Porter v. Puryear

• Decision Date: 02 December 1953
• Docket Number: No. A-4238,A-4238
• Citation: 262 S.W.2d 933,153 Tex. 82
• Parties: PORTER et al. v. PURYEAR.
• Court: Texas Supreme Court

Page 933

262 S.W.2d 933

153 Tex. 82

PORTER et al. v. PURYEAR.

No. A-4238.

Supreme Court of Texas.

Dec. 2, 1953.

Rehearing Denied Jan. 13, 1954.

Klett, Bean & Evans and Trout & Jones, Lubbock, Stephen L. Mayo and J. Edwin Fleming, Dallas, for petitioners.

Bob Huff and J. H. Splawn, Jr., Lubbock, for respondent.

CALVERT, Justice.

Monte Puryear, as plaintiff, sought by his suit against Dr. G. G. Porter and Dr. J. A. Finer, osteopathic physicians, and T. W. Baker, the three defendants, to recover damages for personal injuries growing out of the alleged negligence of Baker in injecting a spinal anesthetic into plaintiff's spine somewhere between the first lumber and sixth dorsal vertebrae. In response to jury findings on special issues the trial court rendered judgment for plaintiff for the sum of $134,800. The Court of Civil Appeals reversed the judgment and remanded the cause for retrial. 258 S.W.2d 182.

Both the plaintiff and the defendants, Porter and Finer, applied to this court for writ of error and both aplications were granted.

The major complaint of all parties relates to the holding of the Court of Civil Appeals that there is no evidence to support the jury's finding that the negligent administration of the spinal anesthetic was a proximate cause of plaintiff's injuries. A careful examination of the record as it comes to us reveals that we cannot, on this appeal, give either the plaintiff or the defendants the relief they seek from that holding, as will be manifest.

The contention of the plaintiff is that there is ample evidence to support the jury's finding on the proximate cause issue and that we should therefore reverse the judgment of the Court of Civil Appeals and affirm the trial court's judgment in his favor. But we cannot do this because the Court of Civil Appeals also held, on a point of error properly before it, that the jury's answer to the issue was contrary to the overwhelming weight of the evidence and the cause was remanded for retrial. It is well settled that the ruling of a Court of Civil Appeals on a question of insufficient evidence, as distinquished from a question of no evidence, is final, and that we have no jurisdiction to review it. Electric Exp. & Baggage Co. v. Ablon, 110 Tex. 235, 218 S.W. 1030; King v. King, 150 Tex. 662, 244 S.W.2d 600; Art. V, Sec. 6, Constitution of Texas. Vernon's Ann.St. This disposes of the only question presented by plaintiff's application for writ of error.

The contention of the defendants, Porter and Finer, is that there is no evidence to support the jury's finding on the proximate cause issue and that they were entitled to have the trial court's judgment reversed and judgment rendered in their favor. They thus contend that the Court of Civil Appeals erred in remanding the cause for retrial. But the concluding paragraph of the Court of Civil Appeal's opinion on motion for rehearing (unpublished) shows that the court remanded the cause rather than render judgment for the defendants because it felt that the evidence had not been fully developed and in order to better subserve the ends of justice, bringing the case clearly within the rule announced in London Terrace, Inc., v. McAlister, 142 Tex. 608, 180 S.W.2d 619, 621, a rule applicable alike to the powers of the Supreme Court and of the Courts of Civil Appeals. Williams v. Safety Casualty Co., 129 Tex. 184, 102 S.W.2d 178. See also Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699; Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792; Eaton v. R. B. George Investments, Inc., Tex.Sup., 260 S.W.2d 587; Coleman v. Littles, Tex.Civ.App., 214 S.W.2d 678. Thus it appears that even if we were in agreement with the defendants as to the state of the evidence, or the absence of it, we would be reluctant to disturb the judgment of the Court of Civil Appeals.

