DocketNumber： No. 4504.
Judges： Hall
Filed Date： 12/2/1935
Status： Precedential
Modified Date： 10/19/2024
E. P. Edwards, joined by his three minor children and his mother-in-law, Mrs. T. C. Hollander, filed this suit against the West Texas Hospital, alleged to be a corporation, Dr. C. J. Wagner and Dr. Anne West, a feme sole, to recover damages alleged to have been sustained by plaintiffs on account of malpractice and negligence of the defendants which resulted in the death of Mrs. Vergie Edwards, the wife of E. P. Edwards, the mother of his three minor 'children, and the daughter of Mrs. T. C. Hollander.
A jury had been impaneled, but, after plaintiffs had closed in the introduction of their testimony, the court directed a verdict in behalf of the defendants.
The petition of the plaintiffs is unusually lengthy, but the material facts we briefly state as follows:
On and prior to February 8, 1834, Mrs. Vergie Edwards was pregnant with twins, and on that date Dr. Anne West, as her attending physician, delivered her of one of the children, but did not deliver the other. The child which was born in the regular way is one of the plaintiffs in the suit. Immediately after the birth of the first child, some neighbors, lady friends of Mrs. Edwards who were present at the time of her confinement, noticed a “large mass or knot” in the upper part of her abdomen, which, it was subsequently ascertained, was another fetus. In the course of a few hours this fetus had changed position and was in the lower part of the abdominal or pelvic cavity.
On the 10th day of February, two days thereafter, Mrs. Edwards was brought twenty-two miles from her home to the West Texas Hospital at Lubbock for diagnosis and treatment, and arrangements were made for her to remain as a patient. It is alleged that Dr. C. J. Wagner was an official and director and chief of the staff of physicians who practiced at said hospital, and that he assisted in the management of it.
She remained at said hospital, under the supervision, treatment, and care of the defendants for eleven days, during which time Dr. West visited her two or three times. The treatment prescribed and administered consisted of enemas, hot packs on her abdomen, and sedatives. The mass in her abdomen and the swollen condition of her body was very noticeable, and her suffering was intense.
On the 3d of March thereafter she was brought to the Lubbock Sanitarium, at Lubbock, Tex., and it was decided to be a case requiring immediate surgery, but, on account of her condition, she had to be toned up> and the operation was not performed until the morning of March 4th, at which time more than a gallon of pus and liquid was drained from her abdomen and the dead fetus was discovered and removed. It was also shown that the uterus had been ruptured. The fetus was in a badly decomposed condition, and she remained in the hospital for about a week and died on March 11, 1934.
It was shown the hospital had an X-ray machine, and at least two of the doctors testified that an X-ray examination of Mrs. Edwards would have shown whether the patient was afflicted with a tumor or that there was a fetus in her abdomen; provided the fetus was over four and one-half months of age. The fetus had apparently lived during the full period of gestation, and it was removed by opening the .abdominal wall; there being no other means for its delivery than a surgical operation. The testimony further tends to show that the fetus was a female, fully developed and ready for parturition on February 8th.
It is alleged that Mrs. Edwards was the patient of each and all of the defendants; that a partnership existed between them; that an X-ray and laboratory test, as well as a proper and skillful examination, would have disclosed her condition and the nature of her affliction; that her death was due to negligence of the defendants, and each of them, in not knowing or discovering the nature of the trouble, and in failing to remove it by surgical operation; that an ordinarily careful, prudent, and skillful surgeon in the vicinity of Lubbock would have discovered and known the nature of her affliction, and would have performed all things necessary to relieve her. The failure to make an X-ray examination and a proper laboratory test are charged as two of the acts of negligence.
