In this medical malpractice case we consider: 1) whether the trial court should have submitted to the jury a requested issue concerning the plaintiff's contributory negligence; and 2) whether Mary Carter agreements are void as contrary to public policy. The trial court rendered judgment in favor of the plaintiff, and the court of appeals affirmed. 845 S.W.2d 282. We hold that the trial court committed reversible error in refusing to submit an issue on the plaintiff's contributory negligence. We further hold that Mary Carter agreements are void as against public policy.
At 2:00 a.m. on May 8, 1985, Carole Smith was seriously injured in a singlevehicle accident when the Corvette she was driving left the highway and collided with a tree. She received emergency treatment at the Dallas/Fort Worth Medical Center-Grand Prairie ("D/FW Medical Center")
While Ms. Smith was at ACH, she was treated by a team of physicians including Dr. Elbaor, Dr. Joseph Stephens, a plastic surgeon, and Dr. Bienvenido Gatmaitan, an infectious disease specialist. Upon admission to ACH, Ms. Smith was evaluated by Dr. Gatmaitan and placed on intravenous antibiotics. During the course of her stay, Dr. Stephens performed two debridements of the ankle wound.
Ms. Smith's medical records from D/FW Medical Center and ACH indicate that she refused to cooperate with the instructions of her doctors and nurses. She frequently refused to take her antibiotics, and directed family members to remove weights from her femoral traction device. Some time later, Ms. Smith was transferred to another hospital for surgery to shorten and fuse the bone, leaving her permanently disabled.
Ms. Smith filed suit against D/FW Medical Center, ACH, Drs. Syrquin, Elbaor, Stephens, and Gatmaitan. Sometime before trial, Ms. Smith entered into Mary Carter agreements with Dr. Syrquin, Dr. Stephens, and ACH.
Ms. Smith nonsuited her claim against Dr. Gatmaitan and settled and dismissed her claim against D/FW Medical Center. Dr. Elbaor filed a cross claim against Dr. Stephens, Dr. Gatmaitan,
At trial, the jury found that Ms. Smith's damages totalled $2,253,237.07, of which Dr. Elbaor was responsible for eighty-eight percent, and Dr. Syrquin for twelve percent. After deducting all credits for Dr. Syrquin's percentage of causation and settlements with other defendants, the trial
We first consider Dr. Elbaor's assertion that the trial court erred by refusing to submit to the jury a question on Ms. Smith's contributory negligence (along with questions addressing his own negligence and that of Drs. Syrquin and Stephens). The court of appeals held that the trial court's refusal was not error because there was no evidence of Ms. Smith's contributory negligence. 845 S.W.2d at 284. The court concluded that evidence of Ms. Smith's refusal of antibiotics only entitled Dr. Elbaor to an instruction on Ms. Smith's failure to mitigate damages.
Rule 278 of the Texas Rules of Civil Procedure provides that:
[t]he court shall submit the questions, instructions and definitions in the form provided by Rule 277, which are raised by the written pleadings and evidence.
This rule provides a substantive, non-discretionary directive to trial courts requiring them to submit requested questions to the jury if the pleadings and any evidence support them. To determine whether legally sufficient evidence supported Dr. Elbaor's contributory negligence submission, we must examine the record for evidence supporting Dr. Elbaor's question and ignore all evidence to the contrary. See, e.g., Roy v. Howard-Glendale Funeral Home, 820 S.W.2d 844, 846 (Tex.App.—Houston [1st Dist.] 1991, writ denied) ("trial court is obligated to submit the question if the evidence [supporting question] amounts to more than a scintilla"); Times Herald Printing v. A.H. Belo Corp., 820 S.W.2d 206, 215 (Tex.App.—Houston [14th Dist] 1991, no writ) (in reviewing evidence regarding refused question, appellate court "considered] evidence most favorably in behalf of the complaining party"); Kerrville HRH, Inc. v. City of Kerrville, 803 S.W.2d 377, 383 (Tex.App.—San Antonio 1990, writ denied) (trial court "may refuse to submit a question only if no evidence exists to warrant its submission"); Bryan v. Dockery, 788 S.W.2d 447, 451 (Tex. App.—Houston [1st Dist.] 1990, no writ) ("evidence must be considered in favor of the party against whom the questions were refused and if it supports the question then it must be submitted"); Phillips Pipeline Co. v. Richardson, 680 S.W.2d 43, 48 (Tex. App.—El Paso 1984, no writ) ("evidence must be considered most favorably in behalf of the party against whom the issues were refused, and if there is any conflicting probative evidence in the record, those questions are for the jury's determination"). A trial court may refuse to submit an issue only if no evidence exists to warrant its submission. Brown v. Goldstein, 685 S.W.2d 640, 641 (Tex.1985) (where evidence was conflicting, it is error to refuse submission of contributory negligence issues); Garza v. Alviar, 395 S.W.2d 821, 824 (Tex. 1965) (contention that question should not have gone to jury only sustainable if no evidence supports question).
