Eckert v. Smith

• Decision Date: 24 October 1979
• Docket Number: No. 9031,9031
• Citation: 589 S.W.2d 533
• Parties: Peter ECKERT, Individually and on behalf of Randall Eckert, a Minor v. Dr. Sidney SMITH.
• Court: Texas Court of Appeals

Page 533

589 S.W.2d 533

Peter ECKERT, Individually and on behalf of Randall Eckert, a Minor v. Dr. Sidney SMITH.

No. 9031.

Court of Civil Appeals of Texas, Amarillo.

Oct. 24, 1979.

Rehearing Denied Nov. 21, 1979.

Windle Turley and Larry Hayes, Law Offices of Windle Turley, Dallas, for appellant.

Thompson & Knight, David S. Kidder and Jerry Grissom, Dallas, for appellee.

DODSON, Justice.

Peter Eckert, individually and on behalf of his minor son, Randal Eckert, brought this action for damages against Dr. Sidney Smith, M.D. He alleged Inter alia that Dr. Smith negligently diagnosed and treated Beverly Eckert and that such negligence was a proximate cause of her death. Mrs. Eckert was the wife of Peter and the mother of Randal Eckert. The case was tried with a jury. The jury refused to find Dr Smith negligent in either diagnosing or treating Mrs. Eckert. No other negligence issues were requested or submitted to the jury. On the jury's verdict, the trial court entered a take-nothing judgment in favor of Dr. Smith. Mr. Eckert appeals from the judgment.

On appeal, Mr. Eckert brings five points of error. He attacks the trial court's definitions of timely diagnosis and proper treatment because each definition includes a community standard of care, I. e., Dallas County, Texas. He further complains of the trial court's refusal to submit loss of love and affection as an element of damages and the trial court's denial of a new trial based on newly discovered evidence. We affirm the judgment.

Beverly Eckert expired in the Garland Memorial Hospital in Dallas County, Texas on Sunday 23 February 1975. She was approximately seven months pregnant at the time, and was a patient of Dr. William Adams for prenatal care. Dr. Adams and Dr. Smith were partners in the practice of medicine in Garland. Dr. Smith was on weekend call to take care of their respective patients.

Mrs. Eckert became ill on Saturday afternoon 22 February 1975. Mr. Eckert contacted Dr. Smith by calling Dr. Adam's answering service. At 5:35 p. m. on this day, Mrs. Eckert entered the emergency room of Memorial Hospital at Dr. Smith's direction. Dr. Smith, a board certified specialist in obstetrics and gynecology, had never previously examined Mrs. Eckert.

At the emergency room, Mrs. Eckert complained of chills, diarrhea and abdominal pain. These complaints were consistent with an illness prevalent in the Garland area at the time. Dr. Smith's examination revealed that Mrs. Eckert was lucid, had normal vital signs under the circumstances, and no vaginal bleeding. He ruled out placental abruption ¹ after a manual examination of the uterus and auditory recognition of fetal heart tones. He concluded that she was mildly dehydrated, was suffering from gastroenteritis which was probably viral, and was possibly anemic.

Dr. Smith had Mrs. Eckert admitted to the hospital and gave certain orders for her continuing care and treatment. These orders included I.V.s, lomotile, pain medication and certain lab tests.

Dr. Smith next examined Mrs. Eckert the following morning. His time of arrival at the hospital and time of the examination were disputed. He said he arrived at the hospital about 10:00 a. m., tended to another patient and then examined Mrs. Eckert at about 10:30 a. m. Mr. Eckert attempted to establish that Dr. Smith arrived at the hospital approximately one hour earlier.

The Sunday morning examination revealed that Mrs. Eckert was still in pain but the diarrhea had been controlled. He said she appeared alert and improved. She stated that she was hungry. She had not requested pain medication since 8:00 a. m. that morning. He again ruled out placental abruption and found normal fetal heart tones.

After this examination he received a laboratory report which showed a low blood count. He ordered a second complete blood count "stat" and a type and cross-match for a blood transfusion. While waiting for this laboratory work, he attempted to determine the location of the blood loss. After he ruled out rectal or uterine bleeding, he thought a gastro-intestinal bleeding most likely and sought a consult before initiating invasive surgery. He considered the invasive surgery dangerous to the mother and child.

