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Chang v. Denny

Court of Appeals of Texas, Fifth District, Dallas

August 22, 2019

CHARLES CHANG, M.D., Appellant

          On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-02470-2013

          Before Justices Schenck, Osborne, and Reichek



         Seven years after Dr. Charles Chang mistakenly left a cotton ball in Ashley Denny's brain following surgery, Denny sued him for medical malpractice. A jury found in Denny's favor on her negligence claim and awarded her damages for past and future loss of earning capacity. The jury also found that Denny prosecuted her claim with diligence after discovering her injury.

         In two issues on appeal, Dr. Chang generally contends the trial court erred in denying his motion for judgment notwithstanding the verdict (JNOV) and in admitting evidence related to Denny's diligence in filing suit and Social Security disability benefits. For the reasons set out below, we overrule Dr. Chang's issues and affirm the trial court's judgment.

         Factual Background

         In July 2006, Denny learned she had a brain tumor. She was twenty-six years old. Denny was referred to Dr. Chang, who performed the surgery four days later. The tumor was large and was located in the right lateral ventricle, which is a fluid space deep in the brain. During the surgery, Dr. Chang used nonradiopaque cotton balls (meaning they were not X-ray detectable) in Denny's brain and separated one of the balls into pieces, rather than leaving it in its original form. Both actions violated hospital guidelines enacted to account for items used during surgical procedures so that none would be "left behind." Dr. Chang said at the end of Denny's surgery, all the cotton balls used were accounted for when he made a count of the surgical items.[1]

         The mass removed was an intraventricular neurocytoma, a benign tumor. Denny was hospitalized for eleven days after the surgery and had several post-operative MRI scans during that time. The scans showed a "ring of enhancement" at the site of the surgery that Dr. Chang believed might be a "residual tumor." He never suspected it was a foreign body left in her brain during the surgery. Over the next five years, Denny continued follow-up care with Dr. Chang, who monitored the area with MRI scans for evidence of recurrent tumor growth. During that time, Denny said she told Dr. Chang she still had headaches and other symptoms, but he told her not to worry, it was "scar tissue."

         In May 2011, almost five years after the original surgery, Denny had an MRI which appeared to show a "slight enlargement" in the "residual tumor," and Dr. Chang performed a second surgery on May 26. He went through the same opening as in the first surgery and found a "nodular lump" sitting in the ventricle at the base. The lump turned out to be a cotton ball covered in scar tissue, which had adhered to Denny's brain. The cotton ball had been unknowingly left behind in the previous surgery. Dr. Chang cut out the cotton ball, which included a "scant" portion of Denny's brain. The subsequent pathology report showed the cotton ball was larger than one inch (2.7 centimeters) and had brain matter attached to it. Immediately after the surgery, Dr. Chang told Denny's parents that the abnormal mass in Denny's brain was not a tumor but a cotton ball left behind in the first surgery. Denny's parents told her the next day.

         Denny testified that her recovery from the second surgery was "much worse" because she was older and Dr. Chang went into an area of her brain that had already been traumatized. She said she still does not "feel well" on a daily basis. Her symptoms are "dramatically different" from the first surgery when headaches and ringing in her ears would "creep in" but, unlike now, were not chronic. After the second surgery, she has periodic ringing in her ears, experiences dizziness if she "moves around too much," and wakes up each day to a "throbbing" headache near the front of her head. She described her balance and coordination as "not good," and said she was a runner but can no longer run because she is clumsy and "constantly tripping over things." Denny also said she gets lost, and by way of example, said she was in the wrong courtroom for trial for fifteen minutes the previous day. She tends to repeat herself, which she never did before, and has difficulty formulating thoughts, which she said is "frustrating" because she knows what she wants to say but just cannot "get it out." Lights, sounds, and smells bother her on occasion, and she has trouble with her short-term memory and writes notes to herself so she does not forget things. She said, for example, she will forget she called someone and then call them again five minutes later. She is irritable with people and feels like a "fuse" has been "fried" and she was not like that before the second surgery. Denny said she was "very much a people person, on the go, very busy" and no longer is.