In order to determine whether Dr. Elbaor's questions should have been presented to the jury, we must examine the record to see if there is some evidence that Ms. Smith's refusal to take antibiotics arguably preceded the onset of infection in her ankle. If we find some evidence indicating that Ms. Smith may have been contributorily negligent, then we must conclude that the trial court should have submitted Dr. Elbaor's requested contributory negligence question; and accordingly, we must reverse this cause and remand it for a new trial.
A brief chronology of events will aid our analysis. After the accident on May 8, 1985, Ms. Smith was treated by Dr. Syrquin at D/FW Medical Center for injuries to her left shoulder, femur, and ankle. On May 17, she was transferred to ACH and into the care of Drs. Elbaor, Stephens, and Gatmaitan. She remained under their care until she was transferred to Baylor on June 3.
Shortly after Ms. Smith arrived at ACH, Dr. Gatmaitan rendered an initial diagnosis concluding that her ankle was infected, and
The foregoing discussion reveals that the record contained some evidence that Ms. Smith's ankle was not infected when she arrived at ACH on May 17, 1985. Further, the record indisputably indicates that Ms. Smith refused antibiotics, essential to the maintenance of her ankle's health, throughout her stay at ACH. Taken together, this evidence amounts at least to some evidence supporting Dr. Elbaor's assertion of Ms. Smith's contributory negligence. Accordingly, the trial court should have submitted it to the jury. See Southwestern Bell Tel. Co. v. Thomas, 554 S.W.2d 672, 674 (Tex. 1977) (trial court must submit issues if there is "some evidence" of contributory negligence).
Dr. Elbaor properly preserved error regarding the trial court's wrongful refusal of the contributory negligence questions, instructions, and definitions. He complained during the charge conference that the court's submission failed to adequately account for Ms. Smith's contributory negligence. He also submitted contributory negligence and proximate cause questions in "substantially correct wording" as required by Rule 278. See Placencio v. Allied Indus. Int'l Exch., 724 S.W.2d 20, 21 (Tex. 1987).
The court of appeals held that the evidence raised issues of failure to mitigate,
Moreover, the instant case is fundamentally distinguishable from Kerby. Driving a delivery truck with its sliding door open is neither an intrinsically harmful act, nor is it a breach of a legal duty. However, the unusual act of refusing to take antibiotics, which a medical doctor has prescribed to preserve a patient's health, plainly may cause harm. Additionally, it breaches a duty of cooperation which patients owe treating physicians who assume the duty to care for them. Ms. Smith was arguably free of infection when she arrived at ACH. She began breaching her duty to cooperate from the moment she arrived by refusing antibiotics, and she remained uncooperative throughout her stay at ACH. Ms. Smith's refusal to take the antibiotics also constituted an inherently harmful act, because, as the testimony at trial demonstrated, refusing antibiotics can permit an infection to develop. Thus, her refusal of medication essential to maintaining her health created a fact issue as to whether she contributed to the infection that eventually afflicted her ankle.
