                                 NO. 07-03-0175-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                               OCTOBER 31, 2005
                        ______________________________

             CONNIE SEYMORE AND GENE SEYMORE, APPELLANTS

                                          V.

                    MICHAEL MARK DORSETT, M.D., APPELLEE
                      _________________________________

            FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2001-514,917; HONORABLE SAM MEDINA, JUDGE
                      _______________________________


Before QUINN, C.J., and CAMPBELL, J.1


                              MEMORANDUM OPINION


      This is an appeal from a judgment entered on the jury’s verdict in favor of Michael

Mark Dorsett, M.D., in the medical negligence action brought against him by appellants

Connie and Gene Seymore. We will affirm.




      1
        Former Chief Justice Phil Johnson was on the panel that heard oral argument. He
did not participate in the decision. Tex. R. App. P. 41.1(b).
       The Seymores claims against Dorsett arose from an abdominal hysterectomy2 he

performed on Connie Seymore. The surgery was complicated by the necessity to remove

a large mass3 and by adhesions, likely caused by Seymore’s previous abdominal and

pelvic surgeries. Dorsett found part of Seymore’s small bowel adhered to the peritoneum,

to the abdominal wall and to the mass. The mass also was adhered to the ureter.

Performance of the surgery required that he lyse, or cut through, those adhesions.


       During the surgery, Dorsett injured Seymore’s ileum, a part of the small bowel. The

injury was not discovered until three days after the operation. Repair of the injury required

a second surgery with colostomy, an additional 24 days in the hospital and a third surgery

to reverse the colostomy.


       The Seymores did not allege that the injury to the bowel resulted from negligence,

but alleged that Dorsett negligently failed to examine properly the length of the bowel

involved in the procedures he performed to check for damage.


       Dorsett completed a residency in obstetrics and gynecology and is board certified

in those specialties. Dorsett testified that he paid careful visual attention to the area of the

bowel where he performed the lysis of adhesions. He acknowledged, though, he did not

“run the bowel,” a process described in testimony as physically running the bowel through

the surgeon’s hands, turning it centimeter by centimeter so that the bowel can be inspected


       2
         The surgery also included a bilateral salpingo-oophorectomy, or removal of both
sets of fallopian tubes and ovaries.
       3
         Identified as a hydrosalpinx, or fluid-filled cyst, arising from Seymore’s right
fallopian tube. Dorsett found and removed a similar cyst on the left side.

                                               2
for damage from all angles. Dorsett testified that gynecologists generally do not “run the

bowel.”


       Dorsett’s expert at trial was Dr. Brent Nall, also board certified in obstetrics and

gynecology. Nall testified he had performed over 2,000 hysterectomies of the type Dorsett

performed on Seymore. He testified gynecologists do not “run the bowel.” Because

gynecologists are not trained in surgery of the digestive tract, a gynecologist “running the

bowel” could cause more damage than would be found, he said.4


       Dorsett was assisted during Seymore’s surgery by Dr. Susan Devine. She is also

board certified in obstetrics and gynecology and has performed a few hundred

hysterectomies, during which she has never “run the bowel.” She testified that she did not

suggest Dorsett “run” Seymore’s bowel because gynecologists do not perform that

procedure.


       The Seymores presented the testimony of Dr. Stephen Barnes, a board certified

general surgeon. Barnes is not board certified in obstetrics and gynecology. He testified

that he performs abdominal hysterectomies, and that the standard of care was the same

for general surgeons and gynecological surgeons performing the surgery involved here.

Barnes further testified Dorsett should have “run the bowel” before closing Seymore’s

abdomen, and opined that Dorsett would have discovered the injury to her bowel if he had


       4
         Nall also testified a gynecologist performing surgery should be careful and
meticulous, should carefully examine the operative site for any sign of injury and should
consult a general surgeon if something out of the ordinary, like bruising, excessive bleeding
or bile, appears. Nall said Dorsett’s actions were within the standard of care for a
gynecologist.

                                             3
done so. His failure to “run the bowel” after lysing the adhesions caused his treatment of

Seymore to fall below the standard of care.


       At the charge conference, the Seymores’ counsel objected to the trial court’s

proposed definition of “negligence,” which was phrased in terms of what a “gynecological

surgeon of ordinary prudence” would have done under the same or similar circumstances.

