Sullivan v. Methodist Hospitals of Dallas

• Decision Date: 30 September 1985
• Docket Number: No. 13-84-357-CV,13-84-357-CV
• Parties: Diana SULLIVAN, Wife and Roger Sullivan, Husband, Appellants, v. METHODIST HOSPITALS OF DALLAS, d/b/a McAllen Methodist Hospital and Alberto Francis, M.D., Appellees.
• Court: Texas Court of Appeals

Page 265

699 S.W.2d 265

76 A.L.R.4th 1093

Diana SULLIVAN, Wife and Roger Sullivan, Husband, Appellants, v. METHODIST HOSPITALS OF DALLAS, d/b/a McAllen Methodist Hospital and Alberto Francis, M.D., Appellees.

No. 13-84-357-CV.

Court of Appeals of Texas Corpus Christi.

Sept. 30, 1985.

Rehearing Denied Oct. 24, 1985.

Donald W. Allee, Edinburg, for appellants.

Lisa Powell, David Hockema, McAllen, William J. McCarthy, Leo C. Salzman, Harlingen, for appellees.

Before KENNEDY, UTTER and SEERDEN, JJ.

OPINION

KENNEDY, Justice.

This is a medical malpractice case. Appellants sued appellees for injuries incurred when a sponge was left in her abdomen following a cesarean section. The jury found appellees not negligent. We reverse and remand.

Appellants, by their first point of error, complain that the trial court erred in denying appellant's special issues concurring res ipsa loquitur.

The application of res ipsa loquitur in medical malpractice cases is governed by TEX.REV.CIV.STAT.ANN. art 4590i Sec. 7.01 (Vernon Supp.1985) which provides:

The common-law doctrine of res ipsa loquitur shall only apply to health care liability claims against health care providers or physicians in those cases to which it has been applied by the appellate courts of this state as of the effective date of this subchapter.

The effective date of the Medical Liability and Insurance Improvement Act of Texas, including Subchapter 6, was August 29, 1977.

The threshold question, therefore, is whether or not the doctrine of res ipsa loquitur is applicable to medical malpractice cases. Section 7.01 of Article 4590i appears to attempt to greatly restrict usage of the common-law doctrine of res ipsa loquitur to situations in which it was applied to Texas Health Care Providers prior to August 29, 1977. At common-law, res ipsa permitted a finding of negligence by the jury in limited instances, without expert testimony. The three factors necessary for application of res ipsa are: (1) that the nature of the event is such that it would not ordinarily happen absent negligence, (2) that the defendant had sole management and control of the instrumentality causing the injury and (3) that the plaintiff had not contributed to his own injury. Mobile Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1974); Perdue, res ipsa loquitur: Applicability to Malpractice Cases in Texas, 10 Tex.Tech.L.Rev. 371 (1979). In Southwest Texas Methodist Hospital v. Mills, 535 S.W.2d 27 (Tex.Civ.App.--Tyler 1976, writ ref'd n.r.e.), the court explained the application of res ipsa:

[T]he doctrine of res ipsa loquitur springs from the very practical process of drawing logical conclusions from circumstantial evidence. Its purpose is to permit one who suffers injury from something under the control of another which ordinarily would not cause the injury except for the other's negligence, to present his grievance to the court or jury on the basis of the reasonable inferences to be drawn from such facts, even though he may be unable to present direct evidence of the other's negligence.

Res ipsa has seldom been applied to medical malpractice cases in Texas for the reason that when the doctrine combines with the question of medical negligence it frequently raises complex issues beyond the common knowledge of laymen. However, we believe that Texas courts had held prior to 1977, that in certain circumstances, the plaintiff need not prove that the doctor's diagnosis was negligence and the proximate cause of plaintiff's injuries. This holding has specifically been applied to circumstances involving the leaving of surgical instruments or supplies inside the body of a patient. Dobbins v. Garner, 377 S.W.2d 665 (Tex.Civ.App.--Houston 1964, writ ref'd n.r.e.). Texas courts have recognized the theory that, under certain circumstances, a physician's negligent acts may be within the common knowledge of ordinary laymen. See Roberson v. Factor, 583 S.W.2d 818 (Tex.Civ.App.--Dallas 1979, writ ref'd n.r.e.); Pekar v. St. Luke's Episcopal Hospital, 570 S.W.2d 147 (Tex.Civ.App.--Waco 1978, writ ref'd n.r.e.); Williford v. Banowsky, 563 S.W.2d 702 (Tex.Civ.App.--Eastland 1978, writ ref'd n.r.e.); Irick v. Andrew, 545 S.W.2d 557 (Tex.Civ.App.--Houston [14th Dist.] 1976, writ ref'd n.r.e.); Rayner v. John Buist Chester Hospital, 526 S.W.2d 637 (Tex.Civ.App.--Waco 1975, writ ref'd n.r.e.). Goodnight v. Phillips, 418 S.W.2d 862 (Tex.Civ.App.--Texarkana 1967, writ ref'd n.r.e.). ¹

