Elbaor v. Smith

Supreme Court of Texas · 1992 · Torts

845 S.W.2d 240 (Tex. 1992)

Updated July 23, 2026

Tortsmedical malpracticecomparative negligenceMary Carter agreementsRule 278contributory negligencecomparative causationmitigation of damages

Facts

Smith suffered a compound ankle fracture in a car accident and later came under Dr. Elbaor's care at Arlington Community Hospital, where she was treated with antibiotics and debridements. The record contained evidence that her ankle may not have been infected when she arrived at that hospital, and that during her stay she repeatedly refused antibiotics that doctors considered essential to prevent or control infection. Before trial, Smith entered agreements with Dr. Syrquin, ACH, and Dr. Stephens under which some settling defendants remained in the case and, in the cases of Dr. Syrquin and ACH, would be repaid all or part of their settlements out of any recovery against Dr. Elbaor. At trial, the settling defendants participated and aligned themselves with Smith in urging liability against Dr. Elbaor.

Issue

Did the trial court reversibly err by refusing to submit a contributory-negligence question concerning Smith's refusal to take antibiotics? Are Mary Carter agreements void as against public policy when a settling defendant retains a financial stake in the plaintiff's recovery and remains a party at trial?

Rule

Under Texas Rule of Civil Procedure 278, a trial court must submit a requested jury question if it is raised by the pleadings and supported by some evidence; the court may refuse only if no evidence supports submission. A patient's refusal to take prescribed antibiotics may raise contributory negligence, rather than mere mitigation, when the refusal arguably contributes to the medical problem itself. A Mary Carter agreement exists when a settling defendant retains a financial stake in the plaintiff's recovery and remains a party at trial, and such agreements are void as against public policy.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a medical-malpractice suit in Houston, patient Lena Ortiz alleges that surgeon Nolan Price caused a post-operative joint infection. Price pleaded comparative negligence and requested a jury question after introducing nursing notes showing Lena repeatedly refused prescribed intravenous antibiotics during the period when one expert testified the joint still appeared uninfected. The trial judge refused the question because Lena's expert disputed that timeline.

Was the trial judge required to submit the requested comparative-negligence question?

Explanation. Rule 278 imposes a non-discretionary duty to submit a requested question when it is raised by the pleadings and supported by some evidence. The court must review the record for evidence supporting the requested submission and ignore contrary evidence. Because there is some evidence that Lena refused antibiotics before the infection developed, the question should be submitted.