Houston Clinic v. Busch

*1104 PLEASANTS, Chief Justice. The following sufficient statement of the nature and result of this suit is copied from appellants’ brief: This suit was instituted by the appellee, Hulen- Busch, as plaintiff, against the Houston Clinic, a partnership, composed of James H. Agnew, P. R. Cruse, E. E. Dye, C. P. Harris, W. Burton Thorning, A. Philo Howard, M. B. Stokes, Paul W. Best, W. A. Clark; and J. Thomas Jones, and against the members of said partnership individually as defendants. The plaintiff by his first amended original petition in substance alleged that on or about June 22,1931, the plaintiff was suffering from an attack of appendicitis and' was at that time in St. Joseph’s Infirmary, a hospital in the city of Houston, and that plaintiff, for a good and valuable consideration, entered into a contract with the defendants wherein the defendants were engaged and employed by the plaintiff to operate upon him for appendicitis and that the defendants accepted said employment and' operated on plaintiff. That as a part of said operation, the' defendants inserted a needle in plaintiff’s spine and there broke the same and permitted said needle to remain in plaintiff’s back without informing plaintiff that said needle was broken off, and that as a result the plaintiff suffered great pain, and excruciating agony, and that upon calling the attention of the defendants to his condition and suffering, the defendants admitted that said needle had been broken off and had not been removed; that plaintiff requested defendants to remove the needle, but defendants refused to remove same unless plaintiff would pay them the additional hospital expenses connected with an operation to remove said needle; that the plaintiff declined to pay said additional hospital expenses and employed other doctors to remove the needle, who charged him the sum of $100 for the operation; and that he was compelled to expend $10 for X-ray plates. The allegations of negligence on the part of the defendants, material to this appeal, briefly stated, were as follows: (a) In breaking the needle off in plaintiff’s back. (b) In not using said needle in a careful dnd prudent manner. (c) In leaving said needle in plaintiff’s back. (d) In not removing said needle as soon as it was broken off. (e) In refusing to treat and operate on plaintiff in removing said needle after it was made known to defendants that said needle had been left in plaintiff’s body after the completion of said operation. (f) In failing to remove said needle from plaintiff’s body without additional hospital expense. The damages alleged totaled $950, of which sum $110 was doctor’s bills, $270 was for loss of time and incapacity, and $570 was for mental and physical pain and suffering. The defendants answered by a general demurrer and general denial. In response to the special issues submitted to it, the jury found' that the defendant was not negligent in removing the needle at the time it was broken off; that the defendant was negligent in not removing the needle after the plaintiff visited the Houston Clinic after the appendicitis operation; that such negligence was a proximate cause of the plaintiff’s injuries; and that the plaintiff had been damaged in the sum of $150 for mental anguish and suffering; $110 for doctor’s bills, and $270 for loss of earning. In accordance with this verdict, judgment was rendered in favor of appellee for the sum of $530, the sum of the several items of damage found by the jury. Appellants first complain of the refusal of the trial court to instruct the jury to return a verdict in their favor, on the ground that there is no evidence raising the issue of negligence on their part in any of the particulars alleged in plaintiff’s petition. This contention of appellants cannot be > sustained. The trial court did not submit the issue of negligence on the part of Dr. Thorn-ing, the member of appellant firm who per formed the operation in -which the needle was broken in appellee.’s back, in breaking the needle, and the jury found in favor of appellants on the issue of negligence of Dr. Thorn-ing in not removing the needle at once. The only negligence found by the jury was the failure of Dr. Thorning to remove the needle after appellee visited him at the hospital, some three weeks after the operation, and complained of soreness in his back. We cannot agree with appellants that the finding of the jury upon this issue is without any evidence to support it. Dr. Biscoe, the physician who removed the needle, testified in effect that the broken needle was working down into appellee’s back, and that a broken needle left in a human body should be removed as soon as possible to prevent its moving around. This witness and Dr. Davis, a witness for appellants, both testified that a broken needle near the spine might work its way into the spine and cause paralysis. Dr. Biscoe further testified that the broken needle had worked its way an inch or more into the muscles of the back, while Dr. Thorn-ing had testified that it was just under the skin when it broke. " • We do not think it can be doubted that this evidence raised the issue of negligence on the part of appellants in allowing the needle to remain -in appellee’s back, -after Dr. Thorn- *1105 ing was informed by appellee of the painful condition of his back. The charge of the court submitting to the jury the question of damage sustained by appellee because of the alleged negligence of appellants is as follows: “Special Issue No. 5. What amount of money, if paid in cash now, will