Furthermore, the Court in Kerby held that the plaintiff's conduct of driving with the door open was not contributory negligence because it did not contribute to the accident; rather, it only increased the injuries suffered in the accident. In the present case, the "accident" equates to the medical problem complained of: Ms. Smith's infected ankle. Her conduct arguably did contribute to the infection. In Kerby, there would have been a wreck, and a lawsuit, even if the plaintiff had kept the door of his truck closed. Here, there might have been no infection, and thus no claim of medical malpractice, had Ms. Smith followed her doctors' instructions.
The trial court improperly addressed Ms. Smith's conduct through a mitigation of damages instruction. The plain language of Rule 278 bound the trial court to submit Dr. Elbaor's question. Dr. Elbaor pleaded that Ms. Smith committed contributory negligence by refusing to take antibiotics while under his care at ACH, and he put on evidence at trial supporting his assertion that Ms. Smith's refusal to take antibiotics contributed to her injury. Therefore, the trial court in this case failed to follow the directive of Rule 278. Instead, the trial court chose to account for Ms. Smith's negligence by submitting an instruction on mitigation of damages which instructed the jury to exclude from its verdict any damages attributable to Ms. Smith's negligence. This instruction contained no definition of negligence upon which the jury could have based its decision as to whether she was negligent. See Griffin v. Eakin, 656 S.W.2d 187, 190 (Tex.App.—Austin 1983, writ refd n.r.e.) (absence of negligence definition confuses jury burdened with resolving negligence question).
As previously noted, Ms. Smith entered into Mary Carter agreements with Dr. Syrquin,
Dr. Syrquin had performed emergency surgery on Ms. Smith's ankle. Testimony at trial revealed that Dr. Syrquin, who was not an orthopedic specialist, committed malpractice by closing the ankle too soon after debriding it. Eight days after the surgery, Dr. Syrquin recommended transferring Ms. Smith to ACH where she came under the care of, among others, Dr. Elbaor, an orthopedic specialist. At ACH, Dr. Elbaor observed but did not participate in two additional debridements of Ms. Smith's ankle which were performed by Dr. Stephens, a plastic surgeon. Dr. Stephens sought to explore and alleviate any infection in Ms. Smith's ankle. Additional expert medical testimony elicited during the trial demonstrated that, in all probability, Ms. Smith's ankle was beyond restoration by the time she arrived at ACH. Arguably neither the subsequent surgeries performed at ACH nor the care she received there could have remedied the damage caused by Dr. Syrquin's malpractice.
Although the Mary Carter agreements were not entered into evidence, the trial judge was troubled by them and he took remedial measures to mitigate their harmful effects by reapportioning the peremptory challenges, changing the order of proceedings to favor Dr. Elbaor, allowing counsel to explain the agreements to the jury, and instructing the jury regarding the agreements.
During the trial, the settling defendants' attorneys, who sat at the table with Dr. Elbaor's attorneys, vigorously assisted Ms. Smith in pointing the finger of culpability at Dr. Elbaor. This created some odd conflicts of interest and some questionable representations of fact. For example, although Ms. Smith's own experts testified that Dr. Syrquin committed malpractice, her attorney stated during voir dire and in her opening statement that Dr. Syrquin's conduct was "heroic" and that Dr. Elbaor's negligence caused Ms. Smith's damages. And during her closing argument, Ms. Smith's attorney urged the jury to find that Dr. Syrquin had not caused Ms. Smith's damages. This is hardly the kind of statement expected from a plaintiff's lawyer regarding a named defendant. ACH and Drs. Syrquin and Stephens had remained defendants of record, but their attorneys asserted during voir dire that Ms. Smith's damages were "devastating," "astoundingly high," and "astronomical." Furthermore, on cross examination they elicited testimony from Ms. Smith favorable to her and requested recovery for pain and mental anguish. The settling defendants' attorneys also abandoned their pleadings on Ms. Smith's contributory negligence, argued that Ms. Smith should be awarded all of deemed severed from this Agreement, and the remaining part shall remain in full force and effect as if the invalid or unenforceable provision had not been a part of this Agreement."
The term "Mary Carter agreement" has been defined in different ways by various courts and commentators.
