Lenger v. Physician's General Hospital Inc.

• Decision Date: 21 February 1969
• Docket Number: No. 16992,16992
• Citation: 438 S.W.2d 408
• Parties: Dennis H. LENGER, Appellant, v. PHYSICIAN'S GENERAL HOSPITAL INC., et al., Appellees. . Fort Worth
• Court: Texas Court of Appeals

Page 408

438 S.W.2d 408

Dennis H. LENGER, Appellant, v. PHYSICIAN'S GENERAL HOSPITAL INC., et al., Appellees.

No. 16992.

Court of Civil Appeals of Texas Fort Worth.

Feb. 21, 1969.

Rehearing Denied March 14, 1969.

Hooper, Steves & Kerry, and Sterling W. Steves, Fort Worth, for appellant.

Cantey, Hanger, Gooch, Cravens & Scarborough, and William B. David and Richard L. Griffith, Fort Worth, for appellee, Physician's General Hospital, Inc.

Crumley, Murphy & Shrull, and Franklin Moore, Fort Worth, for appellee, Pauline Jones.

OPINION

MASSEY, Chief Justice.

The appeal is by plaintiff Dennis H. Lenger. Judgment was rendered pursuant to an instructed verdict in favor of defendants whom the plaintiff averred to be liable to him for damages flowing from negligent tort. They were Physician's General Hospital, Inc., a private corporation, which was alleged to be independently negligent and also vicariously under the doctrine of Respondeat superior because of the negligence of Pauline Jones acting as and posing as a Licensed Vocational Nurse (though not so licensed), Pauline Jones, and Berdena Hightower, d/b/a Adamson Nurses Registry, who had sent Mrs. Jones to the Physician's General Hospital as a Licensed Vocational Nurse.

Instruction of the verdict in favor of the defendants was because of the trial court's holding that despite the existence of fact issues upon their negligence, there was a complete absence of probative evidence raising the issue of proximate cause of plaintiff's injuries. With such holding we are in accord.

Judgment affirmed.

In Hart v. Van Zandt, 399 S.W.2d 791, at page 797 (Tex.Sup., 1965), the Supreme Court reversed this court (our opinion at 383 S.W .2d 627), stating that 'The Court is of the opinion that it would be unrealistic to hold that the above described testimony does not present a question of fact upon which reasonable minds could differ (concerning the existence of proof upon negligence amounting to proximate cause sufficient to entitle the plaintiff to go to the jury).' We have tested the evidence in the case before us in light of the statement quoted from the case cited to determine whether there would be any liberalization thereof which would entitle us to make such statement here. We have concluded that we are not so entitled.

