Bowles v. Bourdon

• Decision Date: 16 March 1949
• Docket Number: No. A-1922.,A-1922.
• Citation: 219 S.W.2d 779
• Parties: BOWLES et al. v. BOURDON et al.
• Court: Texas Supreme Court

219 S.W.2d 779

BOWLES et al. v. BOURDON et al.

No. A-1922.

Supreme Court of Texas.

March 16, 1949.

Rehearing Denied April 27, 1949.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by Harry L. Bowles, a minor, by his father and next friend, and others, against Lynn L. Bourdon, physician, and others, to recover damages for alleged malpractice. Judgment for the named defendant was affirmed by the Court of Civil Appeals, 213 S.W.2d 713, and the plaintiffs bring error.

Judgments below affirmed.

Blades, Moore & Kennerly, Fred W. Moore and W. T. Kendall, all of Houston, for petitioners.

Andrews, Kurth, Campbell & Bradley and F. L. Andrews, all of Houston, for respondents.

BREWSTER, Justice.

This is a suit for damages for malpractice brought by Harry L. Bowles et al., petitioners, against Dr. L. L. Bourdon, respondent. On an instructed verdict, the trial court rendered judgment for respondent, which was affirmed by the Court of Civil Appeals. 213 S.W.2d 713.

On July 16, 1941, Harry L. Bowles, a boy four years old, fell and fractured his left elbow just above the joint. About an hour later respondent made an X-ray plate of the elbow, administered an anaesthetic, set the injured arm, brought the lower arm up against the upper arm and bound them together by wrapping tape and bandage around them to form a cone shape. Then he took another X-ray to determine that the broken bones were properly set. Before this was done there was some hemorrhage with blueness around the elbow and some swelling of the arm and no pulse; but after it was done the pulse could be felt.

The parents of the boy and another testified that some four hours after the elbow had been set they discovered that "His hand was turning very blue and his fingernails were very purple. His fingers and hand were cold, it seemed like all of the circulation was leaving his hand and naturally it turned cold and blue." They said also that the boy was in pain.

The mother then telephoned respondent, told him that the hand was "awfully blue and was ice cold," and asked if the bandage could be too tight "because the hand was so cold." She testified that respondent stated that the hand was all right and that she should not worry about it but to bring the boy in the next day for examination. Respondent testified in his deposition that he did not remember the call clearly, but at the trial he said that since the taking of his deposition he did recall the conversation in part, but did not recall any mention of the hand being discolored and cold. He said, "I think if that had been mentioned, that was too serious for me not to remember. I think I would remember it if it had been brought home to my attention." The only part of the conversation he remembered was that the boy was suffering pain, which he said was to be expected. He further testified, "If I had understood that, I would either come over or had them meet me at the hospital, because there would be no excuse for not seeing a case that had an ice cold hand."

When the parents took the boy to respondent's office the next morning, the mother asked him about the hand, as the conditions indicating a circulation impairment continued to exist. She testified that he said he thought the bandage was too tight and "snipped it a little on both sides."

The record shows that another doctor testified that an X-ray plate taken on the 25th of July showed the angle of the arm was then about thirty-five degrees, whereas the plate taken following the setting of the arm showed it to be at about 20 degrees, in an "acute state of flexion," meaning that it was "bent as far as you can bend it normally." This reduction of the angle of flexion was accomplished at the boy's first visit to respondent following the reduction, and at several other visits later.

The boy was examined almost every day for the first week following the accident, and thereafter, until August 21, about twice a week. The mother testified that about two weeks after the arm had been set she asked respondent "why the boy was not able to move his fingers, and his hand looked sort of blue, and the Doctor said there was not anything wrong with the hand;" that on August 21 she again called respondent's attention to the boy's fingers, and he said, "Hasn't he been able to move them?"; that she replied, "No, I thought you knew;" and that as a result of the ensuing discussion, respondent called on Dr. Bloom, a bone specialist, to take over the case. The latter testified that when the boy was first examined by him on August 21st he had a healing or healed fracture of the upper arm with a "Volkmann's contracture" of the left forearm; that the characteristics of the contracture were visible in a claw hand, and a considerable wasting of the muscles which draw the hand down to make a fist; that the boy definitely had no control over his fingers.

