*1 ux., Appellants, L. Carl WEISER et al., Appellees.
Dr. William R. HAMPTON et
No. 15472. Appeals
Court of Civil Texas. (1st Dist.).
Houston
July 3, 1969.
Rehearing 11, Sept. Denied 1969. Rehearing
Second Denied Oct. 1969. *2 Hamp- neurosurgeon and Dr. R.
аs William orthopedic spinal surgeon. as bone stabilized column fused with metal by Harrington rods. On use of 27, 1964, Harrington July Hampton, by as- device removed Poindexter, by Craig who was sisted Dr. hospital. In at the October resident doctor remaining of the Har- portions by rington other sur- device removed were complaint about geons. Appellants had no professional the conduct skill of or surgeons operation. performing this 26, 1965, plaintiffs’ On November original petition was filed. In the amended triеd, petition, on the case was plaintiffs alleged laminectomy performed on Mrs. Weiser without her in- consent; formed the Harrington rods were placed in her back without her knowledge consent; or per- informed that the doctors Houston, appel- for Holloway, forming operation her H. this secured consent John by misrepresenting procedures lants. fraud; portion used constituting that a Kurth, Campbell Jones, Andrews, & the Harrington by device was removed appelleеs. Houston, Davis, for B. Frank operation third without knowledge her consent; operations all informed performed COLEMAN, negligently proximately Justice. caused injury; and that Dr. Hampton malpractice case.' Suit a medical This is negligent in failing take post-opera- partici- who four doctors against filed tive following surgery of July, the back of operations pated in three 1964. was sub- case appellant Lois Weiser. By Special the doc- Issue as two No. One mitted to the thаt a practitioner verdict reasonable receiving medical After tors. in favor same school medicine as entered defendants trial court practicing County, Texas, in Harris in all the defendants. 1963, November the exercise of or- con- appeal questions are in this Involved dinary care, would informed a medical treat- cerning informed consent to operated be fusion, that such fusion treatment, diagnosis and ment, negligence additionally be stabilized the use аrgument. limitations, prejudicial jury two distraction struts (rods), one on each side of spine. In answer related to this injuries not Because of Two the did not Caram,. by Dr. case, assisted Pedro find from a of the evidence Wall, complete laminec- L. Edward Dr. William in- in March of tomy Lois Weiser on Mrs. form Mrs. Weiser that such fusion “might” was in- Subsequently Mrs. 1963. additionally stabilized the use of two accident. There- volved an automobile Harrington devices. after, she November underwent accomplish spinal This surgery to fusion. attack the answer to Special Issue operation performed by Dr. Caram supported No. Two being by probative present. which time force know Dr. Caram was appellants great weight prepon- contend that weight While given testimony this derance of the evidence. was weakened testimony given by Caram, certain response points appellees Hampton, view state since the burden a conclusion does not fol- *3 necessarily such prevail proof, of on these it is to by to the low. The answer made necessary they that contend that the evi contrary is so to the issue submitted not position dence establishes their as matter overwhelming weight preponderance and support ap- of law. of this contention clearly wrong. as to be evidence Stores, pellees Safeway Inc., cite Smith Three and Four Points (Tex.Civ.App. Tyler, sup- that there was no evidence to contend ref., held that e.). n. r. cоurt Special port made to the answer negative where a returns answer Five, that the answer is so No. and Issue to an proponent issue on has which preponder- great weight and against the proof, jury’s negative the burden manifestly to be ance of the evidence as supported by answer need not be affirm wrong unjust. and proof. ative that in It stated such situa party tion “it noth complaining avails Four, Special Issue In answer to No. ing negative to assert answer is with dis- jury found that a doctor “would have support sup out in the evidence or is not that the to a closed ported by factually evidence. sufficient instruments, used, adjunct if as an to metal circumstances, complaining Under operation, might have to be re- a fusion placed party having is in the to In answer to moved at a later time.” an evidence establishes Five, Special refused court, injury as a matter of law.” The Hampton to ad- “failed so to find however, pre held thаt where prior surgery.” vise Mrs. Weiser contrary great sented the issue is for the reason Point Three is overruled evidence, weight preponderance and as a matter of law that it is not established necessary determine the Hampton advise Mrs. that Dr. “failed so after a all