Roark v. Allen

• Decision Date: 02 June 1982
• Docket Number: No. C-940,C-940
• Citation: 633 S.W.2d 804
• Parties: David W. ROARK et ux., Petitioners, v. Dale ALLEN et al., Respondents.
• Court: Texas Supreme Court

Page 804

633 S.W.2d 804

David W. ROARK et ux., Petitioners, v. Dale ALLEN et al., Respondents.

No. C-940.

Supreme Court of Texas.

June 2, 1982.

Rehearing Denied June 30, 1982.

John H. Holloway, Houston, for petitioners.

Cantey, Hanger, Gooch, Munn & Collins, Richard L. Griffith and Rod Patterson, Fort Worth, Bailey, Williams, Westfall, Lee &amp Fowler, James A. Williams and Kevin J. Keith, Dallas, for respondents.

RAY, Justice.

This is a medical malpractice case arising from the use of forceps in the breech delivery of a child. David W. Roark and his former wife, Sherry L. Roark, individually and as the sole heirs of the estate of their deceased son, Robert Ryan Roark, sued Drs. Dale Allen and J. G. Matthews, the physicians who allegedly injured their son during delivery. ¹ On the basis of jury findings of negligence, the trial court rendered judgment that the Roarks recover $10,000 against Drs. Allen and Matthews, jointly and severally. It was also adjudged that the Roarks recover $2,000 from Dr. Matthews, individually. The court of appeals affirmed the judgment as to Dr. Allen, but reversed and rendered a take nothing judgment as to Dr. Matthews. 625 S.W.2d 411. We reverse the court of appeals' judgment as to Dr. Allen and affirm its judgment as to Dr. Matthews.

On February 9, 1976, at about 6:10 p. m., Sherry L. Roark, the pregnant wife of David W. Roark, was admitted into Grand Prairie Community Hospital in Grand Prairie, Texas. She was in active labor. Her physician was Dr. Dale Allen, a general practitioner. At about 8:00 p. m., Dr. Allen ordered Sherry X-rayed. These X-rays revealed that the child was in the frank breech position-i.e., the child was in a scissorlike position with its legs pointing up toward its head. The child's buttocks were at the top of the birth canal. Dr. Allen determined from the X-rays that the child could be delivered vaginally and that a Caesarean section would be unnecessary. As Sherry was not yet sufficiently dilated for birth, Dr. Allen went home for the night. He returned at about 5:00 a. m. the following morning to find Sherry fully dilated. Beginning at 6:50 a. m., Dr. Allen worked unsuccessfully for about an hour trying to deliver the child. He then called in Dr. J. G. Matthews, an obstetrician, who immediately performed an episiotomy (surgical enlargement of the lower part of the birth canal). Dr. Matthews was then able to deliver the baby's legs, hips, torso and arms. However, the child's head became lodged in the mother's pelvis. In order to aid delivery, Dr. Matthews employed Piper forceps to grasp the child's head. As he was pulling on them, the forceps slipped off the child's head. Dr. Matthews reapplied the forceps and successfully delivered the child, a boy, who was named Robert Ryan Roark.

The infant Roark had an indentation on either side of its head. Dr. Matthews testified he was at first concerned that his use of the forceps might have fractured the child's skull. This fear was allayed when Dr. Roig, a pediatrician, examined the child and found no neurological damage. Drs. Roig, Matthews and Allen, together, concluded that these were soft-tissue indentations which would resolve themselves within a short time and Dr. Allen so advised the Roarks. The indentations did not, however, resolve themselves and, when the child was about five weeks old, Dr. Roig X-rayed Robert and determined that he suffered from bilateral fractures of the skull. Dr. Roig referred the Roarks to Dr. Morris Sanders, a neurosurgeon, who, on March 18, operated on Robert and successfully elevated the fractures. Robert fully recovered with no neurological impairment.

The Roarks sued Drs. Allen and Matthews, alleging they were negligent in their delivery of the child, in failing to obtain the Roarks' "informed consent" and in failing to refer Robert for surgery. ² Trial was to a jury, which found the following: (1) Dr. Matthews used the forceps negligently in delivering Robert Roark, which negligence proximately caused the skull fracture; (2) Dr. Allen failed to inform the Roarks of the possibility of a skull fracture, which failure proximately caused injury to Robert Roark; (3) $2,000 would reasonably compensate David Roark for expenses he incurred in the treatment of Robert's fracture and $10,000 would have reasonably compensated Robert for the pain and mental anguish he suffered because of the fracture; and (4) Dr. Allen and Dr. Matthews were each 50% negligent. On the basis of these findings, the trial court rendered judgment that the Roarks recover $10,000 from Drs. Allen and Matthews, jointly and severally. It was also adjudged that the Roarks recover $2,000 from Dr. Matthews, individually.

