Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of November 17, 2008

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

Young v. Thota, No. 02-05-00350-CV (Nov. 20, 2008) (Livingston, J., joined by McCoy, J.; Gardner, J., dissents with opinion). [Note: Both opinions are at the same link in one document.]: Held: In this take-nothing medical malpractice action in which the jury attributed all negligence to the deceased, the trial court erred by including a comparative negligence question instead of a mitigation of damages question because the crux of Dr. Thota’s argument was that the deceased’s injury suffered during a heart catheterization worsened because he failed to return to the hospital soon enough. Because the trial court also incorrectly gave the jury an inferential rebuttal instruction on new and independent cause, we are unable to determine on what basis the jury found the deceased solely negligent. Thus, the Casteel harm analysis for charge error applies rather than the Urista harm analysis and requires us to reverse and remand.; Dissent: The charge was correct, but even assuming there was error in the submission of both the contributory negligence question and the new and independent cause instruction, that error probably did not result in an improper judgment. The jury separately answered no as to whether any negligence of Dr. Thota was a proximate cause of the deceased’s injury, and the record shows that it is probable that the jury, faced with a battle of experts, resolved conflicts in the testimony in favor of Dr. Thota.