Hood v. Phillips

• Decision Date: 29 June 1977
• Docket Number: No. B-6113,B-6113
• Citation: 554 S.W.2d 160
• Parties: Shelton D. HOOD, Petitioner, v. Dr. John R. PHILLIPS, Respondent.
• Court: Texas Supreme Court

Page 160

554 S.W.2d 160

Shelton D. HOOD, Petitioner, v. Dr. John R. PHILLIPS, Respondent.

No. B-6113.

Supreme Court of Texas.

June 29, 1977.

Rehearing Denied July 27, 1977.

John H. Holloway, Houston, for petitioner.

Hoover, Cox & Miller, Howard S. Hoover, Houston, Fulbright & Jaworski, W. N. Arnold, Jr. and Sandra Foster, Houston, for respondent.

SAM D. JOHNSON, Justice.

Seeking both actual and exemplary damages, Shelton Hood ¹ sued Dr. John R. Phillips alleging he suffered injuries from surgery which was not a medically accepted method of treatment for emphysema. The trial court rendered judgment for Dr. Phillips after the jury refused to find he was guilty of gross negligence. Contending that the trial court should have submitted to the jury the issues of informed consent and ordinary negligence, should not have quashed subpoenas on the basis of Article 4447d, Section 3, Texas Revised Civil Statutes Annotated (Pamphlet Supplement 1974-1975), and should not have excluded certain other evidence, Hood appealed. The court of civil appeals reversed the judgment of the trial court and remanded the cause for a new trial on the grounds the case should not have been submitted on the theory of gross negligence but rather on a theory of ordinary negligence. 537 S.W.2d 291. On other grounds, we affirm the judgment of the court of civil appeals, which reversed the trial court judgment and remanded the cause for a new trial.

At trial, Dr. Phillips described the accepted medical treatment for emphysema as follows: (1) encourage the patient to stop smoking and to move to a dry, pollution-free climate; (2) use medication to lessen the bronchial spasm; (3) use machines to aid the patient in breathing; and (4) employ oxygen therapy. Dr. Phillips related that when he first examined Mr. Hood in 1966 he had emphysema. Attempting to reduce Mr. Hood's suffering, Dr. Phillips removed one of the carotid bodies from his neck. ² Dr. Phillips testified he had employed this surgery since 1962 and by 1966 he had performed it between 1,200 and 1,500 times. In his experience, 85 percent of his patients were helped to some extent and 15 percent were not helped at all. He acknowledged that the use of this surgery was not generally accepted and was in fact highly controversial.

In contrast to the testimony of Dr. Phillips that carotid surgery generally produced beneficial results, three physicians testifying for Hood characterized carotid surgery as an unaccepted mode of treatment for emphysema, as a treatment not supported by medical evidence, and as a surgical procedure which had been tried by a number of physicians, found ineffectual, and abandoned.

Dr. Erin Longfield, Chief of Staff of the Veterans Administration Hospital located in Houston and a specialist in chest diseases, testified there was only one accepted medical treatment for emphysema; namely, the use of drugs and machines to assist the patient in breathing. Dr. Longfield asserted carotid surgery would not benefit anyone suffering from emphysema and that the performance of such surgery would be negligence. To his knowledge, such surgery was not used in any veterans' hospital.

Dr. William Thompson, a practicing osteopath in Harris County, agreed that the accepted treatment for emphysema included the use of drugs and machines to assist the patient in breathing, and added that on occasion chest surgery was employed to remove diseased bronchi from the lungs. This doctor had no knowledge of any medical support for carotid surgery as a cure for emphysema and no knowledge of any reputable physician using this method, as of 1966, to cure or relieve the symptoms of severe emphysema.

Dr. Thomas Petty, a physician employed by the University of Colorado Medical Center as an associate professor of medicine in charge of the pulmonary disease division, testified upon deposition by written questions that carotid surgery is not an accepted procedure for the cure or treatment of emphysema. He stated: "(T)he procedure has been proposed really without much scientific rationale, tried by a number of physicians worldwide; found ineffectual and abandoned. In my own judgment, the procedure is not only not beneficial, but potentially harmful." He described the accepted treatment for emphysema as a combination of the use of drugs, the systematic use of inhaled aerosol to help combat the disease, and the application of physical medicine techniques designed to improve breathing efficiency and to promote the physical reconditioning of the patient.

