Louis v. Parchman

• Decision Date: 23 March 1973
• Docket Number: No. 17373,17373
• Citation: 493 S.W.2d 310
• Parties: Donald Burton LOUIS et ux., Appellants, v. Dr. Hugh PARCHMAN, Appellee.
• Court: Texas Court of Appeals

Page 310

493 S.W.2d 310

Donald Burton LOUIS et ux., Appellants, v. Dr. Hugh PARCHMAN, Appellee.

No. 17373.

Court of Civil Appeals of Texas,

Fort Worth.

March 23, 1973.

Rehearing Denied April 20, 1973.

Baker, Foreman & Boudreaux, and Joe N. Boudreaux, Dallas, for appellants.

Cantey, Hanger, Gooch, Cravens & Munn, and William B. David, Estil Vance, Jr., and Richard L. Griffith, Fort Worth, for appellee.

OPINION

LANGDON, Justice.

This is a damage suit for personal injuries brought by Donald Burton Louis and wife, Marjorie A. Louis, against appellee, Dr. Hugh Parchman, a practicing physician in Fort Worth, Texas, for personal injuries in the form of a common peroneal palsy (foot-drop) of her right leg.

On June 6, 1966, plaintiff, Marjorie A. Louis, a white female 24 years of age, underwent an operation for hysterectomy and anterior and posterior vaginal repair in the Harris Hospital in Fort Worth, Texas. She was placed in the lithotomy position under general anesthesia. The operation was carried on for approximately an hour and 25 minutes, during which time her legs were suspended from straps protected by a rubber foam padding. Prior to the operation, the patient had no difficulty with her right leg in regard to foot-drop, pain or cramping. Following the operation, and in the recovery room, she complained of a feeling of numbness from the waist down.

The patient had done well post-operatively except that she developed a foot-drop (common peroneal palsy) of the right leg which persisted up to time of trial.

Plaintiffs, as appellants, appeal from the judgment in the court below, granting defendant/appellee's Motion for Directed Verdict.

This appeal from that judgment, which provided that plaintiffs recover nothing in their suit against the defendant, is based upon fifty-two (52) points of error.

We affirm.

The first ten points complain of the action of the trial court in rendering the judgment it did because, the appellants urge, there was sufficient evidence in the record to raise fact issues as to negligent acts or omissions to act and violations of established medical standards of care in the community on the part of the defendant (appellee) or those under his supervision or control, which would constitute a proximate cause of the injuries and damages sustained by the appellants.

The record on this appeal is fully developed as to the facts. The position of the appellee is clearly presented by both direct and cross-examination of the appellee and of the plaintiffs' expert witnesses. All of the expert witnesses, except the appellee, were plaintiffs' own witnesses. Doctors Tulloh and Scheihing, although under the direct supervision of appellee during the operation, were not parties to the suit and, therefore, did not qualify as adverse or hostile witnesses as to plaintiffs' case. Bell v. Umstattd, 401 S.W.2d 306 (Austin, Tex.Civ.App., 1966, writ dism.); Rule 182, Texas Rules of Civil Procedure.

' The test to be applied by an appellate court when considering the propriety of an instructed verdict is that such court should view all testimony adduced on the trial in the light most favorable to the losing party, disregarding all conflicts in testimony, and indulging in every reasonable deduction in favor of the party against whom the instructed verdict was granted. Godwin v. Roberts, 213 S.W.2d 571 (Tex.Civ.App.--Galveston 1948, writ ref'd n.r.e.); Humphreys v. Haragan, 476 S.W.2d 880 (Tex.Civ.App.--Amarillo 1972, no writ). If, under this test, there is no evidence to raise a fact issue to go to the jury, or the moving party is entitled to judgment as a matter of law, then the instructed verdict must be affirmed on appeal. Constant v. Howe, 436 S.W.2d 115 (Tex.Sup.1968); Shubert v. Fidelity & Casualty Company of New York, 467 S.W.2d 662 (Tex.Civ.App .--Houston (1st Dist.) 1971, writ ref'd n.r.e.).' Dalton v. Texas Sulphur Products, Inc., 482 S.W.2d 24 (Amarillo Civ.App., 1972, no writ hist.).

This Court in its application of the rule above enunciated has carefully reviewed all of the direct evidence contained in the record of this case which has any application to the fifteen (15) specific counts of negligence which are contained in the pleadings upon which the appellants base their cause of action. The primary sources of the direct evidence are:

(1) Dr. Hugh Parchman, the appellee, a surgeon. He began practice in 1962, was certified by the American Board of Obstetrics and Gynecology in April, 1965, and is a member of the American College of Obstetricians and Gynecologists.

