Rose v. Friddell

• Decision Date: 28 December 1967
• Docket Number: No. 306,306
• Citation: 423 S.W.2d 658
• Parties: Jimmie Nathan ROSE, Appellant, v. D. T. FRIDDELL, M.D., Appellee. . Tyler
• Court: Texas Court of Appeals

Page 658

423 S.W.2d 658

Jimmie Nathan ROSE, Appellant, v. D. T. FRIDDELL, M.D., Appellee.

No. 306.

Court of Civil Appeals of Texas Tyler.

Dec. 28, 1967.

Rehearing Denied Feb. 8, 1968.

Mitchell D. Stevens, Dallas, for appellant.

W. H. Frank Barnes, Terrell, for appellee.

MOORE, Justice.

This is a damage suit brought against Dr. D. T. Friddell, a physician of Terrell, by Jimmie Nathan Rose, for malpractice in setting a fractured arm. At the conclusion of the plaintiff's evidence, in response to defendant's motion, the court withdrew the cause from the jury and entered judgment in favor of defendant. From such ruling and judgment, plaintiff duly perfected this appeal.

The allegations of the plaintiff's petition were, in substance, as follows: that on or about May 16, 1948, when appellant was four and one-half years of age, he fell and suffered a supracondylar fracture of his left arm at a point just above the elbow. Upon receiving the injury, his parents took him to defendant, who reduced the fracture, and negligently bound the arm so tight with tape and gauze that the circulation in the arm was obstructed, which finally resulted in total paralysis of the left arm and hand; that as a direct and proximate result of defendant's negligence, plaintiff suffered what is known as a Volkmann's contracture, causing the arm to wither and fail to grow to the same size as the right arm, resulting in a contracture to the left wrist and hand so that the same was left in a claw-like position. Plaintiff alleged that defendant failed to exercise that degree of care and skill as other doctors in the same vicinity would have used and was guilty of the following specific acts of negligence proximately causing his injuries, to-wit:

'A. The Defendant failed to made an adequate physical inspection of the Plaintiff's arm to determine the nature and extent of all underlying pathology, to wit: the jagged portions of the bone that could cause extensive damage to the vascular and nervous system in and around the said fracture.

'B. Defendant, in setting the arm, placed said arm in flexion, but should have placed the arm in extension until he could discover all of the underlying pathology.

'C. In placing the gauze and tape bandage in and around the fractured area that impeded the circulatory flow of blood and thereby causing the damage as heretofore described.

'D. In failing to take adequate remedial measures to determine whether or not the circulatory system had been damaged prior to setting the arm or after discovering that there was swelling in and around the fractured area underneath the tape and gauze bandage.

'E. In failing to loosen the tape and gauze bandage immediately after the mother brought the boy back in the next morning after the fracture had been set.

'F. In failing to call in a specialist to treat an injury of this nature especially after he had discovered that there was swelling, pain and discoloration in and around the tape and gauze bandage placed around the fractured area.'

The ground, recited by the court, for withdrawing the cause from the jury and rendering judgment in favor of the defendant was '* * * the evidence failed to show that defendant was guilty of any negligence that was the proximate cause of any injury and damages sustained by plaintiff * * *.'

Plaintiff predicates his appeal upon five points of error, asserting that the trial court erred in ruling that there was no evidence of probative force showing that the various acts and omissions by the defendant amounted to negligence proximately causing his injury.

The burden of proof in a malpractice case is upon the plaintiff, first to prove the negligence in treatment as alleged, and, second, to prove that this negligence was the proximate cause of the injury complained of. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1; Thomas v. Beckering (Tex.Civ.App.), 391 S.W.2d 771.

It is well settled that a physician and surgeon cannot be held to guarantee the results of his professional services. However, it is equally well settled that in undertaking the treatment of a patient, the practitioner impliedly contracts and represents, not only that he possesses the reasonable degree of skill and learning possessed by others of his profession in the locality, but that he will use reasonable and ordinary care and skill in the application of such knowledge to accomplish the purpose for which he is employed; and that, if injury is caused by a want of such skill or care on his part, he is liable for the consequences which follow. Gifford v. Howell (Tex.Civ.App.), 119 S.W.2d 578. Furthermore, it is held that actionable negligence in cases of this kind consists in his doing something which he (the practitioner) should not have done, or in omitting to do something which he should have done; and that what is or is not proper practice in examination and treatment, or the usual practice and treatment, is a question for experts and can be established only by their testimony. Bowles v. Bourdon, supra; Sim v. Weeks, 7 Cal.App.2d 28, 45 P.2d 350.

