Hersh v. Hendley

• Decision Date: 16 December 1981
• Docket Number: No. 18577,18577
• Citation: 626 S.W.2d 151
• Parties: Bernard J. HERSH, Appellant, v. H. Jim HENDLEY, Appellee.
• Court: Texas Court of Appeals

Page 151

626 S.W.2d 151

Bernard J. HERSH, Appellant, v. H. Jim HENDLEY, Appellee.

No. 18577.

Court of Appeals of Texas, Fort Worth.

Dec. 16, 1981.

Cowles, Sorrells, Patterson & Thompson and R. Brent Cooper, Dallas, for appellant.

Robert W. Hartson, Dallas, for appellee.

Before HUGHES, JORDAN and RICHARD L. BROWN, JJ.

OPINION

HUGHES, Justice.

Dr. Bernard J. Hersh has appealed the judgment against him in a medical malpractice case instituted by H. Jim Hendley. The case was tried before a jury and submitted on special issues. The jury found favorably for Hendley and awarded him $59,500.00 in damages. Hersh has appealed the judgment rendered on the verdict.

We reverse and remand for retrial.

Before 1973 Hendley had experienced circulatory problems and a light stroke. He had been prescribed anticoagulants but discontinued taking them a few months before seeing Hersh for treatment. The ailment about which Hendley complained to Hersh was a callus he had had on his foot for two years. Two other doctors had treated the callus by trimming and injecting it but were unsuccessful.

Hendley first saw Hersh on November 15, 1973 at which time Hersh examined Hendley's foot, trimmed the callus and suggested surgery. On November 26, 1973, the date of Hendley's third visit to Hersh's office, Hersh performed surgery on the third metatarsal of Hendley's left foot. Hersh did not ascertain Hendley's medical history before performing the surgery. Following the surgery Hendley complained to Hersh of pain and discoloration around the incision site. The callus returned.

Hendley was last seen by Hersh on February 28, 1974. In June 1974 a Dr. Adami removed a fatty mass from Hendley's buttock. Hendley attempted to see Hersh again about his continued pain and discoloration but was told by his general physician who had shared an office building with Hersh, that Hersh had relocated. Hendley's general physician examined the foot and referred him to Dr. Steiner, an orthopedic.

Dr. Steiner saw Hendley twice between August 28, 1974 and September 12, 1974. On these dates Dr. Steiner saw no indication of circulatory problems, thrombophlebitis, deep veinous thrombosis or bone infection. Dr. Steiner first prescribed an antibiotic in treating an arthritic condition in Hendley's foot. On September 12, 1974 he injected what he suspected was a "Morton's neuroma" in the proximity of the previous surgical site.

On September 17, 1974 Hendley experienced chest pains and was admitted to the hospital under the care of a Dr. McCormick, an internist. Hendley was examined and diagnosed as having a pulmonary embolism (a blood clot in his lung). Hendley was thereafter released but was readmitted on December 1, 1974 having suffered a second pulmonary embolism.

Hendley continued under the treatment of Dr. Steiner for pain he experienced in his foot. While still under the general care of Dr. McCormick, Hendley underwent surgery by Dr. Steiner on April 17, 1975 at which time Dr. Steiner fused the area where Hersh had previously operated. Following Dr. Steiner's surgery Hendley experienced no more pain in his foot; however, on December 4, 1975, Hendley was readmitted to the hospital and was diagnosed as having another pulmonary embolism.

Hendley instituted this suit seeking recovery in regard to two alleged injuries: (1) the pain in his foot following surgery and (2) the development of the pulmonary embolism which was diagnosed around September 17, 1974. These injuries were alleged to have been proximately caused by Hersh's negligence in that he held himself out as a licensed podiatrist, fully aware and knowledgeable of the standards of care of the medical profession and, more specifically, that he failed to meet such standards of care in that:

A. He failed to advise himself of the state of Hendley's preexisting medical condition prior to said operation;

B. He attempted to perform an operation at a time when he had not had adequate medical training to undertake said operation;

C. He attempted to perform an operation at a time when he knew or should have known that it was not necessary to perform said operation;

