Rosenblum v. Bloom

• Decision Date: 28 February 1973
• Docket Number: No. 5229,5229
• Citation: 492 S.W.2d 321
• Parties: Isobel ROSENBLUM et vir, Appellants, v. Manuel G. BLOOM, M.D., Appellee.
• Court: Texas Court of Appeals

Page 321

492 S.W.2d 321

Isobel ROSENBLUM et vir, Appellants, v. Manuel G. BLOOM, M.D., Appellee.

No. 5229.

Court of Civil Appeals of Texas Waco.

Feb. 28, 1973.

Rehearing Denied March 22, 1973.

McClure & Burch, D. L. McClure, Kenneth W . Burch, Houston, for appellants.

Martin & Masters, Jack Martin, Houston, for appellee.

OPINION

JAMES, Justice.

This is a medical malpractice suit. The patient, Mrs. Rosenblum and her husband, obtained a jury verdict against Dr. Bloom with damages in the amount of $5000.00, pursuant to which a judgment was entered against the doctor in said amount. The patient and her husband as Plaintiff-Appellants now complain that the $5000.00 damages are inadequate, and that the doctor's attorney made an improper jury argument. We overrule these contentions and affirm the trial court's judgment.

Plaintiff-Appellants Isobel Rosenblum and husband Carl Rosenblum brought this suit against Dr. Manuel G. Bloom, M.D. for damages to the person of Mrs. Rosenblum growing out of medical treatment administered in the office of Dr. Bloom, a dermatologist. Mrs. Rosenblum had been treated by Dr. Bloom in the past for skin blemishes. On November 13, 1969, Mrs. Rosenblum went to Dr. Bloom's office for treatment of four or five skin blemishes on her face called 'whiteheads', and also to have Dr. Bloom examine a freckled spot on her chin. She was shown into a treatment room and instructed to lie down on the examination table in preparation for treatment. She was initially waited on by Mrs. Iona Dorothy Wilson, a nurse who had worked for Dr. Bloom only a day and a half. Mrs. Wilson first cleansed off Mrs. Rosenblum's face with Seba-Nil, a rapid-drying cleansing fluid with an alcohol base, using a cotton ball. Then Mrs. Wilson applied to Mrs. Rosenblum's face a 5% Solution of trichloroacetic acid (called 'TCA') with two cotton swabs. After this first coat of 5% TCA dried, Mrs. Wilson put a second coat of 5% TCA on Mrs. Rosenblum's face and let it dry. In the treatment room were various bottles containing TCA in concentrations of 5%, 10%, 20%, 50% And 100%, as well as Seba-Nil. After the second coat of 5% TCA had dried on Mrs. Rosenblum's face Mrs. Wilson took a cotton swab and began to apply 100% TCA to Mrs. Rosenblum's right cheek, whereupon Mrs. Rosenblum complained out loud that 'it's burning', and began to get up. Mrs. Wilson left the room for help, and Dr. Bloom came in the room along with Mrs. Akin, a nurse who had worked for Dr. Bloom since 1966. Mrs. Akin put on Mrs. Rosenblum's affected cheek a pack containing baking soda, and Dr. Bloom also worked with her in efforts to relieve the burning.

It is undisputed that 100% TCA is a very strong substance and is damaging to human skin when applied as it was to Mrs. Rosenblum's cheek. The affected area of Mrs. Rosenblum's right cheek scabbed over for a few weeks, after which the scabbing came off and left some scar tissue on her right cheek. Dr. Bloom gave her some ointment which she applied to her face for about two months. After November 13, 1969, Dr. Bloom saw Mrs. Rosenblum every other day until November 24th, then he saw her on December 1st, December 6th, and then in mid-January 1970.

At the time of the incident in question of November 13, 1969, Mrs. Rosenblum was 49 years of age. Her husband, Carl Rosenblum, was in the jewelry business located on the 22nd floor of the First National Life Building in Houston, Texas. He did jewelry designing work and operated a retail jewelry store, employing usually a clerk and a watch repair man. Prior to November 13, 1969, Mrs. Rosenblum assisted her husband in the business as saleslady, typist and bookkeeper. They had four children, two of whom (aged 18 and 15) were living at home with them at the time of the accident in question. They had only one child living in the home with them at the time of trial (June 1972).

