Bender v. Dingwerth

• Decision Date: 06 May 1970
• Docket Number: No. 27639.,27639.
• Citation: 425 F.2d 378
• Parties: Mary P. BENDER, Plaintiff-Appellant, v. Dr. Frank S. DINGWERTH et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

425 F.2d 378 (1970)

Mary P. BENDER, Plaintiff-Appellant, v. Dr. Frank S. DINGWERTH et al., Defendants-Appellees.

No. 27639.

United States Court of Appeals, Fifth Circuit.

April 21, 1970.

Rehearing Denied May 6, 1970.

Otto B. Mullinax, Dallas, Tex., Herbert L. Lenchner, Pittsburg, Pa., John E. Collins, Dallas, Tex., for appellant.

William David, Sloan B. Blair, Ft. Worth, Tex., for appellees.

Before RIVES, GOLDBERG and GODBOLD, Circuit Judges.

GOLDBERG, Circuit Judge:

In this medical malpractice case we wrestle with the usual problems attendant upon such suits and with a particularly difficult one concerning proximate cause, a concept which has all too often thrown judges and lawyers into confusion as though it were a brooding omnipresence in the sky of torts.

Invoking diversity jurisdiction, Mary P. Bender, the surviving wife of Thomas C. Bender, brought this action on behalf of herself and her minor son against Dr. Frank S. Dingwerth and his partners for alleged acts of medical malpractice occurring in Arlington, Texas. The defendants practiced medicine under the firm name of Arlington Medical Center in that city. The Benders were patients of Dr. Kenneth Adams, one of the clinic partners. Thomas Bender was receiving treatment from Dr. Adams for a diabetic condition which apparently was manageable and not disabling. On the evening of January 21, 1966, Bender awakened about 11:30 p.m., experiencing sharp pain in his chest and difficulty in breathing. Mrs. Bender attempted to contact Dr. Adams, but was informed that Dr. Dingwerth, who apparently had never treated Bender before, was on call that evening. After hearing Mrs. Bender's description of her husband's symptoms, Dr. Dingwerth advised her that he would meet them in the emergency room of Arlington Memorial Hospital. The Benders arrived at the hospital twenty minutes later. Dr. Dingwerth arrived approximately an hour and a half later, having waited at his home until the emergency room nurse notified him that the Benders had arrived at the hospital. After his arrival Dr. Dingwerth examined Bender and recorded impressions of early pneumonitis or pulmonary congestion. He administered a mild sedative to Bender and admitted him to the hospital as a bed patient, prescribing cough syrup. Bender had a restless night and died suddenly the next morning of an acute myocardial infarction (heart attack).

Mrs. Bender brought this suit against Dingwerth and his partners, alleging several grounds of malpractice: (1) failure to reach a diagnosis of heart disease in view of the patient's medical history and symptoms upon examination; (2) failure to consult a heart specialist; (3) failure to treat the deceased as a heart patient; (4) failure to use the best available diagnostic tool, an electrocardiogram, to reach a diagnosis; and (5) delaying his arrival at the hospital for over an hour.

At trial various medical experts testified concerning the propriety of Dr. Dingwerth's conduct and the cause of Thomas Bender's death. At the conclusion of the evidence the court submitted special interrogatories to the jury. Issue number one asked whether Dr. Dingwerth had been negligent in his examination, diagnosis, care, or treatment of Thomas Bender. Issue number two asked whether that negligence, if any, was a proximate cause of the death of Thomas Bender. The jury answered affirmatively in response to the negligence issue, finding Dr. Dingwerth's conduct negligent in one or more respects. In answer to issue number two, however, the jury found that Dr. Dingwerth's negligence was not a proximate cause of Bender's death. On the basis of these jury findings the district court entered judgment for defendant Dingwerth and his partners.

Mrs. Bender appeals, alleging that the trial court erred (1) in its instruction on proximate cause, (2) in failing to instruct a verdict for the plaintiff, (3) in failing to instruct the jury that Dr. Dingwerth's delay in arriving at the hospital should be measured by the standard of conduct of an ordinary prudent person rather than by a medical standard, and (4) in limiting the community standard relative to the doctor's conduct to the Arlington, Texas, community or a similar community. Finding error in the court's instructions concerning proximate cause, we reverse and remand for a new trial.

I.

