Hess v. Millsap

• Decision Date: 30 May 1934
• Docket Number: No. 7977.,7977.
• Citation: 72 S.W.2d 923
• Parties: HESS v. MILLSAP et al.
• Court: Texas Court of Appeals

72 S.W.2d 923

HESS v. MILLSAP et al.

No. 7977.

Court of Civil Appeals of Texas. Austin.

May 30, 1934.

Appeal from District Court, Tom Green County; John F. Sutton, Judge.

Action by Noah Millsap, as next friend of Lela Viola Millsap, a minor, against D. L. Hess. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Wright & Tupper, of San Angelo, for appellant.

Collins, Jackson, & Snodgrass, of San Angelo, for appellees.

BLAIR, Justice.

Noah Millsap, next friend of his minor daughter, appellee Lela Viola Millsap, sued appellant, D. L. Hess, a practicing physician, for damages occasioned by his negligent operation of an X-ray machine, and careless X-ray treatment administered to appellee's head while treating her for favus, causing an X-ray burn, which resulted in permanent baldness of most of her head. Appellant's defense was that he did not burn appellee, but that the disease itself caused her baldness. The jury found that appellant negligently burned appellee's head with the X-ray treatments, causing her baldness, and assessed $1,800 as damages.

The principal question presented is whether there was sufficient evidence adduced to support the jury's findings that appellant negligently burned appellee's head with the X-ray treatments, causing her baldness. He contends that since he alone testified to the correctness of the dosage and the manner of giving the treatments, and that such were proper from the standpoint of approved X-ray practice, and that since the doctrine of res ipsa loquitur does not apply to X-ray cases, no issue was left for the jury to decide.

The maxim of res ipsa loquitur is not involved in this case, and the evidence sufficiently supports the jury's findings. It is as follows:

Appellee had a small sore on the crown of her head, which appellant diagnosed as favus, and administered three X-ray treatments to her head. He testified that the time factor was the only one that varied in the three treatments; that the first treatment was for five minutes on the sore spot; the second treatment was for five minutes each on five different areas in the region of the sore spot; and that the third treatment was for eight minutes on the sore spot. Appellant and other experts in X-ray treatment testified that this was the proper method of X-ray treatment. They further testified that X-ray exposures for a longer period of time than those given would have resulted in an X-ray burn or X-ray reaction. Appellee's parents, who accompanied her at the time of each treatment, testified that in their judgment the first treatment was from fifteen to thirty minutes; that the second treatment was for one hour and a half; and that the third treatment was for a longer period of time than eight minutes. After the second exposure or treatment appellee's head began to turn red and broke out in blisters; and on her return to appellant he said, "We got a good burn on it that time." Her head then became as "a piece of raw meat," and continued so for several months, causing her great pain, and in the end sloughed off to the bone, leaving her bald. The testimony of the experts conflicted somewhat as to whether favus would cause complete baldness. Some testified that in extreme cases it would; while another testified that only the immediate hair involved would die, and a small bald place or pit would be left. He further testified that favus would not cause complete baldness; and upon an examination of appellee's head before the jury, he testified that her baldness was caused from a burn; and that all of the skin and tissues down to the bone were destroyed, and that she would be permanently bald.

Appellant testified that if the X-ray were properly applied, no injurious results would follow; that the hair could be removed with the X-ray, but that it would return, if the X-ray were properly applied. The testimony also shows that the scalp was not only burned on the crown where the sore was located, but the entire area to which appellant and the parents of appellee testified that the X-ray treatments were applied. Appellee's head was entirely bald, except around the edges, where she had a fringe of healthy hair. No sign of favus appeared on her head, according to one of the experts, but that the entire cushion between the outer skin and the scalp over the bald area had been destroyed by something which appeared to be a burn. All the experts agreed that exposure for too long a time to an X-ray treatment would cause X-ray burns, which would be evidenced by open sores and by destruction of the skin and tissues down to the bone. Appellee's burn ran this course. Under this evidence it was clearly a question for the jury to determine whether the injuries were caused from appellant's negligently exposing her head for too long a period of time to the X-ray. They so found, and their finding concludes the question.

A case involving the doctrine of res ipsa loquitur might have been presented if the correctness of the factors of dosage and manner of treatment as testified to by appellant had not been disputed. But such is not the instant case. Both of appellee's parents testified to seeing longer exposures or treatments than appellant testified to. All experts agreed that exposure to X-ray for too long a period of time, or for a longer period than appellant testified he administered to appellee, would result in X-ray burn; and that blisters, open sores, falling of the hair, redness of the skin, and sloughing off of the skin and tissues were evidences of such a burn. These evidences of X-ray burn appeared after the second treatment of appellee, and such was the history of her case. The case, therefore, turns upon the lay questions of the manner of treatment actually administered,...