Hamilton v. Harris

• Decision Date: 09 June 1920
• Docket Number: (No. 6395.)
• Citation: 223 S.W. 533
• Parties: HAMILTON v. HARRIS.
• Court: Texas Court of Appeals

223 S.W. 533

HAMILTON v. HARRIS.

(No. 6395.)

Court of Civil Appeals of Texas. San Antonio.

June 9, 1920.

Rehearing Denied July 1, 1920.

Appeal from District Court, Bexar County; Randolph Carter, Special Judge.

Suit by J. A. Harris against Dr. W. S. Hamilton. Judgment for plaintiff, and defendant appeals. Affirmed.

Hertzberg, Kercheville & Thomson, of San Antonio, for appellant.

T. H. Ridgeway and T. M. West, both of San Antonio, for appellee.

COBBS, J.

This case was before this court on a former appeal, and is reported in 204 S. W. p. 450.

The suit was to recover damages alleged to have been committed by appellant upon appellee by the use of the X-ray, on account of the burns sustained, caused by the negligent application of the X-ray machine or current by Dr. Hamilton, in treating the plaintiff for a small spot of eczema, about the size of a silver dollar.

It was alleged that appellant gave appellee three different treatments, at intervals of five days intervening after each treatment. After the third treatment, plaintiff's body became extremely sore and painful, and plaintiff then discovered the skin and flesh on the inside of, or between each of his thighs and legs, were severely and deeply burned, which compelled him to go to a hospital and remain there for a period of two weeks, suffering intense pain, and finally to employ a surgeon to remove the burned tissues or flesh and to substitute new flesh over said burn, and he was compelled to remain in one position for a period of one month, until the grafted skin healed so as to permit him to leave the hospital.

The negligence alleged was: That the appellant failed to use proper protection and covering over his body in administering the treatment, which permitted the rays to touch the other parts of the skin, not diseased, on adjacent portions of the body. That the body should have been protected by a blanket of rubber and lead composition, with only a small hole therein the size of the diseased spot, through which only the rays could pass to the diseased part. That appellant used a blanket or protection, with a circular hole measuring about 6½ inches in diameter, too large for the purpose. That the current used was too strong. That appellant was negligent in permitting it to remain too long on the body. That the tube of machine was placed too close to the body. If appellee possessed a hypersensitive skin, appellant should have known it, and warned him of the danger involved in the X-ray treatment. That appellee was a strong man, with an earning capacity of $300 per month, and was only 33 years old. On account of injuries was permanently injured, and was compelled to remain in bed for a period of four months, and suffered constant pain, and was damaged in the sum of $19,000. The expenses for physician, nurse, and hospital fees amounted to $1,000.

Appellant answered by demurrer and general denial, and that appellee placed himself voluntarily in the hands of appellant for treatment with the X-ray, and he employed the usual and approved methods of treatment to protect the body of plaintiff by placing a composition of rubber and lead blanket of proper size and opening on the body of the plaintiff so as to protect that portion of the plaintiff's body to which the X-ray was not to be applied. Defendant further alleged that he was fully competent and experienced in the handling of the X-ray, and that he used every care and precaution known to his profession in this particular case, and was guilty of no negligence in treating plaintiff, and that if plaintiff was burned, it was not caused by defendant's negligence or carelessness, but was occasioned by the fact that plaintiff possessed what is known as a hypersensitive skin, or one which is more susceptible to be burned by the application of the X-ray treatment than the skin of an ordinary person; and defendant further alleged that there was no manner or method known by which said hypersensitiveness could have been discovered before the application of the X-ray treatment, and that there was no manner or method known that he could have determined whether or not the plaintiff possessed a hypersensitive skin.

The cause was tried on November 12, 1919, before a jury, submitted on 19 special issues, and the jury returned a verdict for the plaintiff for the sum of $3,500.

It is not necessary for us to consider but few of these issues as important or material in the disposition of the case.

Appellant assigns special issue No. 4 as the first error, to wit:

"Did the defendant use a blanket or protection upon the plaintiff's body, containing a circular hole about 6½ inches in diameter?"

