Carrell v. Denton
| Decision Date | 07 January 1942 |
| Docket Number | No. 2382-7749.,2382-7749. |
| Citation | 157 S.W.2d 878 |
| Parties | CARRELL et al. v. DENTON. |
| Court | Texas Supreme Court |
This suit was brought by Elbert Denton against Dr. W. B. Carrell and two other practicing physicians, composing a partnership. The suit was commenced December 15, 1936, and the object of the suit is the recovery of damages for personal injury negligently inflicted on the plaintiff November 24, 1931. Said personal injury occurred in connection with a surgical operation performed by Dr. Carrell on the spine of the plaintiff. In performing the operation, the doctor made an incision in the back side of plaintiff's body and inserted inside his body cavity a number of gauze sponges. Upon completing the operation and closing the incision, Dr. Carrell negligently left one of said gauze sponges inside plaintiff's body, and a few days later the plaintiff was discharged from the hospital. Plaintiff remained ignorant of the fact that the gauze sponge was in his body until November 17, 1935, on which date his mother, in dressing the wound in his back, discovered a portion of the gauze sponge protruding from the wound, whereupon she drew the gauze sponge from plaintiff's body.
The above facts are alleged in the plaintiff's petition. The defendants interposed a special exception, whereby they invoked the statute of two years limitation, R.S. Art. 5526. The ground of the exception is that the allegations of the petition show that the suit, at the time it was commenced, was barred by limitation. The trial court sustained the special exception and dismissed the suit. This judgment was reversed and the cause remanded by the Court of Civil Appeals, 138 S.W.2d 878.
The wrongful act from which the damages sued for resulted, consists of the negligent act of Dr. Carrell in failing to remove the gauze sponge from inside the body of the plaintiff before the incision in his body was closed. The plaintiff's cause of action...
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