(2) Dr. William Scheihing, a Board certified Obstetrician and Gynecologist specialist. He assisted in the operation. This witness had little or no recall of this particular operation and no recollection of any unusual event occurring during the surgery.

(3) Dr. James Newton Tulloh, the anesthesiologist. This witness who was necessarily present at all times during the operation did not have a great deal of specific recall. His testimony was to the effect that nothing remarkable occurred during the whole course of the operation.

(4) Dr. Robert Tuby, a licensed physician of New York. He is not a member of any special board in surgery or otherwise. This witness was appellants' non-treating expert witness, who met the appellants for the first time on the night before the trial. He did not read the depositions in the case and did not render a report.

(5) A consultation medical record dictated on June 10, 1966, by Dr . F. C. Rehfeldt.

The above sources of direct evidence in this case will hereafter be referred to by their last names.

In the paragraphs next following we will, in the interest of brevity, abbreviate and italicize the fifteen counts of negligence contained in the pleadings of the appellant and will follow each with a summary of the evidence relating thereto.

(1) Permitting pressure upon the right leg. There was no testimony in the record that pressure did occur by any action of the appellee or of his staff. No such pressure was noted by the appellee, Scheihing or Tulloh.

(2) Failing to inspect for pressure. The testimony is to the effect that the appellee did inspect. Scheihing had no recall. Tulloh inspected visually throughout the operation and it would be unlikely that pressure would have occurred without his knowledge.

(3) Failing to insulate from pressure. Only the ankle is touched and it is protected by foam rubber pads which were three inches thick, and, according to the testimony, sufficient to absorb any undue pressure.

(4) Failing to inspect for insulation from pressure. The appellee checked the straps. Tulloh stated there was no need to adjust the straps.

(5) This allegation is in effect the same as (3) above and the same testimony applies.

(6) In failing to instruct personnel against allowance of pressure . There was no need to so instruct because it did not occur.

(7) This allegation is essentially the same as (6) and the same testimony applies.

(8) Placing Mrs. Louis in such a manner that pressure occurred. Under the evidence she was placed in the lithotomy position and was checked for accuracy of placement. The lithotomy position is the correct position for this operation.

(9) Failing to prevent strain of the leg. The testimony was that in the lithotomy position there must be a slight bend in the knee and this alone can cause some stretching. There is no other evidence of stretching having occurred. If the legs are bent the only weight being held by straps is that of the legs and not the buttocks. The height of the stirrups was correct. There was no testimony that the buttocks were elevated off the table. Testimony was to the contrary, i.e., that Mrs. Louis was flat on her back.

Allegations (10), (11), (12) and (13) were essentially the same as (9) and the same testimony applies.

(14) Compressing the peroneal nerve. There is no expert evidence in the record concerning compression of the peroneal nerve. There is no evidence that it occurred.

(15) This allegation is essentially the same as (14) and the same evidence applies.

The above summary contains, in substance, all of the direct evidence pertaining to the specific counts of negligence alleged by the appellants.

In order to clarify some of the technical aspects of this cause a general summary of direct evidence is set forth in the paragraphs next following.

After the anesthetic had taken effect upon appellant, she was placed in the lithotomy position. This position is described as lying flat on the back with legs up in the air, suspended by stirrups which come right off the side of the table in a position where they bow out away from the table and go up. No part of the leg is touched at any point except for the ankles, which are protected by thick foam rubber pads placed around them. There must be a slight bend in the knee. The purpose of the foam rubber which goes underneath the strap and rests between the strap and the ankle is to relieve any direct pressure on the ankle itself by the holding strap. The reason for a slight bend in the knee is to give the surgeon maximum exposure to do the surgery. The exposure necessary to conduct the operation would be inadequate if the legs are straight up.

Prior to June 6, 1966, appellee had never had any unusual results or injury of any type from the use of the type of stirrups used and had never heard of any injury sustained from use of this type of stirrups either before or after June 6, 1966.

The physical act of placing Mrs. Louis in the lithotomy position was done by the nurses under appellee's direct supervision. He then inspected the entire apparatus and found that appellant's legs were in proper position.

Nothing unusual or out of the ordinary occurred during the course of the surgery. It went very smoothly. The operation was not interrupted for any reason during the surgery which required approximately one hour and twenty-five minutes. The legs were under the sheets and there is no...