Irick v. Andrew
| Decision Date | 29 December 1976 |
| Docket Number | No. 1492,1492 |
| Parties | Judith Ann IRICK et al., Appellants, v. Dr. William H. ANDREW, Jr., Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Jim M. Perdue, J. Richard Cheney, Andrew L. Todesco, Miller, Gann & Perdue, Houston, for appellants.
J. Ritchie Field, James W. Steele, Deison, Crews, Field & Boyd, Conroe, for appellee.
This appeal is from a take-nothing judgment in a medical malpractice suit.
Appellant Judith Ann Irick received x-ray radiation treatment for plantar warts on her left foot in the summer of 1969 from Dr. William H. Andrew, Jr., a physician specializing in radiology. In January, 1973 she developed an ulcer in the area where the warts had been removed, a condition which diagnosis showed to have been caused by radiation. Miss Irick and her father, appellant Edgar J. Irick, then sued Dr. Andrew for damages, alleging the physician was negligent in four particulars: (1) failing to properly administer the x-ray treatment; (2) failing to keep a proper observation of the variables and factors important to a proper x-ray treatment; (3) failing to administer the proper x-ray dosage; and (4) giving the patient x-ray treatment for an excess period of time. Appellants further alleged that the person, instruments, equipment, and facilities causing harm to Miss Irick were under the exclusive control of the appellee and invoked the doctrine of Res ipsa loquitur.
At trial, the testimony outlined the nature of Dr. Andrew's treatment, the extent of the alleged radiation damage to Miss Irick's foot, and the means used to treat the resulting ulcer. It was shown that during the radiation treatment, Dr. Andrew had complete control of the x-ray equipment. Dr. Andrew, under questioning by appellants' counsel, testified to the probability of complications occurring if proper radiation treatment was given:
Q Doctor, would you therefore agree if the proper dosage is given there is no injury to the normal tissue and to the patient?
A Yes, sir.
Q And the proper treatment in this case would have been to kill the offending warts without injury, without causing injury to the normal tissue?
A Yes, sir.
Q And if the proper treatment is rendered to a patient there are no extra complications or results, are there?
A I wouldn't agree with that. Sometimes there are things that happen that can't be explained.
Q Doctor, would you agree that to exceed the tolerance dosage for normal tissue causes complications to the patient?
A Yes, sir.
Q In the ordinary course of things then, Doctor, injury to a patient does not occur if the proper care is used in the treatment planning of a patient?
A Ordinarily not, but again things happen sometimes that can't be explained.
Also, appellants had read into evidence the deposition of Dr. Warren M. Granberry, an orthopedic surgeon who treated the ulcer on Miss Irick's foot; he diagnosed the condition as a non-healed post-radiation ulcer. Miss Irick later testified that she had received no other x-ray treatment on her foot since that given her by Dr. Andrew in the summer of 1969.
The case was submitted to the jury on four special issues. In addition, the trial court submitted this instruction:
You are instructed that an unexpected result, bad result, failure to cure, or any other circumstance showing merely a lack of success, is not evidence of negligence on the part of the defendant physician; negligence cannot be inferred solely from a failure to cure or unexpected result.
In attempting to submit the case under the doctrine of Res ipsa loquitur, appellants requested...
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