Burchfield v. Geitz, 6372

Decision Date23 October 1974
Docket NumberNo. 6372,6372
Citation516 S.W.2d 229
PartiesMildred E. BURCHFIELD, Appellant, v. Marten GEITZ, M.D., Appellee.
CourtTexas Court of Appeals

Warren Burnett Associated, Richard J. Clarkson, Wm. Ruff Ahders, Odessa, Flahive & Ogden, R. M. Ogden, Austin, for appellant.

Shafer, Gilliland, Davis, Bunton & McCollum, Inc., W. O. Shafer, James M. O'Leary, Odessa, for appellee.


WARD, Justice.

This is a medical malpractice case. The patient, Mrs. Mildred Burchfield, complained of the treatment she received following an operation on her back. It was the plaintiff's contention that the doctor negligently permitted an infection to occur postoperatively which caused her additional operations, expenses and suffering. Trial was to a jury and upon the conclusion of the plaintiff's evidence the trial Court instructed a verdict in favor of the doctor . The appeal pertains to the existence or not of legally sufficient evidence concerning negligence and causation. We affirm.

A serious infection developed in the area of the plaintiff's operation. She alleged this was caused by the negligence of the defendant in leaving excess pieces of suturing material in her back, in ordering the plaintiff to be placed in a Hubbard tank, and in failing to employ the use of a circolectric bed. The operation was for a herniated disc and was performed by the defendant, Dr. Marten Geitz, on August 11, 1969, at the hospital in Odessa. During the operation a problem with excessive bleeding occurred. Following the operation which was down to the spine, he closed the wound by using black silk sutures on the second and third layers of the body and by using steri-strips on the epidermis. On August 20th, the plaintiff developed a drainage from the incision and the defendant ordered that she be placed in a Hubbard tank on either August 20th or 21st. A Hubbard tank contains non-sterile warm circulating or whirling water and a person's whole body can be immersed in it. It was established that the wound contained a staphylococcic infection before she was placed in the Hubbard tank. The plaintiff remained in the hospital until September 20, 1969, at which time the incision appeared to be healed and she was released. On November 14th, the plaintiff returned to the doctor's office and it was discovered that the drainage had started again. She was readmitted to the hospital on November 17th and she was again started on the Hubbard tank treatment. On November 25th, Dr. Geitz performed a second operation whereby he attempted to remove the infection from the old incision. At this time, he removed the old silk sutures at the second layer because he felt that they were causing or maintaining the infection. He did not go to the third layer of the body because it did not appear to be infected and the flesh appeared healthy. After the second operation, the plaintiff was again placed in the Hubbard tank and while the incision was still open. After she was released from the hospital the second time, the plaintiff continued to have drainage around the area of the incision. She continued to visit Dr. Geitz who treated her, and on some of these visits he again put her in the whirlpool bath. In March of 1970, and after she had become dissatisfied with her treatment, she went to Houston where she contacted Dr. John Bunting and Dr. Bruce Cameron who placed her in St. Luke's Hospital. On March 4th, she was again operated on for the infection. During the course of this operation, the wound was opened to the bone and the infection was found to be centered around two black sutures which were removed from the third layer of the person. Following this surgery, the infection terminated, the plaintiff's back healed normally, and she was discharged from the Houston hospital the latter part of March, 1970.

The defendant's motion for the instructed verdict contains numerous grounds, and the trial Court by its judgment did not indicate upon which of the grounds it based its judgment. The plaintiff complains of the action of the Court in instructing the verdict for the defendant by a general point of error and to avoid the possibility of any waiver the plaintiff has carefully briefed each of the grounds of any importance contained in the defendant's motion on which the trial Court acted. From the defendant's brief, the defendant relies only on the grounds of 'no evidence' in the case as to any negligence or proximate cause. As to the other grounds contained in the motion for an instructed verdict, and not discussed by the defendant, we are in agreement with the position now urged by the plaintiff and without further discussion of those matters we turn to the questions of negligence and proximate cause.

In determining the propriety of the instructed verdict, we are required to review the evidence in the light most favorable to the losing party. Any inference which properly may be drawn from the evidence must be indulged against the granting of the motion and if the record reflects any testimony of probative force, either direct or circumstantial, in favor of the plaintiff on the two vital issues, then we must hold the instruction was not proper. The 'no evidence' rule applies. Hart v. Van Zandt, 399 S.W.2d 791 (Tex.1965); McRoy v. Riverlake Country Club, Inc., 426 S.W.2d 299 (Tex.Civ.App.--Dallas 1968, writ ref'd n.r.e.).

With these principles in mind, a statement of the evidence in more detail becomes necessary. Dr. Bruce Cameron, the orthopedic surgeon in Houston, was called as a witness by the plaintiff and he testified that he did not find excessive suturing. The original wound had to be closed by suturing or the patient would have bled to death, due to the bleeding encountered at the time of the operation. As to the second operation, the practice of packing the wound open and letting it drain until it is clean is a well-accepted and known procedure. It was not a lack of experience that caused the infection. The treatment that had been afforded the plaintiff by Dr. Geitz was described by Dr. Cameron as an accepted treatment and as a 'very hopeful type' although it was not a type of treatment that Dr. Cameron would agree with. As to her being handled improperly, the most he would say was that the handling was not successful. There was no breach of medical standards. In his opinion, the cause of the infection was that she was allergic to silk sutures, a rare and uncommon reaction. There is nothing wrong medically with using silk sutures. Good medical doctors use them, and there would have been no way for Dr. Geitz to have known of this allergic reaction prior to the operation. He found no excessive suturing and nothing wrong with the original operation.

As to her being placed in a Hubbard tank, this was done for a patient who was already draining pus from her wound. Dr. Cameron stated it is an accepted treatment and there is no violation of any medical standard in the use of that treatment, but he did not like it and did...

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6 cases
  • Thomas v. Oil & Gas Bldg., Inc.
    • United States
    • Texas Court of Appeals
    • April 19, 1979
    ...Houston (1st Dist.) 1973, writ ref'd n. r. e.); Scoggins v. Scoggins, 531 S.W.2d 245 (Tex.Civ.App. Tyler 1975, no writ); Burchfield v. Geitz, 516 S.W.2d 229 (Tex.Civ.App. El Paso 1974, no Under the record here presented, we do not believe that the action by the trial court in allocating thr......
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    • United States
    • Texas Court of Appeals
    • August 10, 1977
  • Cohen v. United States, CIV 78-580 PHX WEC.
    • United States
    • U.S. District Court — District of Arizona
    • May 28, 1982
    ...the cause, judgment must be entered for the defendant. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 785 (1949); Burchfield v. Gietz, 516 S.W.2d 229, 233 (Tex.Civ.App.1974). 4. Under Texas law, both negligence and proximate cause must be proven by medical testimony, except in cases where t......
  • Martinez v. Meek
    • United States
    • Texas Court of Appeals
    • August 25, 1976
    ...is lacking, any recovery is foreclosed. The following cases control: Bowles v. Bourdon, supra; Thomas v. Beckering, supra; and Burchfield v. Geitz, 516 S.W.2d 229 (Tex.Civ.App.--El Paso 1974, no The judgment of the trial Court is affirmed. ON MOTION FOR REHEARING In his motion for rehearing......
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