ELBAOR V. SMITH
845 S.W.2d 240 (1992)
NATURE OF THE CASE: Elbaor (D) appealed the decision of the Court of Appeals affirming a
denial of submitting contributory negligence to jury and consideration of Mary Carter
settlement agreement, which resulted in jury verdict in favor of Smith (P) in medical
malpractice case.
FACTS: P 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 from Dr. Abraham Syrquin for multiple
injuries including a compound fracture of her left ankle. In an effort to stop the bleeding,
Dr. Syrquin performed emergency surgery closing the ankle wound. P remained under Dr.
Syrquin's treatment for eight days at D/FW Medical Center after which time she was
transferred to the care of D, an orthopedic surgeon, at Arlington Community Hospital
('ACH'). At ACH, P was treated by a team of physicians including D, Dr. Joseph Stephens, a
plastic surgeon, and Dr. Bienvenido Gatmaitan, an infectious disease specialist. Upon
admission to ACH, P was evaluated by Dr. Gatmaitan and placed on intravenous antibiotics.
Dr. Stephens performed two debridements of the ankle wound. Both debridement procedures
indicated that there was no active infection present in the ankle. P 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 P's ankle. P received
treatment from several orthopedic specialists over the next three years which ultimately led
to the fusion of her ankle joint. Medical records from D/FW Medical Center and ACH indicate
that P 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. P sued everybody. P
sued D, Syrquin (D2), and Stephens (D3), AHC (D4), D/FW Medical Center (D5), and Gatmaitan
(D6) for medical malpractice. D2, D3 and D4 entered into a settlement agreement with P. In a
classic 'Mary Carter' settlement, the plaintiff secretly agrees with one of multiple
defendants on a sliding scale payment, which will be reduced upon recovery from the other
defendants. At the ensuing trial, the settling defendant presumably tries to maximize the
plaintiff's recovery. The non-settling defendants are not told about the change in the
alignment of interests. This Mary Carter agreement provided for payments to P of $350,000
from D2, $75,000 from D4, and $10 from D3. 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 D2 and D4 would be reimbursed all or part of the
settlement money paid to P out of the recovery against D. D requested that the agreement be
voided as against public policy. The trial court refused. The jury awarded P $2,253,237. The
jury found D 88% responsible and returned a verdict against him for $1,872,848. D appealed.
The court of appeals affirmed and D appealed to the Supreme Court of Texas.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
Get
free access to the entire content for Mac, PC or Online
for 2-3 days and free samples
of all kinds of products.
for 2-3 days and free samples of all kinds of products.
https://bsmsphd.com
© 2007-2016 Abn Study Partner
No comments:
Post a Comment