Goodnight v. Phillips

• Decision Date: 05 September 1967
• Docket Number: No. 7798,7798
• Citation: 418 S.W.2d 862
• Court: Texas Court of Appeals
• Parties: Chester G. GOODNIGHT, Appellant, v. Dr. John R. PHILLIPS, Appellee. . Texarkana

Page 862

418 S.W.2d 862

Chester G. GOODNIGHT, Appellant, v. Dr. John R. PHILLIPS, Appellee.

No. 7798.

Court of Civil Appeals of Texas Texarkana.

Sept. 5, 1967.

John H. Holloway, Houston, for appellant.

W. N. Arnold, Jr., Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.

Quinnan Hodges, Butler, Binion, Rice, Cook & Knapp, Houston, for intervenor.

DAVIS, Justice.

The opinion handed down in this case on June 27, 1967, is withdrawn and the following submitted in lieu thereof.

NATURE OF THE CASE

A medical malpractice case. Plaintiff-appellant, Chester G. Goodnight, sued defendant-appellee, Dr. John R. Phillips, for damages alleged as the result of a hernia operation. Judgment was entered for appellee. Appellant has perfected his appeal and brings forward 24 points of error.

There are 6 volumes of the statement of facts and exhibits of the original trial and one volume of statement of facts on the motion for new trial. Counsel for appellant took two pages to state the nature of the case. The statement, as above set out, is all that is necessary. Appellant brought forward 24 points of error, many of which are multifarious and contain about 7 1/2 pages of the brief. This seems to be contrary to Rule 418, Texas Rules of Civil Procedure. Justice Alexander of the Waco Court of Civil Appeals, later Chief Justice of the Supreme Court, wrote an opinion in Lang et al. v. Harwood, Tex.Civ.App. (1941), 145 S.W.2d 945, as to what should form the contents of a brief and the various parts thereof. By the points of error, appellant required the reading of the entire statement of facts and all the exhibits. In re: King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Appellant alleged that on June 6, 1960, he sustained a left inguinal hernia while working for a 7-11 Grocery Store. (It was shown that he had previously received a right hernia in 1944 that was repaired by Dr. Talley in Temple, Texas, without any resulting damage whatever).

After receiving the last hernia, appellant went to see Dr. Dave Kamanesky, his family physician, who diagnosed the case as a hernia and advised an operation. Appellant reported this to his employer. The employer sent appellant to see the appellee. The appellee likewise diagnosed the condition as a hernia. Appellant asked the appellee to certify the fact that he had a hernia so that he could get Dr. Kamanesky to do the operation. This, appellee would not do.

According to the evidence, appellee told appellant that Dr. Kamanesky was not specialized, or a specialist in the field of hernia operations. He told appellant that he would rather do the operation because he was more qualified to do the job. He further told appellant that he had done thousands of hernia operations. Appellee stressed the fact that he was a specialist and showed appellant many diplomas on the walls of his office, and stated that he had even operated on doctors. According to the testimony of appellant, appellee guaranteed the operation, that he would be back on his feet in 3 days after the operation, and, would be back to work in 3 or 4 weeks.

The evidence is conflicting about the agreement and the type of operation that was to be performed. Appellee testified that he had probably done 200 or maybe 300 hernia operations prior to this one. Appellant did not testify as to the type of operation that was to be performed. That there are three types of hernia operations: Ferguson, Bassini and the Halsted. The Halsted was the type used. The Halsted repair to the herniated area is done by silk thread, or by fascia lata, that is taken from the hip. The fascia lata type was performed.

Appellant alleged that as a result of the operation, the doctor closed the inguinal ring too tight; that it cut off the blood supply that goes into the cord that goes to the left testicle. The injury occurred on June 6, 1960. The operation was not performed until June 20, 1960. According to the evidence, on June 21, 1960, appellant's left testicle was immensely swollen and was causing severe pain the morning after the surgery. He called this fact to the attention of appellee, who, apparently, disregarded it. He kept calling the fact to the attention of the doctor, but there was not anything done to relieve the swelling as long as he was in the hospital. He testified that while he was in the hospital, he was kept under sedation, but his left side, his left testicle, and his left leg continued to bother him. Prior to the operation there was nothing wrong with the left testicle and he could enjoy the usual sexual affairs.

