Elbaor v. Smith,

845 S.W.2d 240 (1992)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

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.