Levermann v. Cartall

• Decision Date: 21 July 1965
• Docket Number: No. 14377,14377
• Citation: 393 S.W.2d 931
• Parties: Walter J. LEVERMANN et al., Appellants, v. L. M. CARTALL et al., Appellees.
• Court: Texas Court of Appeals

Page 931

393 S.W.2d 931

Walter J. LEVERMANN et al., Appellants, v. L. M. CARTALL et al., Appellees.

No. 14377.

Court of Civil Appeals of Texas, San Antonio.

July 21, 1965.

Morriss, Boatwright, Lewis & Davis, San Antonio, for appellants.

Groce, Hebdon, Fahey & Smith, San Antonio, for appellees.

BARROW, Justice.

This is a malpractice case. Appellants, Walter J. Levermann and wife, Mary D. Levermann, Brought two suits, individually and as next friends for their minor son, Larry Dean, seeking damages from appellees, Dr. L. M. Cartall and Dr. H. E. Newby, for the alleged negligence of each in failing to properly diagnose and treat a subdural hematoma sustained by the tenmonth-old baby in a fall from a highchair. These two suits were consolidated. It was stipulated that appellees, who were both general practitioners of medicine in Del Rio, were partners at all relevant times. The jury did not find that either of the defendants was negligent in his diagnosis or treatment of the minor, and a take-nothing judgment was entered on this jury verdict.

Appellants seek a reversal and assert that the trial court erred in the following respects: (a) in failing to permit the voir dire examination of each prospective juror to be conducted separate and apart from the panel; (b) in not excusing three jurors for cause, or granting appellants three additional peremptory challenges; (c) for inclusion of an improper and prejudicial instruction in the charge; (d) because of prejudicial argument of appellees' counsel; and (e) in its erroneous admission and exclusion of testimony.

Appellees assert by counterpoint that these points, even if asserting error, are immaterial in that appellants failed to show that any negligent failure on their part to diagnose and treat the subdural hemotoma was a proximate cause of any injuries suffered by appellants. The applicable rule in malpractice cases was stated by the Supreme Court in Bowies v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782, 13 A.L.R.2d 1, as follows:

'It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient's injuries.'

Appellees' counterpoint presents a 'no evidence' point and requires us to review the record in the light most favorable to appellants. Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126; White v. White, 141 Tex. 328, 172 S.W.2d 295.

About 6:30 p. m. on Tuesday, July 19, 1960, Larry was standing in his highchair, which was twenty-one inches high, when it turned over. He cried very violently for fifteen or twenty minutes after this fall and several times during that night. There were bruises on his left hip and left forehead, which were visible several days. The next afternoon he vomited after returning home from a birthday party. Mrs. Levermann testified that after Larry vomited she telephoned Dr. Cartall, who told her that children fall and the time, and that the boy probably had an upset stomach. He gave her a prescription which was given the baby. Larry was very restless that night and after he vomited again late the following day Mrs. Levermann took him to Dr. Cartall. He examined the baby and said all he could find was a red throat, and gave a prescription for it. By Friday, July 22, Larry was weak and could not keep anything on his stomach. Dr. Cartall was telephoned again and he sent suppositories to control the vomiting. On Saturday, July 23, Larry's eyes crossed, with his left eye turning in. They had never crossed before; they remained crossed until August 3, when Dr. Munslow performed an operation and removed fluid from the child's brain. Dr. Cartall came by appellants' home on Saturday morning and after examining Larry said that he was teething.

On Saturday night, July 23, Dr. Newby, who was Larry's regular doctor, returned from out of the city. He was telephoned by Mrs. Levermann and advised of Larry's fall, his drowsiness, vomiting and the medications given by Dr. Cartall. On Sunday morning Dr. Newby came to appellants' home in response to Mrs. Levermann's telephone call, and, after examining Larry and again being advised of the history, including the fall, said that Larry probably had a virus and was dehydrated. Larry was placed in the hospital where he remained until Tuesday, July 26. Dr. Newby told Mrs. Levermann that Larry's crossed eyes were probably a result of his weakened condition. He vomited again on the 27th and Dr. Newby sent medicine to quiet the child's stomach. Mrs. Levermann telephoned Dr. Cartall again on the 27th and he said the history sounded like a deep-seated virus and the treatment of Dr. Newby was proper. On July 28 or 29, Mrs. Levermann again called Dr. Newby who advised continuation of the prescribed medication. On July 31 she called Dr. Cartall and requested the recommendation of a clinic to treat the child. Dr. Cartall suggested that she see a pediatrician in San Antonio.

Shortly thereafter, she wrote down a full history, including the fall, and telephoned Dr. Dimmitt of Uvalde, who had formerly been their family physician. He recommended that the boy be immediately taken to San Antonio and seen by Dr. Munslow. This was done on Sunday, July 31. Dr. Munslow examined the boy and on August 1 did a bilateral subdural tap and removed 90 cc. of fluid from his brain. On August 3, Dr. Munslow performed an operation and cleaned out the subdural hematoma, and Larry was dismissed three days later.

Several months later, Larry started having trouble with his left eye turning out, and was treated by an eye specialist, Dr. Frink, of McAllen. He performed an operation, but the boy still has trouble with his left eye and has little vision in same.

Appellees assume in this counterpoint that there is sufficient evidence to support a jury finding of negligence in their not discovering and treating the subdural hematoma, but urge there is no evidence to show that any damage was done by this delay.

Dr. Hogan, an eye specialist, testified that Larry has suffered nearly a total loss of vision in the left eye and gave the following reasons for the disability:

'Q. Now Doctor, bearing the facts that I have related to you in mind, ¹ I want to ask you whether or not you have an opinion as to the reasonable medical probability of whether the damage found to the left eye is due to long continued intracranial pressure, due to the subdural hematoma?

A. I believe that.

Q. That is your opinion?

A. This the most probable.

Q. And is it or not your opinion that in reasonable medical probability that long continued unrelieved intracranial pressure due to the subdural hematoma is what caused the loss of the sight of the eye, the left eye, rather than damage due to-I mean damage at the time of the fall?

A. That is most probable.'

Dr. Terrell, a McAllen pediatrician, who had examined Larry about eight months before the fall, testified that Larry's eyes were normal at that time. Dr. Dimmitt, a general practitioner of Uvalde, testified that a general practitioner of this area should have recognized from Larry's symptoms that there was intracranial pressure and that appellees had not exercised the standard of care in this case of an average general practitioner in this area.

The evidence, when viewed most favorably to appellants, amounts to more than a scintilla that the delay in diagnosis and in relieving the intracranial pressure was a proximate cause of some damage sustained to Larry's left eye. Appellees' counterpoint is overruled.

The trial court properly defined 'negligence' as the failure to use 'ordinary care,' which is the use of that degree of care 'which medical doctors of ordinary knowledge and skill, engaged in the general practice of medicine in Del Rio and the general vicinity thereof, would use in the diagnosis and treatment of the patients under the same or similar circumstances.' Bowles v. Bourdon, supra. This definition was followed by a standard definition of 'proximate cause.' Following this definition was the instruction complained of by appellants: 'You are further instructed as a part of the law of this case, that a medical doctor is not an insurer or guarantor of his work; neither is he responsible in law for an honest mistake in judgment, unless such mistake is due to a want of ordinary care, as the term 'ordinary care' has been defined hereinbefore.'

Appellants objected to this instruction as being a general charge, being on the weight of the evidence, informing the jury of the legal effect of an honest mistake in judgment, being without support in the pleadings or evidence, and because no issue of honest mistake was submitted in the charge.

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