Porter v. Puryear

• Decision Date: 06 April 1953
• Docket Number: No. 6289,6289
• Citation: 258 S.W.2d 182
• Parties: PORTER et al. v. PURYEAR.
• Court: Texas Court of Appeals

Page 182

258 S.W.2d 182

PORTER et al. v. PURYEAR.

No. 6289.

Court of Civil Appeals of Texas, Amarillo.

April 6, 1953.

Rehearing Denied May 11, 1953.

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

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

MARTIN, Justice.

This is a malpractice suit by appellee, Monte Puryear, plaintiff in the trial court, against appellants, Dr. G. G. Porter and Dr. J. A. Finer, and also against T. W. Baker, defendants below, in which appellee sought damages for the improper administration of a spinal anesthetic whereby he was completely paralyzed below the level of the sixth dorsal vertebra. Appellee pleaded, 'J. A. Finer and T. W. Baker, 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 1st lumbar and sixth dorsal vertebra, thereby causing a rupture and contusion of the spinal cord, resulting in total paralysis of plaintiff's lower extremities.'

The jury in the cause found that T. W. Baker injected 'a spinal needle into the plaintiff's spinal cord or canal at a location above the level of the 1st lumbar vertebra * * *.' The jury further found that such act was negligence and the proximate cause of the injury sustained by plaintiff, Monte Puryear. Upon these findings, and other pertinent issues, the trial court rendered judgment against appellants, G. G. Porter and J. A. Finer, in the sum of $134,860. Appellants perfected an appeal and rely on seven points of error for reversal of the judgment of the trial court.

Appellants' point one asserts that 'the finding of the jury to Special Issue Number One to the effect that Baker injected a needle in the plaintiff's spinal Cord at a location above the level of the 1st lumbar vertebra is without any evidence to support it, at least contrary to the overwhelming weight of the evidence.' Appellants sub-divide this point of error into two issues. '(1) There is no evidence that Baker injected the needle in the spine at a location above the level of the 1st lumbar. (2) There is no evidence that Baker injected the needle in the spinal cord.'

The evidence on the above two issues has been examined under the respective rules applicable to appellants' assignment that there is no evidence to support the jury verdict and also under their assignment that the evidence is insufficient to support the jury verdict. In re King's Estate (King v. King), Tex.Sup., 244 S.W.2d 660. With reference to locating the point of injection of the needle, Dr. W. A. V. Cash from Abilene, Texas testified that the effects of the nembutal and morphine as given to appellee to prepare him for the operation would only last an hour to an hour and one half and would not cause unconsciousness at any time-this evidence being in answer to the issue of whether Puryear was consicious and able to place the point of injection. An examination of the Doctor's qualifications as an expert leads to the view that he was qualified to testify as to these two elements. Appellee testified as to his ability to fix the place of penetration of the needle, 'A. I don't think. I can show them just about where.' He further testified that the injections 'were given about the level of the nipples' and 'within an inch or an inch and a half of your backbone if you draw a straight line from around there to your nipples.' The record shows that such location was above the level of the 1st lumber vertebra. Dr. J. D. Barry, from San Angelo, Texas testified that the level of the paralysis corresponded with the point of injection as made by the needle and as pointed out by appellee Puryear. Appellant Porter testified that after the cord was severed or ruptured 'there would be paralysis below that.' Dr. R. H. Tull from Abilene, Texas testified that from an examination of the appellee, regardless of any information given him by appellee, that as a medical expert he could arrive at the level of the puncture without appellee telling him of the location. Dr. Richard M. Mayer of Lubbock, Texas testified that heavy nupercaine, the anesthetic administered in this case, goes down and that to raise the area of paralysis resulting from the same, the patient would have to be tilted. The appellee's direct testimony as to the place of the puncture is corroborated by the fact of his paralysis coupled with all the medical testimony, by both osteopaths and MDs, that paralysis as sustained by appellee could not be caused by an injection in the area of the cauda equina or lower back. The jury verdict as to this element of proof is supported by the evidence and such verdict is not contrary to the overwhelming weight of the evidence establishing that the spinal puncture was made in appellee's back at a level above the 1st lumbar vertebra.