The essential facts are as follows: (1) On August 10, 1965, a Dr. Rainone performed a colon resection to remove a cancerous growth located in the middle of the transverse section of the colon. (2) Upon being moved to his room following the operation plaintiff was in bed, under morphine sedation, being fed intravenously in the arm with a dextrose-lactate solution, and apparently at all times there was a Levin tube inserted through his nose going into his stomach, which was kept evacuated through such tube by a suction pump. (3) On August 11, 1965, such condition persisted. Dr. Rainone's explicit instructions to the hospital were that nothing whatever was to be fed plaintiff by mouth, of which instructions all personnel connected with plaintiff's case were aware, or in the exercise of ordinary care were chargeable with the duty of being aware. Pauline Jones was the nurse on duty with plaintiff, purportedly as a Licensed Vocational Nurse. (4) On August 12, 1965, Pauline Jones went on duty on plaintiff's case, in his room, at 7:00 o'clock A.M. At 7:45 o'clock A.M. a tray of food was brought to the room with a slip indicating that it was to be served plaintiff. Dr. Rainone's explicit instructions that plaintiff was not to be fed by mouth had never been changed. It was through negligent error on the part of an unidentified employee in the hospital's dietary department that the food had been prepared and sent to plaintiff's room. Indeed, on the day's diet sheet were prescribed three low residue meals for plaintiff. (5) When Pauline Jones prepared to feed plaintiff breakfast on August 12, 1965 he protested . Although still under morphine sedation he imparted to her his understanding that he was not supposed to eat anything. He asked her to call Dr. Rainone. Pauline Jones told him that he should eat the food; that if that were not so it would not have been sent to him. She refused to call the doctor. She fed him the breakfast, of eggs, bacon, toast and coffee. (6) At noon on that day, August 12, 1965, the process was repeated, Pauline Jones feeding him again. The meal consisted of chicken and dressing. Afterward the Levin tube running into plaintiff's stomach became clogged with food. A nurse attempted to irrigate the tube because of the clogging. Plaintiff's afternoon was uncomfortable. He refused to eat the meal brought to him that evening. (7) On August 13, 1965, no attempt was made to feed the plaintiff any food by mouth. Apparently Dr. Rainone's instructions were strictly followed on and from that date. Beginning August 15th plaintiff was given Seven-Up and ice chips as the only items to be received by mouth. (8) On August 16, 1965 plaintiff first began to receive food by mouth pursuant to the orders of Dr. Rainone. On that date he was started on a liquid diet . This diet included jello, beef broth, the thicker soups with soft particles in them, milk, ice cream, certain cooked cereals, and soft drinks such as Seven-Up, Ginger Ale, etc. During this time plaintiff's intravenous feeding was continued.

On August 20, 1965 plaintiff was again operated on by Dr. Rainone. Pursuant to findings upon re-entry the doctor discovered at the site of the first operation that the two ends of the colon, where the colon resection was sutured together upon the occasion of the initial operation, had come completely apart. There was gas and fecal material free in the abdominal cavity. A portion of the small intestine had forced or inserted itself in or under the portion of the colon where the resection had been sutured but had pulled apart or been forced apart. One result of the movement of the small intestine, resulting in a mechanical obstruction of the small intestine, was that it filled with gas and fecal material and its own secretions. This created pressure underneath the colon, forcing the colon in two.

Dr. Rainone testified that the gas and fecal matter free in the peritoneal cavity had escaped from the colon (obviously from the break in the colon where it had formerly been sutured), and that its presence existed because of or through food received through the mouth at some time. At no point in his testimony did he ever give an opinion as to the time of such food ingestion. Neither did he ever express any opinion as to the particular type of food which formed the fecal matter, i.e., whether it was formed from and as the result of food ingested on August 12, 1965, or as the result of food ingested on August 16, 17, 18, or 19. Neither did the doctor express an opinion as to whether the operation performed on August 20, 1965 was made necessary either in whole on in part because of the presence of the gas and/or fecal matter found upon re-entry to be loose in the abdominal cavity. We can safely assume that such operation was made necessary because of the separation of the colon; but, without medical evidence, we cannot make the assumption that it was made necessary because of the presence of the fecal matter. Dr. Rainone did testify that because of the presence of the fecal matter found on August 20, 1965 the infection therefrom resulting made a procedure necessary which left affairs in such state that a future operation was required (performed a few weeks later), pursuant to which the remedial procedures made impossible on August 20th because of the condition of infection then obtaining could be successfully undertaken after the infection was controlled. Therefore there would be evidence that presence of the fecal matter caused occasion for one operation as well as the disability incident to treatment preparatory thereto. The doctor testified that in the operation of August 20, 1965 the condition found to be existent in the small intestine was corrected.

At a critical point in the direct examination of Dr. Rainone by counsel for plaintiff the following occurred:

'Q. * * * Based upon your findings which you have just described a few minutes ago that you found a mechanical small bowel, an intestinal obstruction which involved almost entirely the small bowel, and which you said had herniated, or had a hole in it, in the colon and had twisted, and that the ends of the colon you had joined together, had sutured together before had come apart. That you had a leak at...