         Denny said she signed a consent form before the surgery warning her that she could experience memory loss, loss of coordination, seizures, pain, and numbness, among other things, as a result of the surgery. Denny said she has all of those side effects, none of which she had after the first surgery. She takes seventeen new pills each day, including antiseizure, epilepsy, and antianxiety medications, prescribed by a neurologist to help with her symptoms.

         Denny described how the aftermath of the surgery affected her life. Shortly after her first surgery in 2006, she began a new job with an eyewear company as a sales representative in Texas, Arkansas, and Louisiana. She traveled every week and was "very successful." She earned an average of $60, 000 to $70, 000 annually, with bonuses and commissions. She believed she was "really good" at her job and was "just starting" her career. Fifteen months after the second surgery, she was fired because she could no longer perform her work. After she lost her job, she had to liquidate her retirement savings and move from Dallas to Arkansas to live with her parents. When she ran out of money, she applied for Social Security disability benefits and, after evaluation by multiple doctors and other government personnel, was approved and put on 100 percent disability. Although she would like to work, she said she had not driven since she lost her job and cannot pass the driver's exam. That leaves her dependent on her husband to take her everywhere, even the grocery store, she said.

         Denny said that because of the 2011 surgery, she lost her ability to be gainfully employed, lost her ability to be independent, and was forced to go on government assistance. She said she is a thirty-seven-year-old woman who cannot function without being dependent on others. At the time of trial, it had been six years since the second surgery and her symptoms had not improved, but she hoped they would in the future. She said it had been a "nightmare."

         Denny last saw Dr. Chang during an office appointment on July 21, 2011 at which time she said he told her for the first time that he left a cotton ball in her head (although Denny's parents had already told her about the error).[2] Either that day or the day after, she said she met with her lawyer for the first time but did not file suit until June 2013.[3] In response to her suit, Dr. Chang asserted Denny's claims were barred by the two-year statute of limitations set out in the Texas Medical Liability Act because she waited almost seven years from the date of the alleged negligence (the first surgery in July 2006) to file her lawsuit. Denny countered that she brought her claims diligently once she learned of the negligence following the second surgery in May 2011 and her suit should be allowed to go forward under the open courts provision of the Texas Constitution.

         At trial, she gave a number of reasons as to why it took her twenty-five months from the time she learned of the cotton ball to file the lawsuit. First, after she left Dr. Chang, she said it took her eight months to find a doctor willing to treat her because the doctors feared they were going to be dragged into litigation. During that time, she said she called UT Southwestern Medical Center daily in an attempt to meet with a doctor before she finally talked to someone kind enough to help her out. Second, she said there were times she was "either physically not well" or "emotionally not well" and could not help her lawyer. She said there were times he called and needed to speak to her about her case, but she was not able to talk to him. Finally, she said she knew she needed an expert to render an opinion about what had happened, and it took "multiple years" to find one because "no one wanted to touch - - no one was willing to put their hands on this." When asked if she "made all reasonable efforts to do everything the law required" of her before filing suit, she said she "[a]bsolutely" had and never delayed "just to delay."

         Dr. William Hudgins, an expert who testified on Denny's behalf at trial, said the second surgery was "probably a little more traumatic" than the first and was necessary only because Dr. Chang negligently left a nonradiopaque cotton ball in her brain. As he explained, Dr. Chang had to make another incision through the brain to retract it enough to see into the ventricle, and it was a "major procedure" to go in the ventricle and remove the piece of cotton. According to Dr. Hudgins, cotton is not absorbable and does not dissolve, so the body formed a wall, or "gliotic scar," around the foreign object to seal it off.

         Dr. Hudgins testified that Dr. Chang's use of a nonradiopaque cotton ball and leaving the cotton ball in Denny's brain fell below the standard of care for neurosurgeons. Had Dr. Chang used radiopaque cotton balls, the cotton ball left in her brain would have been detected on the follow-up CT scan. Dr. Hudgins said Dr. Chang's negligence "was a cause of injury and need to go back and have more surgery and that sort of thing."

