Dupree v. Palmarozzi, 8338

• Decision Date: 10 January 1980
• Docket Number: No. 8338,8338
• Citation: 596 S.W.2d 544
• Parties: Herbert J. DUPREE, Sr., Appellant, v. Nicholas PALMAROZZI et al., Appellees.
• Court: Texas Court of Appeals

Page 544

596 S.W.2d 544

Herbert J. DUPREE, Sr., Appellant, v. Nicholas PALMAROZZI et al., Appellees.

No. 8338.

Court of Civil Appeals of Texas, Beaumont.

Jan. 10, 1980.

Rehearing Denied Jan. 31, 1980.

Charles Sexton, Orange, for appellant.

Ken Parker, Russell Cooper, Cleve Bachman, Beaumont, for appellees.

CLAYTON, Justice.

This is a medical malpractice case. Herbert J. Dupree, Sr. (Dupree) was the original plaintiff; but, after his death, a Suggestion of Death was filed, and his heirs, Laura C. Dupree, individually and as next friend for Alice Suzanne Dupree, and Herbert J. Dupree, Jr., were substituted as parties plaintiff. Dupree filed this suit against Dr. Palmarozzi and Dr. Barnett (appellants), Dr. Ruffle, and Doctor's Hospital, Inc. The cause of action against Dr. Ruffle was severed and default judgment was entered against him. A non-suit was taken against the hospital. The cause was tried to a jury against Dr. Palmarozzi and Dr. Barnett. The trial court granted an instructed verdict in favor of both defendant doctors and entered a take-nothing judgment against plaintiff, from which judgment plaintiff has perfected this appeal.

This being an appeal from an instructed verdict, we must accept as true the evidence supporting plaintiff's allegations. All conflicts and inconsistencies must be resolved in favor of plaintiff, and we must draw all inferences therefrom most favorable to plaintiff's cause of action. Constant v. Howe, 436 S.W.2d 115 (Tex.1968); Hart v. Van Zandt, 399 S.W.2d 791 (Tex.1965).

The basic complaint of negligence made against each defendant was that surgery was performed upon Dupree without first making proper tests and proper bowel preparation. The main thrust of the acts of negligence was that a barium enema was not given prior to surgery resulting in defendants' failure to discover an obstruction or tumor, and such failure to discover the tumor necessitated additional surgery.

The record before us shows, considering the evidence in the light most favorable to plaintiff-appellant, that Dupree had been a patient of Dr. Barnett's for several years. He had been advised on one occasion that he had all the symptoms of cancer. Dupree had numerous treatments and hospitalizations while under Dr. Barnett's care. He had a sigmoidoscopy (performed by Dr. Palmarozzi) in 1970 and another in 1973. He had two previous barium enemas and had two hospital admissions in 1975 prior to the admission in which Dr. Palmarozzi performed the surgery about which complaint is made. Dupree was admitted to the hospital in March 1975 at which time Dr. Palmarozzi did an exploratory laparotomy and discovered a tumor in the colon. Dr. Barnett assisted him in this surgery. A resection of the colon was not done at that time. The colon was later resected at a hospital in Houston.

Defendants strongly argue there is no evidence in the record showing negligence and proximate cause on the part of either doctor-defendant. Dr. Barnett testified that he did not order a barium enema given prior to surgery, and Dupree was not given a sigmoidoscopic examination. The only reason for not giving the barium enema was that Dupree had refused such enema. Dupree denied having refused this test. Barnett said that he did not order the sigmoidoscopic examination because he assumed Dupree would have refused this since he had refused the barium enema. He further testified that had the barium enema been given "there's a good possibility (the tumor) would have been found," that if the sigmoidoscopic examination had been given the tumor would "in all reasonable medical probability" have been discovered. He noted in his progress notes that Dupree was "to have a barium enema," but he did not order one prior to surgery.

Dr. Palmarozzi testified that he had performed a physical examination on Dupree prior to surgery. He did not order a barium enema before surgery. He did not request any lab or x-ray work to be done prior to surgery because the "lab work had already been ordered, and the x-ray procedures, which were acceptable, had already been ordered." He further stated that "I think it would have been a good idea" to have given a barium enema prior to surgery. His testimony further shows that he wasn't sure, prior to surgery, that Dupree had a tumor, but he "thought he had something wrong with him which was not evidenced in the studies which had been performed." In response to the question, "Had there been a barium enema, do you think (the tumor) would have shown up?" He answered, "I don't know that the tumor would have shown up. I believe that the obstruction would have shown up."

Dr. Palmarozzi further testified that "(w)hen I operated (on) him, I positively expected to find what I called a 'mechanical appendix'; but I was suspicious that we might find something else." The appendix was not removed; a colostomy was done. Prior to the surgery, there was "no bowel preparation" done. Upon being asked the question, "Once you opened Mr. Dupree up and discovered he had a tumor, is there any particular reason why you did not go ahead and take the tumor out?" He answered, "Yes, . . . (t)he bowel was not prepared for removal of the colon."

After the colostomy was performed, Dupree's wife, being dissatisfied, had plaintiff removed from the hospital and transported to a Houston hospital where the resection of the colon was done.

Plaintiff introduced into evidence the deposition testimony of Dr. William Andrew, Jr. Defendants did not object to this testimony. Dr. Andrew's qualifications were given as follows: "I had pre-med at Texas A. & M. I went to medical school at Southwestern...