Victoria M. Cruz v. Houston General Insurance Company--Appeal from Co Ct at Law No 2 & Probate Ct of Brazoria County

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State: Texas

Court: Texas Northern District Court

Docket No: 01-07-00225-CV

Case Date: 12/18/2008

Plaintiff: Orville Losier and Wife Joelle Losier

Defendant: Shivarajpur K. Ravi, M.D., and Ambika Medical Group, P.A.--Appeal from 129th District Court of Harr

Preview:Affirmed and Opinion filed September 10, 2009.

In The

Fourteenth Court of Appeals
____________ NO. 14-08-00399-CV ____________ ORVILLE LOSIER AND WIFE JOELLE LOSIER, Appellants V. SHIVARAJPUR K. RAVI, M.D. AND AMBIKA MEDICAL GROUP, P.A., Appellees

On Appeal from the 129th District Court Harris County, Texas Trial Court Cause No. 2006-21824

OPINION
Appellants Orville and Joelle Losier appeal a unanimous jury verdict in favor of appellees Shivarajpur K. Ravi, M.D., and Ambika Medical Group, P.A., on the Losiers' medical-malpractice claims. The Losiers contend that the trial court erred by refusing a res ipsa loquitur jury instruction and by denying a motion for new trial based on juror misconduct. We affirm.

I After an automobile accident in 2002, Orville Losier was referred to Dr. Ravi for pain management. To treat Mr. Losier's lower-back pain, Dr. Ravi performed an IDET procedure on two levels of Mr. Losier's spine, the L4-L5 and L5-S1. The IDET procedure, or intradiscal electrothermic therapy, involves placing a catheter into a disc and heating the disc to stop its fluid center from leaking. A needle is used to introduce the catheter into the disc, and the physician watches the catheter's progress by viewing fluoroscopic x-ray images on a monitor. Dr. Ravi completed the procedure at level L4-L5, but at level L5-S1, after introducing the needle, he encountered difficulty manipulating the catheter. At some point, the catheter's tip sheared or broke off in Mr. Losier's disc, and Dr. Ravi decided to leave it there. Dr. Ravi later told Mr. Losier what had happened and that he believed that surgery to remove the catheter tip was unnecessary. Mr. Losier continued treatment with Dr. Ravi for about a year, and after that he began seeing another pain-management specialist, Dr. Syed. According to Dr. Syed, Mr. Losier reported that his back pain was getting "excruciatingly worse" since the catheter piece had been left in his disc. In 2006, the Losiers sued Dr. Ravi and Ambika Medical Group for negligence, gross negligence, malice, and loss of consortium. The Losiers sought unspecified damages for, among other things, physical pain and suffering, mental anguish, medical expenses, disfigurement, physical impairment, and loss of earnings and earning capacity in the past and in the future. Relevant here, the Losiers' pleadings included an assertion of res ipsa loquitur for leaving a piece of medical equipment in Mr. Losier. In October 2007, the case was tried to a jury. After the defense rested, the Losiers objected to the trial court's charge on the ground that it did not include an instruction on res ipsa loquitur. The Losiers also submitted an instruction on res ipsa loquitur which the trial court denied. After deliberations, the jury returned a unanimous verdict in favor of the defendants. 2

The Losiers then filed a verified motion for mistrial or, in the alternative, verified motion for new trial, in which they contended that (1) the jury should have been instructed on the doctrine of res ipsa loquitur, and (2) a new trial should be granted because of jury misconduct and tampering. The second contention was supported by the affidavit of a paralegal for the Losiers' attorneys who averred that she saw the defense counsel's paralegal and Dr. Ravi's insurance representative conversing with a juror for at least ten minutes while on a lunch break during the trial. Following a hearing in which the trial court heard evidence on the juror misconduct allegation, the trial court denied the Losiers' motions. On February 21, 2008, the trial court signed a final judgment in favor of the defendants. This appeal ensued.1 II In their first issue, the Losiers contend that the trial court abused its discretion by failing to instruct the jury on res ipsa loquitur and that this failure likely led to an improper jury verdict. Specifically, the Losiers contend that res ipsa loquitur applies because this case involves negligence in the use of mechanical instruments and in leaving surgical instruments or sponges in the body. We review the trial court's refusal to submit an instruction for abuse of discretion. See Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 791 Tex. 1995); Weidner v. Sanchez, 14 S.W.3d 353, 369 n.3 (Tex. App.--Houston [14th Dist.] 2000, no pet.). Res ipsa loquitur applies to situations in which two factors are present: (1) the character of the accident is such that it would not ordinarily occur in th absence of negligence, and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Haddock v. Arnspiger, 793 S.W.2d 948, 950

During the pendency of this appeal, this court received a suggestion of death informing us that Orville Losier had died and that Joelle Losier requested that the appeal continue. This court will proceed to adjudicate the appeal. See Tex. R. App. P. 7.7(a)(1).

1

3

(Tex. 1990); Scott v. Beechnut Manor, 171 S.W.3d 338, 343 (Tex. App.--Houston [14th Dist.] 2005, pet. denied). It is not a separate cause of action from negligence; rather, it is a rule of evidence by which the jury may infer negligence. Haddock, 793 S.W.2d at 950. In medical-malpractice cases, res ipsa loquitur is limited to those cases in which the doctrine had been applied as of August 29, 1977. See Tex. Civ. Prac. & Rem. Code Ann.

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