         Dr. Chang, a board-certified neurosurgeon, testified as both a fact and expert witness. He went into detail about how he performed both surgeries, the tools he used, and the route he went through in Denny's brain to reach the tumor and, subsequently, the cotton ball. He accepted responsibility "for the medical decision that led to" the cotton ball being left in Denny's brain and acknowledged that he was the person who mistakenly left it behind and who made the decision to use nonradiopaque cotton balls. He agreed that he disobeyed the hospital's manual by using a non-X-ray detectable cotton ball and agreed the manual was designed to prevent what actually happened to Denny; nevertheless, he still uses nonradiopaque cotton balls in surgeries "in selective instances."[4] Dr. Chang agreed the second surgery was completely unnecessary but for the fact he left a foreign object in Denny's brain. He acknowledged that when he removed the cotton ball during the second surgery, he had to cut it away from her brain, although the pathology report showed mostly scar tissue and "very scant brain tissue."

         According to Dr. Chang, neurological function includes thinking, memory, motor movements, coordination, sensation, vision, hearing, "all senses." But, he told jurors that the route he went through to access the tumor, does not cause "easily measurable brain impairment in terms of functions." Dr. Chang said the "simple fact" of going through the brain "means that part of the brain has undergone some damage, some of the tissue has been damaged. And - - and it can leave permanent scarring in that place." Nevertheless, he acknowledged that he told Denny before the surgery that she could have additional loss of brain function, loss of memory, stroke, blindness, deafness, inability to smell, double vision, loss of coordination, seizures, pain, numbness, and paralysis. Dr. Chang testified that Denny was the "best judge" of what symptoms she had.

         After hearing the evidence, the jury found Dr. Chang's negligence in leaving a cotton ball in Denny's brain proximately caused her injury. The jury also found Dr. Chang's negligence in leaving a nonradiopaque cotton ball in her brain caused her injury.[5] The jury awarded Denny $275, 000 for loss of earning capacity in the past and $1.54 million for loss of earning capacity in the future, but it awarded no damages for past or future physical pain and mental anguish, past or future disfigurement, or past or future physical impairment. The jury also found that, after discovering her injury, Denny had diligently prosecuted her claim. Dr. Chang moved for JNOV, challenging the jury's findings to the due diligence and the damage questions. The trial court denied Dr. Chang's motion for JNOV and rendered judgment in accordance with the jury's verdict. This appeal followed.

         Standard of Review of Denial of JNOV

         In his first issue, Dr. Chang argues the trial court erred in denying his motion for JNOV regarding Denny's open courts defense to the statute of limitations as presented in Question 6 of the jury charge and the lack of proximate cause to support damages presented in Question 4, subparts 3 and 4.

         We review a trial court's decision to deny a JNOV under the legal sufficiency standard of review. OIC Holdings, LLC v. Gleason, No. 05-18-00029-CV, 2019 WL 2098616, at *2 (Tex. App.-Dallas May 14, 2019, no pet.) (mem. op.); see also City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005) (test for legal sufficiency is same for directed verdict, JNOV, and appellate no-evidence review). A party challenging the legal sufficiency of the evidence supporting an adverse jury finding on an issue on which it did not have the burden of proof at trial must demonstrate on appeal that there is no evidence to support the adverse finding. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011). The evidence is legally sufficient if it "would enable reasonable and fair-minded people to reach the verdict under review." City of Keller, 168 S.W.3d at 827. We review the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 819 (Tex. 2012). We will uphold the jury's finding if it is supported by more than a scintilla of competent evidence. Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009).

         Open Courts Defense

         We begin with Dr. Chang's complaints regarding Denny's open courts defense to the two-year statute of limitations.[6] He argues that (1) Denny failed to obtain a "proper legal finding" to establish the defense and (2) alternatively, there is legally insufficient evidence to support the jury's finding.

