HOUSTON (Legal Newsline) - A Texas appeals court has reversed a lower-court’s decision to grant a new trial for the family in a wrongful death suit.
Joseph Nicholson tested positive for strep throat at a CVS Minute clinic on Nov. 8, 2016 and was given a prescription for penicillin, according to a court synopsis of the case.
Nicholson returned to the Houston Northwestern Medical Center five days later complaining of sore throat, fever and chills. He was diagnosed with tonsillitis, prescribed a new antibiotic and Ibuprofen, and told to follow up with an ear, nose, and throat specialist. Five days later, Nicholson was found unresponsive in his bathroom and could not be resuscitated. The medical examiner found that the primary cause of death was leukemia.
Nicholson’s mother and daughter filed a wrongful death suit against health care providers and facilities that treated him. A jury in January 2019 found that Nicholson’s death was not caused by negligence of the health care providers who treated him. The family then asked for a new trial based on newly discovered autopsy photos. The trial judge granted the motion.
The Texas Court of Appeals for the First District on Feb. 25 reversed the trial court’s decision.
It ruled that with “reasonable diligence” attorneys for Nicholson’s family could have been discovered the autopsy photos in time to have introduced them as evidence in the original trial. Also, the family’s attorneys did not demonstrate that the photos would have resulted in a different verdict, the appeals court said.
“Contrary to Plaintiffs’ assertions, the photographs cannot confirm the presence of leukemic cells,” the appeals court ruled. “Unmagnified photographs of a body and organs do not show individual cells, much less a particular cancer subtype."
Even if the photographs had shown signs of leukemia, experts for both sides acknowledged that leukemic cells were found in the autopsy, the appeals court said.
"Thus, the photographs do not reveal anything beyond the undisputed evidence,” the court found.
Texas Court of Appeals for the First District. 01-19-00584-CV