the evidence. review of testified that she did Weiser.” Mrs. Weiser contemplated Appellants’ Point is denied on not doctors One know operation and authority Stores, using metal in the fusion Safeway оf Smith v. Inc., possibility supra. that she not told In consideration Point Two might the metal have to be removed entire record has been reviewed. Mrs. Hampton subsequent operation. testi- Hampton testified that did not authoritative a recognized as with her the use of a metal fied that he discuss device Harring- in an Dr. Paul posi her back. Dr. statement article used tively opera rods'(such as the ones explained proposed that he ton that metal by the operation) her аre tolerated tion to and told her several occasions in direct contact with appeared that if it he “can be beneficial would use and used period of spine axial for a reasonable metal rods on either side and skeleton Hamp- time, years.” appeared stabilization, “if it five When that it one to added that, condition, her why he didn’t tell improve and seemed asked I on it. I told put didn’t a year he stated: “I would even usé those her case.” He any рeriod tolerate it for her she couldn’t testified that “he felt that needed to also he In answer placed time, it be removed.” they could tell would be metal rods her “Well, after stabilization,” question, he stated: to another across the fusion site for if it to come had just her told her that I told and he several times. ” * * * out, at all that could come testified that talked her out he about came times, first He also testified that when she and use of rods several back, only por- knot on associated with the the small her removal of to him about device, tion just top right Harrington one of the told that it her probable complications sticking up positions metal of this arise therefrom, but, Special just like I told her be- “it could removed answer Issue testimony Eight this No. find that fore.” Mrs. Weiser’s prior did not testimony so related her advise point was surgery. used Issue told that metal answer she No. Eight being testimony supported denied. The denial attacked as and this weakening had the so effect possibility overwhelming weight not informed of that she was manifestly wrong the evidence removed. as to be metal record, unjust. the entire answer Considering *4 Five not so jury Special
the Issue No. Dr. testified that there were preponderance weight and against great the complications no risks or associated with the wrong manifestly the of evidence only portion removal of the Harring- of unjust. and It undisputed, therefore, device. any probable he did not tell her of risks, an affirmative answer Prеdicated on dangers, or complications associated with Four, Special jury the Issue found portion the only removal device. failed to “so Mrs. advise Pedro Caram jury’s Special answer to Issue No. They prior then surgery.” Weiser Eight must have been opin- based on their they prepon from a asked whether found ion pre- to show a failure, derance evidence “such the ponderance of the evidence that there were any, any cause of dam wаs probable probable risks dangers, or or age (6B) This Mrs. Lois Weiser.” issue complications, operation. with the associated answered, not.” Appellants “We do This is a untrained one in supported by contend that this answer is no medicine could not It answer. was incum- it evidence and that is so to the upon appellants bent by competent to show and great weight the medical probable risks, the manifestly evidence wrong dangers, complications. or unjust. These are overruled. answer supported the that he did testified Hampton explained probable it consider that the rod could mi- the metal have to be removed. The grate position into a where it would exert justified believing in that Mrs. cord, pressure spinal the and cause in- contemplated procedure the knew Weiser, although he recog- to Mrs. and that failure the Caram to ex position nized that the rods could plain it to her also would have caused shift. operа her her withhold consent part that if Edward Smith testified If in fact knew that tion. she metal' remaining was cut rod off spine, stabilizing be used in her migrate up until it comes out would it was free to determine that made dif migrate probably the shoe and won’t “then ference her which doctor told about it. any that it further.” He would very migrate unlikely could it into In answer spinal x-rays He testified from that a Seven the reasonable canal. taken after rod cut off medical the same practitioner schoоl as it position was not in a where defendants, could practicing County, in Harris rod probability in Texas, reasonable medical cause under the same or similar circum canal. From damage spinal his stances, ordinary in the exercise care he didn’t patients, have examination of be- for their