The exact interpretation and effect of Section 7.01 is not abundantly clear from a reading of the statute. Obviously, had the legislature intended to do away with the doctrine of res ipsa loquitur, it would have done so simply by repudiating its application altogether in medical malpractice cases. However, since the legislature did not abolish the doctrine, by implication the theory ought to be allowed in cases in which it was "applied" prior to the act. We therefore hold that the doctrine of res ipsa loquitur is applicable to the type of medical malpractice alleged by appellant in this cause. However, we do not sustain appellant's first point of error for the following reasons.

The record in this cause indicates that special issues were submitted to the jury concerning the alleged negligence of all the appellees. This was the controlling issue raised by the appellants' pleadings and the appellants' evidence. TEX.R.CIV.P. 277 only requires the trial court to submit the controlling issues to the jury and additionally gives the trial court considerable discretion in the submission of the issues.

Under the factual circumstances of this case, an additional issue on res ipsa loquitur would merely have been evidentiary of the question of the appellees' negligence, a question already before the jury. "In Texas it is well settled that res ipsa loquitur is simply a rule of evidence whereby negligence may be inferred...." Mobile Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1974). See Jones v. Tarrant Utility Co., 638 S.W.2d 862 (Tex.1982). The real purpose of the doctrine is to allow the plaintiff to prove negligence by circumstantial evidence where it is impossible for the plaintiff to determine the sequence of events which caused the injury. Jones v. Tarrant Utility Co., 638 S.W.2d 862 (Tex.1982); See Sweeny v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815 (1913). Here we had direct evidence of the appellees' acts which were allegedly negligent. There was simply no necessity to submit the res ipsa loquitur issue in this case. Nevauex v. Park Place Hospital, Inc., 656 S.W.2d 923 (Tex.App.--Beaumont 1983, writ ref'd n.r.e.). Appellants' first point of error is overruled.

By their fourth, fifth and sixth points of error, appellants complain of the legal and factual sufficiency of the evidence to support the jury's failure to find that appellee, Methodist Hospital of Dallas, was negligent, that appellee, Dr. Francis, was negligent and that the scrub nurse and circulating nurse were borrowed employees of Dr. Francis. In considering a "no evidence" or "insufficient evidence" point of error, we will follow the well established test set forth in Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Co. v. Garza, 626 S.W.2d 120 (Tex.App.--Corpus Christi 1981, writ ref'd n.r.e.); CALVERT, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361 (1960). Therefore, an extensive review of the evidence is in order.

DIANA SULLIVAN

Appellant, Diana Sullivan, testified that she had been in the hospital three times in her life, once for the birth of each of her two children and once to have surgery to remove a sponge. Diana was never ill as a child and, except for a minor injury requiring stitches, she had never been to a physician or dentist. When she was pregnant with her first child, Diana went to see a physician recommended by her aunt. Diana's first child was delivered by cesarean section. She stayed in the hospital five days and then went to her mother's house for two weeks.

When Diana was pregnant with her second child, she returned to the same group of physicians and was assigned to appellee, Dr. Francis. Dr. Francis told Diana that the second child would also be delivered by cesarean section. The delivery and a tubal ligation were scheduled for February 6, 1981.

On the night of February 4, Diana's water broke and her husband rushed her to Methodist Hospital, appellee in this case. The drive to the hospital took approximately 30 minutes. Diana was placed in a wheel chair for 10 to 15 minutes and then transferred to surgery. Diana had no labor pains. She was given a spinal and prepped for normal delivery. Diana had not been instructed in how to deliver normally. When she inquired why she was prepped for a normal delivery instead of a cesarean, she was told the baby was near delivery.

Diana was then put to sleep and the next thing she knew, she had a baby boy delivered by cesarean. Diana was in the hospital five days and only recalled seeing Dr. Francis on the day he dismissed her. Two other physicians from the group visited her and one told her she was a bit anemic. When he released her, Dr. Francis prescribed iron pills for the anemia.

After her release from the hospital, Diana stayed with her mother for two weeks. Shortly after her dismissal from the hospital, Diana returned to Dr. Francis' office to have her stitches removed. Another appointment was scheduled for March. Diana was given an appointment card with the date and time of the appointment.

During the March appointment, Diana complained to Dr. Francis of a pain on her "right-hand side." Dr. Francis gave her a pelvic examination, checked the incision and stated to Diana that everything seemed fine. Dr. Francis attributed the pain in her side to the tubal ligation and told her to give it some time.

No further appointment was scheduled and no medication was prescribed. During May and June,...