Constant v. Howe, B--932

• Decision Date: 31 December 1968
• Docket Number: No. B--932,B--932
• Parties: George A. CONSTANT et al., Petitioners, v. Ward HOWE et ux., Respondents.
• Court: Texas Supreme Court

Page 115

436 S.W.2d 115

George A. CONSTANT et al., Petitioners, v. Ward HOWE et ux., Respondents.

No. B--932.

Supreme Court of Texas.

Dec. 31, 1968.

Cullen, Mallette, Maddin, Edwards & Williams, Harry F. Maddin, Victoria; William C. Sparks, Dist. Atty., R. J. Walker, Asst. Dist. Atty., Victoria, for petitioners.

Utter & Chase, Carl C. Chase, Corpus Christi, Ellis & Andrews, Thomas M. Andrews, Aransas Pass, for respondents.

GRIFFIN, Justice.

This is a malpractice and negligence suit filed in the District Court of Victoria County, Texas, by respondents, Ward Howe and wife Estelle, as plaintiffs, against Dr. George A. Constant and Dr. F. S. (Ted) Shields, the County of Victoria, Texas, and the Citizens Memorial Hospital of Victoria, Texas, as defendants, to recover damages for the injuries sustained by Mrs. Estelle Howe while under the care of Drs. Constant and Shields and while a patient in Memorial Hospital. A trial before a jury was had, and at the end of two days of testimony and both sides closing, the trial court sustained the motions of all defendants for an instructed verdict in favor of all defendants. A take-nothing judgment was entered against the plaintiffs Howe and in favor of each and all of the defendants. Upon appeal, the Court of Civil Appeals reversed the trial court's judgment in so far as plaintiffs' cause of action against the two doctors and remanded that to the trial court, but affirmed the trial court's judgment in favor of Victoria County and Citizens Memorial Hospital. 426 S.W.2d 882.

Only the doctors appealed from the Court of Civil Appeals judgment reversing and remanding for trial the plaintiffs' cause of action against them. Plaintiffs perfected no appeal from the judgment affirming the trial court's action in regard to Victoria County, Texas, and Citizens Memorial Hospital, and this phase of the case is not before us. We granted the application for writ of error on behalf of both doctors.

After a careful study of the statement of facts, we reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court that plaintiffs taking nothing against the doctors.

The trial court having sustained the doctors' motion for an instructed verdict, we must accept as true the evidence in the record supporting plaintiffs' allegations of negligence against the doctors. All conflicts and inconsistencies must be resolved in favor of plaintiffs, and we must draw all inferences therefrom most favorable to the plaintiffs' alleged cause of action. Hart v. Van Zandt, Tex.Sup., 399 S.W.2d 791, 793 (1965); Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859, 865 (1956), and authorities cited therein on this point.

In their action for recovery against the doctor defendants for their negligence proximately causing the injury to Mrs. Howe, plaintiffs alleged the following specific acts of negligence: (1) that the Defendant Dr. Shields was negligent in failing to supervise and properly tie the glissando sheet on Mrs. Howe; (2) that Dr. Shields failed to inspect the glissando sheet immediately after the application of same to Mrs. Howe; (3) that Dr. Shields failed to properly instruct the attendants assisting in the application of the sheet to Mrs. Howe; (4) that Dr. Shields failed to return to her room and inspect the glissando sheet as it had been applied to Mrs. Howe before leaving the hospital, in order to be sure that its ties were properly placed; and (5) that Dr. Shields failed to instruct the attendants and nurses to apply to the bed restraining bed boards or rails to prevent Mrs. Howe from falling from her bed and injuring herself.

Keeping in mind these grounds on which plaintiffs sought recovery against the doctor defendants, let us examine the evidence given in this case.