According to the testimony of Dr. Phillips on the issue of informed consent, the doctor told Mr. Hood of the risks of the surgical removal of the carotid body in accordance with medically accepted standards. Dr. Phillips maintained he informed Mr. Hood of the risk of death, the possibility of numbness in his jaw and his ear, the danger of a heart attack or a stroke, the possibility of soreness in the windpipe, and the possibility of infection of the prostate gland. He did not tell Mr. Hood high blood pressure may be a result of the operation, and Dr. Phillips emphasized that no physician would have warned Mr. Hood of this danger because it was negligible. Dr. Phillips asserted he did not commit himself to the size of the incision he would make during the course of the operation and, furthermore, did not guarantee Mr. Hood he would cure him, but instead expressed the hope the operation would help him. Dr. Phillips stated he knew Mr. Hood was an uneducated man and he described the carotid body as similar to a valve in an automobile tire because Mr. Hood would understand that explanation. ³

Contrary to the testimony of Dr. Phillips, Mr. Hood stated upon deposition that Dr. Phillips did not tell him 15 percent of those undergoing this surgery did not receive any relief. Mr. Hood insisted Dr. Phillips guaranteed to cure his emphysema. Mr. Hood also stated that Dr. Phillips represented the incision would be small and that he would no longer need medication for emphysema after the operation. He asserted Dr. Phillips did not tell him that the operation would require the removal of nerves from his neck, did not mention his heart in any way, and did not inform him that the operation might result in high blood pressure.

Mrs. Hood, who was present during the conversation between her husband and Dr. Phillips, testified Dr. Phillips promised to cure the emphysema, represented that the incision would be small, indicated that there would be no risk or ill effects connected with the surgery, and did not state that he would remove nerves from the neck.

The trial court refused to submit plaintiff Hood's issue on informed consent and ordinary negligence. It did submit an issue on whether the carotid surgery was gross negligence on the part of Dr. Phillips, and the jury refused to find Dr. Phillips grossly negligent.

The court of civil appeals reversed and remanded on the grounds the plaintiff, Hood, should not have been required to meet the higher burden imposed by a gross negligence standard but rather should have been required to meet the following ordinary negligence standard:

"(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." 537 S.W.2d 291 at 294. (Emphasis added.)

At this juncture, we note that the above standard articulated by the court of civil appeals was intended to apply to a negligence suit based on allegations that the mode or form of medical treatment was not a proper remedy for the diagnosed condition. It was not intended to apply to an action based on the negligent performance of the correct remedy for the diagnosed condition.

The court of civil appeals also held: (1) there was no evidence to support the submission of the issue of whether Dr. Phillips failed to obtain the consent to surgery of Mr. Hood; and (2) the trial court acted properly in quashing subpoenas directing Dr. Phillips to produce records in his possession and in quashing subpoenas to the executive secretary to the Harris County Medical Society on the basis of Article 4447d, Section 3.

Both Dr. Phillips and Hood applied for writs of error to this court and both writs were granted.

THE NEGLIGENCE STANDARD

It should be noted at the outset that Hood does not assert that the surgical removal of the carotid body was unskillfully or negligently performed. Nor does Hood contend that Dr. Phillips' diagnosis of emphysema was incorrect. Instead, the patient-plaintiff maintains that it was negligence to utilize this particular surgical procedure as a method of treating emphysema.

Both Hood and Dr. Phillips assert the court of civil appeals erred in adopting the "respectable minority" negligence standard. There are at least four standards that may be applied to a medical malpractice suit based on the assertion that the mode or form of treatment was not a remedy for the diagnosed condition.

RESPECTABLE

MINORITY: The "respectable minority" standard approved in the instant case by the court of civil appeals was adopted in Leech v. Bralliar, 275 F.Supp. 897 (D.Ariz.1967); Baldor v. Rogers, 81 So.2d 658 (Fla.1954); Walkenhorst v. Kesler, 92 Utah 312, 67 P.2d 654 (1937); Gruginski v. Lane, 177 Wash. 121, 30 P.2d 970 (1934); Swanson v. Hood, 99 Wash. 506, 170 P. 135 (1918); Dahl v. Wagner, 87 Wash. 492, 151 P. 1079 (1915); and Smith v. Beard, 56 Wyo. 375, 110 P.2d 260 (1941).

In McHugh v. Audet, 72 F.Supp. 394, 400 (M.D.Pa.1947), the court adopted a slightly different standard: "Where competent medical authority is divided a physician or surgeon will not be held responsible if in the exercise of his judgment he followed the course of treatment advocated by a considerable number of his professional brethren in good standing in his community." (Emphasis added.) Accord, Fritz v. Parke...