Harle v. Krchnak

point of By and last its seventh

error contends into refusing permit it to offer

erred prior

evidence the fact appellant on

burglary against claim months before premises

the same several In this con present date of claim. appellee had sus

nection was shown prior burglary on December

tained involving claim merchandise being lost on

somewhat similar made the basis

March

present claim. no reversible We see in re the court

reflected the action of prior un

fusing to admit into evidence burglary. not demonstrated

related bear

how 1965 incident could Any case.

ing upon any the instant issue in

possible probative such evidence value of unfairly preju

outweighed danger appellee. Southern

dicing the claim of Manieri, 325 Leasing

Truck Co. v. 1959); Mar (Tex.Civ.App., Houston Williams,

tinez v.

App., 1958). Appellant’s seventh Houston

point is overruled. judgement the trial court is af-

firmed. HARLE, Appellant,

J. D. Appellee.

George KRCHNAK, J.

No. 15108. Appeals Texas. of Civil

Court Dist.). (1st

Houston 5, 1967.

Oct. Rehearing Dec. 1967.

On Denied Jan.

Further Watkins, Watkins, Hamil- Ryan &

A. J. ton, Houston, counsel, appellant. for Lorance, Stamm, Jr., Oldham &

Arthur counsel, appellee. Houston, COLEMAN, Justice. appeal is an from a

This malprac- plaintiff entered tice The trial court suit. found undisputed facts establishing only damages. an issue submitted on charge on objected defendant to the including failure grounds, various the- issues to submit cause. was kicked the chest hospitalized horse. He for a week and appeared About released. a month later he at emergency room of the Bellville Hos- pital poor condition. was seen there Roensch, him Dr. admitted who hospital. day After or two he asked Dr. Harle, appellant, the patient. to see Dr. rup- diagnosis delayed Harle made a of a spleen ture of the immedi- advised an prac- ate Most of Harle’s Dr. surgery, tice usually performed which is Hospital at Bellville with same group hospital personnel and other physicians the surgery ap- involved in pellee. qualified surgeon, Dr. Harle is performed 3,000 who has some surgery. surgery performed, Had not been appellee would have died. performed between the p. December 3:45 and 6:10 m. on

hours of Dr. Dr. was assisted Harle Neely, the anesthesi- Roensch and Dr. personnel ologist, together registered and a consisting two During licensed vocational nurse. there. point bleeding