Mrs. Rosenblum testified that she was self-conscious and embarrassed, particularily during the time her right cheek was scabbed, and usually wore a scarf on her face to hide or camouflage the affected portion. She further testified that after the scabbing came off, she still was self-conscious and embarrassed because of the scar on her cheek. She claimed that because of the damage to her face, that she had missed a family reunion of her family in Ohio at Thanksgiving 1969, that the social life of her husband and herself had been greatly curtailed, that she refrained from attending P.T.A. meetings and like kinds of activities, and that her husband had to employ a man to work in her place at the jewelry business. However, in her deposition taken in May 1970, (about six months after the incident of November 13, 1969) she admitted that after 'two or three months' (after the incident) she was able to resume her normal duties the same as before, except for going back to work. She testified that she did not mind seeing her old friends but she was self-conscious and embarrassed to meet new friends or business customers.

She testified that from November 13, 1969 until January 1972, she had not been engaged in sales work 'as much as she had been', that when she worked she stayed mostly in the office; however, since January 1972 she has been working full time. She testified that the scar tissue on her right cheek had 'gotten much better' and had become less prominent during the 2 1/2 year period from November 13, 1969 to the time of trial.

In January 1972, Mrs. Rosenblum consulted Dr. Frank Judson Gerow, a plastic surgeon. After his initial conference and examination, Dr . Gerow recommended that Mrs. Rosenblum get a 'face lift' operation (the technical name of which is 'rhytidoplasty'), to be followed later by chemosurgery, or a 'chemical face peel'. He testified that the scar on her right cheek was lighter or whiter than the rest of her face; however, in his medical record he made an entry wherein he described Mrs. Rosenblum's scar as 'an unobtrusive superficial right facial scar'. On cross-examination when he was asked to explain what he meant by this description he testified: 'The term unobtrusive means it is not grossly evident in my interpretation. When I saw her in the office it was not a particularly noticeable scar until I took the time of carefully watching the animation, and whatever variations there might be with animation'.

He further testified that when Mrs. Rosenblum came to him, that she asked to be rid of the 'tiredness' in her face. He testified that she had bags under her eyes, that she had excess skin on her eyelids, that she had 'a nose that was too long for her face, with a dorsal nasal hump and a broad tip', and some bilateral airway obstruction in her nasal passages. He said she had two basic defects in her face, namely, architectural and cosmetic. He recommended that she have a 'face lift' operation to correct the architectural defects immediately, and then wait until the fall of 1972 to have chemosurgery or the chemical face peel to correct the cosmetic defects. The chemosurgery consists of putting a chemical on the face, which in Mrs. Rosenblum's case will remove some of the pigment from the skin and at the same time increase the tissue tension of the skin other than the scar tissue, and thereby achieve a 'cosmetic blend' or uniformity of color over all of her face. 'Chemosurgery' is a controlled second degree burn.

Mrs. Rosenblum accepted Dr. Gerow's recommendations, and was hospitalized from February 10th to February 25, 1972 with the face lift operation. In this operation Dr. Gerow removed the bags from under her eyes, performed the corrective surgery on her nose and eyelids, raised her eyebrows, and stretched the skin generally upward and backward across her face. Dr. Gerow conceded that the work done on the nose and eyelids, and removal of the bags from under her eyes were not necessary for direct repair to the scar. He said he thought this part of the operation would improve the general appearance of her face. Because of the 'face-lift' operation Mrs. Rosenblum incurred a $1504.90 hospital bill and a $2100.00 doctor bill to Dr. Gerow, or a total of $3604.90. Dr. Gerow testified that the chemosurgery or 'chemical face peel' would necessitate an additional $600.00 doctor bill and a hospital bill of $520.00 to $630.00. This means that both operations would cause to be incurred about $4854.90 in doctor and hospital expenses.

Dr. Bromley S. Freeman, also a plastic surgeon, and under whom Dr. Gerow at one time studied, testified that he examined Mrs. Rosenblum at Dr. Gerow's request at the time she was in the operating room. Dr. Gerow explained to Dr. Freeman the background of the scar and informed him that he was about to do a 'face-lift' operation on Mrs. Rosenblum and asked his opinion. Dr. Freeman testified that he suggested to Dr. Gerow to wait, and not do the 'face-lift' operation . The substance of Dr. Freeman's testimony is that he believed the 'chemical face peel' or chemosurgery would accomplish the best results. Dr. Freeman testified that he was of the opinion that 'most of the scars that are caused by chemosurgery or peeling improved over the years.' He testified he did not know why Mrs. Rosenblum wanted the 'face-life' operation.

Trial was had to a jury, to whom the trial court submitted 28 special issues. Suffice it to say that the jury found the defendant doctor negligent, and that such negligence was a proximate cause of Plaintiffs' damages. There were two special issues inquiring as to actual damages, being Numbers 26 and 27. Number 26 restricted the jury's consideration to past and future pain and anguish, past lost earnings, future lost earning capacity, and past and...