NO. 07-00-0414 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D DECEM BER 20, 2001

______________________________ LINDA WILLIAMS A ND JOHN W . W ILLIAMS , INDIVID UALLY AND AS REP RESENTATIVES OF THE ES TATE OF JOHN W ESLEY WILLIAMS, JR., DECEASED, AP PELLANTS V. BALUSW AMY VISW ANATHAN, M.D., APPELL EE

_________________________________ FROM THE 72 nd DISTRICT COURT OF LUBBOCK COUNTY; NO. 97-560,756; HON ORABLE J. BLAI R CHER RY, JR., JUDGE

_______________________________ Before BOYD, C.J., and QUINN and REAVIS, JJ.
In fiv e iss ues , ap pella ntsLind a an d Jo hn W. Willia ms, indivi dually and as representatives of the estate of John W esley W illi ams , challenge a judgm ent against them in th ei r s ui t f or med i ca l ma lpract ice agai nst appell ee Ballu swam y Viswanathan, M.D. Appellants were the p arents of John Wesley W illi ams (John) , a 14 -year-old special2

education student, w ho suffered near drow ning in a swim ming pool on May 22, 1995, and
wastreated by appel lee at Methodi st Hospital in Lubbock. Jo hn di ed approxim ately 24 hours after being taken to the h ospital.
Initi ally, appellants challenge this court’s overruling of their motion fo r disqualificati on and recusal of one of the j ustices of this court. T hey also contend that
rev ers ible error exists becaus e (1) the trial court subm itted two unsu pported and
cum ulative j ury instru ctions, (2) the j ury’s failure to find that appellee’s negligence wasa proxim ate cause of John’s death was

against the greatweight and preponderance of the evidence, (3) the trial court abused its discretion in overr uling their motion for new trial based on adm itted juror miscon duct, and (4) a new trial is required to investigate the discovery of

a new dea th certificate. Disagreeing that reversal is required, we affirmthe judgm ent of the trial court.
In the ir first issue, appellants except tothis court’s overruling of their m otion for the disqualificati on and recusal of Justice Quinn. Although they presented several bases for disqualificati on or recusal in their motion, in this appeal they apparently only attem pt to reassert one basis, i.e. , that

Ju st i ce Qu i nn ha s a fi na nc i al i nt er es t i n t he ou tc ome of this case because he offices at Texas Tech University and serves a s an Adj unct Professor t here, and appellants have another lawsuit pending against that uni ver sity. In our opinion overruling appellants’ mot ion, we found that Texas Tech U niversity was not a pa rty to t his law suit and therefore the issue w as not relevant

here. In the opinion, we also noted t hat3

the type of

interest required for disqualificati on m ust be of a pecuniary nature s o that the judge would gain or lose by the j udgme nt rendered in the case. That inte res t m ust

not only be capable of valuation, it must b e dir ect, real, certain, and in the subj ect m atter of the
case in question. W e did not believe that Justice Quinn had a sufficient pecuniar y interest to warrant his disqualification. Willi ams v. Vi

swanathan , No. 0 7-00-041 4-C V, 2001 WL 23151, a t 4 (Tex .App. --Am arillo January 8, 2001)

. However, appellants assert that free office space is not valueless because, otherwise, Justice Qui nn would have to pay rent fromhis own resources for office space, receive thesam e be nefitfrom other private sources, or forego his convenience of having
a second office in Lubbock. Therefore, they argue, it is in Justice Quinn’s financial interest to protect the fi nancial stabil ity of Texas Tech Uni versity so he m ay continue to receive the benefit of

a free office. Appellants further posit that we erred in not m aking our review by determ ining whether a reasonable m ember of thepub lic a t lar

ge, know ing a ll the facts, could reasonably question the j udge’s im partiality. Once again, we p oint outthat TexasTech University is not a party to this law suit. We fail to see how a j udgme nt for or against appellee, who is a phys ician prac ticing at Methodist Hospital , would affect the financi al stabi lity of T exas Tech Universi ty. Ev en if appellants have a lawsuit pend ing agai nst Texas Tech U niversity with respect tothe death of their son, those issues are not b efore us, and appellants specifically sought to exc lude anyevidence at trial as to negligent acts on the part of any persons or ent ities prior to the4

ti me that John arrived at the hosp ital for treatment. Therefore, even assum ing arguendo thatthere is a pec unia ry in ter est cap able of valuati on, that inte rest is not a di rect inter est in the subj ect m atter

of the case in question, and we donot believe that a m ember of the pub licwould reasonably question Just ice Quinn’s impartiality. Appellan ts’ firs t is sueis overruled.
In the ir second issue, appellants com plain of the submission of tw o instructions to the jur y whi ch th ey con te nd we re neither ra ised by the pleadings nor supported by the evidence and together constitute cu mulative instructions. In doin g so , th ey p osit that an instruction pursuant to article 4590i of the Medical Liabi lity an d Insurance Improvement Act was improper. The chall enged instr uction i s as follo ws:
A finding of negligence may not be b ase d so lely on e vide nceof abad res ult to t he p atie nt in question, but such a bad result may be considered by you, along w ith o the r ev iden ce, in de ter m ining theiss ue o f ne glige nce . You s hall be the sole judges

of the weight, if any, to be given to such ev idence. In a jury trial involvi ng a health care liabil ity claim, the court m ayprovide the referenced instruction if it determines the instruction is reasonably applicable to the facts. Tex. Rev. Civ. Stat. Ann . art. 4590i § 7.02(c) (Vernon Supp. 2001). That determination is to be m ade bythe trial co urtin its sole discretion, and we review that determ ination under an abuse of discretion standard. Id. Appellants rely on Irick v. Andrew

