Jewell Alt, et al v. William F. Key, M.D., et al--Appeal from 220th District Court of Bosque County

IN THE

TENTH COURT OF APPEALS

No. 10-91-129-CV

JEWELL ALT, ET AL.,

Appellants

v.

WILLIAM F. KEY, M.D., ET AL.,

Appellees

From the 220th District Court

Bosque County, Texas

Trial Court # B-161-89

O P I N I O N

Jewell Alt and Howard Alt, individually and on behalf of the estate of Russell Alt, sued Dr. William Key, Dr. T.W. Murphy, and Clifton Medical & Surgical Clinical Association for medical malpractice in connection with Russell Alt's death. The jury refused to find that Dr. Key and Dr. Murphy were negligent but found that Jewell and Russell Alt's negligence was the proximate cause of Russell's death. Jewell and Howard complain that, because Dr. Key was negligent as a matter of law, the court erred when it denied their motion for a new trial. They also argue that the refusal to find Dr. Key negligent was against the great weight and preponderance of the evidence. We affirm.

On September 4, 1988, Russell Alt, accompanied by his wife, Jewell, who is a pharmacist, went to the emergency room at Goodall-Witcher Hospital. Russell was experiencing symptoms commonly associated with heart problems. Dr. Key, the attending physician, recommended hospitalization. The Alts, however, claimed they could not afford hospitalization and did not have insurance that would cover the costs. Thus, they left the hospital with prescription medications and instructions to report to a clinic in forty-eight to seventy-two hours. On September 6 Russell went to the clinic and claimed to be feeling better. However, on September 8 he died of complications resulting from a heart attack.

STANDARD AND SCOPE OF REVIEW

The first and third points are that, because Dr. Key's negligence on September 4 and September 6 was established as a matter of law, the court erred when it denied the motion for a new trial. Findings of fact are binding on the appellate court unless either the contrary is established as a matter of law, or there is no evidence to support the finding. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986). When reviewing the evidence, this court must disregard all evidence to the contrary and uphold the finding if there is any evidence to support it. See id. at 696-97.

Jewell and Howard complain in points two and four that the jury's refusal to find Dr. Key negligent on September 4 and September 6 was against the great weight and preponderance of the evidence. This is the standard of review when a party having the burden of proof on the question attacks the jury's refusal to find the affirmative. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). A complaint that the finding is against the great weight and preponderance of the evidence will be reviewed in light of the entire record to determine whether it was clearly wrong or manifestly unjust. See Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex. 1973). Furthermore, the fact-finder is the judge of the credibility of the witnesses and the weight to be given their testimony. Carson v. Kee, 677 S.W.2d 283, 284 (Tex. App. Fort Worth 1984, no writ).

FACTS

September 4, 1988

Dr. Key was the attending physician at the emergency room. The medical records reflect that Russell had "right quadrant pain going into both arms-also diaphoretic-stomach bloating-lots of gas-running a temperature also-short of breath." Dr. Key recognized that the symptoms suggested heart problems and ordered a cardiac-enzymes analysis and an electrocardiogram. Dr. Murphy analyzed the results of the electrocardiogram.

Dr. Key gave the following testimony. He told the Alts that Russell had some heart damage and recommended hospitalization for further testing. Although he suspected a heart problem, Dr. Key never: (1) told the Alts that unstable angina was a potential diagnosis; (2) explained the treatments available in the hospital; or (3) informed the Alts that Russell was at risk of having a heart attack or even sudden death.

The Alts said they could not afford hospitalization and did not have insurance that would cover the costs. They then asked for an alternative. Dr. Key, who emphasized that he felt Russell should be in the hospital, prescribed several medications and told Russell to come to his clinic in forty-eight to seventy-two hours.

Russell Alt was feeling ill enough to cause him to seek emergency medical attention on September 4. Yet, despite the doctor's recommendation, he refused hospitalization. Jewell, a pharmacist, recognized one of the medications prescribed as a medication typically given for "heart pain." She also admitted that Russell smoked approximately two packs of cigarettes a day and that she was familiar with warnings that smoking may cause heart disease.

