Axcell v. Phillips, 15803

• Decision Date: 21 October 1971
• Docket Number: No. 15803,15803
• Citation: 473 S.W.2d 554
• Parties: Freida AXCELL et vir, Appellants, v. Dr. John R. PHILLIPS et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 554

473 S.W.2d 554

Freida AXCELL et vir, Appellants, v. Dr. John R. PHILLIPS et al., Appellees.

No. 15803.

Court of Civil Appeals of Texas Houston (1st Dist.).

Oct. 21, 1971.

Rehearing Denied Nov. 18, 1971.

John H. Holloway, Houston, for appellants .

Fulbright, Crooker & Jaworski, William N. Arnold, Jr., William H. Payne, Sandra K. Foster, Murfee & Hoover, Sweeney J. Doehring, Jr., Houston, for Dr. John R. Phillips.

The Kempers, T. M. Kemper, Houston, for Medical Arts Hospital of Houston.

Bass C. Wallace, Houston, Andrews, Kurth, Campbell & Jones, Houston, of counsel, for Harris County Medical Society.

PEDEN, Justice.

Medical malpractice case. Appeal from the granting of summary judgment in favor of all defendants. On the basis of limitations, we affirm the judgment of the trial court as to all defendants except Medical Arts Hospital.

Motions for summary judgment based on the two-year statute of limitations, Article 5526(6), Vernon's Annotated Texas Civil Statutes, had been timely filed by defendants Dr. Phillips and the Harris County Medical Society when the hearing was held by the trial court on March 1, 1971, but Medical Arts Hospital had not then moved for summary judgment.

The plaintiffs had filed their second amended petition when the motions were heard. They also had on file at that time an unverified reply to the motions for summary judgment of Dr. Phillips and of the Medical Society. Their current petition alleged that on March 29, 1960, when she was 16 years old, Freida Axcell was admitted to Medical Arts Hospital under the care of Dr. Phillips for an operation for what he diagnosed as acute appendicitis. That her mother consented to the appendectomy but not to what the hospital records describe as 'extensive presacral sympathectomy,' a severing of some of the nerves affecting female organs. That the appendectomy was unnecessary, as the defendants knew or should have known, and constituted an assault and battery on the patient without consent, and a fraud and both negligence and gross negligence. That she first learned of such matters in April of 1966 and filed this suit within a month thereafter.

That the doctor was also negligent in disfiguring the plaintiff by leaving a long scar that was unnecessary, in removing certain nerves without the consent or informed consent of Freida Axcell or that of her parents. Also, that if any consent was obtained, it was accomplished through fraud. That the hospital, through its officers and agents, was negligent in failing to warn the plaintiff of Dr. Phillips' reputation, in failing to provide proper supervision over him, and in permitting unnecessary, unneeded and unauthorized surgery. Also, that the Medical Society was negligent in performing certain specified acts and in failing to perform others. That the plaintiffs were entitled to recover exemplary damages from the doctor and from the hospital.

Dr. Phillips' answer contained a general denial and a plea of the two-year statute of limitations. He alleged that when Freida Axcell married in November, 1963, limitations began to run and more than two years elapsed from that date until this suit was filed on May 6, 1966. These allegations were also the basis of his motion for summary judgment.

The Harris County Medical Society answered by general denial, pleaded the two-year statute of limitations and alleged that it is a voluntary non-profit professional organization created to further the ethical practice of medicine in Harris County; that membership in the Society is not a condition to licensing a physician to practice in Harris County. Its verified motion for summary judgment was based on similar allegations plus a statement that Dr. Phillips was a member of the Society and had never been expelled by it.