A Mary Carter agreement exists, under our definition, when the plaintiff enters into a settlement agreement with one defendant and goes to trial against the remaining defendant(s). The settling defendant, who remains a party, guarantees the plaintiff a minimum payment, which may be offset in whole or in part by an excess judgment recovered at trial. See General Motors Corp. v. Simmons, 558 S.W.2d 855, 858 (Tex.1977), overruled on other grounds by Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 427 (Tex.1984). This creates a tremendous incentive for the settling defendant to ensure that the plaintiff succeeds in obtaining a sizable recovery, and thus motivates the defendant to assist greatly in the plaintiff's presentation of the case (as occurred here). Indeed, Mary Carter agreements generally, but not always, contain a clause requiring the settling
Given this Mary Carter scenario, it is difficult to surmise how these agreements promote settlement. Although the agreements do secure the partial settlement of a lawsuit, they nevertheless nearly always ensure a trial against the non-settling defendant. Bedford School Dist. v. Caron Constr. Co., 116 N.H. 800, 367 A.2d 1051, 1054 (1976) (agreement required plaintiff to prosecute claim against remaining defendant and plaintiff could not settle the claim for under $20,000 without the consent of the settling defendant); hum v. Stinnett, 87 Nev. 402, 488 P.2d 347, 348 (1971) (same). Mary Carter agreements frequently make litigation inevitable, because they grant the settling defendant veto power over any proposed settlement between the plaintiff and any remaining defendant. See Bass v. Phoenix Seadrill/78 Ltd., 749 F.2d 1154, 1156 (5th Cir.1985) (Mary Carter agreement gave settling defendant veto power). Thus, "[o]nly a mechanical jurisprudence could characterize Mary Carter arrangements as promoting compromise and discouraging litigation—they plainly do just the opposite." Stein v. American Residential Mgmt, 781 S.W.2d 385, 389 (Tex.App—Houston [14th Dist.] 1989), writ denied per curiam, 793 S.W.2d 1 (Tex. 1990).
In his concurring opinion in Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 8 (Tex. 1986) (on motion for rehearing), Justice Spears pointed out that "Mary Carter agreements should be prohibited because they are inimical to the adversary system, and they do not promote settlement—their primary justification." The truth of this statement has been recognized by commentators and has been proven by the subsequent history regarding the use of Mary Carter agreements.
The dissent approves of the supervisory guidelines suggested in the Smithwick concurrence, but his opinion misses the point. These guidelines were suggested as a stopgap measure to ameliorate the harmful effects of Mary Carter agreements until this Court finally ruled on the agreements' propriety. Our inaction has created confusion, because the question as to whether Mary Carter agreements are valid has remained open. See, e.g., Stein, 781 S.W.2d at 388 ("Texas Supreme Court has not passed squarely on the question of [Mary Carter agreements'] validity"); Adams v. Petrade Int'l, Inc., 754 S.W.2d 696, 718 (Tex.App.— Houston [1st Dist.] 1988, writ denied) ("the Texas Supreme Court has not held that such settlements are invalid"); Lubbock Mfg. Co. v. Perez, 591 S.W.2d 907, 920 (Tex.Civ.App.—Waco 1979, dism. agr.) (whether Mary Carter agreements are against public policy is "matter for determination by our Supreme Court of Texas").
Many jurisdictions have decided to tolerate the ill effects of Mary Carter agreements, presumably because they believe that the agreements promote settlement. Some have sought to mitigate the agreements' harmful skewing of the trial process by imposing prophylactic protections.
Justice Spears rightly noted in Smithwick the falsity of the premise upon which the prophylactic protection approach is founded, namely, the promotion of equitable settlements. Id. at 8. Mary Carter agreements instead:
June F. Entman, Mary Carter Agreements: An Assessment of Attempted Solutions, 38 U.Fla.L.Rev. 521, 574 (1986); see also General Motors Corp. v. Lahocki, 286 Md. 714, 410 A.2d 1039, 1046 (1980). The agreements pressure the "settling" defendant to alter the character of the suit by contributing discovery material, peremptory challenges, trial tactics, supportive witness examination, and jury influence to the plaintiff's cause. See John E. Benedict, Note, It's A Mistake to Tolerate the Mary Carter Agreement, 87 COLUMBIA L.REV. 368, 372-73 (1987). These procedural advantages distort the case presented before a jury that came "to court expecting to see a contest between the plaintiff and the defendants [and] instead see[s] one of the defendants cooperating with the plaintiff." Smithwick, 724 S.W.2d at 9 (Spears, J., concurring).