The Seymores’ counsel submitted two proposed definitions of “negligence.” The first was

phrased in terms of what a “physician performing lysis of pelvic and abdominal adhesions

of ordinary prudence” would have done under the same or similar circumstances. The

second was phrased in terms of what a “physician performing abdominal surgery of

ordinary prudence” would have done.


       The Seymores made a corresponding objection and submitted corresponding

definitions for “ordinary care” and “proximate cause,” substituting in the definitions

“physician performing lysis of pelvic and abdominal adhesions” and “physician performing

abdominal surgery” for “gynecological surgeon.” The trial court overruled all of the

Seymores’ objections and declined to submit their proposed definitions. Their sole issue

on appeal challenges those rulings.


       A trial court is to include in its charge the questions, instructions and definitions

raised by the written pleadings and the evidence. Tex. R. Civ. P. 278; Hyundai Motor Co.

v. Rodriguez, 995 S.W.2d 661, 663 (Tex. 1999). The trial court has considerable discretion

in framing a jury charge and is given wide latitude to determine the propriety of explanatory

instructions and definitions. H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 23 (Tex.


                                              4
1998); Redwine v. AAA Life Ins. Co., 852 S.W.2d 10, 14 (Tex. App.–Dallas 1993, no writ).

Accordingly, we review the court’s rulings under an abuse of discretion standard. Hiroms

v. Scheffey, 76 S.W.3d 486, 487 (Tex. App.–Houston [14th Dist.] 2002, no pet.). A trial

court abuses its discretion if it acts without regard to any guiding rules or principles. Id.;

Texas Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990).


       The definitions given by the trial court track the language of the recommended

definitions provided by section 50.1 of the Texas Pattern Jury Charges, with the term

“gynecological surgeon” inserted in the place of “physician” as suggested by the comments

to section 50.1. 3 Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury

Charges–Malpractice, Premises, Products, PJC 50.1 (2000) (according to the comments

to section 50.1, the “term designating the particular medical specialist involved (i.e. an

orthopedic surgeon) should be substituted for the words a physician”).5


       The Seymores contend the trial court’s definitions couching the standard of care

in terms of an ordinarily prudent gynecological surgeon implied that the only standard of



       5
          The charge thus defined “negligence” as “the failure to use ordinary care, that is
failing to do that which a gynecological surgeon of ordinary prudence would have done
under the same or similar circumstances or doing that which a gynecological surgeon of
ordinary prudence would not have done under the same or similar circumstances.”
“Ordinary care” was defined as “that degree of care that a gynecological surgeon of
ordinary prudence, would use under the same or similar circumstances.” Finally, the court
defined “proximate cause” as “a cause which, in a natural and continuous sequence,
produces an event, and without which cause such event would not have occurred. In order
to be a proximate cause, the act or omission complained of must be such that a
gynecological surgeon using ordinary care would have foreseen that the event, or some
similar event, might reasonably result therefrom. There may be more than one proximate
cause of an event.” The jury answered the liability question with respect to Dorsett in the
negative.

                                              5
care applicable to Dorsett’s treatment was that to which Dorsett’s gynecologist expert

witnesses testified and, therefore, constituted a negative comment on their expert’s

testimony and an endorsement of Dorsett’s evidence. They argue that to allow a physician

from a different discipline to provide expert testimony regarding the standard of care

applicable to a procedure and then to instruct the jury in a manner that is not inclusive of

the proffered expert’s field of expertise is “tantamount to a trial court commenting on the

weight of the testimony and evidence presented.” We disagree that the charge constituted

such an impermissible direct comment in this case.


       Rule of Civil Procedure 277 requires the trial court avoid commenting directly on the

weight of the evidence in its charge. Tex. R. Civ. P. 277. An impermissible comment on

the weight of the evidence occurs, when after examining the entire charge, it is determined

that the judge assumed the truth of a material controverted fact, or exaggerated,

minimized, or withdrew some pertinent evidence from the jury’s consideration. First Nat’l

Bank of Amarillo v. Jarnigan, 794 S.W.2d 54, 62 (Tex. App.–Amarillo 1990, writ denied);

American Bankers Ins. Co. of Florida v. Caruth, 786 S.W.2d 427, 434 (Tex. App.–Dallas

1990, no writ). An instruction also is an improper comment on the weight of the evidence

if it suggests to the jury the trial judge’s opinion concerning the matter about which the jury

is asked. Redwine, 852 S.W.2d at 14. Incidental comments are permissible when

necessary or proper as part of an explanatory instruction or definition. Id.; American

Bankers, 786 S.W.2d at 434.