On February 26, 1971, Freida Axcell filed a reply to the motions for summary judgment, alleging that there were material issues of fact. That her cause of action was not barred by limitations, that the sympathectomy was performed without her knowledge or consent, that she did not learn of this part of the operation until after March 31, 1966, when she was informed of it by a doctor in California, who had learned of the sympathectomy from a letter and reports received from Dr. Phillips. That Dr. Phillips had occupied a position of trust, and that the defendants have 'failed to show that the plaintiff could have discovered such fraud, or should have discovered same, without establishing as a matter of law that she should have known such fact at a date earlier than the first part of April, 1966,' and that the record shows she filed the suit 'within a month after learning of such fraud and unauthorized surgery.'

She also alleged that but for the continued membership of Dr. Phillips in the Harris County Medical Society, the Medical Arts Hospital would have denied him permission to perform surgery there, and the Medical Society failed to inform the hospital of complaints filed against him.

When the hearing was held on the motions for summary judgment filed by Dr. Phillips and the Medical Society on March 1, 1971, the trial court's file included the pleadings we have noticed, the plaintiffs' original petition bearing a file mark of May 5, 1966, and depositions of Freida Axcell, Dr. Phillips and Marvin E. Singleton, Jr., who was president of the Medical Arts Hospital, Inc., of Houston when the operation in question was performed.

Freida Axcell testified by deposition that she was born on May 22, 1943, that the operation was performed in March of 1960, that she was married in November of 1963 and divorced May 11, 1964. She said she and her mother consented to the operation to remove her appendix but not to the sympathectomy, that she didn't know anything about that part of the operation and had not complained to Dr. Phillips of pain during her menstrual periods. That the scar from the operation was excessively long and extended about three inches above her navel .

Dr. Phillips' deposition testimony contains his assertions that the operation was an emergency appendectomy, that it was agreed in advance that an exploratory operation should be performed and that if the appendix had not ruptured, an effort should be made to reduce the patient's acute menstrual pain by sectioning certain nerve fibers. He testified that the appendix did not show any acute inflammatory changes, but was found to be kinked, so it was medically proper to remove it.

That cutting of the nerves in question would not interfere with the patient's ability to conceive or deliver a child and would not cause any damage to her.

His testimony was not entirely free from inconsistencies.

The pertinent recitals in the trial court's judgment are:

'BE IT REMEMBERED that on the 1st day of March, 1971, came on to be heard in due time and order the Motions for Summary Judgment herein of Defendants Dr. John R. Phillips and Harris County Medical Society, and all parties to this suit having been timely advised of said hearing and having advised the Court that they were ready for said Motions to be heard, and all parties appearing by and through their respective attorneys of record, the Court proceeded with said hearing. After having considered (1) the respective pleadings of all parties on file on March 1, 1971, (2) the Motions for Summary Judgment then on file, (3) Plaintiffs' reply to said Motions for Summary Judgment, (4) the affidavits filed on or before said March 1, 1971 hearing date in support of and opposing said Motions for Summary Judgment, and (5) the depositions on file, and after hearing argument in favor of and against said motions, the Court advised counsel for Defendant Medical Arts Hospital, Inc. that the Court would consider a Motion for Summary Judgment on behalf of said Defendant based on the grounds of the applicability of the statute of limitations as if such a motion had been on file at the time of the above stated hearing, and subsequent to said hearing such a Motion for Summary Judgment was filed on behalf of the Medical Arts Hospital, Inc.,

'The Court being of the opinion that there is no issue as to any material fact concerning the alleged causes of action against any of the Defendants herein, and the Court also being of the opinion that said Motions for Summary Judgment should be granted, it was and is, accordingly,

'ORDERED, ADJUDGED and DECREED, that the Motions for Summary Judgment of Dr. John R. Phillips, Harris County Medical Society and Medical Arts Hospital, Inc. be granted, and that Plaintiffs herein recover nothing as against said Defendants.'

The Judgment was signed and entered on April 5, 1971.

The appellants' first four points of error complain of the the trial court's having sustained each defendant's motion for summary judgment based on the two-year statute of limitations, alleging that fact issues existed as to 'fraudulent concealment of the cause of action', as to when Freida Axcell discovered, or should have discovered, the cause of action for 'negligence, assault and fraud'; that...