Scott v. Wilson
| Decision Date | 03 November 1965 |
| Docket Number | No. 14417,14417 |
| Citation | 396 S.W.2d 532 |
| Parties | Frank E. SCOTT, Appellant, v. Anthony WILSON, Appellee. |
| Court | Texas Court of Appeals |
Earle Cobb, Jr., San Antonio, for appellant.
Groce, Hebdon, Fahey & Smith, Thomas H. Sharp, Jr., San Antonio, for appellee.
This suit was instituted by Frank E. Scott against Dr. Anthony Wilson for malpractice in performing, on his lift ear, an operation known as stapedectomy with vein graft. The trial began to a jury, but when Scott rested his case the trial court gave an instructed verdict that plaintiff take nothing, and Scott has prosecuted this appeal.
The main question presented in this case is whether Dr. Wilson reasonably and adequately informed Scott of the dangers and hazards to be anticipated from the stapedectomy operation so as to prepare him to give a knowledgeable consent to the operation.
This was not an emergency operation which had to be performed to preserve Scott's life or health. Scott was not unconscious at the time so as to be unable to give consent. Such operation was an elective operation which Scott might decide to have or not to have. He had impaired hearing in his left ear, but was able to improve his hearing by the use of a hearing aid. He could choose to have the operation or to continue with the use of his hearing aid.
(1) Under such circumstances, when Scott wnet to Dr. Wilson to discuss the operation, it was the doctor's duty to inform him of the nature of the operation, the processes contemplated, adn the dangers and hazards of the operation and the chances of restored hearing, so as to enable Scott to determine whether he wanted to risk the operation or to live with his impaired hearing. The doctor was under a duty to make full disclosure of these things and not to minimize them. He should not mislead anyone as to his skill and ability to perform the operation.
In some respects Scott and Dr. Wilson agree as to what was said and done on the occasion of their conference, and in some respects they disagree. Scott says that when he called at Dr. Wilson's office on the occasion in question Dr. Wilson gave him an examination covering some forty-five minutes. The doctor went over the nature of the operation with him and apparently explained it fully. This seemed to be good and well, but Scott says that the doctor misled him when he said that with an ideal patient like him 'we' have 90% success and 10% in which the hearing is not improved or made worse. The doctor says that he went further and said in 1% the hearing is entirely lost. Scott says that he was not told about the one percent. This is important because Scott entirely lost the hearing in his left ear. Scott says that by the use of the word 'we' he understood that the doctor had performed the stapedectomy operation before, while in truth and in fact this was the doctor's first stapedectomy operation. Scott says he further told him the operation would be performed at the Baptist Hospital because he had his equipment and a trained crew there. Scott says this caused him to further believe the doctor was experienced in performing this operation. Scott states he asked the doctor what the risk of disability was, and was told there was no risk other than that always connected with anesthetics. It is possible that Scott had one thing in mind and the doctor another. Scott says the operation was a failure and resulted in (1) the complete loss of hearing in the left ear, (2) tinnitus, (3) recurring periods of vertigo, (4) recurring dizziness and loss of balance, (5) loss of taste, (6) other nervous disorders. When the doctor, while on the witness stand, was asked what bad effects a patient might have as a result of the stapedectomy, he replied: The doctor stated he knew these things when he operated on Scott. He further testified that he probably told Scott about the taste problem, Scott says he might have.
The evidence shows that the doctor was by education, training and experience a very skillful ear surgeon, and had performed many ear operations other than stapedectomy. He had studied the operation under some of the best authorities and had performed the operation some ten or fifteen times upon cadavers, but never before upon a live person.
The above statement is not complete in every respect, but we feel it is sufficient to show the situation at the time the...
To continue reading
Request your trial
-
Mason v. Ellsworth
...will revolve around the credibility of the patient and physician concerning information allegedly given or not given. Scott v. Wilson, 396 S.W.2d 532 (Tex.Civ.App.1965), aff'd, 412 S.W.2d 299 9 See Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249 (1958) and Furniss v. Fit......
-
Canterbury v. Spence
...(1967). 86 See Bowers v. Talmage, supra note 13 (3% chance of death, paralysis or other injury, disclosure required); Scott v. Wilson, 396 S.W.2d 532 (Tex.Civ.App. 1965), aff'd, 412 S.W.2d 299 (Tex.1967) (1% chance of loss of hearing, disclosure required). Compare, where the physician was h......
-
Hondroulis v. Schuhmacher
...(9 Cir.1984).17 See Abbey v. Jackson, 483 A.2d 330 (D.C.Cir.1984).18 Bowers v. Talmage, 159 So.2d 888 (Fla.App.1963).19 Scott v. Wilson, 396 S.W.2d 532 (Tex.Civ.App.1965), aff'd, 412 S.W.2d 299 (Tex.1967).20 Yeates v. Harms, 193 Kan. 320, 393 P.2d 982 (1964).21 Pauscher, supra, 408 N.W.2d 3......
-
Kaplan v. Haines
...a fact issue is raised upon conflicting testimony as to whether the physician made an adequate disclosure. See Scott v. Wilson, 396 S.W.2d 532 (Tex.Ct.Civ.App.1965), affirmed 412 S.W.2d 299 (Tex.Sup.Ct.1967) and Ditlow v. Kaplan, 181 So.2d 226 The facts in the case at bar are unlike those i......
-
Defending the informed consent case: analyzing the materiality of the risk, causation, and expert testimony requirements.
...(33) Hondroulis v. Schuhmacher, 553 So. 2d 398, 413 (La. 1988). (34) Bowers v. Talmage, 159 So. 2d 888 (Fla. App. 1963); Scott v. Wilson, 396 S.W.2d 532 (Tex. Ct. App. (35) Yeates v. Harms, 393 P.2d 982 (Kan. 1964); Pauscher v. Iowa Methodist Med. Ctr., 408 N.W.2d 355 (Iowa 1987). (36) Cant......