Henderson v. Mason

• Decision Date: 09 December 1964
• Docket Number: No. 5686,5686
• Citation: 386 S.W.2d 879
• Parties: Gerney G. HENDERSON, Appellant, v. Stuart A. MASON, Appellee.
• Court: Texas Court of Appeals

Page 879

386 S.W.2d 879

Gerney G. HENDERSON, Appellant, v. Stuart A. MASON, Appellee.

No. 5686.

Court of Civil Appeals of Texas, El Paso.

Dec. 9, 1964.

Gordon F. Johnson, Odessa, for appellant.

Shafer, Gilliland, Davis, Bunton & McCollum, James M. O'Leary, Odessa, for appellee.

FRASER, Chief Justice.

This is a malpractice suit filed by plaintiff-appellant against defendant-appellee, charging that defendant was negligent and that such negligence was the proximate cause of the loss of sight in appellant's right eye. At the close of testimony the trial court withdrew the case from the jury and entered judgment for defendant, holding that the plaintiff take nothing.

The facts, generally, are that on or about 8:00 or 8:30 on the evening of February 11, 1961, while working on a job at Andrews, Texas, the plaintiff received some sort of eye injury (as set forth in his petition). It appears that a piece of steel was imbedded in his right eye. Plaintiff was taken to Odessa, Texas to the Medical Center Hospital, for emergency treatment. It appears that a registered nurse on duty, after questioning the plaintiff, called the defendant, who was on voluntary duty in the emergency ward. It is alleged that defendant shone a flashlight in appellant's right eye, put some drops in the eye, and discharged him. This treatment takes some twenty to thirty minutes. Further, that later on in the same evening, appellant's eye began bothering him, and his wife tried to contact an eye surgeon, but was not successful in so doing until 9:00 of the next morning, which was Sunday. Appellant was seen and X-rayed by and under the instructions of one Dr. Carson, about noon of Sunday, at which time he was hospitalized. The following Monday morning the eye surgeon, Dr. W. T. Carson, operated on appellant and, by use of a magnetized instrument, removed a small piece of steel from the eye of appellant. Appellant later went to and was treated by a Dr. John Sheets, who testified that, to the best of his recollection, it was in April of the same year that plaintiff came to him. He further testified that plaintiff had no sight in his right eye other than to distinguish between light and darkness.

Appellant presents five points of error. Point 1 is to the effect that the trial court erred in holding, as a matter of law, that there was no evidence, or insufficient evidence, to show defendant guilty of any acts of negligence connected with his treatment of the appellant. Point 2 alleges error because the trial court found that there was no competent legal evidence, or there was insufficient legal evidence, from a medical doctor of the same school as defendant-appellee showing, or tending to show, that appellee had been guilty of negligence. Point 3 alleges error by the court in holding that there was no evidence, or wholly insufficient evidence, to show or tend to show that any act or omission of appellee was a proximate cause of the injury and damages to appellant. Point 4 charges error in the court's holding that there was no evidence, or insufficient evidence, from a doctor of the same school as appellee showing, or tending to show, that any act or omission of appellee was a proximate cause of the injuries and damages to appellant; and Point 5 charges that the trial court erred in finding and holding, as a matter of law, that there was no competent, or, insufficient evidence from a doctor of the same school as appellee to distinguish among several possible causes of the injuries and damages to appellant.

Because the court rendered a verdict in favor of the defendant, we must consider the evidence that is favorable to the party against whom the verdict is rendered, and discard other evidence and inferences. As stated in Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422, a peremptory instruction is warranted only when the evidence is such that no other verdict should be rendered. This matter is also discussed by our Supreme Court in Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60, where the court says that a determination of such law questions must hinge upon acceptance of the evidence and the inferences therefrom in their aspects most favorable to appellant's case, and a discarding of contrary evidence and inferences. On the basis of the law stated above, we are compelled to make a thorough examination of the entire record, and to pay most careful attention to the evidence as set forth in the Statement of Facts.

This examination reveals that the defendant did flash a light into appellant's eye and did insert some antibiotic drops. The plaintiff himself admits in his testimony that his wife started calling an eye surgeon within an hour or an hour and a half from the time he was treated by defendant. Also, that defendant told plaintiff that if he had any further trouble, he should get in touch with an eye specialist, and the record shows the following:

'Q Now, from that of course, you knew that he was not an eye specialist himself?

'A I gathered that, sir.'

Appellant claims that the defendant did not properly diagnose his condition and did not take advantage of an instrument called an opthalmoscope, nor order an X-ray of the eye. These facts are undisputed, the defendant stating in his testimony that he had never done an eye operation and had never treated any serious eye ailment; that he was primarily an internal medicine or heart and chest man, on voluntary duty in the emergency room. This is substantiated by the above quoted statement from the plaintiff himself, in which he says he 'gathered' that defendant was not an eye doctor. Further, appellant says that within an hour or an hour and a half, his wife was trying to locate an eye surgeon. Appellant maintains that the delay between Saturday night and Monday morning was caused by improper diagnosis and treatment by the defendant, and that it was a proximate cause of the loss of his eye. This is flatly denied by appellant's own witness, Dr. Carson, who did the surgery on Monday morning. Dr. Carson testified as follows:

'Q In other words, it is your testimony then that the period of elapsed time until you took out the piece of steel in question on Monday was not material?

'A That's right.'

Earlier, Dr. Carson had testified regarding the length of time the metallic object remained in appellant's eye. His reply was, 'I don't think it had any effect whatsoever.'

With these facts in mind, particularly statements by appellant and his own witnesses, it is clear that appellant knew defendant was not an eye surgeon; and the eye surgeon who did operate on appellant, and who was his own witness, stated definitely that the length of time elapsing between the injury and the operation had nothing to do with the loss of vision in his right eye. Also, defendant admitted that the opthalmoscope was there and available, and that there was, somewhere in the hospital, an X-ray machine, but that in his judgment at the time he saw appellant an X-ray was not necessary. He further testified that the opthalmoscope was largely used in determining medical conditions in the eye such as hypertension, etc. Appellant makes mention of the fact that the defendant was paid a fee of $10.00. It appears that this fee was paid by appellant's employer.

We think this case must be affirmed for the following reasons. The law presumes that the physician has done his work properly, and he is not considered by the law to be a guarantor or insurer. His obligation is to use his best judgment, both in diagnosis and treatment, and the plaintiff can recover...