, 545 S.W.2d 557 (Tex.Civ.App.--Hous ton [14 th Dist.] 1976, writ ref’d n.r.e.), overruled on o t her grounds by Haddock v. Arnspi

ger, 7935

S.W.2d 948 (Tex. 1990), for the proposition that whe re there is evidence that the physician
com mitted som e acts of negligence, an instruction regarding a bad result is improper. In Irick , the instructi on given was as foll ows: “You a re instructed that an unex pected result, bad result, failure to cure, or any other ci rcumstance showing merely a lack of s uccess , is notevidence of negligence on the part of the defenda nt physician; negligence cannot be inferred s olely froma failure tocure or unex pected result.” Id. at 558-59. In finding that the subm ission of

th e i ns tr uc ti on was er ro r, th e a pp el l at e c ou rt no te d t ha t t he re was so me evidence that the doctor there h ad adm inistered an improper dosage of radiation. Because the jury was entitled to consi der the radi ation bur n along with the o ther evide nce in determ ining the question of the doctor’s negligence, and the instruction did not tell them that, the appellate court held that it was “an improper statem entof the law asapplied to thiscase. ” Id. at 559. How ever, here, contrar

y to I rick , t he in str uct ion s pec ific ally informed the jury

they could consider a bad result along with other evidence in determ ining negligence. That being so, the obj ectionable portion of the instruction in Irick has been cured in the instruction given here. Appellants also contend there w as no evidence to support the instructi on because itwas und isputed thatappellee comm itted negligent acts. W e disagre e. W hile appell ants’ exp erttestified to a num ber of ac ts of ne gligence assertedly comm itted by appellee i nclu din g, am ong others, treating the patient w ith Dopam ine, decreasing the dosage of La si x, failing to lower his positive end exp iratory pre ssure (PEEP ), difficulty in placing l ines in the patient causing pneum othoraxes, and puncturing the patient with a trocar, ap pellee6

called two ex pert witnesses who test ified he was not negligent in hi s tre atm ent. Ad ditio nally , alt hou gh a ppe llee a ckn ow ledg ed t hat Joh n’scon ditio n wors ene d un der his care, he denied thathe was negligent in his treatment. Thus, t here was ev idence to support the sub mission of the instruction. Furthermore, appellee specificall y pled that John’s death was

not caused by his negligence. Under t his record, the trial court did not abuse its di scretion i n submitting the i nstruction to the jury. Appella nts also objecte d to the instruction on unavoidable accident. Once again, they a rgue the instruction was not supported by the pleadings and the evidence. Th e inst ructi on rea d: “An occ urrenc e m ay b e an ‘un avo idab le accident,’ that is, an even t not prox imately caus ed by t he negligence of any party to it.”
The purpose of an unavoidable accident instruction is to inform the jury tha t, al though conduct m ay have been negligent, it m ust produce the outco me of w hich th e partycom plains. Crawfo rd v. Hope , 89 8 S .W.2d 9 37, 941 (Te x. Ap p.- -Am arillo199 5, w rit denied). Further, the instruction has been historically used in medical m alpractice cases if there is s o me evidence first presented that the event was caused by som e condition other than the negligence of the parties. Hill v. Winn Dix

ie Tex as, Inc., 849 S.W.2d 802, 803 (Tex . 1992); Crawfo rd , 898 S.W.2d at 941; Wisenbarger v. Gon z alez Warm Springs Rehabil itati on Hosp., Inc., 789 S. W .2d 688, 692 (Tex .App. --C orpus Chr isti 199 0, w rit denied).7

Appellee specifically pled that John’s death was not caused by the negligence of anyparty to the case, but that “[i]t was an accident.” At a pretrial hearing, the court ruled that it would not perm it evidence of unavoidable accident prior to the presentation of the decedent

to me dical personnel. However, there was ex pert testim ony at trial thatJohn had
a “c at as tr op hi c l un g i nj ur y” at th e t i me he arrived at the hospital and that his chances of living were about five percent. Further, there w as testimon y that the cause of death was due to the severity of his lung injury and the inability to overcome the d amageplaced on his entire bod y by th at inj ury. A dditionally, app ellee’s m edical ex pert s w ent thro ugh various alleged acts of negligence and testified the acts were not negligent and were not the proximate cause of