Mary Carter agreements not only allow plaintiffs to buy support for their case,
The case before us reveals yet another jury trial and verdict distorted by a Mary Carter agreement. The trial judge, who fully grasped the detrimental effect these agreements could have on the outcome, attempted to monitor the lawsuit by assiduously applying the guidelines suggested in the Smithwick concurrence. The conduct of this trial, however, confirms the apprehension expressed by Justice Spears in Smithwick: that these remedial measures would only mitigate and not eliminate the unjust influences exerted on a trial by
As a matter of public policy, this Court favors settlements, but we do not favor partial settlements that promote rather than discourage further litigation. And we do not favor settlement arrangements that skew the trial process, mislead the jury, promote unethical collusion among nominal adversaries, and create the likelihood that a less culpable defendant will be hit with the full judgment. The bottom line is that our public policy favoring fair trials outweighs our public policy favoring partial settlements.
This case typifies the kind of procedural and substantive damage Mary Carter agreements can inflict upon our adversarial system. Thus, we declare them void as violative of sound public policy.
However, we do recognize the hardships that our decision today will create on our already burdened courts. Thus, we must decide whether our decision voiding Mary Carter agreements will apply prospectively or retrospectively. Although our decisions usually apply retrospectively, exceptions are recognized when considerations of fairness and policy dictate prospective effect only. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 434 (Tex. 1984). In Carrollton Farmers Branch Ind. School Dist. v. Edgewood Ind. School Dist, 826 S.W.2d 489, 518-19 (Tex.1992), we adopted the three factors from the United States Supreme Court's decision in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971) to determine whether to apply a decision prospectively or retroactively. These factors are: (1) whether the decision establishes a new principle of law by either overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) whether prospective or retroactive application of the particular rule will further or retard its operation through an examination of the history, purpose, and effect of the rule; and (3) whether retroactive application of the rule could produce substantial inequitable results. Id.
The first and the third of these factors weigh clearly in favor of a determination of prospective application. This case represents an issue of first impression whose resolution was not clearly foreshadowed. Although commentators have routinely criticized the Mary Carter agreement, only a couple of states have previously held that such agreements are void.
In short, the evidence in the record creates a fact issue of comparative causation. The jury should have been allowed to pass not only on Drs. Elbaor's, Syrquin's, and Stephens' alleged negligence, but also on Ms. Smith's alleged negligence. Under this record, the trial court should have left these fact issues for the jury's resolution within the framework of our well-established comparative negligence law. The failure to submit the issues was calculated to cause, and probably did cause, the rendition of an improper judgment in this case. TEX.R.APP.P. 81. The danger in allowing the trial court's action to stand uncorrected is that this would indicate that patients who refuse to take medication necessary to their recovery are not contributorily negligent even though their unwillingness may have causally contributed to their injuries. Additionally, the judgment in this case was fundamentally driven by Mary Carter agreements. However, because of the existence of a severability clause in some of the agreements but not others and the creation of a financial stake for some defendants in Ms. Smith's lawsuit but not in others, they must be treated separately.
Agreement between Ms. Smith and Arlington Community Hospital: Because of the severability clause, the portion of the agreement between Ms. Smith and ACH creating ACH's financial stake in the outcome of the case and requiring ACH to participate in the trial is severed from the rest of the agreement and held null and void.
Agreement between Ms. Smith and Dr. Syrquin: This agreement did not contain a severability clause but Dr. Syrquin retained a financial state in Ms. Smith's lawsuit and was required to participate in the trial. The portion of the agreement granting Dr. Syrquin a financial stake in Ms. Smith's lawsuit is nonetheless held null and void. So as not to interfere with the parties' right to contract, we leave it to the parties, if they so choose, to develop before the trial court whether this void provision is severable, or whether the entire agreement must fail.