After the operation and the swelling had subsided in his left testicle, atrophy began. During the operation appellee had to lift up the cord that goes to his left testicle, and it seems that the fascia lata was sewed underneath. This had a tendency to shorten the cord. Appellant did not notice anything being wrong with the cord or the left testicle prior to the operation. Something had a tendency to shorten the cord, and, as a result thereof, the left testicle apparently was imbedded up in the groin at the time of the trial. During the swelling of the left testicle, they furnished appellant with a jockeystrap to hold the left testicle up to keep the strain off of it. He said Dr. Phillips told him that 'it was just under normal procedure; it will eventually go away'.

After the surgery, appellee would not give appellant a release so he could go back to work for the company where he was injured. It seems that appellee demanded a release from appellant for any and all liability for both himself and the company before he would certify him as able to go back to work.

Apparently, appellee could realize the seriousness of the situation that existed. He secured the services of a Dr. Stackhouse to examine Goodnight. Dr. Stackhouse came to the office of appellee on August 24, 1960, and proceeded to examine him. Appellee had already advised the removal of the left testicle. Dr. Stackhouse advised its removal.

There was evidence that was admitted during the trial that the company insurance had paid for the operation. This was done by appellant on questioning by appellant's counsel. Appellant offered evidence to show that they had tried to get the hospital records. It was during the trial of the case that appellee and his attorney admitted that they had the records. Appellee offered the hospital records in evidence which showed that it was a Workman's Compensation Case.

After the jury had answered some of the special issues, attorney for appellant filed a motion to disregard certain of the jury findings and to declare a mistrial. It was overruled. Appellant filed a motion for new trial, and amended motion. The amended motion for new trial was overruled. Special Issue No. 3 that was submitted to the jury was not answered. The third Special Issue inquired if the jury found from a preponderance of the evidence that a failure to provide a sufficient opening through the inguinal ring so as to allow a normal supply of blood to plaintiff's left testicle was a proximate cause of the damages. The jury had answer to Special Issue No. 1 that the inguinal ring had been closed too tight to permit a normal supply of blood to appellant's left testicle. The trial court answered Special Issue No. 3 on what he contended was 'a matter of law'. The issue, as submitted, presented a 'fact question'. The trial court was not allowed to answer the same. The answer of the trial court to this issue appears in the judgment as follows:

'And it appearing to the Court, after having considered the special issues submitted by the Court to the jury and the answers to the jury to such special issues, that the unanswered Special Issue No. 3 of the Court's charge should, as a matter of law, be answered 'We do', and the Court, upon its own motion, finds that as a matter of law the failure to provide sufficient opening through the inguinal ring so as to permit normal supply of blood to plaintiff's left testicle was a proximate cause of the damage to plaintiff's left testicle, and it is, therefore ORDERED, ADJUDGED AND DECREED by the Court that as a matter of law that Special Issue No. 3 shall be answered 'We do', and that plaintiff's motion to disregard the jury's findings and for a mistrial shall be in all things overruled and denied to which action and rulings and orders of the court plaintiff in open court duly excepted and objected.'

Special Issue No. 3 could have been answered, 'We do'; or, 'We do not'. The loss of the blood supply to the left testicle could have been caused by the swelling of the cord prior to the operation; or, it could have been caused by closing the inguinal ring too tight, or, by post operative swelling.

There should not have been any reference made to insurance by either side. 56 Tex.Jur.2d 441, Sec. 99, and authorities cited thereunder; 56 Tex.Jur.2d 445, Sec. 101, and authorities cited thereunder; and, 56 Tex.Jur.2d 616, Sec. 273, and authorities cited thereunder. To consider the question of insurance during the jury deliberation constituted jury misconduct and constitutes ground for a new trial, or a reversal of any judgment that has been entered. 57 Tex.Jur.2d 19, Sec. 385, and authorities cited thereunder.

This case must stand or fall on the question of whether or not the jury was guilty of misconduct, as a matter of law, that probably caused damage to the appellant and that the trial court abused his discretion to overrule the motion for a new trial. By his point No. 4, appellant complains of the jury misconduct. Although the point is multifarious, we can tell from reading the brief why he is making such complaint. Appellant says the trial court erred and abused his discretion because of the jury misconduct which was shown, as a matter of law, which prevented him from having a fair and impartial trial, and resulted in an improper verdict. That such jury misconduct, as a matter of law, was calculated to be harmful to...