The hospital answered, denied its relation to any physician who treated Mrs. Edwards, admitted that it had a complete X-ray machine and necessary equipment for examining and treating of patients, and that Mrs. Edwards was in its hospital for diagnosis and treatment. It alleged that it was an incorporated hospital, and as such merely undertook to furnish reasonable accommodations for the sick and afflicted; that it furnished to its patients physicians and surgeons, rooms, beds, linens, foods, trained nurses, operating rooms, X-ray equipment, and other necessary and suitable facilities. It denied that it had ever undertaken to diagnose or treat patients, or to practice either medicine or surgery, merely seeking to furnish such means and facilities as might be required by attending physicians and surgeons. It further specially denied that it was ever employed to diagnose or treat Mrs. Edwards, or ever undertook to do so. It denied that its codefendants, Drs. Wagner and West, were acting for it in any capacity in such diagnosis and treatment rendered, but alleged they were following their own independent callings in so doing; that the only relationship which existed between the hospital and the two doctors was that which usually and customarily exists between any physician and patient and hospital in which the patient is being treated. The allegation of the existence of a partnership was denied by verified plea.
Dr. West admitted her relationship to Mrs. Edwards as being that of physician and patient, alleged that she diagnosed Mrs. Edwards’ trouble as ovarian tumor and had her brought to the defendant hospital for diagnosis and treatment by it and its doctors and nurses, and in particular by Dr. Wagner of said hospital. She alleged that she gave her codefendants a complete history of Mrs. Edwards’ condition of health as it had been observed by her, and as related to her by Mrs. Edwards and her husband. She admitted in her allegations that she did not know that Mrs. Edwards had a fetus in her abdomen, but did allege that she used ordinary skill, care, prudence, and diligence to ascertain her condition and in having her brought
Dr. Wagner answered by general demurrer, denials, admitted that Mrs. Edwards was brought to him, that he made a physical, manual examination of the body of Mrs. Edwards for the purpose of ascertaining the cause of her condition and diagnosed her case, using all the means which in his opinion and best judgment as a physician and surgeon were necessary to determine, diagnose, and ascertain the cause of her suffering and ailment. He did not allege what his diagnosis was other than that he did not believe an immediate operation upon her was necessary, and that such an operation would have resulted either in her death or endangered her life.
The appellants present the contention in several propositions that the court erred in directing a verdict because the testimony raised the issue that the appel-lees failed to properly diagnose the case, prescribed treatment for inflammation, tumor, and locked bowels, which constitute negligence, in view of other testimony showing that an X-ray examination would have disclosed that there was a fetus in her abdomen, and that she had no tumor.
There was an X-ray machine in the hospital which could' have been used and which the appellees failed to use. The testimony further shows that Dr. West, who attended Mrs. Edwards during the parturition and delivered her of the first child on February 8, 1934, continued, and promised to continue, to treat her in the hospital, and saw her twice after she was removed to the hospital; that Dr. West had told them several times that she thought Mrs. Edwards would have twins; that Dr'. West also observed the knot or lump in the upper part of Mrs. Edwards’ abdomen immediately after the birth of the first child and remarked that there might be a tumor; that, in discussing Mrs. Edwards’ condition with some of Mrs. Edwards’ neighbor women during the confinement, some opinion was expressed that Mrs. Edwards would probably be delivered of twins instead of one child. Edwards said that with the first delivery the afterbirth was not like that with their other children, and that “it had more blood and stuff in it”; that on the night after the birth of the baby on the morning of the 8th Dr. West returned and said: “Mrs. Edwards has locked bowels; we will have to give her an enema and if she is not better in the morning might have to take her to a hospital”; that Dr. West brought the patient to the hospital on the 10th of February; that it was first contemplated by Edwards and his wife she should go to the Lubbock Sanitarium instead of the West Texas Hospital, but finally went to the latter hospital at the instance and suggestion of Dr. West; that upon arrival at the hospital Mrs. Edwards was immediately taken charge of by the nurses of the institution and carried into the hospital.
