Gravis v. Physicians and Surgeons Hospital of Alice
| Decision Date | 03 April 1968 |
| Docket Number | No. B--379,B--379 |
| Citation | 427 S.W.2d 310 |
| Parties | C. K. GRAVIS, Jr., et ux., Petitioners, v. PHYSICIANS AND SURGEONS HOSPITAL OF ALICE et al., Respondents. |
| Court | Texas Supreme Court |
Sidney P. Chandler, Trimble & Dobbs, J. B. Trimble, Corpus Christi, for petitioners.
Lloyd, Lloyd, Dean & Ellzey, Homer E. Dean, Jr., Alice, Lewright, Dyer & Redford, Eldon Dyer, Corpus Christi, Perkins, Floyd, Davis & Oden, Kenneth Oden, Alice, for respondents.
This a malpractice suit instituted by C. K. Gravis, Jr., and wife, Elma Gravis, petitioners, against Physicians and Surgeons Hospital of Alice, Dr. Philip S. Joseph, Dr. J. C. Turnham and Mrs. Ruth Grose, respondents. The trial court rendered a summary judgment for respondents, and the Court of Civil Appeals affirmed. 415 S.W.2d 674. We reverse the judgments of the courts below and remand the cause to the district court.
On the evening of October 22, 1963, Mrs. Gravis complained of pain in her abdomen. Her husband telephoned Dr. Joseph, who agreed to and did meet them at the Physicians and Surgeons Hospital of Alice, a corporation, hereinafter referred to as the hospital. Dr. Joseph examined Mrs. Gravis in the emergency room of the hospital. This initial examination revealed generalized tenderness in the abdominal area but did not enable the doctor to reach any conclusion as to the probable cause of the patient's complaints. Mrs. Gravis was given medicine for pain and placed in a room in the hospital for observation. The following day she was given other examinations and tests. According to Dr. Joseph, the X-rays taken at that time showed a normal abdomen with no pathology indicated.
The situation had changed by the morning of October 24th. Mrs. Gravis' blood count was up, and X-rays taken that morning showed some dilation of the small intestine. Dr. Joseph then concluded for the first time that an exploratory operation was necessary. He performed the operation at about 12:30 o'clock p.m. the same day. Dr. Turnham was the assisting physician, and Mrs. Grose, who was employed by the hospital as anesthetist and supervisor of nurses, administered the spinal anesthetic and the pentathol sodium which Mrs. Gravis was given during the operation. An intestinal obstruction was found and corrected, but Mrs. Gravis has since suffered from a number of physical disabilities, including bladder trouble, phlebitis of the left leg, and partial paralysis.
Petitioners seek to establish liability upon a number of different theories, including: (1) assault and battery, (2) fraud, (3) breach of duty to warn, (4) breach of contract, and (5) negligence. We consider only the first of these theories. Before the operation was performed, Dr. Joseph discussed Mrs. Gravis' condition with her husband. Mr. Gravis consented in writing to the performing of whatever treatment or operation, and the administering of whatever anesthetics, the physician believed to be necessary or desirable. There is no contention, however, that Mr. Gravis was authorized by his wife to consent in her behalf, and the relationship of husband and wife does not in itself make one spouse the agent of the other.
Mrs. Gravis did not give her consent in writing, and the summary judgment proofs show a dispute as to whether she consented orally. According to the affidavits and deposition testimony of Dr. Joseph and Mrs. Grose, the operation and the anesthetics to be used were fully explained to Mrs. Gravis at about 11:00 o'clock a.m. on October 24th, and the patient then gave her consent to the operation and the anesthetic. This is categorically denied by Mrs. Gravis in her affidavit. She there states that Dr. Joseph never advised her that an operation was necessary and never discussed the anesthetic with her; that she did not consent to the operation or to the use of a spinal anesthetic; that she had refused to take a spinal anesthetic in connection with another operation performed in 1956, because two previous spinals had caused her to suffer severe headaches for several weeks; and that if spinal anesthetic had ever been mentioned by Dr. Joseph, she would have refused to take it.
The Court of Civil Appeals reasoned that Mrs. Gravis' consent was not necessary because an emergency existed and she was under the influence of drugs to such an extent that she was incapable of giving consent. We recognize the rule that consent will be implied where the patient is...
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Chapter 7-3 Doctrine of Informed Consent
...Civ. Prac. & Rem. Code § 74.105.[14] See Gravis v. Physicians & Surgeons Hosp., 415 S.W.2d 674 (Tex. Civ. App.—San Antonio 1967), aff'd, 427 S.W.2d 310 (Tex. 1968).[15] See Wilson v. Scott, 412 S.W.2d 299, 301 (Tex....
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Chapter 7-3 Doctrine of Informed Consent
...Civ. Prac. & Rem. Code § 74.105.[14] See Gravis v. Physicians & Surgeons Hosp., 415 S.W.2d 674 (Tex. Civ. App.—San Antonio 1967), aff'd, 427 S.W.2d 310 (Tex. 1968).[15] See Wilson v. Scott, 412 S.W.2d 299, 301 (Tex....