Guidry v. Harris County Medical Soc.

• Decision Date: 28 May 1981
• Docket Number: No. 17958,17958
• Citation: 618 S.W.2d 844
• Parties: Paul GUIDRY, Appellant, v. HARRIS COUNTY MEDICAL SOCIETY, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 844

618 S.W.2d 844

Paul GUIDRY, Appellant, v. HARRIS COUNTY MEDICAL SOCIETY, Appellee.

No. 17958.

Court of Civil Appeals of Texas, Houston (1st Dist.).

May 28, 1981.

Rehearing Denied July 2, 1981.

John H. Holloway, Houston, for appellant.

Sam W. Cruse, Jr., Andrews, Kurth, Campbell & Jones, Houston, for appellee.

Before COLEMAN, C. J., and PEDEN and WARREN, JJ.

COLEMAN, Chief Justice.

Paul Guidry (Guidry) appeals from a take nothing judgment rendered against him in his suit against the Harris County Medical Society (Medical Society) based on allegations of negligence and fraud. The judgment will be affirmed.

Guidry sought damages against the Medical Society for its alleged negligence in continuing Dr. John R. Phillips' membership in the Society and its alleged fraud in furnishing false and fraudulent information to the plaintiff's mother in response to a telephone call as to the reputation of Dr. Phillips and the validity of a "carotid body" surgery which he advocated as a cure or treatment for asthma and emphysema.

This case grew out of an operation which was performed on Paul Guidry by Dr. Phillips in 1963. At that time Guidry was ten years of age and had been suffering from severe asthma since he was a baby. He suffered from many allergies, was frail, and had had pneumonia on five different occasions. In 1963 a friend informed appellant's mother that his asthma had been relieved by a carotid body surgical procedure which had been performed by Dr. Phillips. On the basis of this recommendation Mrs. Guidry took appellant to Dr. Phillips for the surgical procedure forming the basis of this claim for damages.

In 1972 Guidry sued Dr. Phillips, the Medical Arts Hospital and the Medical Society. The suit was later severed into three separate cases. The primary basis for the suit against the Medical Society involved a telephone call that Mrs. Guidry claims to have made to the Medical Society before Dr. Phillips' surgery on her son. In this alleged telephone conversation, Mrs. Guidry testified, a representative of the Medical Society gave her fraudulent and misleading information regarding Dr. Phillips and the proposed surgery. She asserted that if she had not been given this fraudulent information she would not have allowed Dr. Phillips to operate on her son.

The Medical Society denied that any of its representatives gave Mrs. Guidry fraudulent or misleading information. In answer to the first special issue the jury refused to find that the Medical Society had made the alleged fraudulent and misleading statements to Mrs. Guidry. The related predicated issues and the damage issues were unanswered.

The appellant first asserts that the trial court erred in quashing the subpoenas directed to the Medical Arts Hospital and Jim Jones, Administrator, requiring the production of records relating to Dr. Phillips. He also asserts that the trial court erred in quashing the subpoena served on Mrs. Dean Little, Custodian of the Harris County Medical Society's records, to produce records pertaining to Dr. John Phillips.

The trial court correctly quashed these subpoenas for the grievance records of the Medical Arts Hospital and the Harris County Medical Society as to Dr. Phillips because such records are confidential and not available for court subpoena. Tex.Rev.Civ.Stat.Ann. art. 4447d, § 3, (Vernon 1976); Texarkana Memorial Hospital, Inc. v. Jones, 551 S.W.2d 33 (Tex.1977); Hood v. Phillips, 554 S.W.2d 160 (Tex.1977); Goodnight v. Phillips, 418 S.W.2d 862 (Tex.Civ.App. Texarkana 1967, writ ref'd n. r. e.); Jeffcoat v. Phillips, 417 S.W.2d 903 (Tex.Civ.App. Texarkana 1967, writ ref'd n. r. e.)

Guidry contends that the action of the court in quashing the subpoena duces tecum deprived him of the oral testimony of Jim Jones, the Administrator of the Medical Arts Hospital. Rule 178, Tex.R.Civ.P., provides that a subpoena may be issued at any time. There is no showing that the district clerk refused to issue a subsequent subpoena for Jones individually. In addition Guidry failed to show, by bill of exception or otherwise, the testimony he expected to elicit from Jones. In the absence of a bill of exception detailing the expected testimony this court is unable to determine the materiality of the proposed testimony. No reversible error is shown. Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155 (1945).