Jo hn ’s de at h. Al th ou gh ap pe l l an ts ’ e xp er t d i sa gr ee d wi th so me of these statem ents, this is still some evidence that the death was caused by a condition or other physical circumstances than the negligence of the parties.
Even so, appellants contend that, ev en if the pleadings and proof support the
su bmi ssion of t he u nav oida ble in str uct ion, theinst ruc tion w as im pro per

becaus e it im per m iss ibly

con fus ed t he j ury

by im pro per lycom ment ing on the weight of t he evidence. They argue that such an instruct ion should only be used i n situat ions “involving instantaneous events or occurre nces arisi ng as a result of conditi ons or ci rcu ms tances which exist at

a particu lar point in tim e.” See Wisenbe rger, 789 S.W.2d at 694. H owe ver,
w e note that in Crawford, the cou rt declined to find such an instruction was im proper m ere lybecause it m ay have constituted som e com ment on the evidence. Rather, the court opined, although th e submission of an i nstruction implicit ly tell s th e ju ry th at so me8

evidence exists to s upport the proposition, if it does not inform the j ur y that one party’s evidence is more c redible than the other party’s evidence, it m ay be subm itted. Crawfo rd , 898 S.W.2d at 941-42.
The Wisenbarger

court found such an instruct ion to be u nneces sary toaid the j ury because the expert witness test imony from both parties was

thatthe stan dard of care provided was

equal to o r above the sta ndard of care provided in the com m unity. H owe ver, the court also i ntimated, without so finding, that if the evidence had not been so one-sided, the unavoidable instruction could have confused or m isled the j u ry. Wisenbarger , 789 S.W.2d at 694. The teaching of this discussion see ms to be that if the evidence on negli gence is conflicting, such an instruction m ay be necessary to aid the jury, even though itmight pos sibly confuse or m islead them. In such instances, the s ubmission of s uch instructions are left to the discretion of the trial court. Furthermore, to constitute an im proper com ment

on the weight of the evidence, the instruction mu st suggest to th e jury th e trial court’s opinion on the mat ter. Whiteside v. Watson , 12 S.W .3d 614, 624 (T ex.App.--East land 2000, pet. denied); Harris v . General Motors Corp., 924 S.W.2 d 1 87, 188 (Tex.A pp.--San Antonio1996, w rit denied); City of Amarillov. Langley, 651 S.W.2d 906, 915 (Tex.App.--A marillo 1983, no w rit). I n t his instance, the instruction did not direct the jury that one party’s ev idence on negligence was
m ore credible than the other party’s evidence. Thus, the trial court’s action in submitting the issue wasnot arbitrary or unreasonable, i.e. , not an abuse of its discretion.9

Final ly, app ellan ts cont end tha t ev en if the subm ission of the instructions on “bad result” and “un avo idab le accident” were each i ndivi duall y proper, the cumulati ve effect of the subm ission of both instructions, which rely on thesa me evidentiary support, resulted in an imperm issible comm ent on the weight of the evidence. Appellants cite no authority with respect to that contention, nor hav e we found any such authority in a m edical malpractice case . However, the instruction on “bad result” is directed to the issue of the existence of n eglig enc e, w hile the instruction on “unavoidable accident” is directed to the issue of proxim ate cause. Thus, although s ome of the evidence supporting th e tw o instructions is overlapping, the exac t sam e evidence does not necessaril y support each instruction. First, there was a dispute amo ng the m edical experts as towhether appellee was
n eg ligent at all. Ad ditionally, eve n in instances in w hich appellants’ m edical ex pert believed there wasnegligence, he also agreed that som e of those instances, s uch as the difficulty in inserting IV lines and the dosage of Lasix did not re sult in Joh n’s de ath. The re wasalsono test im ony

tha t ap pelle e’salleg ed n eglig enc e in f ailing to g ive a ppr

opr iatepain
m edic ation resulted in John’s death. Inas muc h as we have determ ined thatth e subm ission of e ach iss ue in divid ually w as p rop er, and app ellan ts c ite n o au tho rity for the ir p rop osit ion th at th e su bmi ssi on of bo th is su es ha d a cumu la ti ve er ro ne ou s ef fe ct , we decline to find an y abuseof discre tion on th e part of the trial co urt . Ap pellants’ second issue is overruled.10

In their third issue, appellants contend the evidenc e is factu ally insufficient to support the jury’s

verdict. The jury

failed to find that appellee’s acts were the proxim ate
cause of John’s dea th. In our rev iew , we m ust

exam ine t he e ntir

e re cor d todet erm ine if anyevidence supports the j ury’s finding and then determ ine if, in li ght of all the evidence, the finding is manifestly unj ust. Traylor v. Gouldi ng , 497 S .W.2d 944, 945 (Te x. 1 973). Appellants argue that the evidence w as “undisputed that the acts and om issions of Appellee would not have bee n proper under the sam e or similar circum stances in th e hands of a reasonably prudent phy sician.” W e disagree. The issues of w hether appell ee’s acts or om issions were negligent and whether th ey proxim ately caused John’s death were strongly conteste d at trial . Because of the na tu re of ap pe ll an ts ’ co mpl ai nt , we
w ill se t fo rth tha t te stim ony in s om e de tail.
Dr. Charles Landers, w ho i s board certified in inte rnal m edicine, pulm onary medicine and critical care, tes tifie d on beh alf of appellants, and averred that appellee was negligent in hi s tr

