Sendejar v. Alice Physicians & Surgeons Hospital, Inc.

• Decision Date: 30 June 1977
• Docket Number: No. 1009,1009
• Citation: 555 S.W.2d 879
• Parties: Jose SENDEJAR, Sr., et al., Appellants, v. ALICE PHYSICIANS AND SURGEONS HOSPITAL, INC., et al., Appellees.
• Court: Texas Court of Appeals

Page 879

555 S.W.2d 879

Jose SENDEJAR, Sr., et al., Appellants, v. ALICE PHYSICIANS AND SURGEONS HOSPITAL, INC., et al., Appellees.

No. 1009.

Court of Civil Appeals of Texas, Tyler.

June 30, 1977.

Rehearing Denied Aug. 11, 1977.

Francis I. Gandy, Jr., Corpus Christi, Sam M. Yates, Jr., Houston, Robert R. Mullen, Jr., Alice, for appellants.

Cecil D. Redford, Dyer, Redford, Burnette, Wray & Woolsey, Ben A. Donnell, Meredith & Donnell, Corpus Christi, for appellees.

MOORE, Justice.

This is a medical malpractice case. Appellant, Jose Sendejar, Sr., individually and as next friend of his son, Jose Sendejar, Jr., (appellant), instituted suit against appellees, Alice Physicians and Surgeons Hospital, Inc., and Dr. D. R. Halverson, alleging that as a result of the negligent acts and omissions on the part of the hospital and the doctor occurring after Jose Sendejar, Jr., was admitted to the hospital, his son suffered permanent injuries to his spinal cord resulting in complete and total paralysis from his chest down to his lower extremities. Appellees denied generally the allegations of the petition and affirmatively alleged that the paralysis suffered by Jose Sendejar, Jr., was proximately caused by his own contributory negligence in overturning and wrecking his automobile shortly before he was hospitalized and treated by Dr. Halverson. Trial was before a jury. The jury found in response to the special issues that (1) the hospital was negligent in failing to exercise the proper standard of care in rendering hospital services to Jose Sendejar, Jr.; (2) such failure was not a proximate cause of the patient's paraplegia; (3) Dr. D. R. Halverson did not fail to exercise the proper standard of care in the treatment of Jose Sendejar, Jr.; (4) Jose Sendejar, Jr., failed to exercise ordinary care in the operation of his automobile shortly prior to the time of his hospitalization; (5) such failure was a proximate cause of his paraplegia; (6) his paraplegia was caused solely by the injuries received by him at the time of the automobile accident; and (7) neither the treatment rendered by Dr. Halverson nor the hospital aggravated his pre-existing condition or caused him to incur any past, present or future medical expenses or any compensatory damages. Pursuant to the jury's verdict, the trial court entered a take-nothing judgment against appellant. After his motion for new trial was overruled, appellant perfected this appeal.

We affirm.

Under the eleventh point, appellant contends that the "negative" finding of the jury in response to Special Issue No. 2 wherein the jury refused to find that the hospital's negligence was a proximate cause of the paraplegia suffered by appellant's son ¹ is against the overwhelming weight and preponderance of the evidence. Under the twelfth point appellant likewise contends that the jury's "negative" finding to Special Issue No. 3 wherein the jury refused to find that Dr. D. R. Halverson was negligent in treating Jose Sendejar, Jr., ² is In determining the question of factual insufficiency of evidence points, we are required to consider all the evidence in the entire record, both that in favor of, as well as that against the judgment. Garza v. Alviar, 395 S.W.2d 821 (1965).

against the overwhelming weight and preponderance of the evidence. Appellant does not attack the judgment on the ground that there is "no evidence" to support the jury's findings.

The record reveals that Jose Sendejar, Jr., age 20, was involved in a one automobile accident near Benavides, Texas, on May 21, 1971, at approximately 8:00 p. m. At the time of the accident he was driving approximately 70 m.p.h. when his automobile left the road and overturned twice. He was thrown from the automobile and found about eight paces away. The evidence shows that Sendejar had been drinking at the time of the accident. The ambulance driver who picked him up observed no movement of any part of his body except that he was able to move his head. He was taken to the hospital where he was admitted to the emergency room at approximately 10:10 p. m.

