Barker v. Heaney

• Decision Date: 17 April 1935
• Docket Number: No. 9543.,9543.
• Citation: 82 S.W.2d 417
• Parties: BARKER v. HEANEY et al.
• Court: Texas Court of Appeals

Page 417

82 S.W.2d 417

BARKER v. HEANEY et al.

No. 9543.

Court of Civil Appeals of Texas. San Antonio.

April 17, 1935.

Rehearing Denied May 22, 1935.

Error from District Court, Nueces County; Birge Holt, Judge.

Suit by Ramona Barker against Harry G. Heaney and others. To review a judgment for defendants, plaintiff brings error.

Affirmed.

J. B. Lewright, of San Antonio, and W. T. Scarborough, of Kenedy, for plaintiff in error.

Kleberg & Eckhardt, B. D. Tarlton, L. Hamilton Lowe, and J. C. North, all of Corpus Christi, for defendants in error.

MURRAY, Justice.

The parties will here be designated plaintiff and defendants, as they were in the trial court.

This suit was instituted by Ramona Barker, as plaintiff, against four physicians, Doctors Harry G. Heaney, J. Nast, Burch Thompson, and E. F. Stroud, seeking to recover damages accruing to her by virtue of the death of her husband, Cleveland (Cleve) Barker, alleged to be the result of the negligent acts of the above-named defendants while performing an operation upon the deceased.

The case was tried to a jury. The court instructed the jury to return a verdict in favor of Dr. J. Nast and submitted the cause of action as to the other three doctors to the jury. The jury's answers to the special issues thus submitted were favorable to the doctors, and from the resulting judgment Mrs. Ramona Barker has prosecuted this appeal by means of a writ of error.

The facts are as follows: Cleve Barker and his wife, Ramona Barker, resided in Kenedy, Karnes county, Tex. On Sunday, May 29, 1932, Cleve Barker went in an automobile to Corpus Christi, Nueces county, Tex., and there registered at the Plaza Hotel. Barker was drinking when he left Kenedy and continued to drink after he arrived in Corpus Christi. About 11 o'clock on this Sunday morning, Mrs. Leola Moore was summoned to his room as a practical nurse. She found him in an intoxicated condition and suffering with inflamed eyes. Dr. C. O. Watson, the house physician at the Plaza Hotel, was summoned to Barker's room, and he directed Mrs. Moore to place towels on Barker's eyes and otherwise treat him. Barker would sleep for a while, awaken for a short period of time, take a drink or two of whisky or cognac, and then go back to sleep. Mrs. Moore stayed in his room until about 11 o'clock Sunday night, at which time she returned to her home, coming back to the hotel about 6 o'clock the next morning, Monday, May 30. Barker was still intoxicated and continued to drink intoxicating liquor throughout the day. About noon on this Monday one of the defendants, Dr. Heaney, was summoned to Barker's room and visited him for some fifteen or twenty minutes. He informed Barker that he had bad tonsils and should have them removed. Later in the day, Barker phoned Dr. Heaney and suggested to him that he come to the hotel and remove his tonsils. This Dr. Heaney declined to do, and informed him that he could only have a tonsillectomy performed by going to the hospital. This Barker first refused, but later decided to do. About 7 o'clock Monday evening, after eating a large meal, Barker called a taxicab, and, in company with Mrs. Moore, went to the hospital, taking with him a quart bottle of liquor about two-thirds full. Mrs. Moore testified that Barker took three more drinks after arriving at the hospital. It was estimated that during the two days, Sunday and Monday, he had consumed approximately seven pints of intoxicating liquor, that is, either whisky or cognac. When Barker arrived at the hospital he was assigned to room No. 5, where he was undressed, put to bed, and prepared for the operation. Several nurses assisted in this preparation, and Doctors Heaney, Thompson, and Stroud visited him in room No. 5 and had an opportunity to observe him before he was taken to the operating room, where, about 8 o'clock Monday evening, May 30, 1932, Barker's tonsils were removed. The operation consumed about 40 or 45 minutes, after which time Barker was returned to room No. 5, where, some two or three hours later, he died.

The first question with which we are confronted in this appeal is whether or not the evidence in this case was sufficient to show that Barker's death was proximately caused by the negligence of the defendant doctors. The plaintiff alleged the following items of negligence:

"(a) Improper preparation for the operation.

"(b) Failure to make a blood test.

"(c) Failure to make a coagulation test of the deceased's blood.

"(d) Failure to determine the deceased's blood pressure.

"(e) Performing the operation while the patient had a full stomach, thereby necessitating the use of an excessive amount of anæsthetic.

"(f) The administration of an excessive dose of morphine.

"(g) Operating on the patient while intoxicated thereby necessitating the use of an excessive amount of anæsthetic.

"(h) Performing the operation while the patient was intoxicated instead of delaying at least ten days.

"(i) Using a defective drain tube during the operation, thereby causing the patient to swallow an excessive amount of blood.

"(j) Performing the operation while the physicians were nervous and agitated and in a hasty manner.

"(k) Failure to remain in attendance on the patient after the operation.

"(l) Operating on the patient while he was in such physical condition that he could not stand the operation.

"(m) Performing the operation with great haste and without proper preparation.

"(n) Failure to use ordinary care after the operation."

The evidence in this case is insufficient to raise the issue of negligence as to the items set forth in sections a, b, c, d, e, f, g, i, j, k, m, and n. The testimony given by Mrs. Leola Moore, however, is sufficient to raise an issue of fact as to the items of negligence set forth in sections h and l, which items, in effect, state that it is negligence to operate upon a drunken man, a person who is under the influence of intoxicating liquor.

The next question to be considered is whether or not there is any evidence establishing a causal connection between the acts of negligence stated in sections h and l and the death of Barker. The plaintiff's only expert witness was Dr. Thad Shaw, who testified by way of deposition. Dr. Shaw did not attempt to testify in answer to a hypothetical question, that under the facts in this case Barker's death was proximately caused by the negligence of the defendants. He did testify that if a drunken person is operated upon that certain bad results may follow. He states that in an average case morphine administered to a patient under the influence of liquor acts as a sedative, but in many cases if given beyond the average dose it proves fatal. He further states that administering a general anæsthetic to a patient who has a full stomach causes the stomach to absorb more anæsthetic than necessary and the patient will vomit and because of the vomiting will get some of the material into his lungs, and thus cause the patient to have pneumonia. He testified that liquor stimulates the blood pressure at first, then later lowers it; that a general anæsthetic given to a drunken person will sometimes throw him into delirium tremens; that a drunken person will require more anæsthetic than a sober person. He further testified that the physical effect of administering a general anæsthetic to a drunken person is, it takes a double amount of anæsthetic and there is a great danger of heart failure and pneumonia. The undisputed evidence in this case shows that Barker did not develop pneumonia, that it did not take more than the usual amount of anæsthetic for Barker, and that he did not vomit as a result of the anæsthetic. The undisputed evidence shows that his blood pressure was normal. He did not develop delirium tremens. He did not have heart failure while the operation was being performed, nor after the operation within the period which the expert witnesses say it could have occurred as a result of Barker's intoxication.

Dr. Shaw says further that more morphine than one-quarter of a grain has frequently proved fatal to alcoholic patients by producing a paralysis of the respiration. The undisputed evidence shows that no paralysis of the respiration took place, but, on the contrary, that the respiration was normal for nearly three hours after the operation. The undisputed testimony shows that the operation was performed about 8:30 p. m.; that...