Hoffman v. Houston Clinic

• Decision Date: 10 June 1931
• Docket Number: No. 9558.,9558.
• Citation: 41 S.W.2d 134
• Parties: HOFFMAN v. HOUSTON CLINIC et al.
• Court: Texas Court of Appeals

Page 134

41 S.W.2d 134

HOFFMAN v. HOUSTON CLINIC et al.

No. 9558.

Court of Civil Appeals of Texas. Galveston.

June 10, 1931.

Rehearing Denied July 22, 1931.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Action by S. R. Hoffman against the Houston Clinic, a copartnership, and others. Judgment for defendants, and plaintiff appeals.

Reversed and remanded.

W. J. Howard and E. T. Chew, both of Houston, for appellant.

King, Wood & Morrow and Sewell, Taylor, Morris & Garwood, all of Houston, for appellees.

LANE, J.

On and for some time prior to the 2d day of August, 1927, S. R. Hoffman, plaintiff in the suit hereinafter mentioned, was an employee of the Keen Wolf Oil Company, a "subscriber," as that term is used in the Workmen's Compensation Statute of Texas, who at such time held a policy issued by the United States Fidelity & Guaranty Company under the provisions of said compensation statute. While Hoffman was performing his usual duties for his employers, and while at labor in their machine shop, a piece of steel struck him in his left eye and lodged therein, and at about the same time and while he was engaged in his work a piece of brass lodged on the outer coating or layer of his eye. Immediately after he so suffered said injuries, he gave notice thereof to his employers. Upon receipt of such notice the employers of Hoffman, as they were authorized and required to do by the provisions of the law, procured medical aid for Hoffman, and in so doing they gave him an order written on a letterhead of the Houston Clinic, a copy of which is as follows:

                               "THE HOUSTON CLINIC
                                  "Houston, Texas
                "Main at Pease                     Phone Hadley 4334
                                           "(Connects All Departments)
                "W. Burton Thorning, M.       A. Philo Howard, M. D
                  D
                "M. B. Stokes, M. D.          P. R. Cruse, M. D
                "James H. Agnew, M. D.        W. A. Clark, M. D
                "C. P. Harris, M. D.          Robt. A. Johnson, M. D
                "J. M. Robinson, M. D.        Joe B. Foster, M. D.
                "J. Thos. Jones, M. D.        Jno. H. Wooters, M. D.
                "F. H. Lancaster, M. D.       F. E. Dye, M. D.
                "Robt. L. Harris, M. D.       C. M. Sublett, M. D.
                           "Ralf A. Graves, D. D. S.
                                       "Date Aug. 2, 1927.
                

"Please render necessary treatment to S. R. Hoffman, who was injured while in our employ and (was) engaged in his regular occupation.

                  "We are insured by U. S. F. & G. Co.
                  "Sent by Keen & Wolf Oil Co.
                  "Per R. G. Hill.
                  "Present to Industrial Department."
                

Upon receipt of such order, Hoffman went to the office of the Houston Clinic and presented himself for treatment. He was there placed in charge of Dr. Griffey, an eye, ear, nose, and throat specialist, an employee of the Clinic, for treatment.

Upon Hoffman's first visit to the Clinic, Dr. Griffey examined his injured eye with a magnifying glass and found a small particle of brass on the eyeball, which he removed with a small pair of tweezers. The doctor then informed Hoffman that there had been a hemorrhage of the eyeball, but told Hoffman after the removal of the piece of brass that there was nothing else in his eye and that he could go back to work. Having received such information, Hoffman returned to his work the next day, and at about 3 o'clock p. m. his eye became so painful he went back to Dr. Griffey and told him of his pain. The doctor, using only the same instrument as he had used on the first examination, examined the eye and then told Hoffman in effect that the pain suffered by him amounted to nothing, whereupon Hoffman told the doctor that he was afraid there was something in his eye which had not been removed. In reply to such expressed fear, the doctor told Hoffman there was nothing left in the eye, that he could see entirely through it, and told Hoffman to go back to work and that it was not necessary for him to come back for further treatment. Hoffman's eye continued to pain him, and on the third day after his injury he went back to the doctor and told him that he was suffering great pain from his injured eye and that he was sure there was something else in the eye which he (the doctor) had not found. The doctor then told Hoffman that it was not possible that anything was left in his eye which he had not discovered. Whereupon Hoffman asked the doctor what caused the eye to pain him so much, to which inquiry the doctor said: "You imagine it, there is nothing wrong with it, * * * for me not to worry, that it was his business to look after the eye." On the fourth day after the injury occurred the eye was still paining Hoffman and the vision was getting dim and he went back to the doctor and told him that his sight was becoming dim. Upon this fourth visit the doctor told Hoffman that such dimness was caused by medicine which he had put in his eye and that his eye was all right. Hoffman started to work on the fifth day after the accident occurred, but finding that he was unable to work he again went back to the doctor and on that visit the doctor made another examination of the eye and found that it was infected and after discovering such infection he, for the first time, took an X-ray of the eye and found that a piece of steel was embedded therein. After this piece of steel was discovered in the eye, Hoffman was sent to St. Joseph's Infirmary, where he remained for about five or six days, and later his eyeball was removed by Dr. Griffey and Dr. Slataper.

