## Facts

- In 1974, Carol Henderson underwent breast augmentation performed by Dr. Philip Rothenberg using silicone gel implants manufactured by Heyer-Schulte Corporation of Santa Barbara.
- After placing each implant in a retro-mammary pocket, Rothenberg intentionally slit the implant envelope to allow gel to escape into the pocket.
- Henderson soon developed swelling, soreness, and inflammation; Rothenberg treated a left-breast hematoma by removing the implant, draining the hematoma, inserting a new implant, and again slitting the envelope.
- Henderson later developed multiple lumps diagnosed as siliconomas caused by migrating silicone gel; she underwent more than twenty surgeries to remove them, but additional nodules continued to appear.
- Henderson alleged deformities in breast shape and placement.
- The parties disputed whether Henderson’s condition was caused by Rothenberg’s technique or by later procedures performed by other physicians.
- Henderson sued Rothenberg for medical negligence and sued Heyer-Schulte for negligence and breach of warranty based on an alleged product defect.
- A jury trial resulted in a take-nothing judgment for both defendants.

## Issues

1. Whether the trial court erred by instructing the jury that, when more than one recognized method exists for performing the operation, a physician is not negligent merely for choosing one recognized method over another.
2. Whether the trial court reversibly erred by excluding evidence offered to impeach the defendants’ principal expert witness.

## Decision

- The appellate court affirmed the take-nothing judgment.
- The challenged standard-of-care instruction was proper because evidence showed more than one recognized method for the procedure, and the charge correctly framed the physician’s duty as reasonable professional judgment among accepted alternatives.
- The trial court did not commit reversible error in excluding the impeachment evidence; evidentiary rulings on impeachment are within the trial court’s discretion, and Henderson did not show harmful error.

## Legal Principles

- A physician is not negligent solely because the physician selects one of multiple recognized and accepted methods of treatment or surgical technique.
- A malpractice jury charge may explain that more than one recognized method exists and that choosing among accepted methods is not, by itself, negligence, so long as the charge is supported by the evidence and the instructions as a whole submit the applicable standard of care.
- Admission and exclusion of impeachment evidence are reviewed for abuse of discretion; reversal requires a showing that the ruling was erroneous and probably caused an improper judgment.

## Conclusion

The court upheld a take-nothing judgment, holding that the jury was properly instructed on physician discretion when multiple accepted surgical techniques exist and that the exclusion of proffered impeachment material did not warrant reversal absent a showing of harmful error.


Henderson v. Heyer-Schulte Corp. of Santa Barbara, 600 S.W.2d 844 (Tex. App.—Houston [1st Dist.] 1980)