Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the County Court at Law No. 1 of Nueces County,
Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Benavides
M. BENAVIDES, Justice.
issues, appellants O'Connell and James O'Connell
(collectively O'Connell) challenge the jury verdict in
their medical malpractice suit against appellee Dr. Vamsi
Gullapalli and Coastal Bend Retina, P.A. (Coastal Bend).
O'Connell argues that: (1) the evidence was insufficient
to support the verdict; and (2) a third-party doctor
defendant should not have been included in the jury charge
because there was no evidence to support its submission. We
Coastal Bend Procedure
was referred to Coastal Bend, the clinic where Dr. Gullapalli
worked, to repair a macular hole in her right eye in December
2011. Her primary care eye doctor, Dr. John Sohocki,
diagnosed O'Connell with glaucoma in the days prior to
sending O'Connell to Coastal Bend, and Dr. Sohocki placed
her on the treatment drop Travatan to control the pressures
in her eyes.
Gullapalli first examined O'Connell on December 12, 2011,
determined there was a macular hole in her right eye that
would need surgical repair, and scheduled surgery two days
later. Dr. Gullapalli performed a pars plana vitrectomy to
repair the macular hole and sealed the hole in
O'Connell's right eye with non-expansile gas, as is
the "common practice." O'Connell had a routine
follow-up examination with Dr. Gullapalli the following day,
showing her eye pressure to be 14, which was within the
normal range according to Drs. Gullapalli and his expert, Dr.
Timothy Cleland. O'Connell's next follow-up
examination was scheduled for about a week later, but she
called Coastal Bend twice complaining of vision issues before
her next visit. During her first phone call on December 17,
2011, O'Connell spoke to Dr. Gullapalli and complained of
blurry vision, excessive tearing, and congestion. Dr.
Gullapalli believed all of those conditions were normal side
effects following the type of surgery performed, but asked
O'Connell to come into the clinic so he could evaluate
her. O'Connell stated she was unable to come in because
she lived two hours away, her husband was sick, and he could
not drive. O'Connell called back to the clinic on
December 19th and spoke to a technician at Coastal Bend. The
technician relayed the substance of the phone call to Dr.
Gullapalli and asked O'Connell to come in, but told her
excessive tearing was normal following her procedure.
O'Connell did not visit Coastal Bend prior to her
scheduled follow-up visit. At her schedule follow-up on
December 22, Dr. Gullapalli determined that O'Connell had
lost all vision in her right eye, other than light
perception. Her right eye had suffered what Dr. Gullapalli
referred to as a "snuff out" of her vision.
Gullapalli sent O'Connell to additional specialists
following the snuff-out to try to preserve or recover her
lost vision. Tests were run, but O'Connell's vision
loss was not able to be recovered.
Trial on the Merits
sued Dr. Gullapalli for malpractice, alleging he breached the
standard of care required by retinal surgeons.
O'Connell's allegations centered on Dr.
Gullapalli's instructions to discontinue the use of her
Travatan glaucoma drops following the pars plana vitrectomy
to repair the macular hole in her right eye.
trial, O'Connell testified that her vision had been poor
since childhood, and she had been seeing Dr. Sohocki since
the 1990s. Dr. Sohocki's notes from 1997 indicate that he
had suspicions regarding glaucoma at that time, but
O'Connell admitted that she went a lengthy period without
visiting any eye doctor because she experienced no problems
with her eyes or vision. Dr. Sohocki's records indicated
that O'Connell did not come see him again until 2009, but
even when she would attend an appointment, O'Connell
would not always allow Dr. Sohocki to dilate her eyes because
she needed to drive home. It was not until December 2011 that
O'Connell complained that her visual acuity was fuzzy,
and Dr. Sohocki began treating O'Connell with glaucoma
drops. Shortly after, O'Connell had the surgery performed
by Dr. Gullapalli, and he took her off her glaucoma drops
temporarily following the surgery. Dr. Gullapalli placed
O'Connell back on Travatan after she lost her vision, but
her vision was not restored.