eat m ent of J ohn , w hich cau sed his death. This was the case, the doc

tor reasoned, becaus e John cam e in w ith one pro blem and w hen the care bein g pr ovid ed h im
wasnot effective, in the face o f that failure, app ellee failed to m odify his s trategies . Dr. Landersdid n ot b eliev e th e lun g inj ury its elf was a proxim ate cause of death. John arrived in the em ergency room awake, alert, and conscious w ith unlabored breathing. Fur the r, h is vital signs were acceptable. Dr. Landers also discussed a s tudy in which 121 near11

drowning patients were awake, aler t, and orie nted when they presented to h ospital s, and all of those patients survived.
He rev iewed J ohn ’s x -ra y ta ken in the emergencyroom and opined that, although John’s lungs had bee n inj ure d, it did n ot m ean he w

as g oing to d ie. When an x -ra y is abn orm al, theox

yge n is low

and thelung s ar

e st iff, indicatin g ad ult

respirato ry distress synd ro me (ARDS). A patient w ith ARDS needs supportive care. The doctor did no t beli eve that either the vom iting of material from John’s stomach or the fact that, when John
wastaken o ff oxygen h is oxyge n satur atio n fel l to 7 7%, me ant that John w as going to die. Dr. Lan der

s als o op ined tha t th e fa ct t he m edic al reco rds show appellee came to th e emergencyroom 15 m inutes before he actually saw John indicate appellee was negligent. Moreo ver, a 35-m inute delay before intubation would, in his opinion, constitute negli gence for a de ter iora ting pat ie nt. Further, because the m edical records show that appellee attem pted intubation twic e beforebeing successful, appellee was negligent be cause t here sho uld h avebee n nodiff icult y in intu bat ing h im . Addit iona lly, itwas below the standard of car e t o g iv e a to o l ow a do se of La si x. John’s ox

ygen saturations rem ained at the level desired by app ell ee mostof the tim e, which w as an appropriate level. Howeve r, they decreased w hen appellee punctured both lungs trying to insert lines.
The m edical records also indicate there were m ultiple attempts to insert IV lines in multiple l ocations, which Dr. Land ers believed was below the standard of care, because insertion of those li nes is a rou tinem oto r sk ill. The fact that another doctor was able to12

place a cent ral li ne o n th e fir st a tte m pt in dica ted tha t so m eon e w ith r eas ona ble s kills sho uld have been abl e to do so fairl y easily. He further criticized appellee for sticking both si des of th e ch es t wi th ne ed le s un su cce ssf ul ly wit ho ut ta ki ng a ch es t x- ra y i n b et we e n those actions because of the need to m ake sur

e a lung ha d not collapsed. D r. Lande rs believed that appellee punctured the left lung first and then the right lung, which was below the standard of care. H e also opined that when ap pellee attempted to insert a chest tube with a trocar to re-ex pand the lung, it caused further injury to t he lung, resulting in bleedi ng outthrough the tube. That ac tion was also below the standard o f care. Further , x-rays indicated that John had a pneum omediastinumand, in spite of the chest tube, t he pneum othorax

persisted. Dr. Landers believed that t he chest tubes w

ere too sm all. In spite of all of these incidents, John was m aintaining adequate oxygen saturation. However, Dr. Landers criticized appellee for not gi ving pain m edic atio n toJoh n ea rly enough, and when he finally prescribed Morphine, for giving too low of a dose, causing John to suffer an ex

treme amoun t of pain.
PEEP greater than 1 5 can cause pressure on the he art and lun gs and decrease
venous return, which in turn decreases cardiac output and res ults in less oxygen to the tissues and acidosis. Dr. Landers believed that is w hat happened to John. He agreed with the death certificate that the im mediate cause of death was cardiac ar rest. The excessive PEEP cau sed Joh n’sbloo d pr ess ure to b e lo w. Card iac output should have been
meas ured by insertion of a Swan-Ganz catheter to get repeated m easurem ents. The risk of insertion w

ould have been sm all and, in Dr. Landers ’s opinion, it wa s below the standard13

of care not to do so an d wasa prox im ate cause of death. Appellee chose to give John fluid and Dopam ine, neithe r of which kept his blood pressure up and, without t he monitoring provided b y the catheter , he could not ha ve know n wh ether J ohn need ed m ore flu id or not. However, the records i ndicate John did not need fluid . Dr. Landers is no t
awa re of any patient ever dying froma breathing problem whohad oxyge n levels and PO2 leve ls such as John. B y the t im e Jo hn w as c loseto d eat h, h e st ill had ox yge n lev els sufficient to sustain life. If appe llee ha d treated John ap propri ately, i t was the doctor’s opin ion t hat

he w ould hav e be en s upp ort ed t hro ugh his acu te in j ury and his lung s w

ould have recovered.
On cross-exa mination, Dr. Landers adm itted he did not know how ma ny of the 121 patients from the study he cited had A RDS. H e also agreed thatJohn’s initial x-ray was dramat ically abnormal. He believed that John w as in “d ire s tra its” and in full respirato ry failure by the time he was intubated. He adm itted he occasionally had trouble placing IV lines and that the IV ’s did not cause John maj or problems. He fu rtheradm itte d in h is depositi on that he did not beli eve the Lasix given toJohn caused him any harm . One of the things that can cause apneum othorax is barotraum a, which can b e caused by mechanical venti lati on. He adm itted that it was pos sible that John’s pneum othorax w as caused by barotraum a. There wasalso no notation in the autopsy report of any injury to J ohn’s lungs ca used by a trocar. D r. Landers agreed that giving a narcotic can lower blood pre ssu re, and he a ddit iona llyagreed that it is the treating physician’s responsibility to determ ine the parameters for giving pain medicine.14

