Opinion
No. 05-07-00724-CV
Opinion Filed August 31, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 162nd Judicial District Court Dallas County, Texas, Trial Court Cause No. 03-1462-I.
Before Justices BRIDGES, O'NEILL and FITZGERALD.
MEMORANDUM OPINION
This is a medical malpractice case. Appellants Terri Folk and her husband Dennis Folk sued appellee Columbia Hospital at Medical City Dallas Subsidiary, L.P. d/b/a Medical City Dallas Hospital for injuries she asserted she sustained when her arm was caught in a bed rail during a colonoscopy procedure at the hospital. Following a jury trial, the trial court rendered a take-nothing judgment in favor of the Hospital in accordance with the jury's findings. In four issues, appellants complain that the trial court abused its discretion in making various evidentiary rulings. For the following reasons, we affirm the trial court's judgment. In 2001, Folk had a colonoscopy at Medical City Hospital. During the colonoscopy, Folk was under "conscious sedation" using the drug Versed, a sedative that can be a potent amnesiac. Several hours after she was discharged, she noticed swelling and pain in her right wrist. She then recalled an incident in the hospital during the procedure or later in the recovery room in which her arm was compressed in the side-rail of a hospital bed. She also recalled hearing a voice "Oh my God, her arm is caught in the bed rail." Appellants sued the Hospital alleging the Hospital's staff was negligent in allowing her arm to become compressed in the bed rail. At trial, the Hospital disputed her claim, and no direct evidence was presented to show her injury took place at the Hospital. Further, the Hospital's medical records do not reflect any such incident, nor could any staff member present during the procedure recall any such incident. Following a seven-day trial, the jury failed to find the Hospital's negligence caused Folk's injury. Appellants raise four evidentiary complaints. In their first issue, appellants contend the trial court erred in admitting evidence of a handwritten note that one of Folk's pain management doctors, Haynesworth, had written on a letter from Folk's attorney. In the letter, the attorney asked whether Haynesworth would testify for Folk at trial. Haynesworth's handwritten response on the letter states, "No. I have nothing to say. Will probably hurt her case." Appellants assert the trial court erred in overruling their hearsay objections to the note. We conclude appellants waived any error in admission of the note. To preserve error, a party is required to object every time inadmissible evidence is offered. See Tex. R. App. P. 33.1; Duperier v. Tex. State Bank 28 S.W.3d 740, 755(Tex. App.-Corpus Christi 2000, pet. dism'd). Error in the admission of testimony is deemed harmless and is waived if the objecting party subsequently permits the same or similar evidence to be introduced without objection. Volkswagen of Am., Inc. v. Ramirez 159 S.W.3d 897, 907 (Tex. 2004). Banks v. Columbia Hosp. at Medical City Dallas, 223 S.W.3d 64, 71 (Tex. App.-Dallas 2007, pet. denied). The first hearsay objection appellants directs us to is when the Hospital was attempting to cross-examine Folk's primary care physician, Dr. Les Sandknop, with the Haynesworth note. However, before the Hospital questioned Sandknop about the actual note, it asked Sandknop about a "questionnaire" that Folk's counsel had sent him to prepare for trial. This questionnaire recites "Dr. Haynesworth, pain management, wrote in his records that he would not testify and that anything he said would hurt her case." On appellants' request, this questionnaire was admitted into evidence. Additionally, later in the trial, evidence of the note's contents came in again without objection when the Hospital was questioning its own expert, Dr. Kenneth Driggs. Driggs testified, without objection, that he reviewed Haynesworth's medical records including the complained-of note. He specifically testified that Folk's attorneys had asked Haynesworth if he would testify, and Haynesworth responded "No. I have nothing to say. Will probably hurt her case." Because appellants themselves asked that the questionnaire containing the same complained-of evidence be admitted and because they failed to object to Driggs's testimony, they cannot now complain that the trial court erred in overruling their objection to the note. See Volkswagen of Am., Inc. v. Ramirez 159 S.W.3d 897, 907 (Tex. 2004). We resolve the first issue against appellants. In their second and third issues, appellants contend the trial court erred in excluding evidence that Folk's medical records contained certain errors and omissions. At trial, the Hospital filed a motion in limine seeking to require appellants to approach the bench before admitting evidence of various extraneous acts. These acts included evidence allegedly showing that the Hospital's staff made numerous errors that they failed to note on Folk's chart, including (1) leaving a tourniquet on Folk until her arm turned blue, (2) leaving a blood-pressure cuff on her arm when attempting to wheel her out of the pre-op room, (3) failing to record her blood pressure, (4) failing to monitor Folk with an EKG after the procedure, (5) failing to record her allegedly red and swollen wrist, (6) failing to record her pain levels following the procedure, and (7) failing to record her last vital signs just before discharge. The trial court overruled the Hospital's motion in limine with respect to evidence of the tourniquet and blood pressure cuff, and that evidence was presented to the jury as well as evidence that those events should have been noted on Folk's chart but were not. However, the trial court granted the limine with respect to post-operative events and the alleged failure to record the post-operative events. At trial, just before evidence closed, appellants asked the court to admit the evidence referred to in the motion for limine. The trial court refused. