Henson v. Tom

• Decision Date: 26 October 1971
• Docket Number: No. 8014,8014
• Citation: 473 S.W.2d 258
• Parties: William HENSON, Appellant, v. Dr. Calvin TOM, Appellee.
• Court: Texas Court of Appeals

Page 258

473 S.W.2d 258

William HENSON, Appellant, v. Dr. Calvin TOM, Appellee.

No. 8014.

Court of Civil Appeals of Texas Texarkana.

Oct. 26, 1971.

Rehearing Denied Nov. 30, 1971.

Dean Jorgenson, Wilson, Berry & Jorgenson, Dallas, for appellant.

Webber Beall, Jr., Touchstone, Bernays & Johnston, Dallas, Woodrow Edwards, Mt. Vernon, for appellee.

DAVIS, Justice.

The opinion handed down in this case on September 28, 1971, is withdrawn and the following is substituted in lieu thereof.

This is an alleged malpractice law suit. The parties will be referred to as they were in the Trial Court. Plaintiff, William Henson, sued Defendant, Dr. Calvin Tom, in the District Court at Mt. Vernon, Franklin County, Texas, seeking damages for alleged malpractice against the Defendant, as a result of treatment of a condylar 'T' fracture of Plaintiff's left distal humerus which he received on July 3, 1967 while in the process of loading pulpwood on a boxcar in Mt. Vernon, Texas, from which Plaintiff fell and caused the fracture.

After the suit was filed, Plaintiff filed a motion for a change of venue under Rule 257, Vernon's Ann.Texas Rules of Civil Procedure. The motion was challenged by the Defendant. It was overruled. The case went to trial on its merits, before a jury, on October 20, 1969. After the Plaintiff had offered all of his evidence Defendant filed a motion for an instructed verdict. It was overruled. The jury was unable to answer the special issues as submitted by the Trial Court. The Trial Court received the charge and wrote on his docket a notation of a 'mistrial.' Within thirty (30) days thereafter, Defendant again reurged his motion for an instructed verdict, or a motion for judgment, asking the Trial Court to set aside the order of mistrial and enter judgment for Defendant. The Trial Court granted the motion, set aside the order of mistrial and entered judgment in favor of Defendant that Plaintiff take nothing. Plaintiff has perfected his appeal and brings forward two points of error.

Defendant filed a motion for new trial in which he only alleged:

'1. This Honorable Court erred in refusing the Plaintiff's motion for change of venue;

'2. This Honorable Court erred in granting the Defendant's motion for instructed verdict.'

By point 1, the Plaintiff says the Trial Court erred in overruling his motion for change of venue, under Rule 257, because such prejudice against Plaintiff existed in Franklin County, Texas, that he could not obtain a fair and impartial trial in said County. There was no allegation of any such prejudice in Plaintiff's motion for change of venue nor in any of the affidavits that were attached thereto. It seems that the Plaintiff relied more upon the popularity of the Defendant and Defendant's attorney, Woodrow Edwards, than that any conspiracy existed in the County against the Plaintiff. According to the evidence that was offered there did not exist any prejudice or conspiracy against the Plaintiff whatever; although, the Plaintiff lived in Winnsboro, Wood County, Texas, which is adjacent to Franklin County, Texas.

The burden of proof that the Plaintiff could not secure a fair and impartial trial in Franklin County was on the Plaintiff. Robertson v. Robertson, Tex.Civ.App., (1964), 382 S.W.2d 945, w.r., n.r.e.; City of Irving v. Luttrell, Tex.Civ.App., (1961), 351 S.W.2d 941, n.w.h.; Bennett v. Jackson, Tex.Civ.App., (1943), 172 S.W.2d 395, w.r., w.m.; Baptist Foundation of Texas v. Buchanan, Tex.Civ.App., (1956), 291 S.W.2d 464, w.r., n.r.e.

A careful examination of the Plaintiff's brief does not tend to show that the Trial Court in any way abused his discretion in overruling the Motion for change of venue. Some of the Plaintiff's witnesses did testify that Plaintiff would be better off if his case were to be tried in another County. This is always true when a person in one County is forced to sue another person in his home County. Article 1995, Vernon's Ann.Civ.St., was enacted to give Defendants this advantage. In Pool v. Pickett, Texas Supreme Court, 1852, sitting at Tyler, 8 Tex. 122, so held. Such has been the policy of the Texas Courts from then until this day; unless the party seeking a change of venue can make the proof and show that the Trial Court abused his discretion in refusing to grant the same. Point one is overruled.