In contrast, Dr. Thomas Petty, a special ist in i nternal and pulmonary medici ne , testified on behalf of appellee. He stated that t he notes of the em ergency m ed i cal personnel showed that the decedent’s heart had stopped and he later started coughing up bloody sputum . That sym ptom indicated a very severe lung injury, and J ohn’s ox ygen saturations indicated t he sam e thing. The x-ray taken after John arrived at the hosp ital
wascharacteristic of ARDS . It was the x-ray of a “ca tastro phic lung injury. ” At that point, John’s predictable outcomewas less t han a 5% chanceof su rvival . John was also suffering from pulmonary ede ma. Dr. Petty f

urther testified that when the lungs are severely injured, a hugeam ount of inflamm atory processes are delivered throughout the body and they

affect every organ of the body. He believed that appellee raised the decedent’s PEE P to an app ropriat e leve l in order

to m aint ain a s m uch ox yge n tr ans fer acr ossthelung s as

pos sible . H e did notagree that hi gh PEEP caused decreased cardiac output leading to cardiac arrest. He felt t he h ear

t pr oble m s were cau sed by AR DS . H e als o did not belie ve t hat

acid osis caused death. He averr ed that the deceden t died “as a con sequence of drowning, near drowning, which s et forth a chain of events that led to the development of the acute respirator

ydistress synd rome b ecause of an overw helming lung injury, and he died not because of his medical management, but he died beca use of t he s eve rity of h is lung inj ury and the inability to overcome the d amagethathad been placed on John’s – not only Joh n’s lungs but

John’ s w hole body. ”15

On cross-exa mination, Dr. P etty adm itted that John w as awake, alert, oriented, and breathing on his ow n with the as sistanc e of ox ygen w hen he a rrived in theem erg en cy ro om. He also adm itted that John suffered a pn eumot horax after appe llee attempted to place a s ubc lavia n lineand had his inte rco sta l art ery hit dur ing t he in se rtion of a che st tube with a trocar. He further agreed that w hen the PEE P is greater than 1 5, in so me circumstances the re could be pres sure plac ed on th e heart which decr eases venous re turn and c ard iac output. If th e tissues do not g et enough oxygen, they become acidoti c, leading to cardiac arrest, w hich was the f inal cause of

death. Additionally, Dr. Petty admitted that a reasonable physician could have concluded that J ohn had low cardi ac outputdue to to o hig h a PE EP. Ho w eve r, h e dis agr eed w ith t hat

con clus ion in this instance. Dr. Pet

ty den ied that insertion of a Swan -Ganz catheter to m easure cardiac outputwas t he appropriate s tandard of ca re. He also deni ed that there coul d not have been a medical reason to in crease the PEEP.
On redirect, Dr. Petty testified t hat he believed the heart was suppressed by t he products of

inflamm ation . Appellee was at tem pting to dry the heart by giving fluid to improve the circu lating b lood volume and giving Dopam ine to dry the heart, w hich was appropriate. The PEE P was necessary to keep him alive. The pneum othorax w as caused by the underlying lung injury and, because of the necessary press ure to keep him alive, the weak supports in his lungs blew out.16

Dr. Brett Giroir, a ped iatric intens ive care specialist, also testified for appellee. He stated that by the tim e that appellee saw John, he “was really in dire ci rcum stances.” The
amoun tof oxygen in hi s bo dy w as very low and he h ad s eve re p ulm onary edem a. He believed John wa s m oment s from deat h when appellee saw him. A t that tim e, John already had ARDS . He opined that appellee clearly operated within the sta ndard of care of a pediatric intensivist.
In respons e to an a llegation that m ore than on e attem pt was nece ssary to intubate John, Dr. Giroir testified that the records show thatwhen appellee first attem pted toinsert the tube, t here w

ere fluid s which had tobe suctioned out of the airw ay prior to the tube being pl ac ed . He al so sta te d t ha t, in hi s op in io n, La si x pr ob ab ly wa s not goin g tohelp John, but m any physicians do give Lasix becausethere is a slight chance it m ay help and pro bab lywill not hur t the patien t. In response to complai nts that ap pellee had difficulty placing som e IV lines , Dr. Giroir said that many tim es a lin e cannot be in serted on the fi rst try. Furtherm ore, in em ergency situations , thereis no time to work on oneparticular vein,
so attem pts arema de with m ultip le st ick s. He f urt her ave rre d th at cent ral lin es a re d iffic ult to insert and, while m any times they can be inserted on the first try, m any times it takes
m ultip le tries. Additionally, John was too s ick to be placed in the best p osition for insertion, which w

as with the feet

above the head. It

is within the appropriate standard of
care not to give the p atient M orphine, w hich can lower blood pres sure , as lon g as a sedative such as A