Mrs. Lee, a neighbor of the Edwards, who accompanied Dr. West and Mrs. Edwards to the hospital, said she saw Dr. Wagner and Dr. West talking, and that Dr. Wagngr said to Mr. Edwards, “Go and make financial arrangements with the hospital and then we will do everything we can for her, and we hope to' have her all right in a few days.” Mrs. Lee was asked the direct question if she ’phoned Dr. Wagner before their arrival with Mrs. Edwards at the hospital, and she replied that Dr. West said that she stopped and ’phoned to' make an appointment with the hospital, and not Dr. Wagner, to receive Mrs. Edwards; that no particular doctor was mentioned at the West Texas Hospital; and that she had previously agreed to take Mrs. Edwards to the Lubbock Sanitarium.
Edwards testified: That, when he reached the hospital he found Drs. West and Wagner together, and before they said anything to him they went into a back room and talked a while, and that when Dr. Wagner returned he told Edwards that his wife was in a bad condition and to make financial arrangements and “we will do all we can for her,” and he was directed by Dr. Wagner to see the business manager. That he went to the business manager, McLarty, and, after talking with him, Edwards was asked to step out until Mc-Larty could confer with Dr. Wagner. He was recalled after twenty or thirty minutes, and the business manager said to him: “Your wife is in an awful bad condition, and we are going to take her and do all we can for her,” and then asked, “Can you pay us anything?” and, when Edwards said “No,” McLarty had him sign a note for $45, saying that they did not know all they were going to do, but he
The testimony shows, however, that her .condition became steadily worse, and the swelling increased from day to day.
Edwards testified that Dr. Wagner said that inflammation was the cause of the swollen condition of her abdomen, and that she also probably had a tumor; that, when they were ready to take Mrs. Edwards from the hospital to her home, Dr. Wagner directed them to keep the hot packs on for two> or three days, and that “in two or three weeks this will go back all right,” referring to the swelling; that, when they were ready • to leave, the business manager would not permit them to check out without ascertaining the amount of Dr. Wagner’s fee, and said that the doctor had not sent in to him any fee, and he told the nurse to get them, and shortly thereafter the witness executed a note for $27, payable to Dr. Wagner, in addition to a new note made to the hospital in the sum of $87.50, and he was required to sign such notes before he was permitted to remove his wife from the hospital. The witness further testified that he never had any conversation with Dr. Wagner with reference to what the latter’s charges would be, and he talked only with the manager of the hospital in making financial arrangements.
Dr. J. H. Stiles and Dr. Key, of the Lubbock Sanitarium, both described Mrs. Edwards’ condition when she was brought from her home to their sanitarium on March 3d. They described the operation early the next day in which the fetus was removed from her abdomen, together with about a gallon of pus and fluid, and on cross-examination Dr. Stiles was asked whether or not the fetus which had been removed was ectopic or one formed in the Fallopian tubes. Dr. Stiles testified that there was no sign of ectopic pregnancy; that there was an opening or rent in the wall of the womb through which the fetus had passed from the womb into the abdomen and it was his opinion that a long time had elapsed since its death, and that it died when the uterus was ruptured; that decomposition of the fetus had set up; that an operation was the only hope of removing the child and saving the life of the mother.
Edwards testified that, when the doctors lifted the baby out of the abdomen of his wife, they laid it on her side and cut the naval cord, and that the baby was dead and in an advanced state of decay; that it was a girl, normal in every way, but had turned blue; that it was of the same size as its twin sister born on the 8th of February prior thereto.
The court concluded that this testimony was not, as a matter of law, sufficient to raise the issue of negligence and malpractice, and upon motion made by appellees directed a verdict in their favor. We think this was error.
By their first contention the ap-pellees insist that the owner of a hospital, whether an individual, firm, or corporation, is not liable for damages resulting from diagnosis and/or treatment, medical or otherwise, in' said hospital, when such diagnosis and treatment were rendered by physicians employed by the patient or some one other than such hospital, and that damages resulted from the alleged negligence of such physicians.
