Southwest Texas Methodist Hospital v. Mills

• Decision Date: 11 March 1976
• Docket Number: No. 901,901
• Citation: 535 S.W.2d 27
• Court: Texas Court of Appeals
• Parties: SOUTHWEST TEXAS METHODIST HOSPITAL, Appellant, v. Mary Louise MILLS, Appellee.

Page 27

535 S.W.2d 27

SOUTHWEST TEXAS METHODIST HOSPITAL, Appellant, v. Mary Louise MILLS, Appellee.

No. 901.

Court of Civil Appeals of Texas,

Tyler.

March 11, 1976.

Rehearing Denied April 8, 1976.

George H. Spencer, Clemens, Weiss, Spencer & Welmaker, San Antonio, for appellant.

Donald J. Richard, Southers, Goldberg, Lyons & Huson, Inc., San Antonio, for appellee.

MOORE, Justice.

Plaintiff, Mary Louise Mills, instituted this suit against defendant, Southwest Texas Methodist Hospital, for damages for personal injuries alleged to have been sustained while she was a patient at defendant hospital. She alleged that she sustained an injury to her sciatic nerve caused by the negligence of a nurse employed by defendant in making a hypodermic injection. A jury trial resulted in a verdict and judgment in favor of plaintiff for the sum of $13,000, from which defendant has perfected this appeal.

The trial court submitted the cause to the jury upon three special issues. The issues, together with the jury's verdict, were as follows: (1) Special Issue No. 1: Did Mary Louise Mills sustain an injury to her sciatic nerve as a result of an intramuscular injection while in the Defendant's hospital on August 31, 1972? Answer: Yes; (2) Special Issue No. 2: Was such injury to the sciatic nerve, inquired about in Issue No. 1, due to the negligence of Defendant, its agents, servants or employees? Answer? Yes; and (3) Special Issue No. 3: Was such negligence, if you have so found, a proximate cause of the injury, if any, to Mary Louise Mills? Answer: Yes. In connection with the special issues, the trial court instructed the jury as follows: 'You are instructed that you may infer negligence by a party, but are not compelled to do so, if you find: (a) the character of the injury is such that it would ordinarily not happen in the absence of negligence; and (b) it is more reasonably probable that the injury was due to the negligence of such party than to any other possible cause; and (c) the instrumentality causing the injury was under the management of such party or its agents, servants or employees, at the time the negligence, if any, causing the injury probably occurred.'

By its first and fourth points of error, the hospital seeks a reversal on the grounds that (1) there was no evidence to support the jury's finding of negligence on the part of appellant's employees, (2) that appellee cannot, as a matter of law, recover on the theory that the doctrine of res ipsa loquitur is applicable, because the doctrine is not applicable to the facts, and (3) even if the doctrine of res ipsa is applicable, there is no evidence that the appellee sustained an injury to her sciatic nerve as a result of the hypodermic injection. In reply appellee argues that the jury's finding of negligence may be sustained on both direct and circumstantial evidence, but if not, then the verdict can be sustained on the basis of the jury's finding on Special Issue No. 1, together with the trial court's instruction allowing the jury to find for the appellee upon the doctrine of res ipsa loquitur. In support of her contention, appellee relies upon Mobile Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1974). We are not in accord with appellee's contention. Upon the record before us, we have concluded that appellant's points must be sustained. Accordingly, we reverse and render judgment in favor of the hospital.

The evidence shows that on the advice of her doctor, plaintiff was admitted to defendant hospital for a hysterectomy. At 6:00 a.m. on the morning of the operation, plaintiff was given a sedative orally. Then at 6:30 a.m., while sedated but still conscious plaintiff was given a pre-operative intramuscular hypodermic injection of demerol, phenergan and atropine in her left buttock by a nurse. Plaintiff testified that after the injection she felt a warm stinging sensation in her left leg. At 7:30 a.m. plaintiff was taken to the operating room and placed on the operating table in the lithotomy position, on her back with her feet elevated and knees flexed. Her legs were suspended by the use of stirrups. According to the testimony of Dr. Marasovich the hysterectomy was performed without incident. Following the operation, plaintiff was given injections in the left buttock at 10:45 a.m., 12:00 noon and 4:00 p.m. Prior to the operation, plaintiff had no difficulty in the use of her left leg. Shortly after 4:00 p.m., however, plaintiff complained to the nurses and Dr. Marasovich of numbness in her left leg. Dr. Marasovich testified that he did not know why plaintiff suffered pain in her leg and had not reached any conclusion as to what may have caused her pain. He testified that he asked Dr. Branch, a neurosurgeon, to examine plaintiff's left leg to determine the cause of her complaint. Dr. Branch testified that he examined the plaintiff on several occasions and found no point of tenderness, no area of bruising or sign of the injection or injury along the sciatic nerve. He testified that he found nothing to indicate that the hypodermic shot had been given at an improper place or in an improper way. He testified that in his opinion plaintiff did not receive an injury due to the intramuscular injections and that he did not know the cause of her sciatic nerve injury. Dr. Washburn testified that as a result of an electromyogram he found the plaintiff to be suffering from a partial severe left sciatic nerve injury. He testified that the cause of her condition was unknown.

According to the testimony of the various doctors testifying in the case, there were eight possible causes of plaintiff's sciatic nerve injury, to-wit: (1) stretching of a portion of a sciatic nerve; (2) irritation of the nerve by a previously existing disc; (3) functional problems; (4) complication of the above; (5) direct pressure to the nerve during the operation; (6) long sustained pressure on the sciatic nerve during the operation; (7) sudden loss of blood supply during the operation; and (8) infection or immune process as a result of the operation.

None of the doctors who testified could say that the intramuscular injections were improperly administered, nor is there any direct evidence that the hypodermic needle used by the nurse or nurses ever struck or came in contact with plaintiff's sciatic nerve. None of the doctors were able to determine the cause of the injury to the sciatic nerve. The only testimony relating to probable cause of the injury was given by Dr. Washburn in response to a hypothetical question.

Appellee takes the position that the jury's finding on Special Issue No. 2 (based on the finding on Special Issue No. 1) amounts to a finding that the appellant's employees were guilty of negligence in administering the hypodermic injection and that the jury's finding of negligence is supported by the evidence.

It has been recognized that persons undertaking to administer anesthetics in the course of medical or dental treatment, like medical or dental practitioners generally, are not insurers against harm nor guarantors of a favorable result, but are required only to exercise ordinary or reasonable care and skill under the circumstances. 61 Am.Jur.2d sec. 110, Physicians, Surgeons, and etc .; Annot., 53 A.L.R.2d 144 (1957). When a case concerns the highly specialized art of...