The doctor on duty in the emergency room at the time Sendejar arrived at the hospital was Dr. D. R. Halverson. At the time he was admitted to the hospital Sendejar was in a semi-stuporous, combative and non-cooperative condition which was enhanced possibly because he had been drinking. Dr. Halverson testified that such condition rendered his examination very difficult because there was no specific complaint of pain. He testified that he made a complete physical examination, including the taking of x-rays, and was unable to find anything wrong except that the patient had some abrasions and was suffering from a concussion. He testified upon examination that all neurological reflexes in the lower extremities appeared to be normal but that he did not observe the patient moving his legs while he was in the emergency room. He testified that after examining the x-rays he saw nothing abnormal in the spine or spinal cord and there was no sign of paraplegia. After the emergency room examination Sendejar was admitted by Dr. Halverson to the hospital "to the service of" Dr. J. C. Gonzales, his family physician, at approximately 11:30 p. m. Dr. Halverson gave instructions that his bed be elevated thirty degrees, that he be aroused every two to three hours, and that he have bathroom privileges the following morning.

The expert medical testimony shows that once an emergency room doctor admits a patient to the hospital, he has no further responsibility toward the patient whatsoever. While it is without dispute that Dr. Halverson did not notify the patient's family physician, the undisputed evidence shows that the emergency room doctor is not required to notify the admitting physician at the time the patient leaves the emergency room and is admitted into the hospital.

It is undisputed that neither Dr. J. C. Gonzales, the family doctor, nor any other physician saw Sendejar from the time he left the emergency room on Saturday evening, May 15, 1971, until Monday morning, May 17, 1971. During that time he was attended regularly by hospital nurses approximately every two hours. Being unable to contact Dr. J. C. Gonzales, the nurses called Dr. Halverson who was still on duty in the emergency room and advised him that Sendejar was complaining of back pains and that he had not seen a physician since the time he had been admitted and that they felt he really needed to see a physician. Dr. Halverson prescribed a sedative but did not go to the patient's room. One of the nurses on duty testified that on Sunday afternoon she noticed that the patient's lower extremities did not respond to verbal command. According to the hospital records, however, the first time the nurses discovered that Sendejar was suffering from paralysis was at 8:00 p. m. Sunday evening when it was noted that the patient did not appear to be able to move his lower extremities.

According to the rules promulgated by the hospital staff, if a patient was in need of a doctor, it was the duty of the floor nurse to call the admitting physician. If the admitting physician could not be located it was the nurse's duty to call the physician covering for him, and if he could not be found, it was the nurse's duty to call the staff physician who was on call for that week. There is no evidence that the floor nurse attempted to contact any of these physicians except Dr. J. C. Gonzales. When Dr. J. C. Gonzales was finally contacted on Monday morning, May 17th, he advised that he could not see the patient but that he would send Dr. Dostal. After Dr. Dostal arrived and upon examination found Sendejar to be suffering from flaccid paralysis from the waist down due to a spinal cord injury, Dr. Dostal then directed that the patient be transferred to Memorial Hospital in Corpus Christi, Texas, where he would be treated by Dr. Rufino Gonzales.

Emma Cavazos, Sendejar's aunt, testified that she visited him from Sunday, May 16th, until Monday morning when he was transferred to Corpus Christi. She testified that on several occasions she requested the nurses to get a doctor and was told that Dr. J. C. Gonzales was not available. She testified that in spite of her many requests for the nurses to get another doctor, no doctor came until Dr. Dostal arrived at approximately 8:00 o'clock Monday morning. She also testified that on Sunday she observed Sendejar to move his legs and kick the sheet from his legs when he complained of being too warm. Other friends who visited him on Sunday afternoon also testified that they also saw him move his legs and observed him to kick off the covers.

Dr. A. E. Minyard, an orthopedic surgeon called by appellant, testified in response to a hypothetical question that Sendejar suffered a fracture of the fourth dorsal vertebra as a result of the automobile accident and that in his opinion Sendejar was not paralyzed when he was admitted to the hospital but was paralyzed when he was transferred from the hospital on the following Monday. He testified that in his opinion the paralysis commenced on Sunday and was caused by injuries to the soft tissues and the swelling and bleeding in the spinal cord. He testified that the paralysis came on gradually and that the function of the spinal cord was lost in increments. He further testified that the fact that Sendejar had some movement in his legs when he was admitted to the emergency room was an indication that the spinal cord had not been completely severed. He testified that with proper medical attention, total paraplegia could have been prevented or at least could have been partially prevented and that the failure to receive proper medical care was, in his opinion, the producing cause of the paraplegia. He admitted that the injury was difficult to detect on the x-ray picture taken by Dr. Halverson and that neither he nor Dr. Halverson would have detected the injury in the absence of a complaint of back...