Hood v. Phillips

• Decision Date: 22 April 1976
• Docket Number: No. 7769,7769
• Citation: Hood v. Phillips, 537 S.W.2d 291 (Tex. Ct. App. 1976)
• Parties: Shelton D. HOOD, Appellant, v. Dr. John R. PHILLIPS, Appellee.
• Court: Texas Civil Court of Appeals

Page 291

537 S.W.2d 291

Shelton D. HOOD, Appellant, v.Dr. John R. PHILLIPS, Appellee.

No. 7769.

Court of Civil Appeals of Texas Beaumont.

April 22, 1976.

Rehearing Denied May 27, 1976.

John Holloway, Houston, for appellant.

Howard S. Hoover, W. N. Arnold, Jr., Sandra K. Foster, Houston, for appellee.

STEPHENSON, Justice.

This is a medical malpractice suit in which a judgment was rendered below for the defendant physician based upon a jury verdict which found, inter alia, that the defendant was not guilty of gross negligence in removing the carotid bodies from the neck as a treatment for emphysema.This appeal by the plaintiff patient is predicated upon his assertions that the trial court should have submitted the case on a theory of ordinary negligence, that records and information concerning the defendant's reputation were erroneously excluded and that defendant made misrepresentations to plaintiff as to the value of the surgery.

The evidence shows that the plaintiff had an advanced case of emphysema when he was first examined by the defendant in 1966, but he was still working.Emphysema is a disease of the lungs for which there is no known cure.The usual treatment for emphysema by the majority of the medical profession is nonsurgical.After consultations with defendant, plaintiff was advised that carotid body surgery might prove beneficial.Defendant performed the operation and removed the carotid body (gland) from each side of the patient's neck together with certain nerves associated therewith.Defendant told plaintiff that the operation was not a cure, but 'it is hoped will lessen the spasm (of the bronchial tubes), improve the circulation in the lungs, allow the air to get out, the trapped air to get out so good fresh air can get in.'This is a highly controversial procedure, but there is evidence that carotid body surgery is performed by at least one other doctor in Texas, a doctor in Boston, Massachusetts, and doctors in Japan, Poland, and Italy.Until his retirement in 1967, defendant was apparently the only physician in the Houston area who employed this procedure.The defendant stated that eighty-five percent of the some 1,200 persons on whom he has operated derived some benefit, but there is medical evidence in the record that the procedure is generally recognized as having no value in treating emphysema and in some cases may be detrimental to the patient's health.

The plaintiff's first point of error complains of the trial court's refusal to submit his theory that performance of carotid body surgery as a treatment for emphysema was ordinary negligence.

In dealing with this question, we are confronted with the apparently unique issue in this State of the standard to be used when a claim of medical malpractice is based upon a surgical procedure which is allegedly unnecessary.There is No assertion here, and there is no evidence to support such an assertion, that the surgery itself was unskillfully or negligently performed--only that it was improper to perform the operation in the first place.

The paucity of cases dealing with the issue of unnecessary surgery has not revealed a consensus of what is the applicable test.Viewing the question in a legal context ¹ the sole issue of what is unnecessary surgery was addressed in Martin v. Parks, 165 So.2d 220(Fla.App.1964).In Martin, the attending physician stated that the plaintiff's injury resulting from an automobile accident could only be corrected by performing anterior dissectomy and interbody fusion (on her neck).The plaintiff asserted that a reasonably prudent doctor would not have performed the operation because it was improper and not necessary.It was the opinion of other neurosurgeons that such an operation was unnecessary.The appellate court affirmed the summary judgment for the defendant because the defendant's conduct did not fall outside the general rule that a neurosurgeon would not be liable in damages for performing surgery, which in the opinion of other specialists was unnecessary and improper, unless in performing such surgery, the neurosurgeon departed from accepted medical practice in the community.Martin v. Parks, supra at 220.

It has also been held that a doctor who has failed to keep current on surgical practices and performs an operation that is not generally accepted therapy has failed to meet his duty of care to practice with that degree of knowledge and skill exercised by reasonable surgeons in similar circumstance.Kelly v. Carroll, 36 Wash.2d 482, 219 P.2d 79(1950);Unnecessary Surgery: Doctor and Hospital Liability, 61 Geo. L.J. 807, 813(1973).In Kelly v. Carroll, the Washington Supreme Court stated the rule in terms of 'generally recognized treatment':

'(I)f there is a reasonable general agreement as to what is the proper medical treatment for a disease or an organic disorder, the question of whether or not the treatment, in a particular case, was correct must be determined by the testimony of expert witnesses from the medical field who alone are qualified to speak.

