is presented to show error requiring reversal."
        Rule 81(b), Rules of Appellate Procedure, provides that in civil cases no judgment shall be reversed on appeal and a new trial ordered because a trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.
        Appellants have failed to present a record before this Court sufficient to demonstrate harmful error resulting from the admission of the medical records into evidence. The Unseths contend that medical records incorporating expert medical testimony should not be admitted into evidence unless the medical expert who prepared the report contained in the record is listed as an expert witness to be called by the party offering the record into evidence. This contention does not seem to be supported by Rule 166b(6)(b), Texas Rules of Civil Procedure. A medical record cannot be "called" to testify, nor can a medical record have a name, address and a telephone number. This rule, obviously, is concerned with the calling of a human being to testify. Nothing in the rule requires medical records to be listed in answers to a request to identify expert medical witnesses.
        Texas Rule of Evidence 803(6) allows introduction into evidence the medical records containing opinion or diagnosis without requiring the predicate for the introduction of expert testimony. There are no cases holding that the maker of a medical record must be listed as an expert witness in order for the record to be admissible at trial. The trial court did not err in admitting into evidence defendant's Exhibits Nos. 1-10.
        The judgment is affirmed.
                                                  
                                                  TOM F. COLEMAN
                                                  JUSTICE, RETIRED
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01183.F
 
FN:1 The Honorable Tom F. Coleman, Chief Justice, Retired, Court of Appeals, First District of Texas, at Houston, sitting by assignment.
FN:2 The Honorable R. T. Scales, Justice, Retired, Court of Appeals, Fifth District of Texas, sitting by assignment.
File Date[01-02-89]
File Name[881183]