stated that she began seeing Dr. William Sponsel, a glaucoma
specialist, and Dr. Jeremiah Brown, a retina specialist, the
year following Dr. Gullapalli's surgery. Dr. Brown
repeated the macular hole surgery on her right eye because
Dr. Gullapalli's surgery did not fix the hole. Dr. Brown
then performed a pars plana vitrectomy on the left eye after
that eye also developed a macular hole. Following the left
eye surgery, Dr. Brown placed Travatan drops in
O'Connell's eye. The day following the surgery,
O'Connell's eye pressure was at 2, which was
dangerously low according to Drs. Gullapalli and
O'Connell's experts, Dr. Jaqueline Wong and Dr.
Brown. Dr. Brown had O'Connell discontinue using the
Travatan drops, and the week following surgery,
O'Connell's eye pressure was at 30.
Brown testified by video deposition. He stated that increased
intraocular pressure and pressure spikes within the eye are a
recognized risk of any eye surgery, and that glaucoma can add
to that risk. Dr. Brown agreed that the records showed that
Dr. Gullapalli performed a visual field test on O'Connell
prior to surgery to determine how much of her vision field
she had lost. Dr. Brown stated Dr. Sponsel determined that
O'Connell had advanced glaucoma, but Dr. Brown still
believed that the pressure buildup caused O'Connell's
loss of vision. When testifying about the standard of care
required from retinal surgeons, Dr. Brown stated doctors
should do what is reasonable and appropriate to try to
control the pressure spikes. He also believed it is important
to use medication to control pressure in the eye but did not
state that he believed that not using medication would be a
violation of the standard of care. On cross-examination, Dr.
Brown admitted that O'Connell's cup-to-disk ratio
(which is used to determine the condition of the optic nerve)
showed severe damage to her optic nerve and stated that the
nerve fibers left were barely attached. Dr. Brown agreed that
a snuff-out could have been caused by any type of eye surgery
and changes in eye pressure would not be the only
complication that could affect the optic nerve. Dr. Brown
explained that he had performed macular hole surgeries where
the procedure was not successful through no fault of his,
similar to Dr. Gullapalli's surgery. Dr. Brown further
testified that O'Connell had visual field loss before her
referral to Dr. Gullapalli and that he also agreed with Dr.
Gullapalli's expert, Dr. Timothy Cleland, that Dr.
Gullapalli performed the surgery within the standard of care
expected of retinal surgeons.
next called Dr. Wong, a retinal specialist, to testify. Dr.
Wong stated that she was retained as an expert witness by
O'Connell's attorneys. She opined that Dr. Gullapalli
breached the standard of care in four areas: (1) he did not
look at O'Connell's prior medical records; (2) he did
not notice significant optic atrophy prior to surgery; (3) he
did not have O'Connell resume her Travatan drops
following surgery; and (4) he failed to realize he had put
O'Connell in a precarious, high risk situation for
pressure spikes. Dr. Wong concluded that the only factor that
caused O'Connell's loss of sight was the increased
intraocular pressure that she was not properly protected from
because of the discontinuation of Travatan drops. Dr. Wong
does not believe that O'Connell's glaucoma would have
snuffed out her vision alone. She reasoned that Dr.
Gullapalli is responsible for the vision loss because he
should have done more to protect O'Connell's
remaining vision, and Dr. Wong does not believe Dr.
Sohocki's lack of treatment is to blame. On
cross-examination, Dr. Wong agreed that an earlier diagnosis
of glaucoma could have possibly prevented O'Connell's
visual field loss through medication. However, Dr. Wong
blamed Dr. Sohocki for O'Connell's lack of dilation
during their visits, even though O'Connell refused to
have her eyes dilated. At trial, Dr. Wong criticized Dr.
Brown's monitoring of O'Connell's intraocular
pressures following surgery, although during her pre-trial
deposition, Dr. Wong had no criticism of Dr. Brown or his
techniques. Essentially, Dr. Wong concluded that Dr.