Agreement between Ms. Smith and Dr. Stephens: This agreement did not create a financial stake for Dr. Stephens in
In summary, a settling defendant may not participate in a trial in which he or she retains a financial interest in plaintiff's lawsuit. Since Dr. Stephens does not have a financial interest in Ms. Smith's lawsuit, there is no impediment for him to participate fully in the re-trial of this case as any other party. ACH possesses a financial interest in Ms. Smith's lawsuit, but it can also participate in the re-trial of the case because we have severed the portion of the agreement creating ACH's financial stake in the outcome of the case from the remainder of the settlement. Likewise, Dr. Syrquin does have a financial interest in Ms. Smith's lawsuit and was required to participate in the trial. We have held the portion of the agreement granting Dr. Syrquin a financial interest in Ms. Smith's cause of action against Dr. Elbaor null and void. However, his future participation in the retrial of this case has yet to be determined. After a hearing, if the trial court invalidates the entire agreement for lack of consideration or for some other reason, Ms. Smith is obligated to return the settlement funds to Dr. Syrquin and he is free to participate in the re-trial of this cause as any other party. Accordingly, we reverse the judgment of the court of appeals and remand this cause to the trial court for further proceedings consistent with this opinion.
DOGGETT, J., dissents and files opinion joined by MAUZY and GAMMAGE, JJ.
DOGGETT, Justice, dissenting.
Today a medical doctor is prohibited from participating in the trial of a lawsuit in which he is a defendant. This extraordinary and unprecedented maneuver is rooted in the majority's growing distrust of our jury system—its unfounded belief that twelve ordinary citizens are incapable of assessing facts after full disclosure of all the surrounding circumstances. Plunging helter-skelter into uncharted territory to save another medical doctor that a jury found to have committed malpractice, the majority writes without regard to the chaotic effect of its ruling on both the retrial of this action and other complex litigation pending across Texas. Because today's decision only serves to inject uncertainty and unfairness into trials, I dissent.
At the outset let it be clear that I am opposed to litigation agreements in any form that "skew the trial process, mislead the jury" or endanger the public. At 250. A lawsuit is more than a battle of private contestants; it is conducted in a taxpayerfunded forum with the involvement of public employees and invested with a public interest. Careful scrutiny is appropriate for agreements with a potential to distort the search for truth that lies at the heart of the litigation process, and public policy will sometimes require their disapproval. See, e.g., Tom L. Scott, Inc. v. Mcllhany, 798 S.W.2d 556, 560 (Tex.1990) (orig. proceeding) (invalidating a private agreement permitting one party from purchasing control of an opponent's expert witnesses).
Although Carole Smith non-suited Dr. Stephens and Dr. Syrquin, they remained as parties because Dr. Elbaor chose to maintain cross-actions against them. The majority remands for perhaps the first trial in Anglo—American jurisprudence in which a named party is denied a right to participate.
Originating in Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla.Dist.Ct.App. 1967), overruled by Ward v. Ochoa, 284 So.2d 385, 388 (Fla.1973), the term "Mary Carter agreement" has been loosely applied to agreements by which a defendant, after settling with the plaintiff, nonetheless participates at trial and obtains an interest in the plaintiff's recovery. See Robin Renee Green, Comment, Mary Carter Agreements: The Unsolved Evidentiary Problems in Texas, 40 Baylor L.Rev. 449, 451 (1988). Such arrangements appear in myriad forms, with courts disagreeing over which might violate public policy.
The chief problem associated with a Mary Carter agreement is that a hidden alteration of the relationship of some of the parties will give the jury a misleading and incomplete basis for evaluating the evidence. As is true in so many areas of jurisprudence, secrecy is the first enemy of justice. To address this concern, trial judges have appropriately implemented several procedural safeguards that remove the veil of secrecy from such settlements. Accordingly, we have emphasized the importance of complete disclosure of these arrangements. General Motors Corp. v. Simmons, 558 S.W.2d 855, 858-59 (Tex. 1977), overruled on other grounds by Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 427 (Tex.1984). A concurrence to Smithwick suggested a number of specific protections regarding such agreements: discovery of them by the non-settling parties; their pretrial disclosure to the court; thorough explanation of the nature of their terms to the jury at the beginning of the trial; and restriction of a settling defendant's leading questions of the plaintiff's witnesses. 724 S.W.2d at 9-11 (Spears and Gonzalez, JJ., concurring).