As a result of treatment from Dr. Bloom, the boy at the time of trial had approximately twenty-five-degree movement of his fingers. The contracture was of a definite and permanent nature and, after August 21, 1941, was susceptible only to remedial treatment, to which it has partially responded.

Petitioners alleged that respondent was negligent (1) in binding the area so tightly as to stop blood circulation, thereby bringing about the contracture; (2) in not examining the arm and in not loosening the amining the arm and not loosening the after setting the arm that it was blue and his fingernails purple; and (3) in failing to recognize or treat the contracture between July 16 and August 21, when Dr. Bloom took over the case.

In his judgment the trial court recited that he had instructed a verdict because petitioners had failed to support their allegations of negligence "with proper or sufficient expert testimony showing negligence on the part of the defendant Bourdon, and had failed to show that defendant's negligence, if any, was the proximate cause of plaintiff's injury and damage."

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. Kaster v. Woodson, Tex.Civ.App., 123 S. W.2d 981 (er. ref.); Floyd v. Michie, Tex. Civ.App., 11 S.W.2d 657; Kootsey v. Lewis, Tex.Civ.App., 126 S.W.2d 512; Barker v. Heaney et al., Tex.Civ.App., 82 S.W.2d 417 (er. dism.); Phillips v. Wright, Tex. Civ.App., 81 S.W.2d 129 (er. dism.); Urrutia v. Patino, Tex.Civ.App., 10 S.W.2d 582 (er. dism.)

As a circuit judge in Ohio, Chief Justice Taft clearly stated the principle, with the reasons supporting it, in these words: "When a case concerns the highly specialized art of treating (disease), with respect to which a layman can have no knowledge at all, the court and jury must be dependent on expert evidence. There can be no other guide, and, where want of skill or attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury. Again, when the burden of proof is on the plaintiff to show that the injury was negligently caused by defendant, it is not enough to show the injury, together with the expert opinion that it might have occurred from negligence and many other causes. Such evidence has no tendency to show that negligence did cause the injury." Ewing et al. v. Goode, C.C., 78 F. 442, 444. And, if his is a recognized school of good standing with established rules and principles of practice for the guidance of its members, the accused doctor "is entitled to have his treatment of his patient tested by the rules and principles of the school of medicine to which he belongs, and not by those of some other school, because a person professing to follow one system or school of medicine cannot be expected by his patient to practice any other, and if he performs the treatment with ordinary skill and care in accordance with his school of practice, he is not answerable for bad results." 41 Am. Jur., p. 203, sec. 85, citing Floyd v. Michie, supra. See, also, 48 C.J., p. 1118, sec. 104.

These principles are undoubtedly supported by the great weight of authority, and nearly all later cases cite Ewing et al. v. Goode, supra. In Wigmore on Evidence, Vol. VII, p. 453, sec. 2090, is this statement: "It happens, however, that in one class of cases, viz., actions against a physician or surgeon for malpractice, the main issue of the defendant's use of suitable professional skill may be a topic calling for expert testimony only; and also that the plaintiff in such action often prefers to rest his case on the mere facts of his sufferings, and to rely upon the jury's untutored sympathies, without attempting specifically to evidence the defendant's unskilfulness as the cause of those sufferings. Here the Courts have been obliged to insist on the dictate of simple logic, resulting from the principle above cited, that expert testimony on the main fact in issue must somewhere appear in the plaintiff's whole evidence; and for lack of it the Court may rule, in its general power to pass upon the sufficiency of evidence, that there is not sufficient evidence to go to the jury. In actions for malpractice, therefore, something like a rule-of-thumb has been recognized in most jurisdictions." And in the supporting footnote are cited decisions by the highest courts in 27 states (other than Texas) as well as by courts of the United States and Canada. See, also, Annotation, 59 A.L.R. p. 884.

Since both negligence and proximate cause must be so proved, we do not decide whether there is any competent evidence of negligence in respondent's treatment of the fractured elbow but pass to the issue as to whether there is any medical testimony to show that the treatment given was a...