would disclosed spinal canal. probable dangers lay lieve the risks rod or canal, just Dr. Caram testified that if the rather than it, hooks alongside of or got disengaged get scarring, across something rods associated with spinal probably it canal, injury operations.” and these could It his damage patient. He further opinion some complete there was a block of portion testified that the rod spinal canal “where she had a frac- left in Mrs. Weiser’s when knot deformity tured vertebra and and a rod was “fixed with the scar removed degree the canal.” He had be- “some it,” that nothing tissue around accounting lief” that rod happen as a result of movement with neurological abnormality. op- During the body. He testified if the should rod lay eration he found that the rod within canal, spinal go into across spinal canal at the level of the fracture go,” might “which I doubt if it vertebra, 12th thoracic come contract with the dura and that “thought likely that it was be a source could interfere with the flow of the fluid of interference of function and it should inside of the He also testified that if sac. come out.” made after the Tests were spinal “comes contact” with rod, rod removal of and the some scar tissue cord “it cause some may irritation of re- opinion he “was of the spinal cord,” hyper- which would result in may improved moval reflexes, tingling active sensation that no room available to the cord and *5 legs and that he numbness. He testified away opening, trying further take or to spinal not think the was did rod inside the scar tissue should be done.” He testified canal pressing and that unless the was rod pain that and dam- Mrs. suffered on the nerve itself lower nothing the age operation as a the to remove result of extremities would be affected. He also that the He testified he not rods. testified that only the fact that one rod the know what influence the off of cutting spine the to would not cause attached be in allowing rod had on rod to spine. a bowing of the saying spinal that he was not canal and that if any it He said that had influence. George Bruce Cameron and Dr. like x-rаy an a rod looked examination Ehni performed operation during it, he would it where he had left wasn’t which finally the rods were removed. investigation see want to make further to actually Cameron testified that Ehni migrate. it He fur- whether continued to removed the report rods and dictated an ther that he was not ortho- testified records, the hospital for and that had pedist “put in these and he had never report reviewed the and it and was true rods,” “how and that he did not know He correct. testified there some supposed move.” things are much these compression by lay it rod as in Mrs. Weiser’s back. He testified that at testimony appears the medical It from surgery time of right rod was complications asso- only that the risks laminectomy site the cord area a part rod the removal of ciated with up lying against dura. said: migra- by the injury caused the risk of “Well, position you it’s not the want it to testimony is no There tion of the rod. be in. But it is a it can into get migration greater a risk that there was sometimes.” off was cut expected if the rod
Dr. George Ehni a rod compared migration testified that after risk of viewing myelogram a for some other examining has become loose testimony that partially opinion was his There was direct reason. probable emergent partial rod was migration nerve roots at the level of the old testimony that mi- injury “either a there was direct affected rods, expected under not to right gration result оf one one be an- believe, spinal in this case. I found seemed circumstances Special sity procedure. such jury returned Is- a In the absence swer finding x-ray not so that the con- Eight sue No. failure weight preponderance negligence, stituted great manifestly un- wrong issue is immaterial. The mere failure evidence as x-rays just. proxi- take could constitute a injury mate cause of the sustained as re- Special Issue No. Ten matter law. The well have find from fused to took rеasoned if doctor the failure of Dr. operation nothing signifi- after the soon devices, both of the remove cance have been detected. While only removing part than rather weeks, he had waited six or seven Appellants’ one, right negligence. prevent damage. been late to In have too finding. and Eleven attack Points Ten rod addition there establish does not The evidence injury. caused no been answered issue have should testimony that there is affirmаtive. While issue, the damage answer to necessity for either no medical there was Fourteen, in Mrs. Weiser’s remain rods nothing. the amount was Assuming testimony that, in body, view there was required the evidence finding of some result- in her back scar tissue the mass of pecuniary damage, the