an incision from satisfactorily. underneath was controlled midline, cage left rib at an at angle to the running kept A count Upon the front of abdomen. during but as saw cavity entering the abdonminal he found getting that he was to the time to close filled partly coagulated and blood. old peritoneum lining, start the he in- necessary by It was this blood to remove the to scrub nurse that he was dicated ma- hand at a suction first. then used getting ready sponge to close and a wanted chine, finally “lap” and At first sponges. circulating then count. She notified the sponges, designed up and to soak blood sponge ready nurse that she was for a thinner, the cloths, about size of but wash sponges scrub nurse the count. The counts sponges were used. These are used to also many on the table and knows how she start- pack away give the abdominal to contents ed The circulating with. counts the nurse surgeon an exposure. area He also sponges They that have been used. com- fours,” sponges by used smaller “four called pared figures appellant their and notified forcep, up ring which folded an were that the count was He relied on correct. designed little instrument these to hold count, although their he that he testified sponges. the did make a visual examination of site customarily sponge. Surgeons and saw no Appellant testified that the situation was rely by the sponge the count made in the emergency highly nature of an and impractical operat- and it is the sponges unusual. While the number of ing surgeon person- sponges to count the recorded, used was not he that a estimated ally. eight total of between twelve dozen and required, opera- ordinary while in an receiving ap- the sponge count, After bladder, tion, gall as the such of a removal pellant opera- closed incision. only about three lap sponges and a dozen tion and re- patient was successful was sponges or two small are used. moved to his room. the un- Because of used, large usually number of large A amount of encountered blood is one nurses recounted and found delayed spleen. rupture missing. When was informed spleen tough is mem- enclosed a fact, leaving the this concluded In kick brane. this case the force of sponge patient twelve an additional by appellee ruptured spleen received harm, him and because hours would do causing bleeding, but did not tear mem- it of the blood be to loss would advisable Finally pressure the blood brane. circulatory wait check to the status of his inside the it tear and membrane caused to system permit recovery to from and dropped the blood into the abdominal cav- surgery. The next he determined morning ity. This was an unusual case because and go it would do no harm to back rupture of the membrane after occurred sponge. remove He told weeks, ordinarily three it whereas occurs by it sponge missing was and located within days. seven to ten x-ray. securing After means of given pints by three transfusion. of blood permission, operating he was taken to Ap- given general Appellant and anesthetic. ordinarily testified that when room cut, pellant enough to blood then removed stitches bleeding vessel can .a permit fingers part him to insert his and clamping controlled it a hemo- off with pull sponge. hand and spleen In adhered to of his out stat. this case the removed, lap 8" sponges, diaphram. was one of which it was When 5", consisting 4" of several capillary oozing to 10" occurred it was neces- and incision sary pack spleen. thicknesses of cheesecloth. The bed How- ever, procedure entire it a was then reclosed. This necessary was not to leave lan- based certain may have been well Appellee there- took about 45 minutes. Ivey, 264 in Moore v. S.W. guage found recovery. good had a after 1924), reversed (Tex.Civ.App. Galveston, — procedure testified that Tex.Com.App., 277 S.W. grounds on other required the removal of the This case was submitted process delay healing did at not that the doctor findings were secured any did contribute ultimate dis- failing negligent in to remove ordinarily ability. He testified that closing an before occupa- safe to resume almost kind of failure was tion after three from months assignments patient. In answer this, patient but would be un- sufficiency challenging of error periods up year. He comfortable for to a the answers evidence to “ ** appellee: testified with reference to jury the the the said: “Since jury, court say The most I could he that was uncom- that Dr. upon has found sufficient evidence longer fortable twelve hours than he would Ivey, sponge the in Mrs. we Moore left ordinarily been.” He further testi- finding think that such that a further required fied that hypos days he three after part Dr. negligence on the constituted very good first which was necessarily Moore follows.” time, and that the second did not Thomp language in This was considered delay returning him in to work or affect Barnard, son S.W.2d picture his long term at all. He testified App. Waco, 1940), aff’d Barnard that if days he had waited several before — 277, Thompson, 138 “158 Tex. removing sponge, hospital stay (1942), appeals the court civil where prolonged by would have been that number support cited the case in of this statement: days. “ * * * to the While there are decisions Appellee testified he that did feel authority contrary, apparent weight pain immediately operations, following the surgeon’s is that a failure remove a later, but that he day did about a or two sponge negli before incision and that he became sick and vomited after gence as a matter of law.” This statement operation. second He testified that he necessary in was not to the decision this has continued pain; to have that when he merits, case since it not been tried on its gets eats he pain in his side. “It but had been dismissed barred being just seems to be a just hard knot. It limitation. up my swells in side.” hasn’t consulted any doctors about this condition. He of- passage Ruling quot The from Case Law expert fered testimony at the ed in Ivey, supra, support Moore in than other the cross-examination of incomplete the decision is as is indicated appellant. in opinion. wording The deleted from quotation par reads: “Whether remained in the nine negligent ticular act jury is for the or ten days, relatively period short to decide after considering the circum time type. charge this No Spears stances of case.” Mc See operation. Ap- was made for the second Kinnon, 1925, 168 Ark. S.W. pellant expect testified that he would that Ivey If this court in decided Moore v. appellee in would have remained hos- surgeon that the fact a fails to remove pital long op- about as without closing an before incision estab “ * * * eration, possibly at most law, negligence lishes as a matter of we stayed longer fourteen hours than he think clearly contrary the decision would have.” great weight authority in the United The failure of the trial court to submit Malpractice, States. Anno. 10 A.L.R.3d negligence issues on Foreign Objects; Anno. 82 A.L.R.2d though conduct should sponges even Malpractice, Ipsa Loquitur; Anno. Res appears It that most negligence. held Operation, Mal- Surgical 65 A.L.R. opr country in hold jurisdictions practice. surgeon liable for erating appears in It the evidence stated assisting him of the nurses opinion support sufficient 564, 12 A. Tromly, 386 S.W.2d McKinney v. in Moore findings jury fact made Tyler, L.R.3d 1011 necessary Ivey. It was not for the Journal, e.); Counsel Insurance negli- to reach the conclusion et Ship, p. 156 Captain of Vol. gence appeared in order as a matter of law seq. of the decision view urges this Court should Appellant verdict. trial court judgment reverse sponge was testified that here render appellee’s body by left mistake. position is based nothing. This take testimony that he relied on visual shows his proposition that no issues inspection and the nurses’ count. conse- and as a requested or submitted jury might believe that his failure to see Rules of quence under Rule was excusable because of recovery Procedure, grounds for Civil large amount of encountered. blood have been waived. might justified relying find that he in was relied on the trial court Appellee and properly on the nurses to count the by this Court. Ivey, a decided Moore v. case under the An circumstances of this case. interpretation disagreed We have issue on negligence have been sub- should in this case. holding widely given Eschelman, mitted jury. Martin v. justice think we Under circumstances Texarkana, 33 (Tex.Civ.App., S.W.2d 827 by remanding case will be better served 1930, ref.); error Note, Michigan 38 Law 434, by Rule another trial as authorized 560; Note, Review, Review Wisconsin Law McAlister, Terrace T.R.C.P. London 1964, 133; p. Review, Note, Baylor 1 Law 608, (1944). 619 142 Tex. 180 S.W.2d 224; p. Note, Review, p. 24 Texas Law remanded. Reversed and It is well established in that Texas Motion for On plaintiff malpractice prove case must that complaining of which he is rehearing filed the motion In of view proximately the negligent caused in brief Amicus Curiae and the of physician surgeon. Ordinarily or carefully thereof, reconsid- has Court requires expert testimony. Thomas v. opinion. original ered its Beckering, (Tex.Civ.App., 391 S.W.2d 771 1965, ref., Tyler, e.). While seems applicable rule general evident that pain suffering is well settled malpractice medical period was extended for a of fourteen that presumes The law in Texas. proximately hours and that this was caused properly. The physician done work has his necessity for the second it can be only when recover plaintiff can appellant’s testimony as is such to create diagnosis or affirmatively shown question jury. of fact for the Gorsalitz in not an treatment Harris, (Tex.Civ.App., 360 574 S.W.2d negligence, a matter of but Houston, 1962); Mason, Henderson v. 386 cause of proximate negligence was Paso, 1964). S.W.2d 879 (Tex.Civ.App., El Hen plaintiff. by the damages claimed Mason, 879 386 S.W.2d derson v. Appellant questions whether he could Ordinarily h.). w. App., Paso n. El damages be held in for the conduct of the must negligence and both making in an incorrect count of