By several points of error Guidry has complained that the trial court erred and abused its discretion in excluding plaintiff's exhibit 23, a purported copy of the original records of the Harris County Medical Society pertaining to Dr. Phillips. He further complains that the trial court abused its discretion in granting defendant's motion in limine. The motion was designed to prevent any interrogation or inquiry of any lay or expert witness with respect to any of the grievances and other records of the Harris County Medical Society indicating unethical conduct by Dr. Phillips and negligence or fraud in performing the surgery on the plaintiff. Guidry asserts that the trial court erred in sustaining objections to the testimony of several doctors, and bills of exception were perfected as to each of them concerning knowledge of Dr. Phillips' alleged unethical and negligent practices. The bills of exception show that the doctors were members of various medical society committees who had knowledge of the grievances presented against Dr. Phillips. The testimony would have constituted evidence as to what the Medical Society knew, or should have known, concerning the conduct of Dr. Phillips.

We find it unnecessary to consider each of these points individually. It is not shown that any of the witnesses could have given any material testimony with reference to whether or not the Harris County Medical Society, through its agents, servants or employees, made any of the statements or representations inquired about in the first special issue. The knowledge which the Medical Society may have had concerning complaints made against Dr. Phillips concerning the efficacy of his methods of treatment of asthma and emphysema was not harmful error because of the jury's answer to special issue No. one.

The reversal of a trial court's judgment is not justified unless an examination of the record as a whole leads to the conviction that the error in refusing to admit the testimony was calculated to cause and probably did cause the jury to give a different answer than the one it did to all issues necessary to support the judgment. State of Texas v. Parrish, 159 Tex. 306, 320 S.W.2d 330 (1958). The fact that the testimony excluded might have been material and persuasive to jurors in answering issues other than special issue No. one is immaterial. These issues were predicated on an affirmative answer to special issue No. one. Since there was no affirmative answer, the charge did not permit an answer to the predicated issues. As these issues became immaterial, error in excluding evidence tending to support favorable answers for the plaintiff on those issues is harmless. Flores v. Missouri-Kansas-Texas Railroad Company, 365 S.W.2d 379 (Tex.Civ.App. Dallas 1963, writ ref'd n. r. e.). McElwee v. Rice, 359 S.W.2d 552 (Tex.Civ.App. Eastland 1962, writ ref'd n. r. e.). Connor v. Heard and Heard Inc., 242 S.W.2d 205 (Tex.Civ.App. San Antonio 1951, writ ref'd n. r. e.).

In addition plaintiff's exhibit 23, which purported to be a true copy of the original records of the Harris County Medical Society pertaining to Dr. Phillips, was shown to have been a copy made by the plaintiff's attorney from records presented at a previous trial of a case in which Dr. Phillips was a defendant. It was not proven by proper evidence to be an admissible record of the Medical Society, and, thus, was subject to the objection that the matter contained in the proposed exhibit was hearsay.

The bylaws of the Medical Society, including amendments through November 11, 1964, provided with reference to eligibility for membership:

The Society will judge the qualifications of its members; but, as it is the only door to the Texas Medical Association and to the American Medical Association for physicians within its jurisdiction, all reputable legally qualified physicians who hold the degree of Doctor of Medicine, who are legally registered to practice medicine in Texas, who are residents of Harris County, who do not hold themselves out as practitioners of sectarian medicine, and who subscribe to the Principles of Medical Ethics of the American Medical Association, are eligible for membership.

The bylaws provide that complaints against members of the Society may be received in written form. These complaints are referred to a grievance committee for investigation. If the matter is considered sufficiently serious the grievance committee may refer the complaint to the board of censors. The board of censors will then conduct an independent investigation. If the board determines that the charges are of sufficient gravity it may present formal charges to the executive board. Thereafter a trial may be conducted before the executive board, and if the doctor on trial is found guilty, he may be censored, suspended, or expelled. If a doctor is expelled, he may apply for readmission after one year.

It is the duty of the secretary of the Society to notify the executive secretary of the State Medical Association of any restrictions placed by the Society against any of its members. The secretary is also required to notify the...