tivan is given, which was prescribed by appellee.17

Dr. Giroir opined that it was appropriate for appe llee to perfo rm a bil ate ral n eed le thoracostom y at the tim e he did. It was also m andated that he insert chest tu bes, which he did. The chest tubes w ere properly placed accordi ng to the chest x -ray. If the lung had been injured by use of a tr ocar, it sh ould have been noted on the autopsy report, which it w as not. Dr. Giroi r further fel t that appel lee used an ap propri ate size of chest tube. John had a pneumomediastinum, which means there is air tracki ng through the injured lungs into th e med ia st in um whi ch can evo lv e i nt o a pn eu moth or ax. Other causes of a pneum othorax can be the placem ent of a central line or the existence of ARDS with
a very injured lun g co nta in ing inflamm ation. He could not tell which of thesewas t he
cause of John’s pneum othorax. The f act that, afte r the plac ement of chest tubes, John continued to have a pneum othorax does no t indicate a n unsat isfactor y stan dard of care, because it is not uncom mon not to be able to drain all of the air.
It was appropriate for appellee to give fluid for John’s low blood pressure t o augment the circula tion and to gi ve Dopam ine to help the heart contract better. Further, he opined, it was appropriate to raise John ’s PEEP t o 18 in order to raise it to a point where the lungs s tart to open so the am ount of oxygen in the blood increases. Appellee started w ith alow

PE EP , w hich m ust

be d ialed up u ntil the desired response is achieved. Atlower le vels , Jo hn d id no t re spo nd w ell. It is not the standard of care to place a SwanGanz catheter

in pe diat ric p atie ntsbecaus e it is hi gh r isk and ithas never been show n that placing the catheter im proves the outco me. Howe ver, it is an option depending on the circumstances. He did not be lieve that the level of PEEPdecreased the cardiac output,18

causing acid osisand car diac arr est . Th e P EE P s hou ld hav e he lped thecar diac out put in thisinstanc e by

cau sing thebloo d ve sse ls in the lungs to relax. John died becaus e of the bad inflamm ation or poisons from his body circulating in the system

. On cross-exa mination, Dr. Giro ir state d th at area son ably pru den t ph ysi cian w ould nothave concluded that high PE EP led to cardiac arrest. Ho w eve r, h e ad m itte d hew ould have treated John differently by inserting a pulm onary artery catheter, although it is not the standa rd of care around the country. No pat ient in which he has inserted such a catheter has died. He di d not agree that th e first priority upon appellee entering the hospital was to necessarily see John. Ap pellee may have w anted to review t he x-ray and ta lk to th e emergencyroom physician who treated Jo hn pr i or to se ei ng hi m. He adm itted John’s low blood pr essure could have been caus ed by decreased cardiac output . One wayt o increase veno us return i s to decrease high levels of PE EP; how ever, in other circumstances, by increasing volum e.
On redirect, he stated that although Joh n’ s oxygen saturations were normal, that fact does not m ean the l ungs ar e workin g well . He bel ieve d the hi gh PEEP should have helped increase the cardiac output in this instance, because an ech ocardiogram did not show thehea rt w

as s que eze d, t he o xygen w ent up in the blood, and the lung mechanics
wereimproved. The fir streal signs of acidosisdid not occur unt il about ten m inutes be fore John went into cardiac arrest. He opined that it is not uncom mon to nick an intercostal vessel whe n a ches t tube isinsert ed, so theblee ding ex per ienc ed b y J ohn pro bab ly19

resulted from that. If a pulmonary a rte ry h ad b een hit, Joh n would hav e die d w ithin
mom ents. Thus, the evidence show s that contrary to a ppellants’ assertions of u ndisputed testimony , the evidence was conflicting as to wheth er appellee acted negligently and as to w het her

tho se a ctio ns, if a ny, res ulte d in John’s death. Given the confl ictin g testimony, itwas within the prov ince of t he j uryto resolve tho se confli cts. The decision of the jury was notagainst the great weight and preponderance of the evide nce , an d we ov err ule appellants’ third issue.
In their fourth issue, appellants contend the tr ial court abused its discretion by overruling their motion for new trial because of adm itted juror m isconduct. The final judgm entwas s igned on Jun e 9, 200 0. Ap pella nts ’ m otio n fo r ne w tria l w as f

iled o n Ju ly 10, 2000, which w

as within the required 30-day period. See Tex. R. C iv. P. 329b(a). In thatmo tion, appellants did not raise the issue of juror m isconduct. How ever, one of the bas is of the m otion was that the verdict was against the gr eat weight and prep onderance of the evidence. On August 17, 2000, appe llants filed a supplemental mo tion for new trial on the basis of juror m isconduct. Although appellee asserts that the supplem ental motion w as nottimely filed, appellants argue that the issue of juror misconductwas directly related to the issue of lack of evidence in the record to support the verdict.20

Am ended m otions for new trial m ust be filed before any preceding m otion for new trial has been overruled and within 30 days after the judgm entis signe d. Tex. R. Civ. P. 329b(b). Any m otion or amendm ent filed after expiration of 30 days is untim ely and cannot be considered by the trial court or appellate court. Bell v. S howa Denko K