815 appears once this Court that testimony. Bowles proven by medical be left the fact doctor is established Bourdon, Tex. 219 S.W.2d body foreign object patient in of his (1949). A.L.R.2d doing, the a medical reason for so without governing the established rules of law been exception rule has An to this applied. . negligence should be of actions alleged recognized the nature of where case, If, viewing the evi in such within injuries plainly malpractice and the de light dence in the most favorable to knowledge where laymen, the common fendant, only reasonable conclusion me negligence alleged is the use a di negligence, be drawn is that of then instruments, operating on chanical proper. If, rected verdict be would leaving portion wrong body, or hand, raising other there is evidence surgical or within instruments negligence, an issue issue fact as to an body. requirement In such cases jury. must submitted to the eliminated, the ne testimony is but cessity proof Bell remains. alleged appel The plaintiff Umstattd, 306 (Tex.Civ.App., 401 S.W.2d duty lant “failed reason to fulfill dism.); Austin Henderson writ plaintiff per able care owed Mason, Gardner, 377 supra; Dobbins v. operation,” negli formance of the and was Houston (Tex.Civ.App., S.W.2d 665 gent foreign in failing to ascertain that Harris, e.); writ. r.n. Gorsalitz v. plaintiff’s body prior matter was within Houston (Tex.Civ.App., 360 S.W.2d 574 operational in al n. h.); w. Edwards v. West Ordinarily lowing it to remain therein. Hospital, (Tex.Civ.App., ques what care constitutes reasonable is a dism.); Mill Amarillo writ Hess v. jury. tion for the There is evidence that sap, Austin degree exercised some of care Eschelman, 1934); Martin v. 33 S.W.2d inspection that he made a visual of (Tex.Civ.App., 827 writ Texarkana operational directed area and that a ref.). count be made. Whether amounted reasonable care under the circumstances ipsa loquitur doctrine of The res question jury. for by is generally held in to be courts assisting alleged Plaintiff also that those applicable cases. malpractice to medical operation failed to “exercise a rea- Umstattd, supra; Payne, Bell v. Shockley v. degree sonable in performing of care their 348 (Tex.Civ.App., Amarillo S.W.2d 775 proper counting duties sponges;” 1961, ref., ; Millsap, supra; e.) n. r. Hess v. they servants, employees, were agents, Heaney, (Tex. Barker v. representatives appellant; or and that he Civ.App., dism.). Antonio San responsible in law both im- for Eschelman, But see Martin v. 33 S.W.2d proper employees direction of said and writ 827 Texarkana employees’ negligence because said im- is ref.). puted to him re- under the doctrine of spondeat superior. A rule in cases of absolute than this sort would be much more drastic undisputed It as is merely ipsa loquitur, sisting rule res which the doctor made a in count mistake sponges, they makes the Dietze question jury. ing one a mistake which dis King, F.Supp. (E.D.Va.1960); making v. 184 944 covered on a recount. The nurses Hansard, Wyo. 201, P.2d experienced 45 17 had the doc were and assisted Jackson Stewart, (1933) ; many operations. They previous Aderhold 172 Okl. tor in employed by 46 P.2d v. Eschel were and (1935); Martin were man, supra. paid by undisputed it. that between is physical pain sponges They anguish 96 and 144 and the and mental were used. bloody tendency thereby. together. caused stick sponges up are made of several thick- ap- There is some evidence that nesses of cheesecloth. There is evi- pellee physical pain and suffered mental dence to show whether these anguish prior to the trial of case as manufactured of a length continuous direct result of cloth or whether pieces small of cloth are necessitated es in some joined together. manner There is say tablished. cannot that the answer We no evidence that one or more the sponges jury damages, issue on apart. had come presented As to the court $1,000.00, contrary weight is so the evidence simply showed clearly wrong. evidence as to be were not correctly. counted The fact that they were bloody could not have caused the responsible mistake, nor could the fact two or damages found have been more of the sponges might have stuck directly proximately by leaving caused together. Had case, that been the the num- body appellee. within the ber of used sponges certainly counted would McKinney Tromly, equaled the number furnished for (Tex.Civ.App., Tyler A.L.R.3d 1011 use. There is no evidence that the count e.). was necessarily hurried. The only rea- sonable conclusion to be drawn from the rehearing granted. The motion for evidence detailing made, how the count was affirmed, the trial court is and the circumstances under which it was participating. Associate Peden not Justice made, is that the circulating nurse was guilty of negligence in failing properly

