by Jay Pate

Heygood, Orr & Pearson represented Plaintiff David Boyer in a medical malpractice lawsuit against Dr. Frederick Todd after Boyer suffered a spinal epidural hematoma following neurostimulator revision surgery.  The evidence at trial showed that after he performed surgery on Mr. Boyer, Dr. Todd did not return to the hospital to examine his patient.  Even after being informed by the nurses at the hospital that Mr. Boyer was experiencing severe pain despite the administration of powerful painkillers, Dr. Todd did nothing.  It was not until nearly thirty-six hours after surgery that Mr. Boyer’s pain was addressed.  By then, he had suffered serious nerve damage that left him with a permanent debilitating spinal cord injury.

At trial, Plaintiff relied heavily on a Pain Assessment Record made during the nineteen hours following his surgery.  The record documented the level of Plaintiff’s pain, the description of his pain, the location of his pain and the administration of painkillers to Plaintiff.  This record showed that:

  • Plaintiff suffered consistent, continuous and severe pain from the time of his surgery through at least 5:00 p.m. the next day;
  • Plaintiff’s pain was unaffected by the repeated administration of powerful painkillers including Demerol, Lortab, Toradol, and Hydromorphone (a morphine derivative drug);
  • Despite receiving these powerful painkillers, Plaintiff’s pain score actually jumped from a 7 to a 10 around lunchtime on January 3, more than eighteen (18) hours after his surgery;
  • While Plaintiff’s pain had been described earlier as an “aching” pain, from 9:00 a.m. to 5:00 p.m. the day after surgery, after the administration of numerous painkillers, Plaintiff consistently described his pain as “sharp” rather than “aching;”
  • While Plaintiff’s pain had been described earlier as an “aching” pain, the morning of January 3, more  than 13 hours post-surgery, Plaintiff described his pain as “tingling” and “burning.”

According to Plaintiff’s expert witness at trial, these symptoms were strongly indicative of a serious spinal hematoma.  Had Dr. Todd properly followed up with his patient following surgery, the expert opined, the hematoma would have been timely diagnosed and treated.

During the jury’s four hours of deliberation, they specifically requested to see the Pain Assessment Record.  It was the only evidence they asked for during their deliberations.  Believing that all three exhibit notebooks had been sent back to the jury room, the Court, with the agreement of all counsel, informed the jury that the Pain Assessment Record was Plaintiff’s Exhibit 1(A).  Unbeknownst to the Court and counsel, the exhibit notebook containing Exhibit 1(A) had inadvertently not been sent back to the jury room.  This was not discovered until after the jury had rendered a verdict in favor of the Defendant.

After they discovered that the Pain Assessment Record had not been provided to the jury, attorneys with Heygood, Orr & Pearson immediately filed a Motion for New Trial.  According to the Motion, Rule 281 of the Texas Rules of Civil Procedure requires that the jury be given all trial exhibits during their deliberations.  This Rule is mandatory.  A violation of the Rule is cause for a new trial when it probably caused the rendition of an improper judgment.

Plaintiff’s attorneys argued that a new trial was warranted because the missing exhibit was of critical importance to their case.  While Plaintiff and his ex-wife had testified at trial about Plaintiff’s post-surgical pain, defense counsel questioned the accuracy and veracity of their testimony.  For that reason, HOP lawyers argued, the Pain Assessment Record was especially important in that it:

●          was made contemporaneously with the events it described;

●          was detailed and specific in indicating the severity and type of pain Plaintiff experienced;

●          allowed the jury to visually track the progression of Plaintiff’s pain over a period of nearly 24 hours;

●          allowed the jury to assess Plaintiff’s pain symptoms relative to the administration of powerful pain killers;

●          was created by the hospital than by Plaintiff;

●          was based on information provided by Plaintiff well before he was aware he had suffered a spinal epidural hematoma and had ever contemplated litigation against Dr. Todd.

They also argued that although the Pain Assessment Record had been shown to the jury during trial, it was far too detailed for the jury to recall its contents from memory during their deliberations.  Finally, they argued, the fact that the jury specifically asked for the record during their deliberations showed how important the document was to the issues in the case.

After considering the briefing by the parties and hearing oral argument, Judge Tonya Parker of the 116th Judicial District Court of Dallas County, Texas agreed.  She granted Plaintiff’s Motion for New Trial and ordered that the case proceed to mediation before it is tried for a second time.