Gullapalli was to blame for O'Connell's vision loss
because he did not protect her remaining vision by using
pressure-controlling eye drops.
Gullapalli testified on his own behalf. He stated that he
understands the standard of care required for ordinary
retinal surgeons. Dr. Gullapalli explained that although he
is not specially trained in glaucoma, he had knowledge of the
condition and how to treat it. Dr. Gullapalli stated that
upon O'Connell's first visit to Coastal Bend, she
informed his staff that she had been having vision problems
for three months. He assumed Dr. Sohocki was evaluating her
optic nerve and treating her for glaucoma based on the
medications she was prescribed. Dr. Gullapalli explained that
a macular hole repair does not require visual field tests to
perform the surgery, and it was not routine to do visual
field tests prior to that type of surgery. He did agree that
he did not have a clear picture of O'Connell's optic
nerve damage because glaucoma management was under Dr.
Sohocki's care; however, Dr. Gullapalli stated he had a
treatment plan in place to keep the intraocular pressures low
during and following surgery. Dr. Gullapalli explained that
O'Connell had chronic glaucoma, where the pressure stayed
elevated and ate away at the optic nerve for years, which
also explained why O'Connell never experienced pain. Dr.
Gullapalli did not place pressure-reducing drops in
O'Connell's eyes because he felt his treatment plan
was sufficient. According to Dr. Gullapalli, Travatan has a
risk of inflammation associated with it, and he stated that
very few surgeons place pressure control drops in a
patient's eye following this type of surgery. Dr.
Gullapalli explained that he spoke to O'Connell via
telephone following surgery and even though her symptoms did
not seem problematic, he asked her to come in for an
evaluation, which she did not do. He stated that even normal
pressure could have caused her vision to be snuffed out and
that he could not know the pressure in her eyes on the days
he did not see her. However, although Dr. Gullapalli stated
he examined O'Connell's optic nerve and was aware of
its basic state, he also testified he did not know the
condition of her optic nerve, that the standard of care
requires him to know the condition, and he fell below the
standard of care in not knowing that information.
direct examination, Dr. Gullapalli testified that based on
the damage to O'Connell's optic nerve he saw
following the surgery, her vision would have snuffed out
eventually on its own. He agreed he treated her
conditions-the macular hole and the underlying
glaucoma-according to his training and as a prudent,
reasonable retinal surgeon across the country would have. In
response to Dr. Wong's critique that he did not request
O'Connell's prior record, Dr. Gullapalli stated that
none of O'Connell's doctors had requested his records
either. He also stated that in his evaluation of
O'Connell, he had examined the optic nerve, so he was
aware of its basic condition. Dr. Gullapalli believed the
surgery went well with no complications, and he was pleased
with O'Connell's eye pressure the day following
surgery. Dr. Gullapalli also stated that even if he had had
additional information about O'Connell's optic nerve,
it would not have changed the approach he took with the
surgery and post-operation treatment. He believes the only
difference between the surgery he performed and the surgery
Dr. Brown performed was the use of the pressure drops, which
caused a significant drop in pressure on O'Connell's
left eye. Although O'Connell stated Dr. Gullapalli did
not explain things thoroughly to her, Dr. Gullapalli
testified that he went through the risks, benefits,
alternatives, and additional options of the surgery, and
O'Connell wanted to proceed forward with the surgery. He
also testified that he believed that in using ordinary care,
a doctor would not be able to foresee a rise in pressure
following a vitrectomy as long as precautions were taken.
Regarding O'Connell's phone calls to Coastal Bend,
Dr. Gullapalli explained the side effects of which she
complained were normal and expected, that O'Connell did
not come in to see him even though he asked her to do so, and
she did not complain of pain even though she told Dr. Brown
later she was experiencing pain at the time she called
Coastal Bend. Dr. Gullapalli did agree that when he first
knew O'Connell had lost her useful vision, he thought a
rise in pressure could have caused the snuff out, but based
on a subsequent MRI and additional testing, he knew her optic
nerve was shriveled and O'Connell's vision loss was
inevitable. Dr. Gullapalli believed O'Connell's left
eye did not experience the same snuff out following surgery
because it was in a better condition than the right eye. Dr.