The court of appeals affirmed the award against Dr. Allen but reversed the award against Dr. Matthews because the special issue on which he was found negligent had no basis in the Roarks' petition. This Court granted applications for writ of error from both the Roarks and Dr. Allen.

Dr. Allen's Application for Writ of Error

Dr. Allen's liability is predicated on an affirmative jury finding to the following Special Issue No. 8:

Do you find from a preponderance of the evidence that Dr. Dale Allen failed to obtain the 'informed consent' of the parents of Robert Ryan Roark concerning the possible injury to the infant's head?

In conjunction with this issue, the trial court submitted the following definition:

By the term 'INFORMED CONSENT', as used in this issue, is meant the furnishing by the physician to the parents of the infant sufficient information about the nature and extent of possible injuries sustained at his birth and the complications associated with such injuries, together with the information as to available medical or surgical means to diagnose such injuries, and the risks or dangers inherent in connection with such injuries or failure to diagnose such injuries, to permit the parents of the infant to make a knowledgeable and fully informed decision as to accepting or refusing other diagnostic procedures or suggested medical or surgical care or lack of medical or surgical care of fractures of the skull of an infant.

The jury also found that Dr. Allen's failure was the proximate cause of injury to the infant Roark.

Dr. Allen first argues that Special Issue No. 8 is an improper application of the doctrine of informed consent. We agree. In Wilson v. Scott, 412 S.W.2d 299 (Tex.1967), this state's fountainhead case in the area of informed consent, we stated that-

(p)hysicians and surgeons have a duty to make a reasonable disclosure to a patient of risks that are incident to medical diagnosis and treatment. This duty is based upon the patient's right to information adequate for him to exercise an informed consent to or refusal of the procedure.

412 S.W.2d 299 at 301. It is apparent from this statement that the doctrine of informed consent applies only to medical procedures which have yet to be performed and that it is inapplicable in a situation such as this, where the patient has already undergone the proposed treatment and been injured. See also, Jacobs v. Theimer, 519 S.W.2d 846 (Tex.1975).

While Special Issue No. 8 contains the term "informed consent", the issue and the accompanying definition, when read together, inquire into a totally different cause of action-i.e., they inquire whether Dr. Allen failed to inform the Roarks of the possibility that their son's head was injured during birth. The Roarks' response brief indicates they were seeking to establish that Dr. Allen's failure to inform constituted negligence, although the trial court did not submit a special issue to this effect. There were, however, issues concerning causation and damages. Under Tex.R.Civ.Pro. 279, if an issue necessary to sustain a ground of recovery is omitted, without an objection or request, the trial court will be deemed to have found the issue in such manner as to support its judgment. No one requested a special issue inquiring whether Dr. Allen's failure to inform constituted negligence and no one objected to its omission. The trial court is, therefore, deemed to have found that Dr. Allen breached the applicable standard of care by his failure to inform.

Dr. Allen argues that there is no evidence to support this deemed finding. We agree. Expert testimony is necessary when the alleged negligence is of such a nature as not to be within the experience of the layman. See, Hood v. Phillips, 554 S.W.2d 160, 165 (Tex.1977). Such is the case here; the diagnosis of skull fractures is not within the experience of the ordinary layman. Accordingly, as in most medical malpractice actions, the Roarks had the burden of proving by expert medical testimony what information a reasonable practitioner of the same school and same or similar community under the same or similar circumstances would have disclosed to them. Wilson v. Scott, supra.

In evaluating the Roarks' "no evidence" point, we may consider only the evidence and inferences which tend to support the trial court's deemed finding and must disregard all evidence and inferences to the contrary. Stodghill v. Texas Employers Insurance Association, 582 S.W.2d 102, 103, (Tex.1979).

The court of appeals found that Dr. Allen's own testimony established the proper standard of care. The evidence most favorable to the court of appeal's conclusion is Dr. Allen's testimony that a reasonable physician would have advised the Roarks of the possibility of a skull fracture if he assumed the fracture existed. We are not convinced that this established the proper...