By point 2, Plaintiff says the Trial Court erred in granting the Defendant's motion for instructed verdict because evidence was presented in the trial of the case that raised material issues of fact necessitating jury determination. We agree that we must view and interpret the evidence in this case in the light most favorable to the Plaintiff, disregarding all evidence and inferences therefrom, favorable to the Defendant. Hart v. Van Zandt, Tex.Sup., (1966), 399 S.W.2d 791. In that case, the Court had this to say:

'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. * * *, 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.'

Plaintiff, a 34 year old man at the time of the injury, sustained a condylar 'T' fracture of his left distal humerus. It was a comminuted fracture of the left elbow when Plaintiff fell from a railroad flatcar while in the process of loading pulpwood. He was carried immediately to the Franklin County Hospital in Mt. Vernon, Texas, where he was first seen by the Defendant about 3:30 or 4:00 o'clock p.m. on July 3, 1967. Plaintiff gave the history of the accident. Defendant made X-rays and placed his arm in traction. He noticed the seriousness of the injury and after he had set the arm, Defendant immediately tried to get in touch with Dr. Bernard E. McConnell, an orthopedic specialist, who lived in Greenville, Texas, and was a consultant to the Franklin County Hospital. It seems that Dr. McConnell was on vacation and could not be reached until a short time after the Plaintiff had left the hospital, without any permission from the Defendant.

Defendant testified that there were two broken condyles that he had to force back into place with his hands and then place his arm in the cast. Defendant testified that after the cast was placed on the arm, another X-ray showed good alignments. According to the Franklin County Hospital records, it showed that he suffered some pain and had a small amount of fever. The fever lasted only a short time. There is also evidence that the cast on Plaintiff's arm was being complained about being too tight. Defendant took an electric saw and sawed the splint above the elbow. Two of the nurses, with scissors, clipped some of the bandage with scissors. There was also evidence of some blisters or blebs around the joint of the elbow but the skin was still impacted over them and it was a closed wound. There was not any drainage noticed while he was in the Franklin County Hospital.

Early in the morning of July 7th, Defendant was called by Plaintiff's wife and was told that she was taking the Plaintiff to her family physician at Winnsboro, to a Dr. Stuart, a D.O. Dr. Stuart made X-rays of the Plaintiff's arm and diagnosed it as a comminuted fracture of the elbow. Dr. Stuart said that he called Dr . San Sutherland, an orthopedic specialist, at Knight & Ware Clinic in Dallas, Texas, and told him about the Plaintiff and that he was sending him over there. When Plaintiff first reached the hospital in Dallas, he was seen by Dr. Richard A. Shirley, an orthopedic specialist, who examined his arm and testified in the case.

Dr. Shirley testified that there were three different ways in which to treat such a fracture as existed in this case. He testified that the injury could be treated as it was, (by placing it in a cast), could have been treated in traction, or surgically by open reduction and fixation. Defendant agreed with these three methods. Plaintiff contends that there is some evidence of negligence on the part of Defendant because of the opinion as expressed by Dr. Stuart that the Plaintiff should have been referred to an orthopedic specialist directly after the examination of the comminuted fracture of the left elbow. We must take into consideration the fact that the Plaintiff left the Franklin County Hospital about 9:00 o'clock a.m. on July 7th, at his wife's insistence, over Defendant's plea that he stay just one more day. Plaintiff was then transported by private car to Dr. Stuart's office .

Dr. Stuart testified as follows:

'Q. After taking the X-ray, did you do anything to his arm to prepare him for the trip to Baylor?

A. I put it in a larger pillow.

Q. Did you put a cast back on it?

A. No.

Q. You put it in a pillow?

A. Yes, sir.'

Dr. Shirley, the first orthopedic specialist to see the Plaintiff, after he arrived in Dallas, testified as follows:

'Q. Did you conduct an examination?

A. Yes, sir, I did.

Q. Can you tell us what that examination was?

A. The principle findings were confined to the left arm, Which was in a plaster splint, in an extended or straight position. The splint, as I recall, extended from approximately here to the wrist (indicating).' (Emphasis added.)

The testimony of Dr. Shirley about the arm being in plaster splint is in direct conflict with the testimony of Dr. Stuart. Dr. Shirley also testified that Dr. Stuart's act in removing the cast from Plaintiff's arm could have aggravated the alignment of the broken bones and probably caused a loss of position of the broken bones.

Dr. Shirley testified that the arm was placed in traction. On July 18, 1967, Plaintiff's arm and skin had cleared up and on that day he performed surgery. This seems to remove any act of alleged negligence on the part of Defendant from any causation of the Plaintiff's damages.

On July 18th, surgery was performed on Plaintiff's arm. The skin was cut, the muscles were...