Since the case is before us and must be retried, and since the matters discussed by the parties and by the Court of Civil Appeals in connection with the proximate cause issue are basic to the case and undoubtedly will arise again in the event of a retrial, we deem it not amiss to review the holding of the Court of Civil Appeals that there was no evidence to support the finding of proximate cause.

The defendants' contention that there is no competent evidence to support the jury's finding of proximate cause raises incidentally the question of the right of doctors of the medical school in the field of the healing arts to give opinion testimony in a malpractice suit against doctors of the osteopathic school.

The plaintiff's proof of proximate cause rests finally upon opinion testimony of doctors of medicine. This testimony was admitted over the defendants' objections. The Court of Civil Appeals held the testimony to be incompetent. In support of their position that the holding of the Court of Civil Appeals was correct, the defendants rely on the recent case of Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782, in which this court said: '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.'

Undoubtedly the quotation correctly states the recognized general rule, the basis for which is said to be that 'when a patient selects one of the several recognized schools of treatment, he thereby adopts and accepts the kind of treatment common to that school; and the care, skill, and diligence with which he is treated, when that becomes a question in the courts of this state, must be tested by the evidence of those who are trained and skilled in the particular school of treatment.' Nelson v. Dahl, 174 Minn. 574, 219 N.W. 941, 942. But some of the courts of other states recognize that the general rule of exclusion is subject to certain qualifications and exceptions, into at least two of which the facts bring this case, to wit: (1) Where the particular subject of inquiry is common to and equally recognized and developed in all fields of practice, Treptau v. Behrens Spa, Inc., 247 Wis. 438, 20 N.W.2d 108; Wemmett v. Mount, 134 Or. 305, 292 P. 93; Foster v. Thornton, 125 Fla. 699, 170 So. 459, and (2) where the subject of inquiry relates to the manner of use of electrical or mechanical appliances in common use in all fields of practice, Wemmett v. Mount, supra; Holt v. Ten Broeck, 134 Minn. 458, 159 N.W. 1073, Ann.Cas.1918E, 256; Henslin v. Wheaton, 91 Minn. 219, 97 N.W. 882, 64 L.R.A. 126; Shockley v. Tucker, 127 Iowa 456, 103 N.W. 360; Dorr, Gray & Johnston v. Headstream, 173 Ark. 1104, 295 S.W. 16; 78 A.L.R. 697, 707; Giles v. Tyson, Tex.Civ.App., 13 S.W.2d 452. On the subject generally, see 41 Am.Jur., Physicians and Surgeons, § 130, P. 243. We believe these qualifications of the general rule are sound.

The proof in this record shows that the witnesses representing both the medical and the osteopathic schools were trained in the use of a spinal needle in administering a spinal anesthetic. Both were taught and were in agreement that it is highly dangerous to give the anesthetic above the first lumbar vertebra. Under the facts of this case it would be utterly unrealistic to hold that the osteopathic witnesses were competent to give opinion testimony but that the medical witnesses were incompetent to give opinion testimony on the proper method of administering a spinal anesthetic and on the results that could and probably did in fact flow from an improper administration thereof. We therefore hold that the testimony of the medical witnesses offered by the plaintiff was competent evidence and should be considered in deciding whether the verdict of the jury on the issue of proximate cause is supported by evidence.

The plaintiff pleaded that the defendants 'improperly administered the spinal anesthetic to this plaintiff in that the hypodermic needle, approximately four inches in length, was inserted or pushed into plaintiff's spine somewhere between the first lumbar and sixth dorsal vertebra, thereby causing a rupture and contusion of the spinal cord, resulting in total paralysis of plaintiff's lower extremities.'

In answer to special issues the jury found that Baker injected 'a spinal needle into plaintiff's spinal cord or canal at a location above the level of the first lumbar vertebra' and that such act was negligent and a proximate cause of plaintiff's injury. The Court of Civil Appeals held that the evidence was ample to sustain the findings that...