Gravis v. Physicians and Surgeons Hospital of Alice, 14564

• Decision Date: 05 April 1967
• Docket Number: No. 14564,14564
• Citation: 415 S.W.2d 674
• Parties: C. K. GRAVIS, Jr., et ux., Appellants, v. PHYSICIANS & SURGEONS HOSPITAL OF ALICE et al., Appellees. . San Antonio
• Court: Texas Court of Appeals

Page 674

415 S.W.2d 674

C. K. GRAVIS, Jr., et ux., Appellants, v. PHYSICIANS & SURGEONS HOSPITAL OF ALICE et al., Appellees.

No. 14564.

Court of Civil Appeals of Texas San Antonio.

April 5, 1967.

Rehearing Denied June 7, 1967.

Sidney P. Chandler, Trimble & Dobbs, Corpus Christi, for appellants.

Lloyd, Lloyd, Dean & Ellzey, Alice, Lewright, Dyer & Redford, Corpus Christi, Perkins, Floyd, Davis & Oden, Alice, for appellees.

KLINGEMAN, Justice.

This is an appeal from a summary judgment in a malpractice case. On the evening of October 22, 1963, Elma Gravis complained of pain in her abdomen, and her husband, C. K. Gravis, Jr., telephoned Dr. Philip S. Joseph who agreed to meet them at the hospital. Shortly thereafter, Dr. Joseph examined Mrs. Gravis in the emergency room of the Physicians & Surgeons Hospital of Alice, Texas, and she was given some medicine for pain and placed in a room in the hospital for observation. On the next day, she was given other examinations and tests, including X-rays. During the period of time between her admission and operation, Mrs. Gravis was given various medications, including sedatives, pain-relieving medicine, antibiotics, anti-nauseants, euphorics, vitamins, tranquilizers, and other medicine. On October 24, 1963, at about 12:30 p.m. an exploratory operation was performed on Mrs. Gravis, and for the operation Mrs. Gravis was given a spinal anesthetic and pentothal sodium intravenously during the operation. An intestinal obstruction was found during the operation and corrected. Since the operation Mrs. Gravis has suffered from a number of physical disabilities, including blader trouble, phlebitis of the left leg, and partial paralysis.

Appellants based their suit upon theories of assault and battery, fraud, duty to warn, breach of contract, administrative negligence, and numerous alleged acts of negligence and malpractice. Extensive discovery proceedings were had, and the record contains numerous depositions, including six from doctors, voluminous pleadings on the part of all parties, and lengthy affidavits. appellees each filed motion for summary judgment and, after a full hearing, the trial court found that there was no genuine issue as to any material fact and granted appellees' motions for summary judgment and decreed that appellants take nothing against said appellees.

For better identification of the parties, Mrs. Elma Gravis was the patient operated on, her husband being C. K. Gravis, Jr., and they were plaintiffs in the trial court. Dr. Philip S. Joseph was the operating physician, Dr. John C. Turnham, Jr., was the assisting physician, Ruth B. Grose was the supervisor of nurses and anesthetist at the Physicians & Surgeons Hospital of Alice, where Mrs. Gravis was hospitalized and where the operation was performed, and they were defendants in the trial court.

Appellants' two points of error on this appeal are:

'FIRST POINT OF ERROR

The Appellees, Physicians and Surgeons Hospital of Alice, Dr. Philip S. Joseph, Dr. John C. Turnham, Jr., and Ruth Grose, each, having failed to plead and prove that there are no genuine material issues of fact in this case the trial court erred in sustaining each of the Appellees' motions for summary judgment.

'SECOND POINT OF ERROR

The Appellees, Physicians and Surgeons Hospital of Alice, Dr. Philip S Joseph Dr. John C. Turnham, Jr., and Ruth Grose, each, having failed to plead and prove that there are no genuine material issues of fact in this case the trial court erred in entering judgment against the Appellants, C. K. Gravis, Jr., and Elma Gravis, as entered, and in favor of the Appellees that the Appellants take nothing by this suit.'

After a thorough review of the record, we are of the opinion that appellants' points of error are without merit.

Appellants' brief consists of two parts, to-wit, a brief of 15 pages, double spaced, and attached thereto and made a part thereof, is a copy of the brief appellants submitted to the trial court, which contains 140 pages, mostly single spaced. Appellees contend that appellants' points of error are so general that they are unable to determine the precise points which appellants bring to this Court for review, and are insufficient to warrant consideration on appeal. The cases which appellees rely upon in this contention ¹ hold that while points may be too general, where the grounds upon which appellants apparently relied are disclosed in the statement and arguments accompanying the points on appeal, a review court will consider such points. Under such construction, we will attempt to discuss appellants' germane contentions as we understand them from their brief.