.K., 899 S.W.2d 749, 757 (Tex .App. --Am arillo 1995, w rit denied). To the extent that a suppleme ntal motion may be d ifferent from an am ended m otion for new trial, the sam e rule applies. Voth v. Felderhoff

, 768 S.W.2d 403, 412 (Tex.App.--Fort Worth 1989, writ denied). Furtherm ore, an argument of insuffici ent evidence to support a verdi ctm ay be pr em ised on fa ctorsother than juror m isconduct, and appellants contended in their supplementa l mo tion for new trial thatthe evidence of j uror misconduc t was newly di scove re d. T her efo re, the y ar

gue , it could not have form ed a basis of their original motion for new trial.
However, even if it could be said thatappellants raised the issue of juror misconduct in their original motion fo r n ew tr ia l, we do n ot b eliev e th e tr ial c our t ac ted im pro per ly in overruling the m otion on that basis. Jur or J ane Doetes tifie d th at s he isnow in a rom ant ic rela tion shipwith one of appellants’ trial counsel. She d id not tell appellants’ counsel about her juror misconduct until after she began dating him. She averred that w hile serving on the jury, s he spoke by telephone to a f riend of her s who is a docto r. Prior to that conversation, she said she had determ ined she would find appellee negligent and that his negligence proximately caused the death of J ohn. She ex plained to her friend them ain points why s he believed appellee w as negl igent, but in the telephone conversation, he refuted each of her argum ents. As a result of that conversation, shesa i d, by th e t i me the21

jury voted, she had reversed her previous pos ition on negligence. Instead of basing her decision on what was tes tified to at trial, she based her dec ision on the information provided byher friend. At the hearing, w hen she attem pted to go further and tes tify as to what she had told the oth er jurors, in the hope they wou ld not find appellee negli gent, appellee’s objection w

as sustained by the trial court.
Rule 327 of the Rules of Civi l Procedure provides:

a . W hen the gro und of am otio n fo r ne w tria l, s upp ort ed b y af

fida vit, is misconductof the jury

or of the officer in charge of them , or because of any com munication ma de to the j ury, or t hat a juror ga ve an erroneous or incorre ctanswer on voir dire exam ination, the court shall he ar evide nce thereof fromthe j ury or ot hers in ope n court , and m ay g ran t a n ew tria l if such miscondu ct proved, or the com munication m ade, or the erroneous or inco rre ct a nsw

er o n vo ir

dire exam ination, be m ate rial, and if it rea son ably appearsfrom the evidence both on the hearing of the m otion and the trial of the case and fromthe record as a whole that inj ury probably resulted to the complaining party. b. A j uror may

not testify as to any

ma tter or statem ent occurring during the course of t he j ury ’s delib era tion s or to t he e ffe ct of an yth ing u pon his or any other juror’s mind or em otions as influencing himto assent to or dissent from the verdict concerning his m ental processes in connection therewith, except thata juror m ay testify w hether any outside influence was im properly brought to bear upon any j uror. Nor m ay his affidavit or evidence of any statem ent byhi m co nc er ni ng a ma tter abo ut which he w ould be precluded from testifying be received for these purposes. Tex. R. Civ. P. 327. Furthermore, Rul e 606(b) of the Rul es of Evidence pro vides: (B) Inquiry In toValidi ty of Verdict orIn dictme nt. Upon an inquiry into the validity of

a verdict or indictment, a

ju ror may not testifyas to an y mat ter or statem ent occurring during the jury’ s deliberations, or to the effect of anyth ing on any juror’ s m ind orem otions or me ntal processes, as influencing any j uror’s assent to or dissent from the verdict or indictment . Nor m aya juror’s affidavit or

any statem ent by22

a juror concerning any mat ter about w hich the juror would be precluded from testifying be admitted in evid ence for any of these purpos es. However, a juror m ay testify: (1) w hether anyoutsideinflu enc e was im pro per lybrought to bear upon any

jur or; or ( 2) to re but

a c laim that the j uror was not

qualified to serve.
Te x. R . Evid. 60 6(b). Outside influences about w hich a juror m ay testify m ust originate from sources other than th e juror herself. Golden Eagle Archery, Inc. v . Jackson , 2 4 S.W.3d 362, 370 (Tex. 2000). I ndeed, it has been held that inform ation gathered bya juror does notam ountto an outside influence, even if introduced to other j urors specifically for the purpose of prej udicing the jurors’ votes. Soliz v. Sa enz

, 779 S.W.2d 929, 932 (Tex.App.--C orpus Christi 1989, w rit den ied) . Th at b eing so, thetria l cou rt d id no t er r in excluding Jane Doe’s testimony with respect to her relaying the information she obtained to the other j urors during the jury de liberations.
To obtain a n ew

tria l because of j uror misconduc t, it mus t be show n that the misconductoccurred, it was material, and the misconduct r esulted i n harm. Tex. R. Civ. P. 327(a); Redinger v

