Lee v. Dewbre
| Decision Date | 26 November 1962 |
| Docket Number | No. 7191,7191 |
| Citation | 362 S.W.2d 900 |
| Parties | Dr. Bill LEE, Appellant, v. James DEWBRE et al., Appellees. |
| Court | Texas Court of Appeals |
Evans, Pharr, Trout & Jones, Lubbock, for appellant.
Crenshaw, Dupree & Milam, Huff & Bowers, Lubbock, for appellees.
This is an appeal from an order overruling appellant's plea of privilege in a malpractice suit brought by appellees, James Dewbre and wife, against appellant, Dr. Bill Lee, and Dr. J. Walker Davis. Appellees seek to recover for injuries alleged to have been sustained by Mrs. Dewbre resulting from the birth of a child. At the time this occurred, both doctors resided in Cochran County, Texas, but, at the time the suit was filed, Dr. Lee was a resident of Castro County and Dr. Davis was a resident of Lubbock County. Both doctors timely filed their pleas of privilege to remove the case from Cochran County, and asked that the suit be transferred to the counties of their respective residences. Controverting affidavits sought to maintain venue in Cochran County under Subdivisions 9 and 9(a) of Article 1995, Vernon's Ann.Tex.Civ.St., the subdivisions relating to alleged acts of negligence. The trial court sustained Dr. Davis' plea of privilege and overruled the plea of privilege of Dr. Lee. No appeal from the order sustaining Dr. Davis' plea of privilege has been perfected.
Plaintiffs below alleged two acts of negligence on the part of Dr. Lee, to-wit: In attempting to deliver Mrs. Dewbre's baby prematurely; and in abandoning the patient in the hospital at a time when in the exercise of that standard of care of doctors in and around Cochran County, he knew, or should have known, the patient was critically ill by virtue of profuse internal bleeding without making any arrangements for medical care. It was further alleged these acts of negligence were the proximate cause of Mrs. Dewbre's injuries.
After being a patient of Dr. Lee during six or seven months of pregnancy, Mrs. Dewbre was admitted to the hospital in Morton on Friday, July 8, 1960, at 9:00 o'clock p. m. She testified she had a pain in her side but Dr. Lee's examination revealed to his satisfaction that she was due to deliver her child in a relatively short time. Drugs were administered but her condition had not progressed by midnight and Dr. Lee left the hospital. An examination the next morning indicated to Dr. Lee the baby would be born soon. The baby was born at 1:50 o'clock p. m. Saturday, July 9. Immediately thereafter extensive internal bleeding became evident and Mrs. Dewbre went into shock. Numerous blood transfusions were given to her in addition to other medications, and efforts to stop the bleeding were begun. Some two hours after the child was born, Dr. Davis was called to assist Dr. Lee. Both doctors proceeded to repair a laceration of the womb and vaginal packs were applied. Hospital records reveal Mrs. Dewbre's pulse and blood pressure went to zero during this period but became stronger after four or five hours, and that her bleeding was reduced during the night. The baby, after being born in apparent good health, died at 11:00 o'clock p. m., some nine hours after its birth. The record does not disclose the cause of the child's death. Dr. Lee remained with the patient until sometime after midnight of that date and returned to the hospital the next morning. Dr. Lee did not treat Mrs. Dewbre after this Sunday morning visit, but left town and did not see her again until after this suit was filed. Although there is some conflict in the evidence, it is evident she was visited and treated by Dr. Davis after the absence of Dr. Lee until about noon, Tuesday, July 12. At that time, Mrs. Dewbre was transferred to the hospital in Levelland, Texas. She was then treated by Dr. Harrison of that city. Some twelve hours after she was admitted to the Levelland hospital, Drs. Harrison and Selby performed a hysterectomy. She was released from that hospital some ten days later.
Appellant's points of error raise the questions both of no evidence and insufficient evidence to support the alleged acts of negligence of Dr. Lee. We will first consider the law question of no evidence concerning the alleged negligent acts of Dr. Lee in attempting to deliver the baby prematurely. In dealing with this phase of the malpractice case, it is well settled that this act of negligence and its proximate cause must be proved by medical evidence by a doctor of the same school of practice as the defendant. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1. The record contains testimony by Dr. Harrison in addition to testimony by Drs. Lee and Davis. Detailed hospital and nurses records were also introduced to show the treatment and medications administered to Mrs. Dewbre. Although a great deal of difficulty was incurred in the delivery of Mrs. Dewbre's child, there was no medical evidence presented to the effect that Dr. Lee was negligent in the method or manner in which he treated the patient. It is not necessary to outline the evidence in this regard, but it is sufficient to say that all doctors who testified stated that the treatment given by Dr. Lee was in accordance with good medical practices and that usual procedures were performed. In view of our holding there is no evidence to support this alleged act of negligence, it is unnecessary to pass on the fact question of insufficient evidence.
The remaining points of error deal with the alleged act of abandonment of Mrs. Dewbre by Dr. Lee. It is undisputed that Dr. Lee attended Mrs. Dewbre at frequent intervals and for rather lengthy periods of time from the time she was admitted to the hospital until approximately 11:00 o'clock a. m. on Sunday, July 10. It is also undisputed that Dr. Lee left Mortion that Sunday afternoon and did not treat her thereafter. The evidence is disputed as to when and if Dr. Lee did in fact notify the Dewbres he was leaving town. There is also some dispute concerning the treatment and attention given the patient by Dr. Davis after Dr. Lee left although the hospital records bear out Dr. Davis' testimony that he did visit and prescribe...
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