It is true there is no testimony which would have authorized a jury to conclude that Dr. West was in any way connected with the hospital, but the stationery used by the hospital authorities showed that Dr. Wagner was the head of the hospital staff of physicians and surgeons, and the testimony which we have briefly outlined above showing that the business manager referred financial matters to Dr. Wagner,' took the note for his fees, as well as the note for the hospital fees and expenses, and the various statements by Dr. Wagner and the business manager as to what “we” would do or endeavor to- do, together with other facts, tended to show a business connection between Dr. Wagner and the hospital. No testimony was offered directly upon the question, an'd, although there was a sworn denial of partnership, we think the evidence was sufficient to have required the
By their second proposition the ap-pellees insist that, before there could be a recovery against them, there must have been legally sufficient pleadings charging that the hospital undertook to diagnose and treat the condition of Mrs. Edwards, that it was guilty of specific acts of negligence in the diagnosis and treatment, and that such acts resulted in damages.
If a partnership relation existed between the hospital and Dr. Wagner, or the evidence showed a joint undertaking, the hospital could be charged, and we think the pleadings are sufficient to support testimony upon that issue.
The petition was excepted to as being insufficient upon this ground, but they were overruled. If in fact the petition is insufficient and the plaintiffs went to trial relying on the correctness of the court’s ruling, they are entitled to have the judgment reversed and the cause remanded in order that they may amend their pleadings.
By several propositions the appel lees insist that the court correctly directed a verdict because there was no testimony from any physician or surgeon or other witness qualified to testify as an expert that any act done or any failure to do anything on the part of the appellees was negligence. It is true that, in the absence of evidence to the contrary, the law indulges the presumption that a physician has discharged his duty with reasonable care and skill in his diagnosis and treatment, but we do not subscribe to the doctrine that mere proof of bad results is no proof of negligence in any case, and that the issue of negligence is one for experts only to determine.
It is -also true, as asserted by appel-lees in their seventh counter proposition, that, where due care, diligence, judgment, and skill are exercised, a mere failure to diagnose correctly does not render a physician or surgeon liable. While it may be the rule in some jurisdictions that it takes more than the opinion of one or more physicians to the effect that the treatment followed in a given case should have been different to lay a foundation for malpractice, we do not understand that to be the rule in this state.
The sum and substance of appel-lees’ contention is that, because there was in the present case no expert evidence as to what method or means in the exercise of ordinary care and skill should have been employed to determine the presence or absence of the second fetus in the abdomen of Mrs. Edwards, and because no expert has testified that the appellees were guilty of negligence, there has been a failure of proof because, as to what is or is not, the proper practice is a question for experts, and can be established only by their testimony. Two experts testified that the use of the X-ray would have shown that the supposed tumor was a fetus. Whether the failure to use it was negligence was a question for the jury.
They further insist that the uniform holding of the courts is that it cannot and should not be .left to a jury to speculate whether or not the experts in the practice of their profession have pursued the proper course of procedure.
We do not agree that the law is as stated by appellees. The Constitution, article 1, § 15, provides that the right of trial by jury shall remain inviolate. We think there are questions of fact in this case which should have been submitted to the jury.
The undisputed proof is that there was a rent or opening in the uterus at the time the dead fetus, was removed from the abdomen. There is some testimony to the effect that the wall of the uterus was ruptured at the time of parturition. The fetus was in an advanced stage of decomposition, had turned blue, and this, with the fact 'that it was fully developed and was of the same size and apparent weight of the child that was delivered alive, might be circumstances upon which the jury would determine that the uterus was ruptured some time during the period of labor, which lasted from about 6 o’clock in the afternoon until 7 o’clock the next morning. There is no testimony which tends to account in any way for the fact that the uterus was ruptured. This rupture could not, in the nature of things, have been the result of an ectopic pregnancy. One doctor testified that, in cases of ectopic pregnancy or conception in the Fallopian tube, the period of gestation would not be more than about four or five months, when it would become necessary
There is testimony to the effect that there were symptoms of a ruptured uterus or excessive loss of blood, paleness of the patient, etc. Edwards testified that, when the first of the twins was delivered, the placenta was not like those which were taken after the birth of their other three children, but that this placenta had more “blood and stuff” in it than the afterbirths on any former parturition.