error is immaterial operations, Mrs. Weiser ing previous from sup since find issues complications from major port against a judgment any of the defend removing rod which the left Pine Lumber An ants. Southern Co. v. her. bothering drаde, 132 (1939). Tex. S.W.2d 334 requested only Mrs. Weiser was no be removed. There *6 For the denying reasons set out in by procedure that followed the discussed, previously error the to ac- Hampton failed conform Dr. appellants’ point sixteenth is overruled. Ten and cepted Points medical standards. Point No. Seventeen con present Eleven not error. do presiding tend was error for the judge overrule motion their to disre Twelve asked whether gard findings the x-rays since he was not of Dr. to sеcure failure Appellants do judge who sat at trial. surgical following Mrs. Weiser presiding not that the not judge is portion right Har- removal of a judge authorized law sit for the trial negligence rington metal device constituted subsequent proceeding, but contend a damage to Mrs. and a judge having that the error consists in a both issues The answered Weiser. pass a mo not familiar the facts on with and Thir- negative. in the Points Twelve on disregard jury findings tion to based teen, jury, findings at directed sup findings a contention Dr. took present not error. Cameron do ported no evidence. it is ob While surgery two after within months evi judge heard the who that time vious Hampton. At performed pass in a better dence would be Dr. Ehni patient. his Mrs. was motion, it would not unreason on absence neuro- suppose judge would another he trouble able suggesting logical symptoms argu after hearing so he be able to do months after for several wait point is denied. The positions of counsel. ments changed a noticed Pro Rules of Civil 330(g), Texas testified Rule making x-rays. Smith before Co., Transp. cedure; Bickham v. Herrin x-ray patient a after he never (Tex.Civ.App. Houston, 344 953 top part of a rod unless S.W.2d off the he took 1961). indicating neces- developed symptoms he 230
Appellants complain jury ar- of certain Dr. Poindexter. Wilson v. Scott, prejudicial. Appellants gument being 1967). 412 299 S.W.2d (Tex. no for a Their made mistrial. ob- motion undisputed It is person- he was not argument jection to the was sustained ally given Mrs. par- Weiser’s consent to disregard it. was instructed to ticipate operation. in the was im- portion argument was While patient. Dr. Caram’s was prejudicial. proper, not The perform called first Dr. Caram to present not error. does reversible procedure. the stabilization Poindex- employed by hospital ter was resi- appellants’ At the conclusion of assigned by hospital dent and case, appellees dictated into the record surgery. assist testified thаt the to Dr. for instructed verdict as motion only time he “would come a direct into obli- The trial court overruled Poindexter. patient gation surgery when time, at the matter motion stating performed improperly under the probably again time the arise at the doctor in procedure standard of a medical charge record does prepared. The patient.” exercise of medical care of motion. sustaining contain an order' As an assisting surgeon doing all he in states that the court operation by handing in the assisting structed verdict as Dr. Wall surgeon or what- operating “sutures Poindexter, object to aspect.” in that going ever he is need motion for an instructed verdict on surgical In the “drastic absence some court ground that it was dictated to the that “the error” which would indicate reporter presented writing. than rather was in- health welfare appellees present a failure of volved,” not interfere with what he would can fоr instructed verdict written motion surgeon doing, but operating requiring not be reversal unless merely him. There is assist no disputed any issues fact. performed procedure record reveals actually There on the Mrs. Weiser. fact the disputed absence issues of duty to the evidence that he his breached trial court should instruct a verdict patient. assisting the he was sur- Since Estate, In Re Price’s his own motion. control, geons, their under direction Associates (Tex.1964); Marlin independent doctor-patient re- and had no Co., Trinity Ins. *7 Universal S.W.2d lationship, duty gain under to he was no (Tex.Civ.App. Dallas, 1949). 