Chasco v. Providence Memorial Hospital, 6206

• Decision Date: 12 January 1972
• Docket Number: No. 6206,6206
• Citation: 476 S.W.2d 385
• Parties: Magdalena CHASCO, Individually and as Next Friend of Graciela Chasco, et al., Appellants, v. PROVIDENCE MEMORIAL HOSPITAL and Dr. W. L. Pierce, Appellees.
• Court: Texas Court of Appeals

Page 385

476 S.W.2d 385

Magdalena CHASCO, Individually and as Next Friend of

Graciela Chasco, et al., Appellants, v. PROVIDENCE MEMORIAL HOSPITAL and Dr. W. L. Pierce, Appellees.

No. 6206.

Court of Civil Appeals of Texas,

El Paso.

Jan. 12, 1972.

Burnett & Childs, Odessa, Jesus B. Ochoa, Jr., El Paso, for appellants.

Hardie, Grambling, Sims & Galatzan, Allen r. Grambling, Malcolm Harris, Kemp, Smith, White, Duncan & Hammond, William Duncan, El Paso, for appellees.

OPINION

RAMSEY, Chief Justice.

This is a medical malpractice case. Magdalena Chasco, the Plaintiff-Appellant, Individually and as Next Friend of her minor children, brought suit against Providence Memorial Hospital and Dr. W. L. Pierce, Defendants-Appellees, for the death of her husband, Domingo Garcia Chasco. The jury returned a partial verdict sufficient to absolve the hospital of negligence but incomplete as to the Doctor in failing to answer any issue as to negligence, proximate cause, or damages. The trial Court granted the hospital's Motion for Judgment and subsequently reconsidered the Doctor's Motion for Instructed Verdict and entered judgment for both Defendants after the jury was discharged. We affirm.

Plaintiff assigns four points of error. The first complains of wording of a special issue inquiring as to whether or not the hospital failed to notify Dr. Pierce that the deceased had 'bumped his head and had a small cut above his left eyebrow'. The Plaintiff had requested the issue to read had 'struck his head' instead of the other quoted words used. We overrule this point for two reasons. First, Rule 279, Texas Rules of Civil Procedure, requires the Court to submit the controlling issues presented by the written pleadings and the evidence. The portion of the wording of the issue complained of is taken verbatim from the Plaintiff's pleadings wherein the negligent act is alleged. The hospital records reveal similar wording in the nurses notes and the testimony introduced is of the same import. Thus, the issue submitted conforms to the Plaintiff's pleading and quotes the specific act of negligence relied on by the complaining party and is proper under the pleadings and evidence. McDonald, Texas Civil Practice, Vol. 3, Sec. 12.07, p . 290. Second, a Motion for New Trial was required as a prerequisite to appeal insofar as the Hospital was concerned. Under Rules 320, 321, and 322, T.R.C.P., each ground of error must be specified and clearly identified in order to be considered. The assignment of error is too general and thus insufficient to apprise the trial Court of the error of which complaint is made. Baker v. Sturgeon, 361 S.W.2d 610 (Tex.Civ.App., Texarkana, 1962).

Plaintiff's second point of error complains of the refusal of the trial Court to submit a requested issue on the failure of the hospital to 'properly restrain' the deceased. Here again, as in the first point, the assigned error is not properly preserved in accordance with Rules 320, 321, and 322, T.R.C.P. Nevertheless, the Plaintiff is not entitled to such a submission since proximate cause can never be presumed. It must be proven. Bowen v. East Texas Hospital Foundation, Tex.Civ.App., 400 S.W.2d 843 (Ref. n.r.e.). The mere fact that the deceased may have fallen, which is impossible to determine from the record, yet there is no evidence to support any proposition that even if we assume he did fall, that such was proximately caused by any act or omission of the Hospital. We therefore overrule this point of error.

Point of error number four complains of the trial Court's granting the Doctor's motion for instructed verdict. A motion for instructed verdict may be made after a jury has been discharged because of inability to agree upon a verdict. McDonald, Texas Civil Procedures, Vol. 3, Sec. 11.26, p. 228. In reviewing the action of the trial Court, it becomes incumbent upon this Court to view the evidence in the light most favorable to the Plaintiff, disregarding all evidence and inferences therefrom favorable to the Defendant. Hart v. Van Zandt, 399 S.W.2d 791 (Tex.Sup.Ct.1965).

Plaintiff alleges three acts of negligence pertaining to the Doctor. One is a general allegation in failing to reasonably, adequately and competently supervise the attention to the deceased. The other two allege negligent acts consisting of failing to take a complete physical history and failure to call a specialist at an earlier time. Only the two specific alleged acts were submitted to the jury. No request was made for submission of the general allegation so our concern will be limited to the two specific alleged acts. The jury found in its partial verdict that the Doctor failed to take a complete and accurate history but did not answer whether this was negligence or proximate cause. The other issue relating to the calling of a specialist was not answered.

The Doctor, a general practitioner, saw the deceased at the emergency room of the Hospital after office hours. Neither the deceased nor any member of his family had been the Doctor's patient. The deceased appeared nervous and shaky. The Doctor noted in the records that according to the deceased's wife, he had been having hallucinations that day. The conclusion the Doctor reached as a result of the examination was that the deceased was suffering from 'alcoholism DT's', and was hospitalized under this diagnosis. After admission, the Doctor noted that the deceased had been drinking heavily for some time and not eating. Plaintiff denies that she told the Doctor this. The deceased was...