George Brown v. Dr. Bert Garrett

Brown v. Garrett IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-90-213-CV GEORGE BROWN, APPELLANT vs. DR. BERT GARRETT, INDIVIDUALLY, AND LA GRANGE FAMILY PRACTICE CLINIC., P.A., APPELLEES FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT, NO. 89-1257, HONORABLE OLIVER S. KITZMAN, JUDGE PER CURIAM Appellant George Brown sued appellees Dr. Bert Garrett and Garrett's clinic, the La Grange Family Practice Clinic, P.A., for negligence in performing a blood-alcohol test without Brown's consent and informing Brown's employer of the results of that test. Brown appeals the trial court's take-nothing judgment in five points of error alleging that the court erred in: (1) presenting the jury charge to the attorneys; (2) including in the charge an instruction on intoxication; (3) not submitting in the charge a question on the conduct of the clinic; (4) violating a motion in limine by including in the charge an instruction on intoxication; and (5) failing to grant judgment notwithstanding the verdict and [sic] a motion for new trial. We will affirm. Brown was a truck driver for Frostex Foods. While driving from Austin to Beaumont in 1987, Brown became ill between Austin and La Grange and admitted himself to the Fayette Memorial Hospital emergency room. Brown was examined by Dr. Garrett, the emergency physician on call. Brown called his supervisor, Willie Alexander, to report his illness, and Alexander asked to speak with Dr. Garrett. Alexander and Garrett discussed Brown's condition and the possible involvement of alcohol. (1) Alexander told Garrett to perform a blood-alcohol test on Brown without Brown's knowledge. The test showed that Brown had a blood-alcohol level of 0.15, and Garrett diagnosed Brown as being intoxicated. Frostex fired Brown shortly thereafter. Brown sued, claiming a violation of the physician-patient communication privilege. See Medical Practice Act, Tex. Rev. Civ. Stat. Ann. art. 4495b, § 5.08 (Supp. 1991). In his first point of error, Brown alleges the trial court erred in the manner in which the jury charge was presented to the attorneys because the attorneys were not given a reasonable time in which to examine the charge and present objections to it outside the presence of the jury. See Tex. R. Civ. P. Ann. 272 (Supp. 1991). Brown, however, both failed to object to the court's action and failed to indicate in the record how long he was given to review the charge. Nothing has been preserved for appellate review, and point of error one is overruled. Tex. R. App. P. Ann. 52(a) (Supp. 1991). In point of error two, Brown alleges the trial court erred in including an instruction in the charge on intoxication. (2) The objection by Brown's attorney consisted of her saying, "I again object to the instruction as to intoxication. I feel that it is prejudicial since there is no question going to the jury on intoxication." The general rule is that the trial court has considerable discretion in deciding what definitions and instructions are necessary and proper in submitting questions to the jury, and the standard of review is that of abuse of discretion. Green Tree Acceptance, Inc. v. Combs, 745 S.W.2d 87, 89 (Tex. App. 1988, writ denied); Tex. R. Civ. P. Ann. 277 (Supp. 1991). The second question submitted in the charge was, "Was Dr. Garrett's disclosure to Frostex Foods negligence?" The issue of intoxication was relevant to question two because Brown repeatedly denied that he was intoxicated, thus suggesting that Garrett misdiagnosed him. We cannot say that the trial court abused its discretion in submitting the instruction. Point of error two is overruled. In point of error three, Brown alleges the trial court erred in not submitting a question in the charge on the conduct of the clinic. The record does not reflect that Brown requested in writing a question on the conduct of the clinic, so the point has been waived. See Tex. R. Civ. P. Ann. 278, 279 (Supp. 1991). Point of error three is overruled. In point of error four, Brown alleges the trial court erred in violating a motion in limine by including intoxication in the charge. Even assuming that the trial court could violate its own motion in limine, Brown failed to object to the charge on this ground, and the point is waived. Tex. R. App. P. Ann. 52(a) (Supp. 1991). Point of error four is overruled. Finally, in point of error five Brown alleges the trial court should have rendered judgment notwithstanding the verdict and [sic] granted a motion for new trial because Garrett and the clinic allegedly violated the confidentiality of a physician-patient communication as described by the Medical Practice Act. (3) Tex. Rev. Civ. Stat. Ann. art. 4495b, § 5.08 (Supp. 1991). Brown fails to give any specific reason why the trial court erred in either failing to render judgment notwithstanding the verdict or failing to grant a motion for new trial. We have no doubt that Brown is dissatisfied with the result of his lawsuit, but we must be presented with specific allegations of error instead of vague generalities. See Malloy v. Newman, 649 S.W.2d 155, 157 (Tex. App. 1983, no writ). Point of error five is overruled. The judgment of the trial court is affirmed. [Before Justices Powers, Aboussie and Kidd] Affirmed Filed: August 28, 1991 [Do Not Publish] 1. Brown signed a consent form containing the following language: The undersigned Authorizes and Grants Permission to the Hospital and the Medical Staff to Perform Such Medical and/or Surgical Procedures They Deem Necessary and to Release Information Contained in this Report to the Attending/Company Physician and/or Insurance Co. and Agrees to be Responsible for All Expenses Incurred. Dr. Garrett later wrote Brown's attorney concerning the consent form and said, "You might be able to argue that Mr. Brown was so drunk that he did not know what he was signing, but then he shouldn't have been on the road in the first place, should he?" 2. The instruction is "'Intoxication' means having an alcohol concentration of 0.10% or more in the blood." 3. We assume Brown intended to say the trial court should have rendered judgment notwithstanding the verdict or granted a motion for new trial.