D. He attempted to perform an operation without trying to reconcile the problem with:

1. Medication

2. Physical therapy

3. Corrective shoe construction

4. Trimming the complained of callus

E. He discharged Hendley before he had obtained complete recovery;

F. He did not perform proper pre-operative and post-operative care in order to prevent the resulting pulmonary embolism in that he failed to:

1. Prescribe medication calculated to prevent the formation of an embolism;

2. Prescribe exercises for the left leg and left foot calculated to insure proper blood flow through the blood vessels of the left foot and left leg;

3. Test and document the flow of blood through the vessels of the left foot.

G. He failed to check and document vital signs prior to said operation.

Hersh answered, generally and specifically denying that he was negligent in any way. He also answered by alleging that Hendley's alleged injuries were not caused by the surgery but by some other cause(s) new and independent from the surgery performed by Hersh.

The case went to trial and at the close of the evidence Hersh made numerous requests and objections pertaining to the court's charge to the jury. Upon the return of the jury's favorable findings for Hendley, Hersh filed a "Motion for Judgment Non Obstante Veredicto And/Or to Disregard Special Issue Jury Findings". This motion was denied and judgment was rendered for Hersh on the verdict. Thereafter a motion for new trial was filed which was also denied.

Hersh's seventh and eighth points of error assert that Hendley's expert witnesses were incompetent to establish the standard of care applicable to podiatrists under the same or similar circumstances. Thus, it is claimed that Hendley failed to satisfy the requirement that he introduce evidence, through a medical expert, of a standard by which the jury could fairly determine the negligence, if any, of the defendant, Hersh.

The general rule as to the establishment of a standard of care in a medical malpractice suit is stated in Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949):

"It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient's injuries." (Emphasis supplied.)

In the context of medical malpractice suits, the requirement that the testifying doctor be of the same school of practice was qualified in Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933, 936 (1953) by the recognition of the competency of an expert medical witness to testify to the standard of care "(w)here the particular subject of inquiry is common to and equally recognized and developed in all fields of practice." In applying this qualification the courts have held that a witness is competent to testify if he "has practical knowledge of what is usually and customarily done by a practitioner under circumstances similar to those which confronted the practitioner charged with malpractice, ...." Simpson v. Glenn, 537 S.W.2d 114, 117 (Tex.Civ.App.-Amarillo 1976, writ ref'd n. r. e.).

Hersh is a non-medical doctor podiatrist who was trained in schools of podiatry. Hendley produced two medical doctors through whom it was intended that standard of care be established.

Hendley called Dr. McCormick who testified that he was an internist and that he dealt primarily with non-surgical conditions. However, he further testified that he was familiar with the proper standards of care as a medical practitioner concerning care that should be given a surgery candidate before and after an operation in an effort to prevent thrombophlebitis and pulmonary embolism. He testified that such standards are common to and equally recognized in all fields of medical practice. Dr. McCormick went on to testify that failure to obtain a medical history of a patient; failure to document the medical history of a patient; performing surgery outside one's limitations; performing an unnecessary operation; discontinuing a patient who complains of pain; failure to test the flow of blood in a patient's foot prior to surgery thereon; failure to check a patient's vital signs; and performance of an operation in an unsterile office were all deviations from the acceptable standards of medical care.

Hendley also called Dr. Steiner, an orthopedic surgeon whose specialty involves surgery upon bones, muscles, ligaments and joints in the human body including the human foot. He testified that he was familiar with the fact that podiatrists concerned themselves with the bones, muscles and ligaments of the human foot, and that the standard of care for providing orthopedic surgery or podiatric surgery was common throughout the medical profession. However, he also stated that he is not familiar with the kind of practice or training received by podiatrists and that he is not aware of all that they do. Further, he testified that he does not do the particular type of surgery which was performed by Hersh. He went on to testify that failure to obtain a medical history on a surgery candidate; failure to document that medical history; performance of an unnecessary operation; failure to check a patient's vital signs before and after an operation; failure to document those vital signs; and performance of bone surgery on a patient's foot under less than sterile conditions were all deviations from the acceptable standards of medical care.

Hersh testified that he was familiar with the general practice of podiatric surgery. He testified that: the procedures he followed in obtaining sterility in his office were no different from those used in the...