Bowen v. East Texas Hospital Foundation, 161

• Decision Date: 03 March 1966
• Docket Number: No. 161,161
• Citation: 400 S.W.2d 843
• Parties: D. A. BOWEN, Appellant, v. EAST TEXAS HOSPITAL FOUNDATION, d/b/a Medical Center Hospital, et al., Appellees. . Tyler
• Court: Texas Court of Appeals

Page 843

400 S.W.2d 843

D. A. BOWEN, Appellant, v. EAST TEXAS HOSPITAL FOUNDATION, d/b/a Medical Center

Hospital, et al., Appellees.

No. 161.

Court of Civil Appeals of Texas.

Tyler.

March 3, 1966.

Rehearing Denied March 24, 1966.

Wm. Emerson Stone, Jr., Stone & Stone, Jacksonville, for appellant.

Tom B. Ramey, Jr., and Donald Carroll, Ramey, Brelsford, Flock & Devereux, F. Wilbert Lasater, Spruiell, Lowry, Potter, Lasater & Guinn, Tyler, for appellee.

DUNAGAN, Chief Justice.

This suit was instituted in the 7th District Court by the appellant, D. A. Bowen, against the appellees, East Texas Hospital Foundation, d/b/a Medical Center Hospital, Dr. H. H. Muntz, Dr. G. Wm. Burch and Dr. Vernon V. Goss, seeking to recover damages for injuries he received while a patient in the Medical Center Hospital. Appellees Burch and Goss were partners.

In Paragraph 2 of appellant's first amended original petition upon which he went to trial, he alleges that as a patient of the defendant Muntz and defendants Burch-Goss, he was admitted to the defendant hospital on or about June 18, 1962, for surgery upon his right eye for a detached retina, which operation was performed on June 21, 1962. That as a result of this operation, the plaintiff's eyes were both covered with bandages and plaintiff was in pain, suffering from discomfort, and would toss and turn, and in fact, would be from all accounts highly irrational, not only during the daylight hours, but also during the nighttime hours as well, which fact was known to the defendants.

In Paragraph 3 of said petition, he further alleges that unknown to him, but prior to June 26, 1962, his family requested that bed rails be placed on the bed because they were afraid that plaintiff would in fact fall out of said hospital bed, and such request went unheeded by the defendant doctors and by the agents, servants and employees of the defendant hospital, and that although requested, the defendants failed to heed the request, which failure to act was the proximate cause of the injuries sustained by plaintiff.

In Paragraph 4 thereof, he alleges that the defendants Muntz and Burch-Goss were either jointly or severally responsible for the care and treatment of the plaintiff, which included the duty to enter such orders on the plaintiff's chart provided for such purpose, or otherwise see to it that the plaintiff's person and physical being was not subjected to injury arising out of the care and treatment of the paintiff, their patient, and said defendants wholly failed to enter such orders for the safety of their patient, which orders were as follows:

(a) The installation of bed rails; and/or

(b) The installation of restraining devices; and/or

(c) The prescriptions of drugs and medications to place plaintiff in a state of physical being that would keep the plaintiff in a controlled environment and which failure to so prescribe as above was negligence and the proximate cause of the injuries and damages sustained by plaintiff as hereinafter alleged.

In Paragraph 5 of the petition, he alleges that in the event the plaintiff is mistaken as to whose duty it was to see to it that his needs were met, and that it was not the duty of the defendant doctors, then and in that event, he says that it was the duty of the defendant hospital to meet the request of the family of the patient and install bed rails and/or such other restraining devices for the protection of the physical well being of the patient which was not done, and which omission to act after notice thereof and request therefor was negligence, which negligence was a proximate cause of the injuries and damages to the plaintiff.

Plaintiff further alleges in Paragraph 6 of the petition that the following injuries and damages were sustained as a result of the negligence aforesaid, to-wit:

(a) That plaintiff has lost the entire use of his right eye due to the fact that the fall from the bed destroyed the beneficial effects of the surgery previously performed on plaintiff's right eye; and

(b) That plaintiff received a broken neck as a result of the fall, which fracture thereof was not discovered for a 10 day period through the negligence of the defendants Muntz and Burch-Goss, during which time plaintiff was in pain far more severe and uncomfortable than prior to the fall when plaintiff was recovering from the surgery upon his right eye.

Appellant seeks to recover the sum of $37,900.00 for the alleged injuries against the defendants who are appellees on this appeal.

