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Click here for the full text of this decision FACTS:In this unusual medical malpractice case, both physician and patient were doctors. After months of intermittent abdominal cramps and diarrhea, Dr. David Axelrad, a psychiatrist, sought treatment from Dr. Richard Jackson, an internist, after an abrupt onset of acute pain. Dr. Jackson prescribed a laxative and enema for fecal impaction. As it turned out, Axelrad was suffering from diverticulitis. It is undisputed an enema should not be prescribed in such circumstances due to the risk of a perforated colon. Returning home, Axelrad followed his doctor’s orders and immediately felt severe abdominal pain with nausea, rigors and chills. His wife took him to an emergency room, and he was hospitalized for further testing. Based on those tests, another doctor operated two days later for what was thought to be appendicitis but what turned out to be diverticulitis and a perforated colon. A portion of the colon was removed and a temporary colostomy constructed. Axelrad’s subsequent course of treatment included surgery to reconnect the colon, complicated by a severe drug reaction. Alexrad sued Jackson for medical malpractice. Each claimed the other was negligent. The parties disagreed, inter alia, about what medical history that Axelrad reported to Jackson. Although he alleged several grounds of contributory negligence at trial, Jackson argued on appeal that the court of appeals erred in disregarding evidence supporting one of his grounds: that Axelrad neglected to report where his abdominal pain began. The evidence showed that particular diseases are associated with pain in particular places in the abdomen gallbladder disease in the right upper quadrant, appendicitis in the right lower quadrant, and diverticulitis in the left lower quadrant. In none of the histories taken by medical personnel during his treatment did Axelrad ever report that his pain began in the left lower quadrant, nor did he say so at his pretrial deposition. A jury agreed that both Axelrad and Jackson were negligent. As the jury assessed slightly more fault to the plaintiff (51 percent) than the defendant (49 percent), the trial court entered a take-nothing judgment. A divided 14th Court of Appeals reversed and remanded for a new trial, disregarding the finding of the plaintiff’s negligence, because laymen generally have no duty to volunteer information during medical treatment. HOLDING:The Texas Supreme Court reversed the 14th Court’s judgment and reinstated the jury’s verdict. Axelrad was not a layman, the court stated, and jurors judging his actions could consider his expertise, especially as he emphasized it throughout the trial. Because there was some evidence that Axelrad failed to report a critical symptom when he should have, the Texas Supreme Court reversed the court of appeals’ judgment and reinstated the jury’s verdict. Patients have no duty to diagnose themselves, as doctors are licensed and paid to do that, but neither can they demand treatment for a condition they refuse to disclose. All the trial experts agreed patients have a duty to cooperate in diagnosis by giving an accurate medical history. The court noted that jurors had the right to credit Axelrad’s special knowledge, as he emphasized it throughout the trial. Axelrad designated himself as a testifying expert and gave several expert opinions to the jury. In addition, Axelrad emphasized to the jury that he had passed judgment on other doctors as a member of state medical boards in both California and Texas. He estimated giving more than 150 depositions as an expert in medical negligence cases. While Axelrad’s practice was limited to psychiatry, he denied any unfamiliarity with abdominal complaints, arguing that during his four years as an emergency room physician he had “a lot of opportunities to examine abdomens.” Having presented himself to jurors as a person with superior knowledge, the court stated that “he cannot complain that jurors might have taken him at his word.” Moreover, Axelrad insisted he had reported that his pain originated in the left lower quadrant, which he acknowledged was a classic sign of diverticulitis. Taking this position, the court stated, strengthened Axelrad’s case against Jackson if jurors credited it. But if they did not, it strengthened an inference that he failed to exercise ordinary care when he failed to mention it. As there was evidence from which jurors could have found both doctor and patient were at fault in diagnosing this situation, the court held that the 14th Court erred in disregarding one part of the jury’s verdict. OPINION:Brister, J., delivered the opinion of the court.

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