ASSAULT AND BATTERY THEORY OF RECOVERY

Appellants' complaints on these grounds appear to be:

(1) That there was no consent to such operation.

(2) That if there was any consent, either express or implied, it was not an informed or knowledgeable consent.

The situation involved in the case before us is not analogous to that involved in Moss v. Rishworth, 222 S.W. 225 (Tex.Com.App.); Thaxton v. Reed, Tex.Civ.App., 339 S.W.2d 241, and Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 1 L.R.A.,N.S., 439 (1905), all of which cases are malpractice cases involving theories of assault and battery. In the case before us, according to the testimony of Dr. Joseph, his initial examination at the time of admission revealed a generalized tenderness in the abdominal area, and at that time he reached no conclusion as to the cause of Mrs. Gravis' complaints. Further examination and tests were made the next day and, according to Dr. Joseph, an X-ray taken on October 23, revealed a normal abdomen with no pathology indicated. According to the medical evidence in the record, no emergency existed at this time, and there is nothing in the record to indicate that any operation was contemplated at that time. However, on the morning of October 24, this situation changed; Mrs. Gravis' blood count had gone up, and, according to Dr. Joseph, this indicated to him there was a possibility of an inflammatory process, possibly the appendix, and X-rays taken that morning indicated that the small intestinal loops appeared somewhat dilated. Dr. Joseph testified that it was not until the morning of the 24th that he came to the conclusion that Mrs. Gravis should be operated on. Up to this time, the matter of consent to an operation had not arisen. However, an emergency situation now existed. In such a situation, there is respectable authority that the practitioner may be justified in performing an operation without the express consent of the patient or of anyone authorized to act on his behalf. 45 Tex.Jur.,2d, § 101, p. 262; 139 A.L.R. 1370 at p. 1374. It is stated in 76 A.L.R. 566, that the general rule recognizes that consent may be implied under some circumstances, or the existence of an emergency, may justify operating without any consent. Indeed, in Jackovach v. Yocom, 212 Iowa 914, 237 N.W. 444, 76 A.L.R. 551 (1931), where an amputation was performed, it was held that since the defendant was confronted with an emergency which endangered the life and health of the patient, it was his duty to do that which the occasion demanded within the usual and customary practice among physicians and surgeons in the same or similar localities, without the consent of the patient. 10 Tex.L.Rev. 99.

Appellants presented evidence that from the time Mrs. Gravis was admitted to the hospital to the time of the operation she was under heavy sedation and under the influence of pain-killing drugs, and was quite groggy. Mrs. Gravis stated that she was under pain-relieving medicine to such an extent that she did not know what was happening about 80% Of the time prior to the operation, and further testified that she did not recall anything that happened on the morning of the operation. Giving full credence to appellants' testimony as to Mrs. Gravis' mental condition on the morning of the operation, and accepting Mrs. Gravis' testimony that she was unable to give her consent in any form or manner on the morning of the operation, according to appellants' own contention it would not have been possible to obtain a valid consent from Mrs. Gravis on the morning of the operation, at the time the emergency arose to perform the operation. The evidence is undisputed, however, that at such time Dr. Joseph discussed such operation with C. K. Gravis, Jr., the husband of Elma Gravis, and told him that it was going to be necessary to perform an exploratory operation on Mrs. Gravis, and that Mr. Gravis stated, 'We got to do something, Doc, or I am going to lose Elma.' Mr. Gravis, when asked in his deposition, 'In other words, you agreed with the exploratory operation and whatever he thought was necessary to do,' stated, 'Well sure, I'm not a doctor.' It is further undisputed that at such time Mr. Gravis, on his own volition, signed a written consent agreement consenting to the performing of whatever treatment or operation, and the administering of whatever anesthetics the physician believed to be necessary or advisable. There is no evidence in the record that Mrs. Gravis or her husband ever objected to the operation to be performed. Appellants' chief complaint appears to be with regard to the anesthetic used in connection with such operation. The anesthetic was incidental to the operation and was necessary to perform the operation. Further, all the medical evidence indicates that the type of anesthetic used is one that is commonly used in operations of this type, an is considered one of the safest types of anesthetics.

Appellants rely chiefly on the recent case of Scott v. Wilson, Tex . Civ.App., 396 S.W.2d 532, affirmed, Tex., 412 S.W.2d 299 (Feb. 4, 1967), on the matter of informed consent. We do not have the same situation in this case as in Scott. This Court in the Scott case points out that it was not in emergency operation which had to be performed to preserve Scott's life or health, and that...