Gullapalli felt that based on Dr. Wong's criticism, all
of O'Connell's doctors would have fallen below the
standard of care, yet O'Connell is only stating that Dr.
Gullapalli fell below the standard.
Cleland testified as an expert witness for the defense. Dr.
Cleland believed the surgery and post-operative procedures
were within the standard of care of retinal surgeons. Dr.
Cleland agreed that Travatan is pro-inflammatory and he would
have also stopped O'Connell's use of the drops after
her post-operative pressure was 14. Dr. Cleland states an
earlier diagnosis of glaucoma could have slowed down the
deterioration of the eyes and avoided the damage. Dr. Cleland
did not believe that Dr. Gullapalli was the proximate cause
of harm or damage to O'Connell's vision or that his
care or treatment were the reason she lost her vision. Dr.
Cleland stated that he feels the way Dr. Gullapalli performed
the procedure and aftercare was according to the standard
procedures used in the retinal medical community.
the jury charge conference, Dr. Gullapalli asked that Dr.
Sohocki be added as a third-party defendant for
O'Connell's negligence claim. O'Connell objected
to the inclusion of Dr. Sohocki, and the trial court
overruled her objection. The jury found for Dr. Gullapalli
and stated that neither Dr. Gullapalli nor Dr. Sohocki was
negligent. O'Connell filed a motion for new trial, which
was denied. This appeal followed.
Evidence was Sufficient
first issue, O'Connell argues the evidence was legally
and factually insufficient to support the jury verdict
because Dr. Gullapalli and his expert offered conclusory
opinions and Dr. Gullapalli made judicial admissions during
Standard of Review
reviewing the legal sufficiency of the evidence, we view the
evidence in the light favorable to the verdict, crediting
favorable evidence if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could
not. Playboy Enters., Inc. v. Editorial Caballero, S.A.
de C.V., 202 S.W.3d 250, 263 (Tex. App.-Corpus Christi
2006, pet. denied) (citing City of Keller v. Wilson,
168 S.W.3d 802, 807 (Tex. 2005)). In conducting a legal
sufficiency review, we will sustain a legal sufficiency point
if the record reveals the following: (a) the complete absence
of a vital fact; (b) the court is barred by rules of law or
of evidence from giving weight to the only evidence offered
to prove a vital fact; (c) the evidence offered to prove a
vital fact is no more than a mere scintilla; or (d) the
evidence establishes conclusively the opposite of the vital
fact. City of Keller, 168 S.W.3d at 810. The fact
finder is the sole judge of the credibility of the witnesses
and the weight to give their testimony. Id. at 819.
party attacks the factual sufficiency of an adverse finding
on an issue on which it has the burden of proof, it must
demonstrate on appeal that the adverse finding is against the
great weight and preponderance of the evidence. See Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In
a factual sufficiency review, we consider and weigh all the
evidence. See Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986). We review the evidence keeping in mind that it
is the jury's role, not ours, to judge the credibility of
the evidence, to assign the weight to be given to testimony,
and to resolve inconsistencies within or conflicts among the
witnesses' testimony. Brandt v. Surber, 194
S.W.3d 108, 115 (Tex. App.-Corpus Christi 2006, pet.
ref'd); see Kareh v. Windrum, No.
01-14-00179-CV, ___ S.W.3d ___, ___, 2017 WL 1018598, at *9
(Tex. App.- Houston [1st Dist.] 2017, no pet. h.) (op. on
reh'g). We may not substitute our judgment for that of
the jury. See Kareh, 2017 WL 18598 at *9.
"Because it is the jury's province to resolve
conflicting evidence, we must assume that jurors resolved all
conflicts in accordance with their verdict."
Figueroa v. Davis, 318 S.W.3d 53, 60 (Tex. App.-
Houston [1st Dist.] 2010, no pet.).
B. Applicable Law