fairly and adequately compensate the plaintiff, Hulen Busch, for alleged' injuries, if any, suffered by him as a proximate result of his injuries, if any, on the occasion in question, taking into consideration as exclusive elements of damage if shown by the evidence to result from such injuries, the following and none other: “(I) Mental anguish and suffering to the plaintiff, Hulen Busch, therefrom, if any, from the 22nd day of June, 193.1, down to the date of this trial. “(2) The reasonable value of necessary medical and surgical treatment, if any, rendered to the plaintiff, Hulen Busch, from the 29th day of July, 1931, down to the date of this trial. “(3) Loss of earnings, if any, to the date of trial. “You will answer this question in dollars and cents, in separate amounts, if any, as you may find for the several items submitted, to the exclusion of any other. “You will answer the questions submitted to you as you find the preponderance of the evidence to be. By the preponderance of the evidence is meant the greater weight of credible testimony.” Appellant under an appropriate assignment and proposition assails this charge on the ground that it was error to instruct the jury to give appellee compensation for his mental anguish and suffering from June 22, 1931 (the date of the appendicitis operation), down to the date of the trial, because the evidence shows that appellee did not suffer any pain or anguish because of the needle in his back until about three weeks after June 22, 1931. Appellee testified that he first complained to Hr. Thorning of his back when he called on him on July 15, 1931, three weeks after his appendicitis operation on June 22, 1931, and that his back had been troubling him “three or four days before that time.” Such being the evidence as to the time appel-lee’s suffering from the needle left in his back commenced, it was, we think,- clearly error for the court to instruct the jury to allow appellee compensation .for any mental anguish and suffering he had experienced from the time of his appendicitis operation. It is a matter of common knowledge that an operation for appendicitis necessarily causes pain and suffering, both physical and mental, and there is abundant evidence in this record that appellee suffered such pain and anguish from the date of his appendicitis operation. The jury having found that there was no negligence in the breaking of the needle in administering the anesthetic for the appendicitis operation, nor in the failure to remove the needle prior to the time appellee complained to Dr. Thorning that his back was troubling him, appellant cannot be held liable for any pain and suffering caused by the needle being left in his back, prior to the date of such complaint. This objection to the charge was made in due time and in proper manner, and appellant’s complaint of this error must be sustained. Appellant further complains of the verdict awarding appellee $110 expended by him for the services of Dr. Biscoe in removing the needle from his back, on the ground that such expenditure was unnecessary, because Dr. Thorning offered to remove the needle without any charge for his professional services. The evidence shows that on appellee’s insistence at the time of his third visit to Dr. Thorning on July 24th, that the needle be removed, the doctor told him to go to the hospital that evening and he would remove the needle the next morning without any charge for his services, but that appellee would have to pay the hospital fees, which would amount to $50 or $60. Appellee testified in regard to this interview: “I demanded again that he take the needle out and he says, you go'to the hospital at four o’clock and I will be over in the morning and operate on you. 1-Ie says, now, of course, there will be a little expense to that. He says the Hospital expenses, ten dollars for the operating room, somewhere around fifty or sixty dollars, and my wife told him she thought there would be no expense. Why, he said, nobody went to the hospital without paying. Well, I says, you broke the needle off in my back. Yes, he said, I broke it off, and I will take it out, but will not bear any expense. I told him all right, sir, and got hot and' walked out and haven’t been back since.” The evidence further shows that appellee insisted that 'the operation for removing the needle be performed by Dr. Thorning in his office, but the doctor declined to do this, and told the appellee he must go to the hospital. Several days later the operation was successfully performed by Dr. Biscoe in his office and appellee was sent home a few hours thereafter. Dr. Thorning and Dr. Davis both testified in substance that the operation could have been performed in Dr. Thorning’s office, but that the safest and best place for such operation was at a hospital, and there is no testimony to the contrary. Appellants are not shown to have owned' or *1106 had any interest in the hospital in which the operation for appendicitis was performed and to which Dr. Thorning desired appellee to go to have the needle removed. Upon this state of the evidence it was unnecessary, it seems to us, for appellee to expend more than the hospital fees for having the needle removed, and the verdict for $110 as reasonable and necessary medical and surgical treatment in the removal of the needle cannot be sustained. For the errors indicated, the judgment is reversed and the cause remanded. Justice GRAVES dissents from our conclusion that the judgment should be reversed and will file a dissenting opinion. Reversed and remanded.