The unexplained presence of a ruptured uterus, the excessive amount of blood in the placenta, and the failure of any evidence tending to show a ruptured Fallopian tube, together with the testimony of some of the doctors that the fetus had died at the time the uterus was ruptured, and the further fact that immediately after delivery of the first child what proved to be the fetus remained in the upper part of the abdominal cavity and within a few hours was, found lower down, in or near the pelvic cavity, thus being inconsistent with the theory that it was an ovarian tumor, are all circumstances from which the jury might have concluded that some one had been guilty of negligence. The jury might have concluded that the appel-lees failed to sustain their theory of an ectopic pregnancy of one fetus and a uterine pregnancy of the other. The jury has the right to weigh the testimony of experts and to accept or reject all or any part of it at their option.
We think the testimony is sufficient to raise the issue of whether there was negligence in failing to make an X-ray examination of the patient between the time she was carried to the West Texas Hospital and the time she was removed to her home.
We have no quarrel with the doctrine that expert testimony is admissible upon th'e issue of whether the proper care, skill, and diligence has been exercised in diagnosing and treating patients, but in the following cited cases in this state it is shown that the question of whether the degree of care, skill, and diligence as disclosed by the testimony is negligence is the prerogative of the jury. Appellees cite the case of Taylor v. Shuffield (Tex.Civ.App.) 52 S.W.(2d) 788, but we find that the Supreme Court, 83 S.W.(2d) 955, has reversed the Court of Civil Appeals and affirmed the judgment of the trial court The issues in that case were submitted to a jury. Malpractice was charged, the result of the operation was shown, and issues of fact similar to the facts in this case raising the 'question of negligence were submitted to, and passed upon by, the jury.
The case of Turner v. Stoker (Tex.Civ.App.) 289 S.W. 190, 194, involved the issue of the negligence of a physician in failing to advise the use of an X-ray to discover whether the patient had any broken bones, and is a case in point. The evidence, pro and con, was submitted to a jury. Ridgell, Justice, said: “While the appellant was not bound to diagnose carefully or know that which could not be seen, for many of our ailments are hidden, yet the fact that he did not advise an X-ray, did not discover the broken jawbone, and was guilty of other failures -as detailed by the witness, was sufficient for -the jury to conclude that he was negligent.” (Writ of error re-fused.)
In the instant case it was shown that, when Dr. Anne West brought her patient to the West Texas Hospital, she gave Dr. Wagner a history of the case and of her patient. Three of the ladies who were Mrs. Edwards’ neighbors, and who were present during the hours of labor and had talked with Dr. West several days beforehand testified that Dr. West said she expected that Mrs. Edwards would give birth to twins, and it appeared that before the first child was delivered there was a conversation between Dr. West and Mrs, Edwards, and Mrs. Hilton testified that, when Mrs. Edwards was in labor, and suffering, something was said about Dr. West and Mrs. Edwards “working on halves,” and, if there were two children, Dr. West would get one and Mrs. Edwards would get the other.
We find upon investigation that such questions of fact are uniformly submitted to juries in this state, from which they are permitted to determine whether there has been negligence and malpractice. Moore v. Ivey (Tex.Civ.App.) 264 S.W. 283; Thorning v. Boriski (Tex.Civ.App.) 283 S.W. 912; Ford v. Couch (Tex.Civ.App.) 16 S.W. (2d) 869; Hamilton v. Harris (Tex.Civ.App.) 223 S.W. 533; Lee v. Moore (Tex.Civ.App.) 162 S.W. 437; Humphreys v. Roberson (Tex.Com.App.) 83 S.W.(2d) 311.
In view of another trial, we suggest that material testimony was excluded upon objection of appellees, which was ad
While Edwards was upon the stand, he undertook to testify as to a colloquy between himself, his wife, and Dr. West the day before Mrs. Edwards was taken to the hospital. His counsel interrupted with this question: “Just before getting to that, state about your wife’s enlargement as compared to the other children she had had' delivered.” Appellees’ counsel objected upon the ground that it was “more medical testimony from a non-expert witness.” The court overruled the objection, and Edwards testified that she was much larger than she had ever been with any of the other children. His counsel then asked him: “Did you see or determine any movement?” This was answered in the affirmative, and, upon motion of appellees’ counsel, the court excluded the question and answer from the consideration of the jury. We think this testimony was admissible.
