Cezeaux v. Libby

• Citation: 539 S.W.2d 187
• Decision Date: 15 July 1976
• Docket Number: No. 7820,7820
• Parties: Dr. G. E. CEZEAUX et al., Appellants, v. Bob D. LIBBY, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 187

539 S.W.2d 187

Dr. G. E. CEZEAUX et al., Appellants, v. Bob D. LIBBY, Appellee.

No. 7820.

Court of Civil Appeals of Texas Beaumont.

July 15, 1976.

Rehearing Denied Aug. 5, 1976.

O. C. Lilienstern, Houston, for appellant.

Joseph D. Jamail, John Gano, Houston, for appellee.

STEPHENSON, Justice.

This is an action for damages for medical malpractice. Trial was by jury, and judgment was rendered for plaintiff on the verdict. The parties will be referred to here as they were in the trial court.

Plaintiff, Bob D. Libby, brought this suit against Dr. G. E. Cezeaux, and his partners, as defendants. The jury found that Dr. Cezeaux, individually and on behalf of his partnership, did not perform his medical services as a reasonably prudent anesthesiologist should have done in the exercise of ordinary care under the same or similar circumstances in (a) 'failing to administer to Plaintiff an adequate dosage of proper anesthesia to insure unconsciousness and immobility during the surgery in progress'; (b) 'failing to properly supervise the anesthetist nurse Schutter to see that she administered an adequate amount of dosage of proper anesthetic to insure that Plaintiff would remain unconscious and immobile during the surgery in progress'; and (c) 'failing to defect that the Plaintiff was inadequately anesthetized and was, in fact, regaining consciousness in the midst of surgery.' The jury also found that each of such acts of negligence was a proximate cause of plaintiff's injuries. None of those jury findings is attacked on this appeal.

The uncontradicted evidence shows the following occurred: Plaintiff suffered a detached retina in his right eye on July 1971, and surgery was performed reattaching the retina with a buckle. September 15, 1972, the surgery was performed to remove the buckle; it was out of this surgery that plaintiff received the injuries which made the basis of this suit. At a critical point in the surgery while the doctor had a needle in his eye making an injection, plaintiff moved down the table, raised up off the table, tore off the drapes* covering his face, tore out the sutures--all resulting in the injuries complained of which are described in more detail later. Dr. Cezeaux admitted on this trial that plaintiff moved during the surgery because he was inadequately anesthetized.

The jury found plaintiff's damages to be in the amount of $500,000. Defendants' primary point of error is that the amount of such damages is excessive. This court has written at length on the subject of appellate review of this subject, in the majority and concurring opinions found in Collins v. Gladden, 466 S.W.2d 629 (Tex.Civ.App.--Beaumont 1971, writ ref'd n.r.e.). Reference is made to that case for our views as to the standards we should follow in reviewing monetary awards in suits for damages in cases involving personal injuries and allowances for pain and suffering.

The elements of damages which the jury was instructed it could consider were: his past physical pain; the physical pain which in reasonable probability he will suffer in the future; his past and future mental anguish, including disfigurement, humiliation, embarrassment and worry concerning his well-being; and his loss of earning capacity which in reasonable probability he will sustain in the future.

The evidence in this record supporting the award of $500,000 is as follows: Plaintiff's movement while the surgery was in progress and while the surgeon had a needle in his eye making an injection tore out the sutures in the drapes, tore the skin off of his eyelid, building up great shock pressure in the eyeball, rupturing the coat of the eye and hemorrhaging the eye. All of this resulted in a total loss of sight in such right eye.

The doctor attending plaintiff after this surgery testified: The condition of the right eye was very red and continued to worsen. When he first saw plaintiff after such surgery, plaintiff could see light, but by January 1973 the eye was completely blind. All through 1973 the eye continued to react, was red and inflamed. The eye was painful all during that time. By November of 1974 the eye was a hazy yellowish. The doctor became afraid of a sympathetic ophthalmia disease, and the decision was made that it was best to remove the eye. 'So, there was no sense in allowing him to continue with a blind painful eye, and a chance of losing his other eyesight from it.' The right eye was removed (enucleated) in December 1974, and an Allen implant performed to accommodate an artificial eye made of plexiglass. Plaintiff was fitted with such a prothesis and tries to wear it. it irritates him, and he cannot wear it constantly. Plaintiff is embarrassed about the appearance of his right eye and of the mucous and tears which run down his cheek. Plaintiff is anxious and worries about having only one eye and having a job handicap. He has some pain in his eye which will continue the rest of his life. He will also have anxiety the rest of his life.

It was stipulated that a person forty-one years of age has a life expectancy of 30.7 years. Plaintiff testified as follows: He was forty-one years old when this surgery took place, and forty-four at the time of trial. He is a vice president of a general insurance company. After the retina was reattached, he could see with some limited vision, but he could perform his work and participate in his hobbies--golf, hunting, and fishing. The buckle began to cause him some irritation and pain; so, he returned for the surgery to remove the buckle. He was not aware of anything that happened in the operating room. His next recollection was the following morning when he was told it was time for breakfast. His eye was covered with a bandage, and a bloody fluid began seeping down his cheek. A doctor came into...