         The Texas Constitution guarantees that persons bringing common-law claims will not unreasonably or arbitrarily be denied access to the courts. Tex. Const. art. 1 § 13. ("All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law."). This provision grants foreign-object claimants, such as Denny, a reasonable opportunity to discover their injuries and file suit if the two-year limitations period has run. Walters v. Cleveland Reg'l Med. Ctr., 307 S.W.3d 292, 294 (Tex. 2010); Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex. 1985).

         The provision, however, does not toll limitations. Unlike the discovery rule, which defers the accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to the claim, the open courts provision merely gives litigants a reasonable time to discover their injuries and file suit Walters, 307 S.W.3d at 295 In other words, a plaintiff may not obtain relief under the open courts provision if she does not use due diligence and sue within a reasonable time after learning about the alleged wrong Shah v. Moss, 67 S.W.3d 836, 847 (Tex 2001) The reasonable time is given to allow a claimant to investigate, prepare, and file suit after discovering her injury Gagnier v. Wichelhaus, 17 S.W.3d 739, 745 (Tex App- Houston [1st Dist] 2000, pet denied) (citing Neagle, 685 S.W.2d at 14 (Kilgarlin, J, concurring)).[7]Whether a plaintiff has used the degree of diligence required is ordinarily a question of fact; however, it may be determined as a matter of law when the evidence, construed most favorably to the claimant, admits no other conclusion. Id.

         Question 6 asked: "Do you find from a preponderance of the evidence that after discovering the injury, Ashley Denny prosecuted her claim and suit with that degree of diligence that an ordinary prudent person would have exercised under the same or similar circumstances?"[8]The jury responded "yes."

         Dr. Chang first argues the question was defective because it asked jurors whether Denny used due diligence to "prosecute her claim," rather than "to file suit," after discovering her injury. Thus, he contends the response is "immaterial and cannot support recovery." We disagree.

         To preserve error in the jury charge, a party must make the trial court aware of the complaint, timely and plainly, and obtain a ruling. Thota v. Young, 366 S.W.3d 678, 689 (Tex. 2012); Lowry v. Tarbox, 537 S.W.3d 599, 616-17 (Tex. App.-San Antonio 2017, pet. denied); see also Tex. R. Civ. P. 274 (noting a party must distinctly object to preserve error, and "[a]ny complaint as to a question, definition, or instruction, on account of any defect, omission, or default in pleading, is waived unless specifically included in the objections"); see Tex. R. App. P. 33.1 (requiring a party to timely object and make complaining grounds with sufficient specificity, unless grounds apparent from context, and obtain ruling). Dr. Chang did not object to the question as submitted, and his failure to do so waives his complaint on appeal.

         In reaching this conclusion, we are unpersuaded by Dr. Chang's suggestion that Denny submitted an "incorrect theory of recovery" to which he did not need to object. For this proposition, he relies on United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 481 (Tex. 2017).

         In Levine, a refinery worker slipped on a piece of plywood that had not been nailed down and fell through an opening in the scaffold. 537 S.W.3d at 467. The worker sued USI, claiming USI was in control of the scaffolding and should have ensured it was in a safe condition. Id. at 468. The case was tried to a jury. The jury was charged on a general negligence theory and returned a modest verdict in the worker's favor. Id. The trial court subsequently granted the worker's motion for new trial, and the case was tried a second time. Id. Again, the jury was given a general negligence charge, instead of a premises liability theory, and USI did not object. Again, the jury found in the worker's favor. Id. USI filed a motion for JNOV, arguing the appropriate cause of action was premises liability. The supreme court ultimately agreed, concluding the case sounded in premises liability and further concluding USI had no duty to object to the charge when the wrong theory of recovery was submitted and the correct theory was omitted entirely. Id. at 479, 481.

         This case is unlike Levine. Dr. Chang is not arguing that the trial court failed entirely to submit a correct theory of recovery; rather, Dr. Chang's complaint is with the wording of the question and whether it should have tied diligence to the filing of the lawsuit instead of prosecuting the claim. Assuming a substantive distinction ...

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