In the instant case the trial court took great care to safeguard procedurally the adversarial nature and fairness of its proceedings. Nothing about the agreements now under attack was hidden from anyone.
To offset any disadvantage to Elbaor resulting from the agreements, the trial court gave him the same number of peremptory challenges as those of Smith and the three settling defendants together. Recognizing that these settling parties effectively were no longer aligned against one another, the trial court denied them the customary right of an opponent to lead each other's witnesses. Finally, the order of presentation was changed to guarantee that Elbaor always had the final opportunity to present evidence and examine witnesses. While Elbaor specifically complains of a lack of forcefulness in Smith's assertion of her claim against Syrquin, her counsel criticized Syrquin beginning in voir dire, though crediting his efforts to save Smith's life. Since in some multi-party suits co-defendants become aligned against one another, Elbaor might have found Syrquin and Stephens blaming him for Smith's injury even in the absence of the Mary Carter agreements.
The imprecise form of today's condemnation of Mary Carter agreements for "mak[ing] litigation inevitable," At 248, ensures that litigation will indeed be inevitable.
Furthermore, the majority seeks to expand the scope of its writing with an offhand notation attempting to restrict an attorney's ethical ability to present the testimony of a settling defendant. Id. at 247 n. 14. Application of Disciplinary Rule 3.04(b) when such testimony constitutes vital proof is, however, highly questionable. Settling
A further basis for the majority's rejection of this jury verdict is the supposed trial court error in not submitting a contributory negligence question based on the purported evidence that Smith's failure to take her antibiotics "preceded the onset of infection in the ankle." At 243. Yet Dr. Elbaor himself refutes any causal connection between this conduct and the injury which he admits "is attributable to the infection which developed in the ankle while Ms. Smith was under the care of Dr. Syrquin." App. for Writ of Error at 4 (emphasis added). Smith first declined antibiotics on the very day that Dr. Elbaor assumed responsibility for her care.
Nor is there any evidence that the infection would have healed if Smith had faithfully taken her antibiotics and stopped smoking. Smith contends that her bone loss was caused by Elbaor's failure to perform necessary surgical procedures including debridement of the infected bone. Elbaor's own testimony established that antibiotics alone, without surgery, could not have cured the infection, but perhaps "could" have made the infection harder to treat. Moreover, both he and other medical experts testified that antibiotics would have had difficulty reaching the infection in the bone because the blood supply to that area had been substantially restricted. Conceivably Smith's conduct affected the spread of infection, but this evidence would only support a jury instruction regarding her failure to mitigate damages rather than a submission of contributory negligence. See Kerby v. Abilene Christian College, 503 S.W.2d 526, 528 (Tex.1973). This is precisely the course that the trial court adopted. While Smith may arguably have aggravated the injury, there is no evidence that she caused all of the damages. While some of Smith's alleged conduct may have occurred during the same nineteen days she lay at the hospital without Elbaor attempting surgery, she certainly did not prevent or interfere with his undertaking appropriate treatment.
Texas has today become the first state in the nation to lock the courthouse door on a party solely because of a pretrial contract involving a partial settlement which the majority dislikes. The elitist view that ordinary people acting as jurors are incapable of determining the facts after full disclosure has once again prevailed. While protecting the litigation process from deleterious agreements, this court should avoid precipitous action with uncertain consequences for so many litigants, particularly when, as here, the parties have exercised considerable care and the trial court has conscientiously monitored the proceedings.
MAUZY and GAMMAGE, JJ., join in this dissenting opinion.
Counsel for Elbaor on voir dire also addressed this issue:
Elbaor's attorney again stressed this reason for bias in his closing argument.