The case was tried before a jury and at the close of plaintiff's evidence, each of the defendants moved for an instructed verdict upon the ground: (1) that plaintiff introduced no probative evidence of any negligence on their part; (2) that plaintiff failed to produce probative evidence that any negligence of the defendants was a proximate cause of his injuries. Defendants Burch and Goss further alleged in their motion for instructed verdict that the evidence showed plaintiff disobeyed doctor's instructions, which conduct was negligence and a proximate cause of his injuries as a matter of law. Dr. Muntz's motion for instructed verdict contained these additional grounds:

(a) There is no competent medical testimony that careful and skillful practitioners in this area under these conditions would have used bed rails or other restraining devices on the plaintiff;

(b) That the use of restraining devices in this case was a matter for medical judgment and even if some skillful practitioner would and some would not have used restraining devices, there can be no liability for exercise of judgment in making this decision;

(c) That the decision as to the use of restraining devices and medication for tranquilizing the plaintiff belonged to Dr. Burch and not to him, and that likewise the decision as to whether the second operation should have been performed immediately without cervical x-ray belonged to Dr. Burch and not to him. For these reasons, he could not be guilty of negligence in not making such decision;

(d) That there is no evidence of any damage to the plaintiff's neck by reason of the 10-day delay in discovering the fracture;

(e) That the evidence shows as a matter of law that the plaintiff and his wife were each guilty of contributory negligence in failing to provide personal attendance.

The defendant hospital moved for an instructed verdict on the following grounds:

(1) That there was no probative evidence showing the defendant guilty of any negligence;

(2) That there was no probative evidence showing that any act of negligence on the part of the defendant was a proximate cause of the plaintiff's fall;

(3) That there was no probative evidence that the defendant hospital had the duty to install bed rails or other restraining devices on the plaintiff's bed;

(4) That, if there was any negligence in failing to install bed rails or other restraining devices, defendant, as a charitable institution would be immune from liability of such negligence.

To properly define the scope of this appeal, it should be pointed out that appellant pleaded that several acts or omissions on the part of doctors Burch and Goss were negligence and a proximate cause of his injuries, to-wit:

(1) Failure to install bed rails on appellant's bed;

(2) Failure to use other restraining devices;

(3) Failure to prescribe proper medication;

(4) Failure to discover sooner plaintiff's neck fracture sustained in his fall.

In his brief in this court, however, appellant makes no factual statement, cites no testimony in the Statement of Facts, cites no case authority, and makes no argument concerning any alleged negligence on the part of any of the appellees, except that concerned with the failure to install bed rails. Although appellant's Points of Error were broad enough to include all pleaded grounds of negligence, the scope of his Points must be determined by the statements and arguments thereunder. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197, 1956; Musick v. Pogue, 330 S.W.2d 696 (Tex.Civ.App.) 1959, writ refused, n .r.e. Therefore, this court considers all grounds of negligence other than the ones concerning bed rails are waived or abandoned. Rule 418, Texas Rules of Civil Procedure; Maryland Casualty Co. v. Stewart, 164 S.W.2d 800 (Tex.Civ.App.) 1942, writ refused; McDaniel v. Thompson, 195 S.W.2d 202 (Tex.Civ.App.) 1946, writ refused. Under this state of the record, this court will deal only with the question here presented concerning the failure to install bed rails.

Each of the defendants' motions were granted by the trial court and the case withdrawn from the jury and judgment rendered in favor of appellees and against appellant, to which the plaintiff-appellant excepted and has duly perfected his appeal to this court.

Among other contentions the appellant contends that the trial court erred in ruling that there was no evidence of probative force that either of these appellees were negligent in the care and treatment of D. A. Bowen sufficient to require the submission of said issue to the jury; (2) in rendering a judgment for the appellees, Burch and Goss, on the basis that there was no evidence of probative force that the negligence of these appellees proximately caused the fall and resulting injuries for the reason that there was evidence of probative force to support the submission of the issue of proximate cause as to the appellees, Burch and Goss; (3) in rendering judgment for the appellee, East Texas Hospital Foundation, d/b/a Medical Center Hospital, on the basis that there is no probative evidence that this appellee was guilty of any negligence which proximately caused the occurrence in question for the reason that there was evidence of probative force that required the submission of this issue; (4) in rendering a judgment for the appellee, H. H. Muntz, on the basis that there is no evidence that said appellee was guilty of any negligence, which proximately caused Mr....