Christian v. Jeter
| Decision Date | 14 August 1969 |
| Docket Number | No. 4820,4820 |
| Parties | Bobby Gene CHRISTIAN, Appellant, v. J. R. JETER, Appellee. . Waco |
| Court | Texas Court of Appeals |
Brown, Elliott, Brown & English, Turner, Rodgers, Winn, Scurlock & Terry, John McElhaney, Dallas, for appellant.
Lynn B. Griffith, Waxahachie, Cantey, Hanger, Gooch, Cravens & Munn, Wm. B. David, Ft. Worth, for appellee.
An instructed verdict was granted in favor of defendant, a physician, and judgment was rendered that plaintiff take nothing in this medical malpractice case.
Plaintiff alleged defendant, who practices in Ennis, reset or attempted to reset his dislocated elbow; that he failed to reduce the displacement or to determine it was not properly set until three months later, when it was too late to reset the elbow and restore it to its normal condition. It was pleaded that corrective surgery was performed by an orthopedic specialist in Dallas, despite which the range of motion and use of the elbow remained permanently impaired. There was evidence to support these averments.
Negligence alleged included failure to make 'follow-up X-rays' until about three months after the attempted resetting, and reliance solely on manual palpation and observation as diagnostic methods. It is undisputed that no further X-rays were made after the preliminary hospital admission examination, and that thereafter examination was confined to visual and manual methods. There was testimony that plaintiff complained to defendant following the reduction procedure, and shortly after he recovered from the anesthetic, that he had felt his 'arm slip in the joint and had tremendous pain with it'. Swelling persisted during the three months. There is evidence further X-rays were then requested, and defendant replied that there was no need; 'it couldn't slip out of place'.
Plaintiff called as a witness the orthopedic specialist, Dr. Evans, who performed subsequent corrective surgery. He described the latter procedure. He testified he examined an X-ray of the elbow made nearly three months after the first hospital admission, and just before defendant referred plaintiff to him, as well as the first X-ray made at the time of the original injury; that the last X-ray showed the elbow still had 'the same appearance as the original X-ray, and was still not reduced'. Calcification had developed in the joint. He testified that prompt reduction, maintained, at the time of the accident causing displacement, would in reasonable medical probability have resulted in complete recovery; and that within a week thereafter the dislocation could again have been reduced so as to avoid corrective surgery.
Dr. Evans testified that the dislocation or a re-dislocation could have been detected by the use of X-rays. When asked whether it was reasonable and prudent for a 'follow-up X-ray to be taken under those circumstances', defendant's counsel objected that the witness was a specialist, not a general practitioner, and until the witness stated he knew the 'general practitioner's standard of care, then we feel that what standard of care Dr. Evans might have as an orthopedist is a different standard of care from a general practitioner'. The objection was sustained.
Thereafter on this objection, the bill of exception shows, the following evidence of Dr. Evans was excluded: 'I would think one would make an X-ray under these circumstances to reinforce whatever his feelings might be about the extremity'; testimony that Ennis is 35 miles from Dallas; that although the witness was a specialist, 'wherever the town, or whatever the situation' an X-ray was needed to confirm reduction of a dislocated elbow; that as to this question there was not a 'different or lower standard of care in a town such as Ennis, Texas' than that in Dallas 'in reduction of elbows'; that the necessity for corrective surgery was 'the failure to detect this by whatever means is best to illustrate it, which would be X-ray, which apparently was not taken until some later date and necessitated this'; that 'in the medical field' this is 'a hazard that should be guarded against by recurrent examinations'; that 'you are more likely to see the correct relationship on an X-ray examination than by physical examination alone in those circumstances in which one has swelling and discomfort'; that swelling interferes with palpation, which is the reason for 'prudence dictating the use of X-rays.'
Other testimony of Dr. Evans excluded was that general...
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