Plaintiff Mrs. Estelle Howe entered defendant hospital on January 11, 1963, as a patient of Dr. Constant. She was suffering from a schizzo-affective disorder and attending depression. A course of glissando therapy was prescribed for her by Dr. Constant to be given daily with some exceptions. This treatment is a form of electric shock treatment given by the application of metal plates to the sides of the head, which plates are attached to an electrical device which regulates the amount of current administered to the patient. The treatment consists of three phases: (1) administration of medications to place the patient in a comatose condition during and for about four or five hours after the second phase; (2) electric shock therapy, in which the actual electric impulse is administered for only one second, but its severity causes the patient to go into violent muscular spasms for from forty to fifty seconds, during which time she is held on the bed by two members of the 'team'; and (3) restraint of the patient for a period of about four or five hours until the effects of the shock treatment and medication have worn off. The record is emphatic as to the importance and necessity of the restraint phase of the treatment during the time that the patient remains in a confused, disoriented, drugged mental condition. Neither in their pleadings nor evidence do plaintiffs raise any issue of negligence with reference to the first two phases of the therapy mentioned above; their only complaint concerns phase three of the treatment and deals with the alleged failure to properly restrain the patient after the shock had been applied to keep her from falling from her bed or otherwise injuring herself.

Restraining bedrails, although available, were not ordinarily used in the psychiatric ward by Dr. Constant to protect comatose drugged patients from falling out of bed. The manner of restraint used was what is known as a glissando sheet. This sheet is made of heavy canvas or ducking, with six ties on each side which, when placed over the patient in bed and Properly attached and tied to the bed would in most cases, as testified to by the doctor defendants and other witnesses, prevent the patient from getting from under it and falling out of bed. According to testimony given by defendant doctors, the patients should have been unable to release themselves from this sheet during phase (3), had it been properly secured to the bed. Some patients were cunning and smart enough to untie properly tied sheets. As a part of the third phase of the therapy, the doctor in charge of administering the treatment is to supervise the restraining of the patient.

On January 22, 1963, at about 11:00 A.M. Mrs. Howe was given her ninth glissando treatment since January 11, with Dr. Shields in charge. On previous admissions Mrs. Howe had received approximately twenty similar electric shock treatments. There were fourteen patients in the ward to receive such treatment, with plaintiff, due to the location of her room, as the twelfth patient. Medication was administered about an hour before the doctor and his team reached her room. The electrical impulse treatment (shock) was duly given; the patient was held until she had completed her immediate convulsions. When the convulsions stopped the glissando sheet was spread over the patient and the side ties tied in two hard knots and a bow knot. Dr. Shields testified he and the team plus a hospital orderly tied down the patient under the glissando sheet and then he moved on to the next room occupied by a patient prepared to receive the electrical shocks. He testified that it was his custom to remain with the patient until the sheet was tied by the hospital employees--nurses and orderly--and that he inspected the sheet and ties on Mrs. Howe on the day in question and, in his opinion, they were all properly tied. He also testified that when he had finished giving the shock treatment to the fourteenth and last patient to be so treated for that day, he walked down the hall the way he had come and looked through the open door of each patient's room, including Mrs. Howe's room, to see if everything was in proper order, and that it was. Finding everything in good order with the glissando sheets of the patients and nothing unusual having been reported to him by the nurses on the fourth floor, he went to his office. This was around 11:30 to 11:45 A.M.

The witness Mrs. May Smith testified by deposition introduced by plaintiffs to facts showing her qualifications as a Licensed Vocational Nurse and that she was a member of the treating team which included the doctor giving the treatment, a hospital orderly, Bennie Pena, and one or two other nurses. She testified that she had more than fifteen years experience as a nurse for psychiatric patients receiving shock treatments. These nurses and the orderly were employed and paid by the hospital and also looked after patients on the fourth floor other than psychiatric patients taking glissando treatments. The fourth floor had rooms to accommodate twenty-six patients, and on the day in question there were patients on the fourth floor other than the glissando treatment patients. Mrs. Smith testified that it took the nurses, orderly and treating doctor from fifteen to twenty minutes in each patient's room to give the treatments and properly tie down the glissando or restraint sheet. After Mrs. Howe had been treated and her convulsions that followed the treatment were over, Mrs. Smith and Bennie tied the glissando sheet over Mrs. Howe so as to prevent her getting out of the bed and hurting herself while she was still in an unconscious state from the pre-treatment medication administered so as to render the patient unconscious at the time of the treatment. Mrs. Smith and Bennie securely tied the straps with a double knot and then a bow knot. The patient was inspected every five to ten minutes to see that she was securely tied under this sheet. Mrs. Smith testified that Dr. Shields was not in Mrs. Howe's room when the glissando sheet was tied but had gone on to the room of the next patient to be treated. She and Bennie finished tying Mrs. Howe about 11:15 or 11:30. She...