McMillin v. L.D.L.R.

• Citation: 645 S.W.2d 836
• Decision Date: 28 October 1982
• Docket Number: No. 1974,1974
• Parties: Theodore R. McMILLIN, Jr., Appellant, v. L.D.L.R., Appellee. cv.
• Court: Court of Appeals of Texas

Page 836

645 S.W.2d 836

Theodore R. McMILLIN, Jr., Appellant, v. L.D.L.R., Appellee.

No. 1974cv.

Court of Appeals of Texas Corpus Christi.

Oct. 28, 1982.

Rehearing Denied Nov. 18, 1982.

Scott T. Cook, Harris, Cook & Browning, Corpus Christi, Thomas H. Crofts, Groce, Locke & Hebdon, San Antonio, Paul Q. O'Leary, O'Leary, Sanchez & Benton, P.C., Brownsville, for appellant.

R.K. Whittington, Stapleton & Whittington, Alex Huddleston, Skaggs & Huddleston, Harlingen, for appellee.

Before BISSETT, YOUNG and KENNEDY, JJ.

OPINION

KENNEDY, Justice.

This is a medical malpractice case instituted by appellee against Drs. Theodore McMillin and Jackie Stephenson, arising out of an operation performed upon him. Dr. McMillin is the only appellant before this Court.

The testimony from the trial court is voluminous. Stated as briefly as possible, the facts are as follows: Appellee, a man of 42 years at the time of trial, had been suffering recurring problems with a stricture, or obstruction, in his urethra since his late teens or early twenties. The urethra is that portion of the male urinary tract which carries urine from the bladder through the penis to the meatus or opening at the head of the penis, so that it may be passed. The recurring stricture thus impeded appellee's ability to urinate, and had necessitated periodic visits to a doctor who, by the insertion of instruments called "sounds," was able to restretch the urethra at the point of stricture and alleviate the problem.

In 1975 appellee, having heard of various procedures which might remedy his problem once and for all, made an appointment to see Dr. Stephenson, a urologist. Dr. Stephenson was engaged in practice with Dr. McMillin. Appellee testified that he had heard of both Drs. Stephenson and McMillin, and was aware that they were in practice together, but that it was Dr. Stephenson to whom he had been referred, and Dr. Stephenson with whom he wished to consult.

The operation which was discussed, and eventually performed, is known as a Devine patch graft urethroplasty, and entails the removal of the affected portion of the urethra and the reconstruction of it using a skin graft. When available, the foreskin of the penis is the preferred donor site for the skin graft. When unavailable, as with a circumcised man such as appellee, a strip of skin may be taken from the shaft of the penis itself. Drs. Stephenson and McMillin followed the latter procedure.

The results of the operation, performed by Dr. Stephenson with Dr. McMillin assisting, were, as far as appellee was concerned, disastrous. He felt that his penis was deformed, and it was necessary for him to have a second operation performed by a Houston plastic surgeon, Dr. Raymond Brauer, seven months later. Dr. Brauer stated that when appellee came to him, his penis was exceptionally short for a man of his size, and that appellee was complaining of constriction and pain upon erection. The evidence firmly established that the Devine patch graft procedure should not result in the shortening of the penis.

Dr. Brauer found that the shaft of appellee's penis had been retracted into the abdominal wall, to which he attributed the painful restriction appellee felt during erection. Dr. Brauer released the shaft from its retracted position, and grafted a new piece of skin to the penis itself to replace that taken during the first operation and used for reconstructing the urethra.

In response to special issues the jury found appellee entitled to $10,000 for time lost from work in the past, and for past and future medical expenses. For past and future physical pain and mental anguish the jury awarded appellee $800,000. Liability was predicated upon the following findings:

1. That Dr. McMillin failed to explain to appellee the operative procedure or those risks, complications, dangers, or hazards of the Devine patch graft urethroplasty which would have been explained by a reasonable medical practitioner of the same school and in the same or similar community under the same or similar circumstances situated as was Dr. McMillin.

2. That had these risks, complications, etc. been properly explained, appellee, acting as a reasonably prudent person, would not have permitted Drs. Stephenson and McMillin to perform the operation.

3. That Dr. Stephenson was negligent in removing a greater amount of skin from the shaft of the penis to be used as a skin graft than was necessary, and that such was a proximate cause of appellee's injuries.