In its instructions to the jury the court defined proximate cause in the following terms, to which plaintiff does not object:

"By the term `Proximate Cause\', as used in this charge, is meant a moving and efficient cause without which the event in question would not have happened; an act or omission becomes a proximate cause of an event whenever such event is the natural and probable consequence of the act or omission in question, and one that ought to have been foreseen by a person of ordinary care and prudence in the light of attending circumstances. There may be more than one proximate cause of an event."

In another part of the charge, however, the court in instructing the jury on the plaintiff's burden of proof made the following explanation concerning proximate cause, to which the plaintiff does object:

"In a malpractice suit the burden is on the plaintiff to prove by the testimony of a practitioner in the same field of practice as the defendant that the diagnosis or treatment complained of was such as to constitute negligence, and that the negligence was a proximate cause of the patient\'s injuries; however, the testimony of practitioners in a different field of medicine is competent where the subject of inquiry is common to and equally recognized in all the fields of practice involved. And the plaintiff\'s proof in this respect must not only establish the defendant\'s act or acts as a proximate cause, but must exclude any hypothesis as to the existence of another efficient proximate cause." Emphasis added.

We find the concluding sentence of the instruction fatally deficient. Although the court did not define "efficient proximate cause," we assume that the court meant an act with a causal relationship to the injury sustained. Fairly read, this language instructed the jury that the plaintiff had to prove that Dr. Dingwerth's negligence was, standing alone, the single cause of the death of Thomas Bender and that nothing else contributed to that event. In other words, this charge instructed the jury that the plaintiff in order to recover had to prove that Dr. Dingwerth's negligence was the sole proximate cause of Bender's death. This is simply not the law in Texas. In a malpractice case, as in other negligence cases, the plaintiff need prove only that the negligent act of the defendant was a proximate cause of the injury sustained. As the Texas Supreme Court said in Bowles v. Bourdon, 1949, 148 Tex. 1, 219 S.W.2d 779, 782:

"It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient\'s injuries." Emphasis added.

Accord, Hart v. Van Zandt, Tex.1966, 399 S.W.2d 791. The plaintiff's burden is thus the affirmative one to establish that the doctor's negligence is one proximate cause of the injury. We have not been cited to nor have we found a single case in which the Texas courts have held that the plaintiff has the negative burden of disproving every other possible contributing cause of the injury.¹ In approaching this very question the Texas Court of Civil Appeals recently remarked in Rose v. Friddell, Tex.Civ.App. 1967, 423 S.W.2d 658, 664, writ ref'd n. r.e.

"We recognize the rule which states that where there are two or more causes which might have produced the injury, for only one of which the defendant is responsible, and there is no evidence to show (sic) which cause the injury is actually attributable, a verdict should be directed for the defendant. Bowles v. Bourdon, supra. However, we do not believe the rule goes so far as to require the plaintiff to prove causation by direct and positive evidence which excludes every other reasonable hypothesis. It is generally held that evidence which shows reasonable probability that defendant\'s negligence or want of skill was the proximate cause is sufficient to raise an issue for the jury. 13 A. L.R.2d 28."

Much of the confusion in this area has no doubt resulted from a misreading of the rule referred to by the Texas court in Rose. It is common for a court in stating the rules governing malpractice cases to assert that the plaintiff has not presented a sufficient case to go to the jury if several possible causes for the injury are shown, only one of which is attributable to the doctor, and the evidence does not establish that any of the alleged causes are actually responsible for the injury. Hart v. Van Zandt, supra; Bowles v. Bourdon, supra; Henderson v. Mason, Tex.Civ.App.1964, 386 S.W.2d 879; Lenger v. Physician's General Hospital, Tex.Civ.App.1969, 438 S. W.2d 408, writ granted; Ross v. Friddell, supra. The plaintiff's difficulty in these cases, however, is not a failure to show that the doctor's act was the only cause of the injury, but rather the failure to prove that there was any causal relationship at all between the doctor's act and the ensuing injury. This difficulty usually occurs because the plaintiff's expert medical witnesses are reluctant to state outright that the defendant's act or any other act was a cause of the resulting injury, preferring as medical men to state that such an act might have caused the injury. See Small, Gaffing at a Thing Called Cause: Medico-Legal Conflicts in the Concept of Causation, 31 Texas L.Rev. 631 (1953). The result is that the plaintiff fails to prove what he must prove in any negligence case — that the act complained of was a proximate cause...