Dr. Shoultz, a Waco-area physician specializing in cardiovascular diseases, reviewed Russell's medical records and testified that the records indicate that Dr. Key recommended hospitalization on September 4. He also claimed that Dr. Key provided adequate information concerning the course of the treatment suggested and noted that a doctor has to be careful what to "unload" on a patient with potential heart problems, although he did admit that "the more information you can give them, the better off they are." Dr. Shoultz testified that Dr. Key's treatment of Russell was reasonable and within the applicable standard of care.

Dr. Murphy, Dr. Key's partner, admitted that the standard of care when unstable angina is suspected is hospitalization for treatment and that a patient should be told if his condition is immediately life threatening.

Dr. Dittrich, from California, claimed that readily available forms of treatment for unstable angina exist in a hospital. Dr. Key, he alleged, did not meet the appropriate standard of care because he failed to hospitalize Russell. Dr. Dittrich further testified that when Russell initially refused hospitalization, Dr. Key should have described "exactly" what could happen as a result.

Dr. Hellstern, a Dallas physician, testified that when Russell refused hospitalization Dr. Key should have explained all the possible consequences. He also said that accepting Russell's decision to refuse hospitalization, without explaining the possible consequences, was below the standard of care.

We find that some evidence supports the refusal to find that, with respect to Russell's death, Dr. Key was negligent on September 4. See McGalliard, 722 S.W.2d at 696. Furthermore, based on the record as a whole, that refusal to find was not clearly wrong or manifestly unjust. See Traylor, 497 S.W.2d at 945. The jury could have chosen to accept Dr. Key's and Dr. Shoultz's testimony or to believe that the Alts' negligence, when they refused hospitalization after seeking emergency medical treatment for symptoms commonly associated with a heart problem, negated any negligence on the part of Dr. Key. See Carson, 677 S.W.2d at 284. Points one and two are overruled.

September 6, 1988

Russell reported to Dr. Key's clinic on September 6 and claimed to be feeling better. Dr. Key ordered another electrocardiogram, which showed no change from the September 4 electrocardiogram. He did not (1) tell the Alts that unstable angina was still a potential diagnosis, (2) explain the treatments available in the hospital, (3) inform the Alts that Russell was at risk of having a heart attack or even sudden death, or (4) recommend hospitalization.

Dr. Shoultz testified that, in light of the patient's claim that he was feeling better, Dr. Key's actions were reasonable. Dr. Dittrich and Dr. Hellstern stated, however, that the electrocardiogram on September 6 indicated that Russell had taken a "turn for the worse." Thus, they claimed that not recommending hospitalization at this time constituted a failure to meet the appropriate standard of care.

We find some evidence to support the refusal to find that, with respect to Russell's death, Dr. Key was negligent on September 6. See McGalliard, 722 S.W.2d at 696. Furthermore, based on the record as a whole, that refusal to find was not clearly wrong or manifestly unjust. See Traylor, 497 S.W.2d at 945. The jury could have believed Dr. Key's testimony that Russell, who claimed to be feeling better, appeared better and logically concluded that he would have refused hospitalization at this point. See Carson, 677 S.W.2d at 284. We overrule points three and four.

September 8, 1988

Early that morning, Jewell called Dr. Key's office because Russell's condition had worsened. Dr. Key returned the call around noon. Jewell again called Dr. Key at approximately 6:30 P.M.and informed him that Russell was pale, cold, sweaty, and had chest pain. Dr. Key recommended hospitalization.

Later, Jewell called Dr. Key at his home and again repeated Russell's symptoms. Dr. Key recommended that she take him to the emergency room. When Jewell said that Russell was to weak to go to the hospital, Dr. Key suggested an ambulance.

At this time, Jewell lost faith in Dr. Key and called a friend about finding another doctor. Jewell got the friend's answering machine and, by the time the call was returned, Russell had died.

All points have been overruled and we affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed May 27, 1992

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