'(I)f he steps out of his limits and undertakes to treat a disorder for which, in the highest level of medical science, there is a generally recognized treatment, such an interloper must be held accountable to the accepted standard of treatment.'Kelly v. Carroll, supra at 85--86.

Thus, even when a dentist had an option as to methods of treatment, the Massachusetts Supreme Court held that where the dentist used a 'less safe' method to anesthetize a patient rather than a better, well-known method, such action constituted negligence and demonstrated a lack of necessary skills.Vigneault v. Dr. Hewson Dental Co., 300 Mass. 223, 15 N.E.2d 185, 188(1938).The evidence in Vigneault revealed that the better, well-known method was the one ordinarily used by dentists in the community.The fact finder in the lower tribunal determined whether the dentist followed the accepted procedure of treatment.

The review of the 'options' opened to a doctor, as alluded to in Vigneault v. Dr. Hewson Dental Co., supra, is important because courts have also enunciated a corollary to the above rule that one should follow the 'better' method: that where there are several possible methods of treatment, a doctor will not be liable for a patient's injuries as long as the treatment used is one followed by a respectable minority of the medical profession and his care under that treatment conforms with the general practice of reasonable physicians utilizing the same treatment.Barrette v. Hight, 353 Mass. 268, 230 N.E.2d 808(1967);61 Geo. L.J., supra at 813(1973);61 Am.Jur.2d, Physicians & Surgeons, § 147(1972) and cases cited therein;But cf.Helling v. Carey, 83 Wash.2d 514, 519 P.2d 981(1974).

The difficulty with this rule is in the determination of what constitutes a 'respectable minority'.Again, no Texas case has been found which provides a definition.However, in Leech v. Bralliar, 275 F.Supp. 897(D.Ariz.1967) it was said 'Prolotherapy (injecting a proliferating solution into ligamentous attachments to create a 'weld' and relieve whiplash pain in the neck) as a method of treatment, as espoused and used by . . . a respectable minority of physicians in the United States, cannot be said to be an inappropriate method of treatment or to be malpractice as a matter of law even though it has not been accepted as a proper method of treatment by the medical profession generally.'Id. at 902.

In Leech the 'respectable minority' was composed of sixty-five physicians throughout the United States, who claimed an improvement rate of eighty-five percent.At the time the defendant used the method, prolotherapy was two years old, and was not without critics within the medical profession, including communities which were similar to that where the doctor resided.Treating the issue as a fact question, the district court, without a jury, held the doctor negligent because he varied the treatment--such variations not conforming to the accepted procedures as used by the respectable minority.The clear implication of the case is that had the doctor adhered to the procedures of the minority, albeit a very small minority, he would not have been guilty of malpractice.

After reviewing these standards, we think the better rule concerning unnecessary surgery, and one which we adopt, is that a physician is not guilty of malpractice where the method of treatment used is supported by a respectable minority of physicians, as long as the physician has adhered to the acceptable procedures of administering the treatment as espoused by the minority.

As in other cases of this nature, the determination should be predicated upon ordinary negligence--what a reasonably prudent physician would do under the same or similar circumstances.See, e.g., King v. Flamm, 442 S.W.2d 679, 681(Tex.1969);Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779(1949);Fortner v. Koch, 272 Mich. 273, 261 N.W. 762(1935);Leech v. Bralliar, supra;Martin v. Parks, supra.We see no reason for the standard to be otherwise for an action for unnecessary surgery must be measured by traditional malpractice evidentiary standards.No cases have been found or cited to us which used the test of gross negligence in malpractice suits, and we cannot perceive any rationale which would incorporate such a test.

It was error for the trial court to refuse to submit this case on the theory of ordinary negligence.Plaintiff's Point of Error No. 1 is sustained.

Plaintiff's next point complains of the trial court's failure to submit requested issues inquiring whether the defendant failed to obtain the consent to the surgery from plaintiff.There is no evidence to support the submission of this issue.Both the plaintiff and Mrs. Hood signed a form which gave the consent to perform the operation.Defendant's duty was to make reasonable disclosures of the risks which were incidental to the treatment.Wilson v. Scott, 412 S.W.2d 299,...