Hart v. Van Zandt

• Citation: 399 S.W.2d 791
• Decision Date: 03 November 1965
• Docket Number: No. A-10513,A-10513
• Parties: Venice E. HART, Petitioner, v. I. L. VAN ZANDT, Respondent.
• Court: Supreme Court of Texas

Page 791

399 S.W.2d 791

Venice E. HART, Petitioner, v. I. L. VAN ZANDT, Respondent.

No. A-10513.

Supreme Court of Texas.

Nov. 3, 1965.

Rehearing Denied March 2, 1966.

Geary, Brice & Lewis, W. S. Barron, Jr., Dallas, for petitioner.

Cantey, Hanger, Gooch, Cravens & Scarborough, William B. David, Fort Worth, for respondent.

GRIFFIN, Justice.

This is a medical malpractice case. Venice E. Hart, as plaintiff, sought by this suit against Dr. I. L. Van Zandt, the defendant, to recover damages for various permanent physical injuries such as sensory losses to his leg and foot and malfunction of elimination organs allegedly resulting from an operation performed on his lower back by defendant and from various acts and omissions on the part of defendant in connection with the post-operative care and treatment of plaintiff. At the conclusion of plaintiff's evidence, defendant filed a motion for peremptory instruction. Upon sustaining this motion the trial court instructed the jury to return a verdict for the defendant and the court entered judgment that plaintiff take nothing. From this judgment the plaintiff appealed to the Court of Civil Appeals where the trial court's judgment was affirmed. 383 S.W.2d 627. Mr. Hart is the petitioner.

The numerous points of error in this appeal resolve themselves into two basic questions, to-wit:

(a) Whether the record contains any evidence which would support a jury finding or findings that Dr. Van Zandt was guilty of actionable negligence in his operation upon, care and treatment of Mr. Hart; and

(b) Whether the record contains any evidence which would support a jury finding or findings that any one or more of such alleged acts of negligence was a proximate cause of Mr. Hart's injuries.

In determining negligence in a case such as this, which concerns the highly specialized art of treating disease, the court and jury must be dependent on expert testimony. There can be no other guide, and where want of skill and attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury. The burden of proof is on the plaintiff to show that the injury was negligently caused by the defendant and it is not enough to show the injury together with the expert opinion that it might have occurred from the doctor's negligence and from other causes not the fault of the doctor. Such evidence has no tendency to show that negligence did cause the injury. Ewing v. Goode, 78 F. 442, 444 (C.C.Ohio, 1897); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949); Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933 (1954).

In determining the question of proximate cause, the general rule is 'that proof of causation must be beyond a showing of a possibility that the injuries arose from the defendant's negligence or lack of skill, since the jury will not be permitted to speculate as to the cause of the injury. Thus where the evidence most favorably to the plaintiff develops more than one equally probable cause, for one or more of which defendant is not responsible, the plaintiff has failed to sustain his burden of proof.' 13 A.L.R.2d 22. But, as stated by this Court in Porter v. Puryear, supra, '(t)he vital inquiry in any case involving proximate cause is whether the negligent act set in motion a natural and unbroken chain of events that led directly and proximately to a reasonably foreseeable injury or result.' (262 S.W.2d 933, 936.)

In order that we may determine whether the plaintiff has discharged this burden with respect to the question of negligence and proximate cause, we must view and interpret the evidence in the light most favorable to the plaintiff, disregarding all evidence and the inferences therefrom favorable to the defendant. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943); Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561 (1952).

Mr. Hart first became a patient of Dr. Van Zandt in 1951, when Dr. Van Zandt diagnosed and treated Mr. Hart for a ruptured disc at the L5 S1 level in a sub-acute condition. Mr. Hart responded to conservative treatment at this time and thereafter did not have much trouble with his back until September, 1959.

By way of explanation, the human spine consists of various segments of bone. In between the vertebral bones is cartilaginous material, commonly referred to as discs, which take part in the movement of the spine and perform the function of a shock absorber. Starting from the top of the spine downward, the first seven vertebrae are called cervical vertebrae; the next twelve, thoracic (or dorsal); the next five lumbar, followed by the sacrum, and then the coccyx-commonly called the tail bone. The medical profession has assigned numbers to these various vertebrae, and those of the lumbar region from top to bottom are numbered L1, L2, L3, L4 and L5. The segments of the sacrum are also numbered, and the first segment is S1, followed by S2 and S3. When reference is made, for instance, to the L4 L5 interspace, this means the space between the fourth and fifth lumbar segments. Likewise, the L5 S1 intervertebral space refers to the space between the fifth lumbar and the first sacral segments which is occupied by the L5 S1 disc.