4. That Dr. McMillin was negligent in failing to warn Dr. Stephenson during the operation that he was removing too much skin from appellee's penis, and that such was a proximate cause of appellee's injuries.

5. That Dr. Stephenson was negligent in failing to replace the skin taken from the shaft of the penis with a skin graft from some other portion of appellee's body, and that such was a proximate cause of appellee's injuries.

6. That Dr. McMillin was negligent in failing to warn or advise Dr. Stephenson during the operation that he should replace the skin removed from the penis with a skin graft from some other portion of appellee's body, and that such a proximate cause of appellee's injuries.

7. That Dr. Stephenson was negligent in sewing the appellee's scrotal skin to a point at the level of the corona of his penis, and that such was a proximate cause of appellee's injuries.

8. That Dr. McMillin was negligent in failing to warn Dr. Stephenson during the operation that he should not sew the scrotal skin to a point at the level of the corona of appellee's penis, and that such was a proximate cause of appellee's injuries.

In ten points of error Dr. McMillin attacks the judgment. We will first address points seven, eight and nine which attack both the legal and factual sufficiency of the evidence to support the jury's finding concerning, respectively, the amount of skin removed from appellee's penis, a replacement skin graft, and the sewing procedure. In determining the merits of the no evidence points we consider only the evidence and inferences tending to support the trial court's findings and disregard any contrary evidence and inferences. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Bodine v. Welders Equipment Co., 520 S.W.2d 407, 411 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.). In reviewing the contentions that the evidence is factually insufficient to support the findings of the lower court, we will review all of the evidence and set the verdict aside if it is manifestly unjust. In re Kings Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1952); Bodine v. Welders Equipment Co., supra.

It is incumbent upon the plaintiff in a malpractice action sounding in negligence to show by expert testimony that the acts complained of were such as would not have been performed by a medical practitioner of the same school practicing in the same locale. See Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1966); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949). This burden of proof regarding negligence, as well as that regarding probable cause, can be established by circumstantial evidence. Birmingham v. Gulf Oil Corp., 516 S.W.2d 914, 917 (Tex.1974); Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 275-6 (1958).

As regards the findings concerning the amount of skin removed from appellee's penis, the evidence tended to show that the strip removed was a band measuring twelve centimeters by three centimeters, or the following size:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

There were a number of expert witnesses, some of whom had examined appellee personally, and some of whom had not. Among the former was Dr. Brauer who testified that a three centimeter strip is a "pretty good sized strip' but would not necessarily be too much depending on how much penile skin was available. He stated that the fact that he found the shaft of the penis retracted into the abdominal wall could be attributable to the remaining penile skin having been stretched upward to cover the area from which the graft had been taken. Testimony by Dr. Brauer and others, including Dr. Charles J. Devine, Jr. after whom the Devine patch graft urethroplasty was named, showed that given that not too much skin is removed from the penis for grafting purposes, this stretching upward of the skin closer to the base of the organ to cover the denuded area is an acceptable operating procedure, which may result in a penis that appears shorter cosmetically, but which in fact is not because the shaft remains unchanged. In the instant case, however, the shaft did not remain unchanged. Dr. Brauer opined that the retracted shaft could be due to the removal of too much skin for the graft, resulting in insufficient remaining skin to accomodate the shaft when stretched upward. Dr. McMillin stated that if too much skin is removed, erection will not be comfortable and will result in the bending of the penis. This effect is called "bowstringing." Dr. Brauer's testimony was substantially the same, and established that appellee was suffering this effect. The jury was entitled to infer from this evidence that too much skin had been removed, and that such was a proximate cause of appellee's injuries.

As concerns the findings regarding failure to replace the skin removed from appellee's penis, the expert testimony, including that of Dr. McMillin, established that if too much skin is removed from the donor site, it should be replaced by grafting skin taken from another appropriate donor site, such as the abdomen. Upon releasing appellee's penis during the second operation, this is precisely what Dr. Brauer did. This evidence, coupled with the evidence supporting the previous findings, supports these findings.

The last act occurring during the course of the operation which the jury found to be negligence and a proximate cause of appellee's injuries was the suturing of appellee's scrotal skin to a point at the level of...