Taylor v. Shuffield

• Decision Date: 25 May 1932
• Docket Number: No. 7704.,7704.
• Citation: 52 S.W.2d 788
• Parties: TAYLOR v. SHUFFIELD.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 788

52 S.W.2d 788

TAYLOR v. SHUFFIELD.^*

No. 7704.

Court of Civil Appeals of Texas. Austin.

May 25, 1932.

Rehearing Denied June 15, 1932.

Appeal from District Court, Milam County; John Watson, Judge.

Suit by Carlton Shuffield, by his father as next friend, against Dr. G. B. Taylor. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

E. A. Wallace, of Cameron, for appellant.

E. A. Camp, of Rockdale, and W. Ray Scruggs, of Houston, for appellee.

BLAIR, J.

Appellee, Carlton Shuffield, a minor about 19 years of age, by his father as next friend, sued appellant, Dr. G. B. Taylor, for malpractice in connection with the performance of a tonsillectomy and a faulty diagnosis and treatment of appellee for adenoids and suppurating ears, alleged to have happened some 15 years prior to the filing of this suit. A jury trial upon special issues resulted in a verdict and judgment for appellee in the sum of $6,250; hence this appeal.

Appellee alleged that appellant held himself out to the public as being a specialist in the treatment of diseases of the ear, nose, and throat; and, first, that in connection with the performance of a mere tonsillectomy by appellant on appellee, appellant also removed his uvula, palate, and tonsillar pillars, thereby causing appellee to lose his power of speech; and, second, that at the time of the performance of the tonsillectomy, and in connection therewith, appellant made a faulty diagnosis and treatment of appellee for adenoids and suppurating ears, thereby causing him to lose his power of hearing. Additional damages alleged were that, as a result of the operation and the faulty diagnosis and treatment of appellee, he had the mentality of a child about 6 years of age, although he was about 19 years of age.

The first phase of the case was predicated upon two alleged theories of recovery: (a) That the removal of the uvula, palate, and tonsillar pillars of appellee, a child 4 years of age, without the consent of his parents, constituted an assault or trespass, for which appellant was liable in damage, without regard to any question of negligence; (b) that appellant was negligent in removing appellee's uvula, palate, and tonsillar pillars while performing a mere tonsillectomy, because (1) he failed to use reasonable skill, care, and diligence in his professional work; (2) he failed to use approved methods and instruments in general use for the performance of the operation; and (3) he did not possess the experience, skill, knowledge, or ability to perform the tonsil operation.

The second phase of the case was predicated upon the alleged negligence of appellant (1) in failing to discover in connection with the tonsillectomy that appellee had adenoids; and to recommend their removal to appellee's parents as a part of the tonsillectomy; and (2) the failure of appellant to properly treat appellee for adenoids and suppurating ears, the latter being alleged to have resulted from the diseased adenoids.

Appellant filed a general denial, a special denial that he did not remove appellee's uvula, palate, and tonsillar pillars, and a special plea that appellee's defects of speech and hearing were congenital defects; or that he was practically a deaf mute from his birth.

By his first five propositions appellant contends that the trial court erred, first, in admitting in evidence over his objection the testimony of appellee's parents, nonexpert and incompetent witnesses as to disease, to the effect that during the 15-year period from the date of the tonsillectomy to the date of trial of this case appellee had no disease of the ear, nose, or throat; and, second, in admitting in evidence the expert testimony of three ear, nose, and throat specialists, who examined appellee's throat either shortly before this suit was filed, or shortly before the trial, to the effect that from their examinations of appellee's throat, and finding his uvula, palate, and tonsillar pillars, or considerable portions thereof, gone, and assuming along with other facts presented in the hypothetical questions, that appellee had no disease of the ear, head, or throat during the 15-year period as testified to by his parents, it was their opinion that such parts, or portions thereof, had not been removed by atrophy or disease, but by appellant in connection with the performance of the tonsillectomy; and, if so, the removal of such parts, or portions thereof, was due in their opinion either (1) to the use by appellant of improper methods or instruments in performing the tonsillectomy; or (2) to the negligence or want of reasonable care of appellant in performing the tonsillectomy; or (3) to the lack of knowledge, skill, or ability of appellant to perform the tonsillectomy. We have reached the conclusion that all of the testimony was improperly admitted in evidence.

