09-0079 Venkateswarlu Thota, M.D., and North Texas Cardiology Center v. Margaret Young from Wichita County and the Second District Court of Appeals, Fort Worth For petitioners: Diana L. Faust, Dallas For respondents: J. Mark Perrin, Dallas In this medical-malpractice action, a principal issue is whether the trial court erred by submitting a contributory-negligence charge - that a patient's delay in getting treatment for internal bleeding caused his harm - instead of a damages-mitigation charge. Other issues raise questions about the trial court's submission of a new-and-independent-cause instruction and on unavoidable accident. Mrs. Young alleges Dr. Thota, who inserted a cardiac catheter in her late husband, negligently punctured the wrong artery. Thota argued either that the internal bleeding was an unavoidable accident or that Mr. Young's delay in seeking treatment for the post-surgical bleeding caused his injury. (Mr. Young later died of leukemia.) In a broad-form submission combining questions on Thota's alleged negligence, Young's alleged contribution and the unavoidable accident and new-and-independent cause theories, the jury assessed all liability to Mr. Young. The court of appeals reversed, holding the trial court's contributory-negligence instruction was wrong because Mr. Young's delay in treatment went to mitigating his damages, not negligence. This advisory serves only as an abbreviated guide to oral argument. Summaries are prepared by the Court's staff attorney for public information and reflect his judgment alone on facts and legal issues and in no way represent the Court's opinion about case merits. Texas Supreme Court advisory Contact: Osler McCarthy, Staff Attorney for Public Information (512) 463.1441 or email: osler.mccarthy@courts.state.tx.us