count the sponges. That this proxi- awas

mate cause of the failure to remove the

sponge from body is estab-

lished by the testimony he relied on the count. Arlington Jerry BECK, Paint & d/b/a Dry Wall, Appellant, In Porter Puryear, 153 Tex. 262 S.W.2d 933 (1954), the Court said: Roger LAWLER, H. Lawler d/b/a “The inquiry vital Properties, Appellee. involving case proximate cause is whether the negligent LAWLER, Roger Lawler H.

act set in motion a natural and unbroken d/b/a Properties, Appellant, chain of events that led directly and proximately to a reasonably foreseeable injury or so, result. If is immaterial Arlington Jerry BECK, & Paint d/b/a Wall, actual Dry Appellee. was done last event in the series.” (citing au- 16865, 16877. Nos. thorities) Appeals of Texas. Court of Civil Here the doctor was told that the Fort Worth.

count was correct. His visual check con- Dec. 1967. firmed As a this information. result closed leaving Denied Jan. patient’s body, which necessitated the negligent second led

directly reasonably and proximately to a result,

foreseeable

Case Details

Case Name: Harle v. Krchnak

Court Name: Court of Appeals of Texas

Date Published: Dec 14, 1967

Citation: 422 S.W.2d 810

Docket Number: 15108

Court Abbreviation: Tex. App.