Haddock v. Arnspiger

• Decision Date: 20 June 1990
• Docket Number: No. C-8400,C-8400
• Citation: 793 S.W.2d 948
• Parties: Orville E. HADDOCK, Jr., Petitioner, v. Larry A. ARNSPIGER et al., Respondent.
• Court: Texas Supreme Court

Page 948

793 S.W.2d 948

Orville E. HADDOCK, Jr., Petitioner, v. Larry A. ARNSPIGER et al., Respondent.

No. C-8400.

Supreme Court of Texas.

June 20, 1990.

Rehearing Overruled Sept. 6, 1990.

G. H. Kelsoe, Jr., Jeffrey L. Clark, Dallas, for petitioner.

Gerald D. Grissom, Michael R. Berry, Dallas, for respondent.

OPINION

HIGHTOWER, Justice.

This is a medical malpractice case. The issue is whether res ipsa loquitur may be used to establish the liability of health care providers or physicians in medical malpractice cases involving the use of mechanical instruments. Orville E. Haddock (Haddock) initiated this action against Larry A. Arnspiger, M.D. (Arnspiger) alleging that his colon was perforated during a routine proctological examination. Haddock's suit was based on negligence and res ipsa loquitur. The trial court determined that res ipsa loquitur did not apply, sustained Arnspiger's special exceptions and struck Haddock's res ipsa loquitur pleadings. The jury's verdict favored Arnspiger and a take nothing judgment was rendered on the jury's verdict. The court of appeals affirmed. 763 S.W.2d 13. We affirm the judgment of the court of appeals.

On November 9, 1982, Haddock underwent a colonoscopic examination as part of his annual physical examination. The examination was performed by Dr. Arnspiger in the presence of a nurse. This procedure involved the use of a flexible colonoscope. Haddock was sedated throughout the duration of the colonoscopic examination. Arnspiger concluded his examination finding no abnormalities. Several hours later, however, Haddock began experiencing stomach cramps. It was later determined that Haddock's colon had been perforated. Haddock brought this action against Arnspiger under alternative theories of negligence and res ipsa loquitur. Arnspiger did not deny the colonoscopic examination perforated Haddock's colon, but asserted that the perforation was not the result of negligence.

Prior to trial, the court sustained one of Arnspiger's special exceptions which provided in pertinent part:

Defendants specially except and object to paragraph V of Plaintiff's Fourth Amended Petition wherein Plaintiff attempts to invoke the doctrine of res ipsa loquitur (a) because there has been no dangerous instrumentality alleged, (b) because this is not the type of procedure to which the doctrine of res ipsa loquitur should apply according to the limitation set out in Tex.Rev.Civ.Stat.Ann. art. 4590i § 7.01, and (c) because Plaintiff's own expert has testified that a perforation can occur without any negligence on the part of the doctor who is doing the limited colonoscopy ... thus demonstrating that the injury complained of is not of the sort that only occurs as a result of negligence.

As a result, Haddock's res ipsa loquitur pleadings were struck.

The case proceeded to trial on Haddock's negligence pleadings wherein numerous acts or omissions were alleged against Arnspiger. Special questions were submitted to the jury concerning the alleged acts or omissions. The jury found that two of the acts or omissions occurred; however, the jury found that neither of the acts or omissions constituted negligence. Judgment was rendered on the jury's verdict in favor of Arnspiger. On appeal, Haddock argued, among other things, that the trial court erred in striking his res ipsa loquitur pleadings. The court of appeals held that res ipsa loquitur did not apply in this case. 763 S.W.2d 13.

Res ipsa loquitur, meaning "the thing speaks for itself," is used in certain limited types of cases when the circumstances surrounding the accident constitute sufficient evidence of the defendant's negligence to support such a finding. Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 250 (Tex.1974); Marathon Oil Co. v. Sterner, 632 S.W.2d 571, 573 (Tex.1982). Res ipsa loquitur is applicable only when two factors are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Mobil Chem. Co. v. Bell, 517 S.W.2d at 251; Marathon Oil Co. v. Sterner, 632 S.W.2d at 573. Res ipsa loquitur is simply a rule of evidence by which negligence may be inferred by the jury; it is not a separate cause of action from negligence. Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex.1982). However, res ipsa loquitur has been applied differently in medical malpractice cases.

Effective August 29, 1977, the Texas Legislature enacted the Medical Liability and Insurance Improvement Act of Texas. TEX.REV.CIV.STAT.ANN. art. 4590i (Vernon Supp.1990). Section 7.01 of the Act ¹ restricts the application of res ipsa loquitur in medical malpractice cases as follows:

The common-law doctrine of res ipsa loquitur shall only apply to health care liability claims against health care providers or physicians in those cases to which it has been applied by the appellate courts of this state as of the effective date of this subchapter.

TEX.REV.CIV.STAT.ANN. art. 4590i, § 7.01 (Vernon Supp.1990) (emphasis added).