On September 15th or 16th, 1959, Mr. Hart, while getting out of his car at his place of work, reached back into his car with a 'sort of twisting motion' and a pain struck him in the lower back region like some one 'had stuck a knife in' his back. Mr. Hart went to Dr. Van Zandt the same day about this condition and reported to him the symptoms. On examination the doctor observed that the movements of Mr. Hart's lower back were markedly restricted and painful. On the same day, Dr. Van Zandt requested that Mr. Hart be admitted to Harris Hospital. At this time Mr. Hart was given conservative treatment which consisted of applying traction to his legs to relieve the pressure on the sacral nerves. Throughout this treatment it was apparent that Mr. Hart was having a revert pain down his left sciatic nerve (this nerve goes down into the hip and back of the left leg), which was caused by 'involvement of the nerve roots' in Mr. Hart's lower back. Other than the pain going down his left leg, Mr. Hart had no motor or sensory losses to any part of his body. X-rays taken at this time indicated a narrowing of the intervertebral disc space at the L5 S1 level. Mr. Hart remained in Harris Hospital for eight to ten days at which time he was released but continued to receive treatment from the physical therapist at the doctor's office. He appeared to be losing ground, and after an office visit on October 7, Dr. Van Zandt recommended that he re-enter Harris Hospital for tests and probable surgery.

Mr. Hart was re-admitted to the hospital on October 11, 1959. During the period from the date of his previous release from the hospital until the date of re-admission, Dr. Van Zandt had made two additional findings with regard to Mr. Hart's condition: (1) The patient developed a tenderness at the lumbo-sacral area of his back (this is the point where the lumbar and sacral segments of the spine join, i. e., the L5 S1 interspace), and (2) he developed a numbness on the top of his left foot with accompanying loss of motor power to the toe. At this time Mr. Hart was fifty-four (54) years old. Dr. Van Zandt testified that the nerve which feeds the muscles which control the toes could come from the L5 S1 area of the spine.

Dr. Van Zandt's first admitting diagnosis was 'possible lumbro-sacral instability.' On October 12, Dr. Van Zandt's progress report on Mr. Hart stated:

'* * * myelogram unsuccessful this A.M. Dr. O'Bannon got a large hematome. Discogram at L4 L5 showed a good disc here. For disc and fusion at L5 S1 levels tomorrow.'

The anaesthesia report of October 13, stated:

'* * * Diagnosis, Pre-Operative. Probable ruptured disc L5 S1. Probable Lumbar-sacral instability.'

The operating room nurse's report on October 13 stated:

'Pre-Operative Diagnosis. Probable ruptured disc lower back. Lumbosacral instability.'

Dr. O'Bannon, who was the radiologist consulted by Dr. Van Zandt in connection with the operation on Mr. Hart, testified that he examined and interpreted various x-rays of Mr. Hart's back prior to the operation and the only thing of diagnostic significance which Dr. O'Bannon noted was the narrowing of the disc at the L5 S1 level. Dr. O'Bannon could detect no abnormality whatever at the L4 L5 level. This finding was consistent with Dr. Van Zandt's preoperative diagnosis of a ruptured disc at the L5 S1 level.

With the pre-operative diagnosis opinting to trouble at the L5 S1 level, Dr. Van Zandt, on October 13 proceeded to operate on Mr. Hart by making a five-inch lateral, or 'traverse,' incision at the L4 L5 level of the lower back. During the course of a four-hour operation Dr. Van Zandt did not even examine the intervertebral space at the L5 S1 level. At the L4 L5 interspace, Dr. Van Zandt removed the posterior section of the annulus fibrosis; the anterior section of the annulus fibrosis and the left and right walls of the disc were left in place. The doctor then attempted a bone fusion by taking three pieces of bone from the superior iliac crest and spine and placing them between the vertebral bodies between the L4 and L5 interspace. Immediately following surgery, Mr. Hart developed the following symptoms: (1) an inability to empty the bladder, and (2) numbness over the right side of the perinium (this is the crotch area), scrotum and penis. In other words, Mr. Hart had a lack of natural feeling in and around the above described areas.

The sensory feeling in the area wherein Mr. Hart is numb is supplied by sacral nerves. Beginning at approximately the first lumbar vertebra, the sacral nerves pass through the spinal column in what is called the cauda equina. At each lumbar vertebra the cauda equina is found to be located...