Bronwell v. Williams

• Decision Date: 31 March 1980
• Docket Number: No. 9015,9015
• Parties: Dr. Alvin W. BRONWELL, Appellant, v. Vivian L. WILLIAMS, Appellee.
• Court: Texas Court of Appeals

Page 542

597 S.W.2d 542

Dr. Alvin W. BRONWELL, Appellant, v. Vivian L. WILLIAMS, Appellee.

No. 9015.

Court of Civil Appeals of Texas, Amarillo.

March 31, 1980.

Rehearing Denied April 23, 1980.

Crenshaw, Dupree & Milam, Tom S. Milam, Cecil Kuhne, Lubbock, for appellant.

Burnett & Ahders, Associated, Warren Burnett, Norma Venso, Odessa, for appellee.

REYNOLDS, Chief Justice.

Doctor Alvin W. Bronwell appeals from a judgment rendered against him upon the jury's verdict in this medical malpractice action brought by Vivian L. Williams. The gravamen of the action is that the doctor negligently severed her common bile duct during gall bladder surgery, thereby injuring her.

On appeal, Dr. Bronwell complains of the absence of required medical evidence to sustain the action and the court's failure to submit his requested jury instructions. Mrs. Williams contends that she is entitled to her medical expenses as a matter of law. Under this record, the complaints and contention do not warrant the disturbance of the judgment. Affirmed.

On 24 May 1973, ¹ Dr. Bronwell, a Lubbock surgeon, undertook to perform a cholecystectomy the removal of the gall bladder on Mrs. Williams. In her abdomen, the doctor saw a small duct which he traced to the point it entered a duct he "assumed . . . was the common bile duct." He traced the duct back up to and into the gall bladder. It was normal. Once he identified the two points, the duct was cut flush with the duct into which it entered.

Within thirty minutes after the surgery, Dr. Bronwell dictated his medical notes on the operation for the hospital records. He reported that he palpated, i. e., sensed by touch, the common bile duct which, he twice noted, was normal to palpation. Relating that the "common duct was not explored," the doctor gave this account: "The gallbladder was removed, by dissecting free the cystic duct and artery and clamping and dividing and ligating them separately and gallbladder was removed by sharp dissection and the bed was closed . . . ." The only abnormality he recorded was some fibrous tumor in the uterus.

Mrs. Williams was released from the hospital on May 30; however, because of her complaints, she was readmitted the following day. Responsive to Mrs. Williams' complaints, Dr. Bronwell told her she had hepatitis and, although he admittedly did not know then what was wrong with her, informed her that her condition "is in no way responsible to your operation." Jaundice, which could be caused intrahepatic or extrahepatic, developed. Dr. Pridmore, called into consultation by Dr. Bronwell, noted that Mrs. Williams had become increasingly jaundiced and then recorded: "The operative note reports that her common bile duct appeared normal at the time of surgery. It was not explored."

Mrs. Williams was given systematic treatment until a mass appeared in her stomach. A day or two later on June 26, Dr. Bronwell reoperated, discovering that the mass was a collection of two quarts of bile. An intensive search revealed that Mrs. Williams' common bile duct had been severed during the first operation, allowing the bile to drain into her abdominal cavity. The doctor performed an anastomosis by inserting twenty-four inches of Mrs. Williams' intestine where the common duct, which normally is three to four inches in length, had been cut.

Fifteen minutes after the operation, Dr. Bronwell dictated his notes for the hospital records. His stated diagnosis was "biliary peritonitis due to common bile duct obstruction" which, he readily admitted at trial, was not what he found. Thereafter in the body of the report, he made this observation: "(I)t was noted that at the time of the previous operation the patient had an abnormality in which the common bile duct was a part of the gallbladder which had been inadvertently removed."

A few hours after the second operation, Dr. Bronwell and Mrs. Williams had a conversation. Her version is that the doctor said "that he had goofed . . . that the common duct had been cut and that he had made this certain arrangement and that he felt that I could live a normal life with that arrangement." The doctor denied saying "goofed," his recollection being that he told Mrs. Williams he found something he had never seen before, there had been an interruption of the common bile duct, and it was necessary for him "to make a new hookup." The next day there was another conversation, and both agreed that the doctor said Mrs. Williams was a very abnormal person.