The threshold question is under what circumstances, if any, was res ipsa loquitur applied in medical malpractice cases before August 29, 1977. Although the appellate cases are not models of clarity, the appellate courts before August 29, 1977 overwhelmingly recognized that res ipsa loquitur was inapplicable in medical malpractice cases subject to certain exceptions. ²

Historically, res ipsa loquitur has been restrictively applied in medical malpractice cases: "There are only very, very few instances where a pleading of res ipsa loquitur is applicable in medical malpractice cases." Goodnight v. Phillips, 418 S.W.2d 862, 868 (Tex.Civ.App.--Texarkana 1967, writ ref'd n.r.e.); Stinnett v. Price, 446 S.W.2d 893, 895 (Tex.Civ.App--Amarillo 1969, writ ref'd n.r.e.). In fact, Texas courts have generally recognized that res ipsa loquitur is inapplicable in medical malpractice cases. See Barker v. Heaney, 82 S.W.2d 417 (Tex.Civ.App.--San Antonio 1935, writ dism'd); Shockley v. Payne, 348 S.W.2d 775 (Tex.Civ.App.--Amarillo 1961, writ ref'd n.r.e.); Bell v. Umstattd, 401 S.W.2d 306 (Tex.Civ.App.--Austin 1966, writ dism'd); Harle v. Krchnak, 422 S.W.2d 810 (Tex.Civ.App.--Houston [1st Dist.] 1967, writ ref'd n.r.e.); Louis v. Parchman, 493 S.W.2d 310 (Tex.Civ.App.--Fort Worth 1973, writ ref'd n.r.e.); Rayner v. John Buist Chester Hosp., 526 S.W.2d 637 (Tex.Civ.App.--Waco 1975 writ ref'd n.r.e.); Forney v. Memorial Hosp, 543 S.W.2d 705 (Tex.Civ.App.--Beaumont 1976, writ ref'd n.r.e.). However, an exception is recognized when the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen, requiring no expert testimony. Examples of this exception include negligence in the use of mechanical instruments, operating on the wrong portion of the body, or leaving surgical instruments or sponges within the body. See Harle v. Krchnak, 422 S.W.2d at 815; Rayner v. John Buist Chester Hosp., 526 S.W.2d at 639; Forney v. Memorial Hosp., 543 S.W.2d at 709; Irick v. Andrew, 545 S.W.2d 557, 559 (Tex.Civ.App.--Houston [14th Dist.] 1976, writ ref'd n.r.e.).

However, one may not automatically rely upon res ipsa loquitur in every medical malpractice case which involved the use of a mechanical instrument. Res ipsa loquitur may not be applied in those circumstances when the use of the mechanical instrument is not a matter within the common knowledge of laymen. See, e.g., Southwest Texas Methodist Hosp. v. Mills, 535 S.W.2d 27, 30 (Tex.Civ.App.--Tyler 1976, writ ref'd n.r.e.) (administering anesthetics by use of hypodermic needle not within common knowledge of laymen); Irick v. Andrew, 545 S.W.2d at 559 (use of x-ray apparatus not within common knowledge of laymen); Hamilton v. Sowers, 554 S.W.2d 225, 228 (Tex.Civ.App.--Fort Worth 1977, writ dism'd) (administering dye for a coronary arteriogram and aortogram by use of hypodermic needle not within common knowledge of laymen); Williford v. Banowsky, 563 S.W.2d at 706 (proper use of high-speed rotary instrument in dental treatment not within the common knowledge of laymen).

The dissent states that before August 29, 1977, Texas appellate courts had "addressed" the issue of whether the predicates of res ipsa loquitur could have been established by proper expert medical testimony that the injury would not have occurred without negligence. At 955 (Doggett, J., dissenting). See Martin v. Eschelman, 33 S.W.2d 827 (Tex.Civ.App.--Texarkana 1930, writ ref'd); Irick v. Andrew, 545 S.W.2d 557, 559 (Tex.Civ.App.--Houston [14th Dist.] 1976, writ ref'd n.r.e.); Hamilton v. Sowers, 554 S.W.2d 225, 228 (Tex.Civ.App.--Fort Worth 1977, writ dism'd); Southwest Texas Methodist Hosp v. Mills, 535 S.W.2d 27, 30 (Tex.Civ.App.--Tyler 1976, writ ref'd n.r.e.); Louis v. Parchman, 493 S.W.2d 310 (Tex.Civ.App.--Fort Worth 1973, writ ref'd n.r.e.); Shockley v. Payne, 348 S.W.2d 775 (Tex.Civ.App.--Amarillo 1961, writ ref'd n.r.e.). We disagree. Only Martin v. Eschelman has arguably applied res ipsa loquitur, predicated upon expert medical testimony, in a medical malpractice case. The statements in the other opinions are actually dicta or otherwise inapplicable. It is undisputed that none of these other opinions applied res ipsa loquitur to the facts of their case. So the dissent's compelling authorities are a 1930 opinion which arguably applied res ipsa loquitur and several other opinions which did not apply res ipsa loquitur but which contain statements that res ipsa loquitur might be applicable with proper expert medical testimony. See, e.g., Southwest Texas Methodist Hosp. v. Mills, 535 S.W.2d at 30 (res ipsa loquitur "is applicable only where it is a matter of common knowledge among laymen or medical men, or both, that the injury would not have occurred without negligence.").

The dissent states that res ipsa loquitur, predicated upon expert testimony,...