Hays v. Hall

• Decision Date: 13 December 1972
• Docket Number: No. B--3332,B--3332
• Citation: Hays v. Hall, 488 S.W.2d 412 (Tex. 1972)
• Parties: Charles HAYS et ux., Petitioners, v. Dr. R. W. HALL, Respondent.
• Court: Texas Supreme Court

Page 412

488 S.W.2d 412

Charles HAYS et ux., Petitioners, v. Dr. R. W. HALL, Respondent.

No. B--3332.

Supreme Court of Texas.

Dec. 13, 1972.

Rehearing Denied Jan. 17, 1973.

DeVore, Bagby, McGahey & Ross, Philip C. McGahey and William McFarland Bagby, Arlington, for petitioner.

Hill, Paddock & McMaster, Homa S. Hill, Fort Worth, Bailey, Williams, Weber & Allums, C. Edward Fowler, Jr., Dallas, for respondent.

DENTON, Justice.

This is an action brought against a doctor of osteopathy for alleged intentional and fraudulent misrepresentations, breach of implied warranty and for negligence arising from the performance of a vasectomy operation on the plaintiff husband. The trial court sustained the defendant's special exceptions relative to the Statute of Limitations, and upon plaintiffs' failure to amend their petition, the cause was dismissed. Plaintiffs appealed and the court of civil appeals affirmed the trial court's dismissal of the cause for the reason that the suit was filed after limitations had run. 477 S.W.2d 402. We reverse and remand for trial.

Mrs. Hays had given birth to two deformed children, one of whom had died; hence, to avoid the possibility of the birth of other deformed children, Mr. Hays sought to have a vasectomy operation performed for the purpose of his being rendered sterile. Dr. Hall, a practicing doctor of osteopathy, who is alleged to have been aware of Mrs. Hays' childbearing history, and to have known that the purpose of the vasectomy was to remove the possibility of the birth of additional deformed children, performed the surgical operation on Mr. Hays on July 28, 1966.

Approximately one month after the operation, Mr. Hays returned to Dr. Hall to be examined and tested to determine whether or not the operation was successful. Dr. Hall performed a test known as a prostatic massage and informed Mr. Hays that he was sterile.

On September 27, 1967, Mrs. Hays was examined by her physician and was informed that she was pregnant. Mrs. Hays gave birth to their third child on January 11, 1968. This child was born with deformities and died nine months later.

On September 28, 1967, Mr. Hays returned to Dr. Hall and informed him of his wife's pregnancy. Dr. Hall performed another test in the nature of a prostatic massage, informed Mr. Hays that there were no live sperm in his semen, and further advised that Mrs. Hays' pregnancy was caused by sperm cells having been trapped in the seminal tract above the point where the vasectomy incision had been made.

In July 1968, Mrs. Hays was again informed by her physician that she was pregnant. Mr. Hays, upon being tested by prostatic massage a third time by Dr. Hall, was again told that he was sterile. On February 9, 1969, Mrs. Hays gave birth to her fourth child--a normal, well child.

This suit was brought against Dr. Hall on May 16, 1969.

The court of civil appeals correctly noted that our holding in Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967), is expressly limited to causes of action in which a physician leaves a foreign object in the body of his patient. A surgical sponge had been left inside Mrs. Gaddis during an operation. This...