Moore v. Ivey

• Decision Date: 09 May 1924
• Docket Number: (No. 8521.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: MOORE v. IVEY et al.
• Court: Texas Court of Appeals

264 S.W. 283

MOORE v. IVEY et al.

(No. 8521.)^*

Court of Civil Appeals of Texas. Galveston.

May 9, 1924.

Rehearing Denied June 5, 1924.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Suit by Ruby Carter Ivey, joined pro forma by her husband, B. J. Ivey, against John T. Moore. Judgment for plaintiffs, and defendant appeals. Affirmed.

Andrews, Streetman, Logue & Mobley, of Houston, for appellant.

Woods, King & John, of Houston, for appellees.

LANE, J.

This suit was brought by Ruby Carter Ivey, joined pro forma by her husband, B. J. Ivey, against Dr. John T. Moore, to recover damages in the sum of $25,750.

The plaintiffs alleged:

That Dr. Moore had been by them employed to perform an operation upon the body of plaintiff, Mrs. Ruby Carter Ivey; "that as a part of said operation the defendant used certain gauzes and sponges, and after the defendant had made the incision and opened said plaintiff's body, and as a part of said operation, which defendant had agreed to skillfully perform, there were placed in plaintiff's body certain pieces of gauze and sponge, commonly used by surgeons in performing such operations, and that the defendant was guilty of inexcusable negligence in the performance of said operation in failing to remove a piece of gauze or sponge so placed in said plaintiff's body, as the result of which said plaintiff has suffered great pain of both body and mind, and a serious and permanent impairment of her health, as more particularly hereinafter described; that the defendant was guilty of negligence in the performance of said operation, which was the proximate cause of plaintiff's injury, suffering, and impairment of health, and without which acts of negligence plaintiff would not have suffered, in the following particulars, to wit:

"(a) In leaving a piece of gauze or sponge, approximately 6 inches wide and 18 inches in length, in said plaintiff's body when the wound was closed.

"(b) In not using said gauze or sponge in a careful, prudent, and skillful manner.

"(c) In not removing said gauze or sponge from the body of plaintiff before closing said wound.

"(d) In closing up the wound in plaintiff's body without removing said gauze or sponge from the body."

The defendant answered by general demurrer and general denial.

The cause was tried before a jury, who, in answer to special issues propounded to them, found:

(1) The defendant, in the operation done on Mrs. Ivey, did use and fail to remove a sponge or bit of gauze before closing the incision.

(2) The failure of the defendant to remove the sponge or bit of gauze used in said operation was negligence on his part.

(3) As a proximate result of such negligence plaintiff suffered injuries complained of.

(4) Her damages resulting from such negligence amount to $8,750.

Upon the verdict of the jury judgment was rendered in favor of Mrs. Ruby Carter Ivey against Dr. John T. Moore for the sum of $8,750. From such judgment Dr. Moore has appealed.

Appellant submits as reasons for a reversal of the judgment substantially the following:

First. That the finding of the jury that appellant, Dr. Moore, in the operation done by him on Mrs. Ivey, did use and fail to remove a sponge or bit of gauze before closing the incision is so against the weight and preponderance of the evidence as to be clearly wrong, and should be by this court set aside.

Second. That, if it be conceded that Dr. Moore left the sponge in the body of Mrs. Ivey, as found by the jury, such fact alone is not sufficient to support a further finding that Dr. Moore was negligent in performing the operation, and that, as there was no other evidence tending to show negligence on the part of Dr. Moore, the finding of the jury upon that issue should be set aside.

Third. That the finding of the jury that Dr. Moore left the sponge in the body of Mrs. Ivey was probably brought about by the misconduct of the jury in discussing matters not in evidence.

Fourth. That the judgment was excessive in amount, and that such excess was brought about by the misconduct of the jury in discussing matters not in evidence.

These complaints may, we think, be reduced to but three, to wit: First, that the finding of the jury that Dr. Moore left the sponge or gauze in the body of Mrs. Ivey is so against the weight and preponderance of the evidence as to be clearly wrong, and therefore the same should be set aside and the judgment based thereon reversed; second, that the jury was guilty of misconduct, and that such misconduct probably brought about the finding that Dr. Moore left the sponge or gauze in the body of Mrs. Ivey; and, third, that such misconduct of the jury probably brought about an excessive award.