The evidence as to the needle being inserted in the spinal cord is too lengthy to quote in detail here. A few pertinent excerpts will be taken from the 1000 pages of testimony. Dr. Barry testified, 'He had a perforation of the cord with subsequent hemorrhage.' He further testified as to whether or not the making of a spinal puncture at the 8th or 9th dorsal vertebrae would pierce the cord. 'A. I don't see how anybody could make a puncture without hitting it at that level.' Other medical testimony in the cause with reference to the puncture causing a hemorrhage in the spinal area and resulting destruction of the spinal cord corroborates Barry's testimony. However, when the testimony as to the puncture of the cord is carefully separated from the testimony as to hemorrhages caused in the spinal area and resultant damage to the cord therefrom, the principal evidence to support the finding of actual penetration of the cord is the testimony of Dr. Barry as hereinabove quoted. But, the testimony in the record is sufficient and will support the jury finding that the apinal needle was injected into the spinal cord or canal of the plaintiff at a location above the level of the 1st lumbar vertebra. Appellants' Point One is accordingly overruled.

Appellants' Point Two alleges, 'The finding of the jury in answer to Special Issue No. Two to the effect that the alleged act of Baker in injecting a spinal needle in plaintiff's spinal cord or canal at a location above the level of the 1st lumbar vertebra was Negligence is without any evidence to support it, at any rate contrary to the overwhelming weight of the evidence.' The jury found that the needle was injected above the level of the 1st lumbar vertebra. The medical testimony introduced through experts from both the medical and osteopathic school of practice established that the making of a spinal block at a location above the level of the 1st lumbar vertebra was an unheard of medical proposition. Under such finding and evidence the overwhelming weight and proponderance of the evidence supports the jury finding that he injecting of a spinal needle above the level of the 1st lumbar vertebra was negligence. Appellants' Point Two is accordingly overruled.

It should be observed as to the issues discussed above that the evidence of both schools of practice was considered under the ruling detailed under Appellants' Point Three. Humphreys v. Roberson, 125 Tex. 558, 83 S.W.2d 311, Syl. 3.

With the makings of the rulings hereinabove outlined under appellants' points one and two, the most difficult phase of the case is brought in issue by appellants' point three as follows: 'The finding of the jury that the alleged negligent act of Baker in injecting a needle in plaintiff's spinal cord was the Proximate Cause of plaintiff's alleged personal injuries is without any evidence to support it, at any rate contrary to the overwhelming weight of the evidence.' All parties should concede that both negligence and proximate cause must be established by expert medical testimony in a malpractice case. Further, it must be conceded that Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782, 13 A.L.R.2d 1 is controlling as to the following issues: '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 sued as to constitute negligence and (2) that it was a proximate cause of the patient's injuries.' (Emphasis added.)

Baker, who attempted to administer the spinal block, was not a member of either the Osteopathic School of Practice or the Medical School of Practice. Further, the record reveals that both such schools of practice use the same method of administering a spinal anesthetic. Therefore, in so far as the mere injection of the needle, physicians of either school of medicine may testify in regard to the specific acts of Baker in attempting to administer the spinal block. Humphreys v. Roberson, supra, syl. 3. But, after Baker injected the spinal needle, the proximate results flowing from this act can only be proven by medical diagnosis and medical testimony under the issue of proximate cause. The issue as to the proximate cause of appellee's paralysis is strictly within the rule prescribed by the Supreme Court in Bowles v. Bourdon, supra, and such proximate cause can only be proved by expert witnesses of the same school of practice as the defendants.

There is no testimony by Osteopathic Physicians that the paralysis of the appellee was proximately caused by the injection of the spinal needle in the spinal cord of the appellee, or otherwise. The evidence is not only insufficient to support proximate cause in this case, but there is no evidence in the record from any osteopathic physician establishing proximate cause. Appellants' point three is accordingly sustained. Bowles v. Bourdon, supra; Barker v. Heaney, Tex.Civ.App., 82 S.W.2d...