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001); Columbia Med. Ctr. Subsidiary, L.P. v. Meier, 198 S.W.3d 408, 411 (Tex.App.-Dallas 2006, pet. denied). Under an abuse of discretion standard, we are not free to substitute our judgment for the trial court's judgment. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court abuses its discretion only if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Columbia Med. Ctr., 198 S.W.3d at 411. A trial court's evidentiary ruling will be upheld if there is any legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Appellants argue the trial court abused its discretion in excluding the evidence of various errors Hospital staff made and failed to record. Appellants also complain that the trial court excluded evidence of an incident in which Folk was sobbing in the recovery room, and that the incident should have been recorded but was not. According to appellants, these incidents showed the bed rail incident could have occurred even though it was not recorded. More specifically, they assert "[w]hile the failure to note medical care, treatment or conditions in the patient's medical records is not evidence that the bed rail incident occurred, it is evidence that the medial records are wrong, which is probative of the issue that the incident could have occurred but was not recorded. . . ." However, whether the incident "could" have occurred and not have been recorded is not evidence it did occur. At best, these errors of omission might impeach any attempt by the Hospital to use the medical records as proof the incident did not occur. However, appellants have not directed us to any evidence to show the Hospital attempted to use the medical records to prove the incident did not occur. The record before us is voluminous and we will not search it for evidence to support appellants' contentions. See Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex. App.-Dallas 1987, writ ref'd n.r.e.) (appellate court has no duty to search voluminous record to support appellants' contentions). We cannot conclude the trial court abused its discretion in excluding the evidence. Even assuming the trial court should have admitted the proffered evidence, we cannot conclude the error was reversible. In order to obtain reversal for the improper exclusion of evidence, an appellant must show the complained-of error was calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.App. P. 44.1; Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995); Bufkin v. Bufkin, 259 S.W.3d 343, 352 (Tex.App.-Dallas 2008, pet. denied). To make such a showing with respect to an evidentiary ruling, an appellant usually must show the judgment turns on the particular evidence excluded or admitted. Alvarado, 897 S.W.2d at 753-54; Bufkin, 259 S.W.3d at 352. A court ordinarily will not reverse a judgment for erroneous rulings on admissibility of evidence when the evidence in question is cumulative and not controlling on a material issue dispositive to the case. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989) After reviewing the record, we cannot conclude exclusion of the evidence was calculated to cause and probably did cause rendition of an improper judgment. The trial court did permit appellants to present evidence of several events that should have been included in the medical records but were not. Specifically, evidence was admitted about the tourniquet incident, the blood pressure cuff, and Folk sobbing in the recovery room after the procedure. The record also contains evidence that these events should have been recorded in Folk's chart but were not. Because the excluded evidence did not show the incident occurred and because other evidence was presented showing Folk's medical records contained errors, we cannot conclude the exclusion of the evidence probably caused rendition of an improper judgment. Appellants' second and third issues are overruled. In their fourth issue, appellants contend the trial court erred in admitting the medical record of a doctor that examined Folk after the incident. According to this record, there was nothing wrong with Folk's arm. Appellants make numerous conclusory complaints concerning admission of the record, including unfair surprise, authentication, unfair prejudice, and hearsay, but they do not cite any cases under this point or discuss any applicable law with respect to this piece of evidence. Appellants generally direct us to their authorities under their first point of error, which establishes only the standard of review and the standard for reversible error once error has been found. Appellants direct this Court to no authority that the letter was inadmissible in the first instance. An appellant's "brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App. P. 38.1(h). We will not perform an independent review of the record and applicable law to determine whether error occurred. See McIntyre v. Wilson, 50 S.W.3d 674, 682 (Tex. App.-Dallas 2001, pet. denied); Favaloro v. Comm'n for Lawyer Discipline, 13 S.W.3d 831, 840 (Tex. App.-Dallas 2000, no pet.). We conclude this issue is inadequately briefed and presents nothing to review. We resolve the fourth issue against appellants. We affirm the trial court's judgment.