                                              6
       Barnes did not testify that the only standard of care applicable to Dorsett’s treatment

was that of a general surgeon or that a standard of care for gynecological surgery was an

inappropriate measure of Dorsett’s actions. On the contrary, he testified that, with respect

to procedures related to lysing adhesions in the abdomen or pelvis, the standard of care

was the same for general and gynecological surgeons. 6 Further, Barnes specifically

testified to the standard of care applicable to a gynecological surgeon. He was questioned

about the “minimal acceptable standard of care for a gynecological surgeon performing the

work that Dr. Dorsett was doing on [Connie Seymore] . . . .”7 He also testified that some of

the committees on which he had served dealt with “standards of care for gynecological

surgery.”


       Dorsett, Nall and Devine each indicated that the standard of care applicable to

gynecologists did not require Dorsett to “run the bowel” in the manner suggested by

Barnes. But given the extensive use of the term “gynecological” during Barnes’ testimony,

the trial court’s use of that term in the definitions of negligence, ordinary care and

proximate cause did not suggest to the jury that they should accept the testimony of




       6
         Barnes further said the procedures for lysing adhesions encountered during
surgery in the abdomen “are the same across all specialties.” Similarly, Dorsett
acknowledged during his testimony that both general and gynecological surgeons are
trained to perform lysis of pelvic and abdominal adhesions and that a patient could expect
the same level of care from either a general or gynecological surgeon performing
abdominal surgery.
       7
         The Agreed Statement of the Case submitted by the parties indicates Barnes
testified that Dorsett’s actions violated the standard of care for a person performing
“abdominal or gynecological surgery.” The record presented for our review also includes
the testimony of Barnes and Dorsett.

                                              7
Dorsett and his experts rather than that of Barnes. The definitions did not constitute a

direct comment on the weight of the evidence.


       The Seymores also contend the trial court should have modified the definitions of

“negligence” and “ordinary care” to refer to the area of Seymore’s body involved in the

surgery because the testimony indicated that physicians trained in more than one specialty

perform that type of surgery. They point to the comments to section 50.1 of the cited

pattern jury charges for medical malpractice that discuss casting the standard of care

definitions in terms of the affected body area (i.e. “back surgeon,” “breast surgeon,” and

“foot surgeon”) rather than by the doctor’s area of practice (i.e. “neurosurgeon” or

“orthopedic surgeon” in the case of back surgery, “general surgeon” or “plastic surgeon”

in the context of breast surgery, and “orthopedic surgeon” or “podiatrist” in the case of a

foot surgery).


       The Seymores’ first amended petition alleged Dorsett performed a total abdominal

hysterectomy on Connie Seymore and that his negligent actions during the surgery caused

damage to her ureter8 and bowel. Evidence showed performance of the hysterectomy

involved removal of the cysts associated with Seymore’s fallopian tubes and required

significant lysing of adhesions involving those structures and Seymore’s bowel. Dorsett’s

board certification is in obstetrics and gynecology, and as noted, the standard of care was

discussed in terms of gynecological surgery during expert testimony for both sides. In its



       8
        Seymore’s left ureter also suffered a “crush injury” during the surgery performed
by Dorsett. He recognized the injury and consulted a urologist, who placed a stent in the
ureter before the completion of the surgery.

                                            8
task of crafting the charge to include the questions, instructions and definitions raised by

the pleadings and evidence, Hyundai Motor Co., 995 S.W.2d at 663, the trial court did not

abuse its discretion by incorporating the submitted term in the definitions in the charge or

by refusing the Seymores’ submitted definitions. See Styers v. Schindler Elevator Corp.,

115 S.W.3d 321, 325 (Tex. App.–Texarkana 2003, pet. denied) (trial court did not abuse

discretion in its modifications of pattern charge definitions).


         We overrule appellants’ sole issue on appeal and affirm the judgment of the trial


court.


                                                  James T. Campbell
                                                      Justice




                                              9