The burden was upon appellee to prove that appellant removed his uvula, palate, and tonsillar pillars, or such considerable portions thereof as would affect his power of speech, in connection with the tonsillectomy performed some 15 or 16 years prior to the filing of this suit and trial. Appellant both pleaded and testified that he did not remove such parts, or any considerable portion thereof, in the performance of the tonsillectomy.

One of the experts whose deposition appellee took and introduced in evidence, testified that from his examination of appellee's throat shortly before the trial, and about one year after this suit was filed, he found the uvula, palate, and tonsillar pillars entirely gone, or completely obliterated; and that from the nature of the scars and condition of the throat at that time he was of the opinion that these parts had not been removed by atrophy or disease, but by appellant in the performance of the tonsillectomy about 16 years prior to that time. The other two experts whose depositions appellee took and introduced in evidence over objection, and who appeared to be equally as well qualified as the first mentioned expert, testified that, from their examination of appellee's throat shortly before this suit was filed, they found only considerable portions of the uvula, palate, and tonsillar pillars gone; and that from such examination it was not possible for them to say what caused their absence or removal; but that their absence or removal could be accounted for in four ways, as follows: (a) By congenital defects, or those defects existing at and from birth; (b) by traumatic injury to the throat; (c) by disease causing a sloughing off of those parts, or by atrophy; and (d) by operation.

The burden was upon appellee to prove that, during the intervening period of 15 or 16 years from the date of the tonsillectomy to the date of the trial, neither of the first three eventualities was responsible for the absence of his uvula, palate, and tonsillar pillars, or such considerable portions thereof as would deleteriously affect his power of speech. Particularly was this true with respect to negativing the possibility, testified to by all the experts, that the absence of such parts, or considerable portions thereof, may have been the result of disease, causing a sloughing off of these parts; or by atrophy, a drying up or diminution of these parts for lack of proper nutrition. In attempting to make this proof, appellee's mother testified, as follows:

"Ever since the operation why the phlegm has collected in his throat and at night gets out on his pillow.

"Q. Did that ever happen before the operation? A. No sir it never did.

"Q. State whether or not that condition began right after the operation? A. Yes sir right after the operation.

"Q. Has it or has it not continued ever since? A. Yes sir it has continued ever since.

"Q. Mrs. Shuffield has Carlton outside of this condition of the phlegm you describe, has he ever had any kind of disease of his throat of any kind? A. No sir."

The last question and answer were objected to because of the incompetency of the nonexpert witness to testify that appellee had no disease of the throat, such being a matter for professional or expert testimony. Over the same objection, appellee's father was permitted to testify as follows: "Q. Has Carlton at any time had any apparent; outside of adenoids and tonsilitis, has Carlton at any time had any apparent disease of his mouth or throat? A. No sir never has."

The effect of the questions asked and the answers thereto was to permit these nonexpert witnesses to testify that appellee had suffered no disease during the 15 or 16 year period which would cause the sloughing off or atrophy of the parts, or portions thereof, alleged to have been removed by appellant while performing the tonsillectomy on appellee.

We are clear in the view that this was error. The decisions uniformly hold that whether a person has a disease is a question calling for professional or expert testimony. Manifestly this rule would extend to any throat disease, and particularly to any disease which might cause the sloughing off or atrophy of the parts of the throat. It is true that a nonexpert witness may testify to the presence of disease of an outward nature, or one physically apparent and obvious to any person; or to the nonpresence or nonappearance of any physical or outward evidences of disease of a person whom the witness had the opportunity to closely observe; but a nonexpert witness cannot testify that a person did not in fact have any disease of the throat or mouth during any given period of time. In the instant case the expert witnesses testified to a number of specific diseases which might have caused the sloughing off or an atrophy of parts of appellee's throat during the 15 or 16 year period in question. They gave none of the physical symptoms or physical evidences of these particular diseases of the throat while running their course, such as might be observed by any person, or especially by the parents of appellee, who constantly associated with him during...