Edwards had testified that, after his wife returned to her home from the hospital, her abdomen continued to swell. This testimony was objected to by the attorney for the West-Texas Hospital and Dr. Wagner upon the ground that it was hearsay. Plaintiffs’ counsel remarked that, if negligence on the part of defendants is established, it becomes material as to what followed the negligence, and. he thought it was admissible upon that theory. The court said: “Yes, sir, but also that cannot be considered by the jury as against them at this time.” We think that Edwards’ testimony was a statement of a fact, which a nonexpert could make, and that it was proper for the jury to consider it.
Edwards had stated that he was present in the Lubbock Sanitarium when the last operation was performed upon his wife, and, referring to the surgeons, said: ‘They commenced to pump this (pus) out and pumping it in a jar -there, and there was about a gallon of this that they pumped out. After they pumped out he reached down in there and said, ‘Here is another baby,’ and they took it out.”
Appellees’ counsel objected to the testimony as hearsay as to the appellees. The statement was made by Dr. Krueger. The record shows that plaintiffs had not succeeded in securing the attendance of Dr. Krueger. We think it was admissible under the res geste rule.
When asked to describe the condition of the baby after it had been removed from the mother’s abdomen, Edwards said it was blue looking, and seemed to be in a state of decay. Upon objection of appel-lees’ counsel without stating the grounds of his objection, the court sustained it, and requested the jury not to consider the witness’ answer. We think this was error.
It seems that, upon the suggestion or direction of Dr. West, the destination of Mrs. Edwards was changed from the Lubbock Sanitarium to the West Texas Hospital just about the time they reached the city limits. Edwards followed Dr. West, who was taking his wife, and Mrs. Lee, who was carrying the baby, about ten minutes later, and, thinking that his wife had been carried to the Lubbock Sanitarium, went over there. Mrs. Lee had left the West Texas Hospital to look for Mr. Edwards, and met him and told him that his wife was at the West Texas Hospital. This was objected to because neither Dr. Wagner nor Dr. West were shown to be present. The testimony is of very little probative value, but was admissible under the res geste rule nevertheless. The court erred in sustaining the objection.
Mrs. Lee was describing the occurrences at the time they reached the hospital. In response to a question she had said: “Before we left the nurses came and got Mrs. Edwards and carried her to another room and lifted her off this rolling bed and put her on another bed, and one of the nurses came in there and said — ” By objection appellees’ counsel cut off further statement upon the ground that any statement by the nurse not shown to have had authority to bind either defend
It appears that Dr. Olan Key entered the operating room while the dead fetus was being removed from the abdomen of Mrs. Edwards. He testified as follows:
“Well, when one of the doctors removed the placenta or after-birth, which is the remaining- portion of pregnancy, and that was bound down, they described it, by ad-hesions to the things there in the abdominal cavity.”
“Q. Was it found there that the 'uterus or womb had a rent in it?
“Appellees’ counsel: Unless he knows that, we object to it.
“Q. If you know.
“Appellees’ Counsel: Unless the witness personally made the examination and knows the condition, it would be hearsay, based on the statement of one or the other of the physicians present, and hearsay as to us.”
The court sustained the objection.
Afterward Dr. Key testified that he made the examination himself during the operation. The testimony of Dr. Key as to what Dr. Krueger had said was excluded upon the ground that it was hearsay.
Because we think certain testimony tended to establish the fact of partnership or business relation between the appellees, or some of them, and for the further reason that evidence was admissible upon the issue of negligence as shown by the failure of the appellees to make an X-ray examination, and because there is some evidence tending to show that there was no ectopic pregnancy, but that the fetus was expelled from the womb in some way during labor, the court erred in directing a verdict.
The judgment is therefore reversed, and the cause remanded.