After the removal of his eye, Hoffman in due time and manner filed with the Industrial Accident Board of Texas his claim for the compensation provided by law for the loss of his eye. His claim was allowed by the Accident Board and an award of $1,750 was made to him, which was paid by the United States Fidelity & Guaranty Company, such sum being the full amount to which he was entitled under the provisions of the compensation statute.

Thereafter S. R. Hoffman brought this suit against the Houston Clinic, a copartnership, and against W. B. Thorning, A. P. Howard, M. B. Stokes, and P. R. Cruse, parties composing such copartnership, and against Dr. E. W. Griffey, to recover of such defendants jointly and severally the sum of $15,000.

The plaintiff alleged that the copartnership held themselves out as parties having skill and ability to practice medicine and surgery, and the skill, learning, and ability reasonably necessary to the diagnosis of diseases and injuries to the human eye and the treatment of such injuries and diseases; that Dr. Griffey was either a partner of the other defendants in the firm's business, or he was an employee of the firm engaged by the firm to assist in carrying on the practice of medicine, surgery, etc. He then substantially alleged the existence and truth of the matters and things stated by us in our preliminary statement. He further alleged as follows:

"That had the defendants, their agents, servants and employees exercised ordinary care and skill, they could have ascertained upon this plaintiff's first visit to them the location of said piece of steel in his eye, and the same could have been removed and this plaintiff would not have lost his eye. That by reason of the failure of the defendants to give this plaintiff the proper care and treatment this plaintiff has lost his entire eye and has had to have his eye removed and a glass eye substituted.

"That this plaintiff would have had his eye and would not have lost the sight of his eye, but for the following negligent acts and omissions, among others, on the part of defendants, their agents, servants and employees, all of which were a proximate cause of plaintiff losing his eye and sustaining the damages hereinafter alleged.

"(a) The defendants, their agents, servants and employees were negligent in failing to discover the piece of steel that so lodged in plaintiff's eye and in failing to remove the same from his eye upon his first visit to their office or place of business, as aforesaid.

"(b) The defendants, their agents, servants and employees were negligent in failing to take an X-ray picture of plaintiff's eye on the occasion of his first visit to their office, or place of business in order to ascertain whether or not any steel remained in plaintiff's eye.

"(c) The defendants, their agents, servants, and employees were negligent in failing to advise the plaintiff to have an X-ray picture of his eye taken on the occasion of his first visit to their office to ascertain whether or not any steel or other foreign substance remained lodged in plaintiff's eye, his eye being lacerated at the time.

"(d) The defendants, their agents, servants, and employees were negligent in failing to take an X-ray picture of plaintiff's eye until five days after the piece of steel had entered his eye and when plaintiff's eye had become infected, if he had not already lost the sight of his eye, his eye and the sight thereof could have been saved if the defendants, their agents, servants and employees had taken an X-ray picture immediately upon plaintiff's first visit to their office and discovered the steel which had lodged in his eye and removed same, but this they negligently failed to do.

"(e) The said defendants, their agents, servants, and employees were negligent in not advising the plaintiff to have an X-ray picture of his eye taken before the same became infected in order that the steel in his eye would be discovered and removed before infection of the eye began and infection of his eye thereby prevented and the sight of his eye saved.

"(f) The defendants, their agents, servants, and employees were negligent in failing to make a proper examination of plaintiff's eye at the time of his first visit to their office, and before the same had become infected, by the use of methods and instruments other than the X-ray that could have been used or adopted and which the defendants in the exercise of ordinary care should have used or adopted in endeavoring to discover the condition of plaintiff...