We shall consider these complaints in the order named.

It was shown that Mrs. Ivey gave birth to her first child in 1914, and that during the two years intervening between the birth of her first child and the birth of her second child in 1916 her health got worse, and that she remained in ill health from that time up to June, 1920, at which time Dr. A. A. Nelson, of Nacogdoches, performed an operation upon her. This operation became necessary because of lacerations following the birth of her child, which caused a displacement or what is commonly known as falling of the womb. In this operation her abdomen was opened and the womb was suspended, and at the same time her appendix was removed and a small cyst on one of her ovaries was punctured. In the performance of this operation Dr. Nelson was assisted by Dr. Barham and nurses at the Nacogdoches Hospital, where the operation was performed.

Mrs. Ivey testified that after the operation performed by Dr. Nelson in June, 1920, she remained in bed about twelve days, and in about two weeks thereafter she was able to be up, and around the house; that after she left the hospital and went home she began to gain strength and felt fine, better than she had for a long time, and that within 3 months' time she was feeling better than normal; that she felt unusually well, and that in the third month after said operation by Dr. Nelson she released her servant and began to do her own housework, and continued to do so; that she did all of her cooking, housecleaning, and sewing, and also attended to her children; that she continued to do such work up to April, 1921; that in April, 1921, she had an attack of acute bladder trouble, and suffered intense pain in the bladder, which continued until she went to Houston in November, 1921, and was operated on by Dr. Moore; and this trouble was the cause of her going to Houston to see Dr. Moore: that she came to Houston to have a kidney operation performed by Dr. Moore; that Dr. Moore performed the kidney stone operation, and removed the stone; that after such operation she returned to her home in Nacogdoches in December, 1921; that she was confined to her bed most of the time through December, but improved some in January, 1922, and gained a little strength, and felt fairly well except for soreness and bloat in her left side; that her left side felt like it was swollen, and that through the month of February, 1922, she suffered a great deal of pain in her left side — felt like something rubbing together in her side; that after the Moore operation she stayed in her house for the first three months because of her weak condition and the soreness in her left side, and in about three months after the Moore operation she had a hard chill, which was followed by fever; that she had three chills in one day at first, along about the 1st of March, 1922; that she continued to have these chills and fevers for a week, and then in about ten days she had another spell of chills, and these spells came on periodically, about ten days intervening between them; that during these spells she suffered intense pain in her side and bladder; that she called in Dr. Nelson, and he gave her prescriptions for the purpose of relieving her troubles, and about April she began to get over the chills — that is, they were lighter, and she felt some better — but in May she had another spell of chills, and they were accompanied by a painful urination, pain in her bladder, and keen pains in her intestines for about a week, and along about the last part of May she had a slight spell of diarrhea, and the pains became so severe as to make her sick; that on the 13th day of June, 1922, a piece of gauze passed through her intestines; that as this gauze was about to pass she caught hold of it, and tore a piece off the end of it; that she realized that she could not pull the gauze from her intestines, as it would rebound, and pain would come in her side around her kidneys when she pulled it; that she finally got Dr. Barham, of Nacogdoches, who came and removed the gauze through the rectum with a pair of tweezers; that when the gauze was removed she felt pain and a pull in her side; that she could feel the gauze uncoil coming down her intestines, and it pained her, and felt as though it had adhered to the intestines or side; that it felt like it had pulled loose from something around or about her kidney; that the gauze removed was about 18 inches long after it was sterilized and straightened out. The witness here identified a piece of gauze shown her as being that taken from her, which was about 8 inches wide and 32 to 34 inches in length. Dr. Barham removed the gauze on the 13th day of June, 1922.

She further testified that from the time she was operated on by Dr. Moore in November, 1921, she had not been able to be up and attend to her work, and that ever since said operation she had suffered with soreness in her left side; that she suffered a "stuffed" pain in her left side; that she was bloated and her left side felt like it was stuffed full of something; that when she drew a long breath she suffered severe pains in her left side near the scar left by the incision made by Dr. Moore (here she explained other pains in her left side); that she also...