Edwards v. West Texas Hospital

• Decision Date: 02 December 1935
• Docket Number: No. 4504.,4504.
• Citation: 89 S.W.2d 801
• Parties: EDWARDS et al. v. WEST TEXAS HOSPITAL et al.
• Court: Texas Court of Appeals

89 S.W.2d 801

EDWARDS et al. v. WEST TEXAS HOSPITAL et al.

No. 4504.

Court of Civil Appeals of Texas. Amarillo.

December 2, 1935.

Rehearing Denied January 13, 1936.

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Appeal from District Court, Lubbock County; Homer L. Pharr, Judge.

Action by E. P. Edwards and others against the West Texas Hospital and others. Judgment for defendants, and plaintiffs appeal.

Reversed, and cause remanded.

Vickers, Campbell & Evans, of Lubbock, for appellants.

McWhorter & Howard and Bledsoe, Crenshaw & Dupre, all of Lubbock, and Seay, Malone & Lipscomb and Touchstone, Wight, Gormley & Price, all of Dallas, for appellees.

HALL, Chief Justice.

E. P. Edwards, joined by his three minor children and his mother-in-law, Mrs. T. C. Hollander, filed this suit against the West Texas Hospital, alleged to be a corporation, Dr. C. J. Wagner and Dr. Anne West, a feme sole, to recover damages alleged to have been sustained by plaintiffs on account of malpractice and negligence of the defendants which resulted in the death of Mrs. Vergie Edwards, the wife of E. P. Edwards, the mother of his three minor children, and the daughter of Mrs. T. C. Hollander.

A jury had been impaneled, but, after plaintiffs had closed in the introduction of their testimony, the court directed a verdict in behalf of the defendants.

The petition of the plaintiffs is unusually lengthy, but the material facts we briefly state as follows:

On and prior to February 8, 1834, Mrs. Vergie Edwards was pregnant with twins, and on that date Dr. Anne West, as her attending physician, delivered her of one of the children, but did not deliver the other. The child which was born in the regular way is one of the plaintiffs in the suit. Immediately after the birth of the first child, some neighbors, lady friends of Mrs. Edwards who were present at the time of her confinement, noticed a "large mass or knot" in the upper part of her abdomen, which, it was subsequently ascertained, was another fetus. In the course of a few hours this fetus had changed position and was in the lower part of the abdominal or pelvic cavity.

On the 10th day of February, two days thereafter, Mrs. Edwards was brought twenty-two miles from her home to the West Texas Hospital at Lubbock for diagnosis and treatment, and arrangements were made for her to remain as a patient. It is alleged that Dr. C. J. Wagner was an official and director and chief of the staff of physicians who practiced at said hospital, and that he assisted in the management of it.

She remained at said hospital, under the supervision, treatment, and care of the defendants for eleven days, during which time Dr. West visited her two or three times. The treatment prescribed and administered consisted of enemas, hot packs on her abdomen, and sedatives. The mass in her abdomen and the swollen condition of her body was very noticeable, and her suffering was intense.

Defendants diagnosed her trouble as inflammation, tumor, locked bowels, and gas on the stomach. Her condition, while in the hospital for eleven days, did not improve, but, as stated by some of the witnesses, became worse from day to day. At the end of that time she was removed to her home, and was told by Dr. Wagner that such treatment should be continued and for a nurse to be procured. She remained at home about one week, during which time Dr. Anne West continued to treat her, and called to see her at least twice.

On the 3d of March thereafter she was brought to the Lubbock Sanitarium, at Lubbock, Tex., and it was decided to be a case requiring immediate surgery, but, on account of her condition, she had to be toned up, and the operation was not performed until the morning of March 4th, at which time more than a gallon of pus and liquid was drained from her abdomen and the dead fetus was discovered and removed. It was also shown that the uterus had been ruptured. The fetus was in a badly decomposed condition, and she remained in the hospital for about a week and died on March 11, 1934.

It was shown the hospital had an X-ray machine, and at least two of the doctors testified that an X-ray examination of Mrs. Edwards would have shown whether the patient was afflicted with a tumor or that there was a fetus in her abdomen; provided the fetus was over four and one-half months of age. The fetus had apparently lived during the full period of gestation, and it was removed by opening the abdominal wall; there being no other means for its delivery than a surgical operation. The testimony further tends to show that the fetus was a female, fully developed and ready for parturition on February 8th.