Mrs. Williams was discharged from the hospital on July 6 and was attended until October 26 by Dr. Bronwell. Subsequently, she submitted, at the hands of other surgeons, to seven operations, three of which Dr. Bronwell knew to be to repair a stricture occurring where the common duct was cut, and all of which were to facilitate the drainage of bile. However, at trial time, bile drainage was mechanically controlled by means of a perforated tube inserted in Mrs. Williams' body and exiting through two surgically made body openings.

The first of the seven operations, performed in January of 1974 by Dr. Woolam, was for a stenosis of the anastomosis, i. e., a stricture occurring after Dr. Bronwell's second operation at the place where the common duct had been cut. The operative report of Dr. Woolam contains this information: "This woman apparently underwent a cholecystectomy several months previously at another hospital, at which time according to the records received, that congenital anomaly was found and the patient apparently suffered a common bowel (sic ) duct injury."

On 28 January 1974, Mrs. Williams instituted this litigation to recover from Dr. Bronwell damages proximately caused by his negligence in severing her common duct. ² After Dr. Bronwell answered, his deposition was taken in October of 1974. The trial commenced 1 May 1978 before a jury. Dr. Bronwell was the only medical witness; Dr. Culp, Mrs. Williams' family physician who admitted her to the hospital and assisted Dr. Bronwell in the two operations, did not testify.

By the time he first operated on Mrs. Williams, Dr. Bronwell had performed some two thousand similar operations and had seen another fourteen hundred. By the time of the trial, the doctor had performed an additional thousand or so gall bladder operations.

It was explained by Dr. Bronwell that the liver is divided into the right and left lobes from which come the right and left hepatic ducts. These ducts go to join the common duct which takes bile generated by the liver to the duodenum. From its juncture with the common duct, the cystic duct leads a few centimeters to the gall bladder and exists to carry bile in and out of the gall bladder. It is, the doctor acknowledged, important to identify the common duct in order to perform gall bladder surgery safely.

It was established by Dr. Bronwell that, according to the standard of surgical performance in the Lubbock area, a surgeon will not cut the common bile duct in a normal gall bladder operation. If everything is normal and the surgeon cuts the common duct, he has not met the standard of medical care. If the common duct is cut and not recognized and repaired, bile will be freed in the peritoneal cavity causing a chemical irritation. Sooner or later the bile will have to be drained, but it subjects the patient to liver damage which, over a period of time, goes to the point of causing death.

At the time of the first operation, Dr. Bronwell, identifying the duct he considered to be the common duct, was persuaded the common duct had not been injured. During the second operation in Dr. Bronwell's search for the source of the bile, he was made aware he previously had cut the common duct without recognizing the fact. The awareness came, the doctor said, when he cut the suture used to close the bed of the gall bladder in the first operation, the bed opened up, and he could see the stub of the common duct. In his words, "The common duct was found the right hepatic and left hepatic where they join the common duct was found in the gall bladder bed in the liver."

At this point in the testimony, the following is recorded:

Q (by Mrs. Williams' counsel). Now, are you going to try to deny to this Jury that you as a surgeon cut the common duct and let the bile flow out into this woman's peritoneal cavity?

A (by Dr. Bronwell). No, I don't deny that, I said that from the beginning. I said, though, it was an anomaly.

Explanatorily, Dr. Bronwell said there was an abnormality in that Mrs. Williams' common duct went into her gall bladder and not into her duodenum. He never had seen the anomaly before in any of the patients undergoing gall bladder surgery. At all times, he said, he had exercised the standard of care and accepted procedure in the area in performing the surgery; however, because of Mrs. Williams' congenital anomaly, the common duct still would be cut, for Mrs. Williams "is just an unfortunate person that has a duct that lies in such an area that the usual safeguards cannot be followed," and "I do not know a way to prevent the same kind of injury."

There was no way, Dr. Bronwell declared, that the doctors performing the third and succeeding operations could identify the location of the common duct coming out of the liver as he found it in his second operation. After his second operation, the doctor said, "the anatomical landmarks are completely erased," and "the anatomy is so distorted that it (the location of the common duct) cannot be proven." It would have been an impossibility, the doctor stated, for the other doctors to determine an abnormality because the landmarks are destroyed.

When his deposition was taken in 1974, Dr. Bronwell declared that he neither knew nor had heard of a single instance of a common duct so made that it drained into the gall bladder. In the forepart of his trial testimony, the doctor stated that he had not found, either in his operations or in medical literature, an identical case, but he...