. Livi ng, Inc., 689 S.W.2d 415, 419 (Tex. 1985). To the ex tent that Jane Doe’s con versation with her friend w as an outside influence exerted on her, we do notbelie ve it

res ulte d in harm . There is no proba ble inju ry w hen the jury in all probabil ity
w ould have rendered the sam e verdict. Id. at 419. In this case there was a unanimous verdict. Therefore , even if Jane Doe’s vote was not counted, there would have been 11 votes to support the verdi ct. A verdict ma y be rendered by the con currence of ten
m em bers of an or iginal jury of 12. Tex. R. Civ. P. 29 2. Reversal is not required by

jur y23

misconductwhen the verdict would be supported by the required ten jurors. See Redi nger, 689 S.W.2d at 419

. Therefore, appellants’ fourth issue is overruled.
In their fifth and final issue, appellants argue that a new trial is re qu ir ed to al lo w a thorough investigation of a newly discovered death certificate. They al lege that, after
com pletion of t he t rial, they discovere d appell ee fil ed a fraudul ent death certi ficate, which had been replaced by the m edical exam iner. The use of that false death cert ificate at trial “allowed for confusion of the j ury on the issue of the cause of death of John.” Further, they argue, appellee allowed appellants to rely on the death certificate in preparing t heir ex pert testimony

relating to the cause of death. The cause of death on the certificate signed by appellee w as “ car

diac arr est” du e todro w ning , w hile the cause of death on the certificate signed by

the m edical exam iner w as “com plications of near drowning .”
Atthe hearing on the m otion for new trial, appellants offered the affidavit of Robert Byers, the Chief Investi gator for the Lu bbock County M edical Exam iner, in which he stated thatsince October 1, 1994, Lubbock has ope rat ed u nde r a m edic al ex am iner sy ste m in
w hich only physicians employed by the m edical exam iner’s office m ay sign a dea t h cert ificate wh en the m anner of death is not natural. Therefore, appellee was not authorized to sign t he death certificate. Ap pellants alsoadm itted an a ffidavit fr om Dr. Charles Landers, their trial expert, in w hich he stated that his “analysis of the actions of Dr. Baluswamy V iswanathan were premised on the medical r ecords p r ovided to m e, including documentation that the cause of death was determined to be cardi ac arrest.” He24

further stated that if “the cause of death note d on a valid death certificate had been listed
as ‘com plications from a near drow ning incident,’ myanalysis a nd test imon y for th e ju ry
w ould have had a different focus. ” Dr. Landers focuse d his analysis on the effects of high PEEPon the heart since he believed the cause of death to be car

diac arres t. How

ever, he averred, if the cause of deat h was t hat show n on the m edi ca l e xa miner’s de ath certificate, he w

ould have focused his analysis on the effect of high PEEP on the lun gs.

Appellee testified at the hearing on the m otion for new trial and stated that the death certificate was m ailed to him. He believed he w as to fill i t out and sign it. He did so and sentit back in a self-addressed envelope. He had no know ledge that there was a problem with the death certificate until after trial. Although he knew thatan autopsy w

ould be done, he did not know that the m edical exam iner would fill out a death certificate.
To obtain a new trial based on new ly discovered evidence, appellants mu st show that the evidence has com e to their knowledge since trial, their failure to discover it prior to trial was not due to the lack of di lige nce, the evide nce is not cumulati ve, and it i s so material tha t it

wou ld pro bably produce a different result if a new t rial was granted. Jacksonv. Van Winkle , 660 S.W.2d 807, 809 (Tex. 1983). The m atter is addressed to the discretion of the trial court and will not be disturbed absent an abuse of discretion. Id.
A death ce rtificate is a public document and, if the s econd one was in fact the official death certi ficate, i t should have bee n av ailab le to appellants prior to trial. Although1 While the first death certificate wasdiscussed at trial, we do notfind in the record

that it was ad mitted into evidence. 25 appellants fault appellee for not knowing that the death certificate he signed was no t an official docum ent, if t hey had been aw are of the law, t heysho uld h avealsoknow n toobtain
a cer tificate sign ed b y th e m edic al ex am in er . Moreover, the cause of dea th, which appellants contend is new ly discovered, is cum ulative. The autop sy report w hich was admitted in to evi de nc e a ls o sh ows the cause of death as com plications of near drown ing. Therefore, the second death certificate does no t add an y inform ation not already be fore the jury. 1 Furtherm ore, Dr. Landers not only review ed t he d eath certi ficate, he al so testified at trial he had reviewed the autop sy report. Additionally, he did notclaim m ere reli ance on the cause of dea th in the death certificate. At trial he stated he agreed with it. That testimo ny indicated that the doctor had form ed his own independent opinion based
on his review of

the m edical records, autopsy report, and depos ition testimony. Therefore, in spite of Dr. Land ers’s assertions th at he wou ld ha ve pr es en te d d if fe re nt te st imo ny , we fail to see w hy he shoul d have an opportunity to do so w hen the sam e information w as ava ilableto him in the first trial. There was no abuse of discretion on the part of thetrial court in its denial of appell ants’ m otion for new trial on the basis of n ewly discovered evidence, and appellants’ fifth issue is overruled.

In final summ ary, all of appell ants’ issues are o verruled, and the judg ment of the trial court is affirmed.26 John T. Boyd Chief Justi ce Publish.