Methodist Hospitals of Dallas v. Sullivan

714 S.W.2d 302 (1986)

METHODIST HOSPITALS OF DALLAS d/b/a McAllen Methodist Hospital et al., Petitioners, v. Diana SULLIVAN et vir., Respondents.

No. C-4911.

Supreme Court of Texas.

June 25, 1986.

Rehearing Denied September 17, 1986.

*303 Adams, Graham, Jenkins, Graham and Hamby, Leo C. Salzman and William J. McCarthy, Harlingen, for petitioners.

Allee and Garcia, Donald W. Allee, Edinburg, for respondents.

PER CURIAM.

Diana and Roger Sullivan sued McAllen Methodist Hospital and Alberto Francis, M.D., for alleged malpractice committed when a surgical sponge was found in Diana Sullivan's abdomen after a cesarian section. The trial court rendered judgment for the hospital and Francis after the jury failed to find them negligent. Holding the jury's findings against the great weight and preponderance of the evidence, the court of appeals reversed the trial court's judgment. 699 S.W.2d 265. Both the hospital and Francis filed applications for writ of error, but the hospital has since withdrawn its application.

The issue is whether remand is proper for multiple defendants in a damages case when a trial court judgment is reversed for only one defendant. The court of appeals wrote, "the doctrine of comparative negligence requires reversal and new trial as to all multiple defendants in an action for damages, even though error has been found only as to one." Id. at 273. These comments on the requirements of the "comparative negligence doctrine" are inaccurate and unnecessary in this case. In a multiple defendant case, when one defendant is not found negligent by the jury, and an appeals court leaves that finding intact, remand is improper for the defendant whose liability in negligence has been determined. Acord v. General Motors, Inc., 669 S.W.2d 111, 116-17 (Tex. 1984).

In this case, the jury findings were reversed as to all defendants. Thus, all defendants were properly remanded for a new trial. The court of appeals' discussion of what would have happened if error had been found as to only one defendant is unnecessary.

The application for writ of error filed by Alberto Francis, M.D., is refused, no reversible error. The application for writ of error filed on behalf of McAllen Methodist Hospital is dismissed.