It is alleged that Mrs. Edwards was the patient of each and all of the defendants; that a partnership existed between them; that an X-ray and laboratory test, as well as a proper and skillful examination, would have disclosed her condition and the nature of her affliction; that her death was due to negligence of the defendants, and each of them, in not knowing or discovering the nature of the trouble, and in failing to remove it by surgical operation; that an ordinarily careful, prudent, and skillful surgeon in the vicinity of Lubbock would have discovered and known the nature of her affliction, and would have performed all things necessary to relieve her. The failure to make an X-ray examination and a proper laboratory test are charged as two of the acts of negligence.

The hospital answered, denied its relation to any physician who treated Mrs. Edwards, admitted that it had a complete X-ray machine and necessary equipment for examining and treating of patients, and that Mrs. Edwards was in its hospital for diagnosis and treatment. It alleged that it was an incorporated hospital, and as such merely undertook to furnish reasonable accommodations for the sick and afflicted; that it furnished to its patients physicians and surgeons, rooms, beds, linens, foods, trained nurses, operating rooms, X-ray equipment, and other necessary and suitable facilities. It denied that it had ever undertaken to diagnose or treat patients, or to practice either medicine or surgery, merely seeking to furnish such means and facilities as might be required by attending physicians and surgeons. It further specially denied that it was ever employed to diagnose or treat Mrs. Edwards, or ever undertook to do so. It denied that its codefendants, Drs. Wagner and West, were acting for it in any capacity in such diagnosis and treatment rendered, but alleged they were following their own independent callings in so doing; that the only relationship which existed between the hospital and the two doctors was that which usually and customarily exists between any physician and patient and hospital in which the patient is being treated. The allegation of the existence of a partnership was denied by verified plea.

Dr. West admitted her relationship to Mrs. Edwards as being that of physician and patient, alleged that she diagnosed Mrs. Edwards' trouble as ovarian tumor and had her brought to the defendant hospital for diagnosis and treatment by it and its doctors and nurses, and in particular by Dr. Wagner of said hospital. She alleged that she gave her codefendants a complete history of Mrs. Edwards' condition of health as it had been observed by her, and as related to her by Mrs. Edwards and her husband. She admitted in her allegations that she did not know that Mrs. Edwards had a fetus in her abdomen, but did allege that she used ordinary skill, care, prudence, and diligence to ascertain her condition and in having her brought to the hospital and its doctors and nurses, and further alleged that Mrs. Edwards had informed her that she was operated upon for ovarian tumor several years prior to the time in question.

Dr. Wagner answered by general demurrer, denials, admitted that Mrs. Edwards was brought to him, that he made a physical, manual examination of the body of Mrs. Edwards for the purpose of ascertaining the cause of her condition and diagnosed her case, using all the means which in his opinion and best judgment as a physician and surgeon were necessary to determine, diagnose, and ascertain the cause of her suffering and ailment. He did not allege what his diagnosis was other than that he did not believe an immediate operation upon her was necessary, and that such an operation would have resulted either in her death or endangered her life.

The appellants present the contention in several propositions that the court erred in directing a verdict because the testimony raised the issue that the appellees failed to properly diagnose the case, prescribed treatment for inflammation, tumor, and locked bowels, which constitute negligence, in view of other testimony showing that an X-ray examination would have disclosed that there was a fetus in her abdomen, and that she had no tumor.

There was an X-ray machine in the hospital which could have been used and which the appellees failed to use. The testimony further shows that Dr. West, who attended Mrs. Edwards during the parturition and delivered her of the first child on February 8, 1934, continued, and promised to continue, to treat her in the hospital, and saw her twice after she was removed to the hospital; that Dr. West had told them several times that she thought Mrs. Edwards would have twins; that Dr. West also observed the knot or lump in the upper part of Mrs. Edwards' abdomen immediately after the birth of the first child and remarked that there might be a tumor; that, in discussing Mrs. Edwards' condition with some of Mrs. Edwards' neighbor women during the confinement, some opinion was expressed that Mrs. Edwards would probably be delivered of twins instead of one child. Edwards said that with the first delivery the afterbirth was not like that with their other children, and that "it had more blood and stuff in it"; that on the night after the birth of the baby on the morning of the 8th Dr. West returned and said: "Mrs. Edwards has...