—the contention being that there was no evidence that the use of a blanket with that size of opening was not customary, or not used by physicians skilled in such treatment, or too large for the purposes of treatment of appellee's disease, and, if not, the court should not have submitted the issue. In reply to first issue the jury found that defendant protected plaintiff's body with a blanket or composition of rubber and lead, and the effect of the answers to 2 is to the same effect, and thereby answered, in effect, there was no negligence in not protecting the body, as there was such a covering used. In reply to issue No. 4 they found that the body was protected by a blanket, with a circular hole therein about 6½ inches in diameter, and in reply to the special issue No. 5, "Did the use of the blanket with a circular hole therein of about 6½ inches in diameter for protection constitute negligence?" they said "Yes," and then follows questions and affirmative answers, to wit:

(6) "If you answer `Yes' to question No. 5, did such negligence directly cause any of the injuries, if any, alleged in plaintiff's petition?" "Yes." (7) "Did the defendant apply to the plaintiff's body a ray or dose of X-ray of such intensity and force as to be unsafe and improper?" "Yes." (8) "If you answer `Yes' to question 7, did such appliance constitute negligence?" "Yes." (9) "If you answer `Yes' to question No. 8, did such negligence directly cause any of the injuries, if any, alleged in the plaintiff's petition?" "Yes."

These questions are all complained of in nine assignments, and are so similar they will be considered together without further setting out the assignments or propositions thereunder.

The jury found that appellant protected appellee's body with a blanket or composition of rubber and lead, and that there was for that reason no negligence. Upon that issue there was a dispute between appellant and appellee, but the jury believed appellant on this issue. The jury found in answer to the fourth question that the blanket was provided with "a circular hole therein about 6½ inches in diameter, which constituted negligence." Without following the numerous interrogatories or issues propounded to the jury by the court to answer, it is proper to say they tend to find, though appellee's body was protected, the hole in the blanket was too large, contrary to the testimony, for the spot of eczema intended to be X-rayed, and allowed the ray to be administered too strong, and permitted the well flesh to become involved, which caused the injury and suffering to appellee. But this is not sufficient of itself to show negligence, for the testimony of the doctors is to the effect that the hole should be much larger than the immediate place to be X-rayed, and should directly treat 2 or 3 inches on each side; in eczema, irradiate all skin all the way, because is spreads, to prevent its coming on other skin and spreading it.

The only testimony offered as to the character of protection used was that given by appellant and that by appellee. Appellee testified there was no protection placed over his body the first and second treatment, but at the third treatment he used a shield; that he never felt any burn after either the first or second treatment, but did after the third treatment; that was after he says the protection was used. The testimony of appellee shows the burn to have been very severe, and said:

"The machine was over against the wall like this (illustrating), and he has a table—one of these regular doctor's tables, made in about three sections, so you can raise it and lower it at the head, and also at the foot, and then it has a couple of iron stirrups in like this (indicating), and I lay down on my back on that table. I had to remove my pants and underclothing; I had to bare my body to the rays. Then he put his tube out, close to my body, and turned on his machine and left the room, and I was in that position, a kind of half sitting position, on my back, with my feet up in the stirrups, and this tube was placed down below here (indicating)—I don't know just how close to my body, 8 or 10 inches or—I don't know just exactly how close, but very near; and he came in in a few minutes and turned off the machine and told me to return again in five days. * * * At that time there was not any covering or protection whatever placed over me by Dr. Hamilton. I returned in five days and took the same treatment. There was not any protection at all placed over my body the second time. Dr. Hamilton asked me to return again in another five days, which I did. I took the third treatment, just like the first two, except on the third treatment he covered my hand—the back of my hand, with a lead sheet of some sort; he did not do that on the first treatment—I said a lead sheet—such a sheet that looks like a piece of rubber, and I believe they say it is impregnated with lead. * * * The area of that burn was as large as my two hands—that is, on the side of the hip; and of these fingers (indicating right hand) the nails came off, the fingers were exposed from there out (indicating). You see this circle of rays, like this (illustrating), came around the ends of the fingers, and all that skin came off, sloughed. * * * Yes; I want to state the spot that was to be treated...