Dr. Smith's testimony showed that he was in attendance to Mrs. Eckert from the time of the initial Sunday morning examination until approximately 11:55 a. m. He testified that he was called to another floor of the hospital to admit another patient for delivery. He called the nurse's station to check on Mrs. Eckert's condition and to determine if the blood had arrived for transfusion. He was informed that Mrs. Eckert was in cardiac arrest and that the cardiopulmonary team had been notified. Dr. Smith went to Mrs. Eckert's room and participated in the resuscitation efforts.

The undisputed evidence shows that a nurse found Mrs. Eckert pulseless, non-responsive and without respiration; that a cardiopulmonary team was called at 12:05 p. m.; that the resuscitative efforts were unsuccessful; and that the cause of the death was a cardiac arrest due to intra-abdominal hemorrhage from placenta percreta. ²

Mr. Eckert presented evidence from two medical experts. By these experts, Mr. Eckert attempted to show that Dr. Smith was negligent in not timely diagnosing and properly treating Mrs. Eckert's condition. In essence, these experts said that Dr. Smith failed to promptly order proper lab studies, over-sedated the patient, and failed to appreciate factors pointing to internal hemorrhaging and shock.

In summary, Dr. Smith and other medical experts testified that the lab reports were verbally ordered according to established medical practice and custom; that the monitoring of vital signs as ordered was sufficient; that the dosage of medication was moderate; that the diagnosis of gastroenteritis was reasonable and that hemorrhaging was not indicated by Mrs. Eckert's symptoms; that Dr. Smith's response was appropriate under the circumstances; and that Mrs. Eckert's demise was caused by an acute episode of placenta percreta occurring late on Sunday morning causing rapid massive internal hemorrhaging which filled the retroperitoneal space with 4000 cc. of blood within minutes.

Dr. Smith testified, without contradiction, that placenta percreta is a rare condition in pregnancy, in which the placenta mines through the uterus wall; that since the onset of medical literature there have been only 37 reported occurrences of the condition, which were similar to Mrs. Eckert's condition; and that he previously had not seen the condition in his extensive practice.

In special issue number one, the court inquired of the jury, "Do you find from a preponderance of the evidence that Dr. Smith failed to timely diagnose internal hemorrhaging of Mrs. Eckert?" and in issue number three, "Do you find from a preponderance of the evidence that Dr. Smith failed to properly treat her internal hemorrhaging?". The court used a community standard in defining the terms "timely diagnose" and "properly treat." These instructions state that "timely diagnose" means "such time as a reasonably prudent physician practicing in Dr. Smith's specialty in Dallas County, Texas, would have diagnosed under the same or similar circumstances," and that "properly treat" means "such treatment as would have been rendered by a reasonably prudent physician of Dr. Smith's specialty in Dallas County, Texas, under the same or similar circumstances."

Mr. Eckert objected to the instructions stating that the phrase "Dallas County, Texas," should have been omitted on the general grounds that the instructions focus "the conduct of defendant in both issues No. 1 and No. 3 upon what a reasonably prudent physician in Dallas County, Texas would have done and contrary to the law, the instruction should not be so limited." In his brief, he says the instructions are contrary to the law and a comment on the weight of the evidence.

In his objections to the charge, Mr. Eckert made no challenge to the instructions on the grounds that such instructions constitute a comment on the weight of the evidence. Rule 274 of the Texas Rules of Civil Procedure provides, in part:

A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection. Any complaint as to an instruction, issue, definition or explanatory instruction, on account of any defect, omission, or fault in pleading, shall be deemed waived unless specifically included in the objections.

Under the circumstances, we must conclude that Mr. Eckert waived his challenge to the instructions on the comment on the weight of the evidence grounds.

Mr. Eckert further contends that the community standard is "contrary to the law," and that the trial court committed reversible error by including the standard in the instructions. In essence, he opts for a complete demise of the community standard or locality rule in medical malpractice actions in this state. In support of his position, he says the decision in Hood v. Phillips, 554 S.W.2d 160 (Tex.1977) "demonstrates that the last vestiges of the locality rule has (Sic ) now disappeared from Texas jurisprudence." We disagree.

The Hood case was a medical malpractice action based on an assertion that the mode or form of treatment was not a remedy for the diagnosed condition. The patient had emphysema. Attempting to reduce the patient's suffering, the doctor removed one of the carotid bodies from the patient's neck. The doctor acknowledged that the use of this type of surgery was not generally accepted and was in fact highly controversial. The authoritative medical testimony showed that the procedure had been proposed without much scientific rationale, tried by a number of physicians worldwide, found ineffective and abandoned.

In Hood, the Court observed that courts from other jurisdictions had applied at least four standards to medical malpractice actions based on assertions that the Mode or...