In determining whether the plaintiff has discharged his burden of proof with respect to negligence and proximate cause, we are required to interpret the evidence in a light most favorable to the plaintiff, disregarding all evidence and the inference therefrom favorable to defendant. Cartwright v. Canode, 106 Tex. 502, 171 S.W . 696 (1914).

The cause of the plaintiff's Volkmann's contracture, it seems to be agreed by both defendant and plaintiff, was starvation of the muscles and nerves in the arm for lack of blood supply. To establish that defendant's treatment in this regard was not proper, when measured by the requisite standard and hence negligence, under the foregoing rule, plaintiff introduced the testimony of but one medical expert, Dr. J. L. Touchstone, a physician and surgeon from Dallas, Texas, who testified that he had been in the private practice of medicine since 1919, and had for many years been on the teaching staff at Baylor Medical School. His testimony was based entirely upon a hypothetical question.

The hypothetical question contains a summary of all the evidence offered by the plaintiff. No objection was registered to the hypothetical question or to the testimony of Dr. Touchstone in response thereto. Since the hypothetical question, together with the testimony in response thereto, constitutes the basis of plaintiff's cause of action, we quote the question and answers as follows:

'Q. Doctor, I would like for you to assume that we have a four and half year old child who has fallen down and he has fractured the bottom end, the distal end of the humerus. He has chipped off the condyle and it's floating free. This crying child is brought into the doctor by his parents some fifteen minutes after the break. The doctor, and he's a general practitioner, with no specialty in orthopedic surgery, or general surgery or internal medicine or anything else, a general practitioner. They bring this boy in to this general practitioner's office. The general practitioner determines that the boy still has--He can open and close his fists, his elbow is jerking, but he can move his elbow. Apparently there is still function of the medical and the ulnar nerve and that the doctor checked and he finds a radial pulse. This doctor then xrays it to find that this condyle has been chipped off down here. This doctor puts this arm up in extreme flexed position. First of all, he wraps gauze around the forearm and around the upper arm, he puts a piece of gauze or cotton in here in the bend of the elbow, the ventral side of the hand, if you hold the palm up here, then he pulls this arm up in extreme flexed position and he puts a circular bandage around the elbow. He puts the arm in a sling, he tells the parents to bring the boy back if there is any, or to contact him if there is any swelling or any discoloration. They send the boy home. The boy is brought to the doctor's office about 3 or 4 o'clock in the afternoon. The boy is sent home and the next morning the boy is brought back to the doctor and the boy had extreme pain all night. Now the boy has pain in the elbow when he fractured it, but he has extreme pain that night. He's very uncomfortable, doesn't sleep any . His mother is up with him all night long. They take him back around 9 or 10 o'clock the next morning. The doctor merely lays his pencil on the bandage like this and says everything is all right, but there is swelling and you can see swelling pooching up above the bandage. Then the boy is taken home again and he is still in extreme pain, extreme discomfort, he doesn't sleep at night at all, he's very uncomfortable and finally the parents late the next afternoon called the doctor. The doctor goes out and he looks at the arm and he sees the swelling and tells them to take him to his hospital. The boy is taken to the hospital and the doctor removes the bandage and he finds discoloration and he finds big watery blisters on the forearm and the upper arm, along with the swelling. At that time there is decreased or diminished flexation of the hand, be the left arm, extreme, not extreme, but decreased or diminished flexation of the hand and the arm. He finds no radial pulse. He then goes in and he determines that there is infection. The boy is running a fever of about 102 or better, 102 to 104. The doctor determines there is infection. Now, that doctor doesn't try to determine what kind of infection it is. He just starts putting antibiotics in there. The boy's arm tends to clear and then several days later, six days later, he calls the orthopedic surgeon and tells him he has a boy over...