190 consent, any, patient’s consent. The perform an given surgeon, to a to who Dr. Poindexter doc was a resident patient, be con- operation, by his must employed hospital. tor was as him to se- to consent for strued include signed Hampton. to He did assist Dr. by the hos- furnished cure such assistance prior operations. talk to Mrs. to the pital may require. as he op participated in the Dr. Poindexter two Harrington involving erations devices. is no evidence Since there would Appellants viewing the evi that Dr. Poindexter Weiser knew operation, or that Dr. participate dence at time the was submitted in» the case antici- Hampton to jury, there was fact issue"as knew that Poindexter devices, permission pated whether Poindexter had the use of appears point Hampton question presented by in the Har this assist Dr. placing Assuming impression. rington in be devices Mrs. Weiser’s of first one request duty secure that Dr. leaving in there. Poindexter had them he could an to call Mrs. consent before ed issue which was sufficient Weiser’s in question this theory Hampton, trial assist Dr. this attention do so failure to negligence case would be whether his court. There is no evidence gross negligence, accompanying issues her. injury cause of proximate malice, cause, issues in which answered question could be Before this plead- he were raised the evidence affirmative, it be assumed must ings.” from duty ascertaining under the con- surgeon procedures operating point appellants this argument under in- might secure templated in order that he say followed that “the above issue was securing the duty formed consent. questions the statement whether doc- rests patient’s consent informed gross negligence, whether constituted performing treating tor false, statement whether Mrs. Weiser personnel operating room opеration. The relying false damages upon sustained such anticipate required to not be should statement, negli- definition of gross with operation would charge in doctor gence.” are not fail to such consent. We secure question of whether faced with distinctly presented point This was not be to Mrs. Weiser liable Poindexter appellants’ as- by any the trial court damages had the for required by Rule signments error as Hampton to secure her informed speci- do not 374 T.R.C.P. While оperations performed. consent to the fy assignment error which appears based Twenty appellants’ point germane, Point raised in brief it presents They complain paragraph Motion for New XIII of the error. granting action court in Car- Court paragraph Trial. This reads: “The requested am’s oral issues refusing plaintiffs motion instructed verdict. erred from presented. This motion was overruled concealed when of whether Dr. plaintiff does remove not refleсt the fact he intended to rod, together with only part reconsidered and sustained at a later brief, time. appellants’ Under this such accompanying issue to whether pointed special that certain issues out false, negligence, was gross statement was requested laminectomy. relating to the damages plaintiff sustained and whether presented charging No are the court statements, reliance on such false refusing with error in these issues. How- gross negligence refusing the definition of ever, opinion we are that the court issues.” regards to such submitted relating did not err in refusing these issues negligence and informed consent since the court paragraph not direct This the cause of action was barred appellants’ that Dr. contention year Appel- two Statute of Limitations. going that “he advised Mrs. Weiser lants’ Point No. 21 raises this also artificial bone to remove some Hedrick, and it is overruled. Coffman v. knot on as to cause the growing so (Tеx.Civ.App., Dist. 1st refer appears XIII Paragraph back.” ref., e.). n. r. *8 Hamp that Dr. purported evidence to some intended fact that he concealed Points 22 and 23 than rod rather remove that the trial court erred in cer- refusing error, if assignment The entire rod. requested tain issues. The issues dis to the issues it was directed fact raised the evidence. Hart v. Van con 24, tend to cussed Point under Zandt, 399 (Tex.1965). S.W.2d 791 him than to assist rather fuse the trial court appellants’ Point 24 reads: understanding “The Court еrred the basis 321, in refusing plaintiffs’ T. requested complaint contemplated by Rule issues of May, whether Ins. Co. v. concealed the fact Traders & R.C.P. General of the metal being removed, (Tex.Civ.App. instead 267 168 S.W.2d — Amar. knot, 1943, ref., of bone as m.). the cause w.
232 ap
Point 24 cannot be considered on peal. Tyra, Weingarten, Inc. v. 381 S. J. (Tex.Civ.App. Tyler 1964);
W.2d 215 Bryan, Ellen v. City of 1967, ref., (Tex.Civ.App. n. r. — Waco 333, Foster, Wagner
e.); v. 161 Tex. (1960).
S.W.2d 887 af- the trial court is
firmed.
ON MOTION FOR REHEARING that we properly out in stating
erred for mistrial no motion improper argument reason of properly
made. The overruled. motion was
After a review the record as a whole
we find that argument probably of an im- rendition
proper judgment. rehearing motion for is denied.
LUFKIN FOUNDRY & MACHINE COMPANY, Appellant, MIXON, individually
Gene Round- d/b/a up Company, Roundup Elevator Inc., Elevators, Appellees.
No. 7081. Appeals
Court of Civil of Texas.
Beaumont.
Sept. 1969.