Brown v. Shannon West Texas Memorial Hospital

222 S.W.2d 248, 1949 Tex. App. LEXIS 2020
CourtCourt of Appeals of Texas
DecidedJune 8, 1949
DocketNo. 9802
StatusPublished
Cited by12 cases

This text of 222 S.W.2d 248 (Brown v. Shannon West Texas Memorial Hospital) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Shannon West Texas Memorial Hospital, 222 S.W.2d 248, 1949 Tex. App. LEXIS 2020 (Tex. Ct. App. 1949).

Opinion

GRAY, Justice.

. Appellants, D. M. Brown and wife, Minnie Mae Brown, sued Shannon West Texas-Memorial Hospital and Baylor University for damages sustained by Mrs. Brown due to an infection in her arm. It is alleged this infection resulted from the use of a. [249]*249nonsterile needle used in taking a blood donation from Mrs. Brown at Shannon. (This operation is termed phlebotomy.)

The undisputed facts show there was an arrangement between Baylor and Shannon whereby blood plasma was furnished to^ ■Shannon by Baylor. Under this arrangement Shannon receive'd blood donations at San Angelo and the blood was shipped to Baylor at Dallas, where it was processed into blood plasma. For the purpose of receiving blood donations, Baylor sent to Shannon what is here termed “a collecting unit,” which contained a bottle, towels, tubing and two needles, one of which went into the bottle the blood was drawn into, and the ■other into the donor’s arm. Also, there was in the collecting unit a small hypodermic needle used to deaden the donor’s arm before the larger needle was inserted to draw the blood. This collecting unit and its contents were sterilized and packed at Baylor and then sent to Shannon where it was kept until used. Neither the unit nor its contents were resterilized at Shannon.

Mrs. Brown testified that on August 19, 1946, in response to á request from Shannon, she went to the hospital and told Mr. Head (Shannon’s business manager) that she had come to give the blood requested. She then went to the room as directed by Mr. Head. Two nurses were there, these nurses swabbed her arm with a swab, used a hypodermic needle to deaden the arm, and then inserted a larger needle into her arm for the purpose o-f drawing the blood. Great difficulty was encountered by the nurses in inserting the needle into the vein. This took more than six minutes by Mrs. Brown’s watch, and was very painful. After completing the phlebotomy the nurses taped gauze on Mrs. Brown’s arm, gave her a bandaid and told her to put the bandaid on her arm when she took the gauze off. After she gave the blood, Mrs. Brown went down town, remained a very short time, and then returned home to the ranch, which was about an hour’s drive from San Angelo. In returning home she traveled in a car and was accompanied by her husband. She testified :

“I suffered from the time they injected that needle into my arm up to this present day; I haven’t been out of pain day or night and I suffered all the way home and by the time I got home there was a place that big around that was red and puffed up there and it felt hot and feverish and I was up all night long taking aspirin for the pain in my árm; I didn’t sleep any that night.”

Since the date of her blood donation, Mrs. Brown has received treatement from different doctors and has ’been a patient at St. John’s Hospital in San Angelo, where she was under the care of Dr. Powers. On Monday (August 26) after the phlebotomy Mrs. Brown reported to Shannon and was there hospitalized for twelve days and was under the care of Dr. Kunath. No charge was made for any of the services received by Mrs. Brown during these twelve days.

It was not disputed in the trial court, and is not disputed here, that Mrs. Brown has sustained serious injury. At the trial Mrs. Brown’s arm was exhibited to the jury and its then condition described by Dr. Kunath as follows:

“There is an area here approximately an inch and a half by three inches in diameter which is crusted over and it’s safe to assume there’s some type of chronic infection present there; it would be impossible to describe it, to say any more than it is covered by a heavy scab. There is an area of surrounding redness, perhaps another half inch on all sides, and there’s an obvious contracture of the elbow and that is a shortening of the muscles so that I don’t believe she can extend this arm.”

At the trial sixteen special issues were submitted to the jury, none of which were answered. Upon appellee’s motion, the court withdrew the case from the jury and rendered judgment that appellants take nothing.

Appellants say Shannon is liable for Mrs. Brown’s injuries because it furnished a nonsterile needle for use in the phlebotomy, and Baylor is liable because the needle was contaminated at the time it was furnished by Baylor to Shannon for such use; that both are liable under, the public policy rule of implied warranty of purity, and because ■of the joint arrangement existing between them.

In order for appellants to sustain their alleged cause of action, they must [250]*250show, by competent evidence, that the needle used was, at the time oí its use, infected or contaminated, and that such needle was a proximate cause of the injuries. It is not enough that the evidence shows that Mrs. Brown’s arm became infected and that she has sustained injuries and damages. “What is an infection and from whence did it come are matters determinable only by medical experts.” Kaster v. Woodson, Tex.Civ.App., 123 S.W.2d 981, 983, Er.Ref. This is a scientific field wherein conclusions must be guided by the opinions of experts. Scott v. Liberty Mut. Ins. Co., Tex.Civ.App., 204 S.W.2d 16, Er. Ref. N. R. E.

At the trial a number of witnesses testified, most of whom were lay witnesses. Three doctors and four nurses testified. We have carefully examined the entire record, and, applying the above rules, we find no competent evidence as to the,source of Mrs. Brown’s infection. Dr. Kunath said: “I would have no way whatever' to determine at what time the infection was introduced.” Dr. Powers said, in the absence of making a culture of the things used, “you can’t tell the origin or source of infection.” Dr. Hill, director of laboratories and director of the blood bank at Baylor, testified that the blood that came from outside Baylor was segregated and put on a special shelf; that tests were run to determine whether or not there was any contamination in the blood and that this was done under his supervision. He further said that, assuming the needle used in extracting Mrs. Brown’s blood had been contaminated, the contamination should have shown up in the culture of the blood; that the blood that came in from Shannon on August 21, 1946, did not show any contamination. (The evidence shows Mrs. Brown’s blood was shipped from San Angelo August 20, and should have been received by Baylor August 21, 1946.) Dr. Hill expressed his opinion that the infection in Mrs. Brown’s arm was more likely to have been received after the phlebotomy than in the course of such phlebotomy, in view of the fact that he had cultural evidence that there was not contamination on the needle used. No medical expert fixed the source of the infection.

Since the infection is not shown by any competent evidence to have been caused by the acts of appellees, or either of them, appellants have failed to discharge the burden of proving the needle used in the phlebotomy was infected and that the infected needle was a proximate cause of Mrs. Brown’s injuries. ' Neither does the evidence show some other act of appellees caused such injuries. In any event the evidence goes no further than to show that the injuries sustained by Mrs. Brown could have resulted from the use of a nonsterile needle. In Bowles v. Bourdon, 147 Tex. -, 219 S.W.2d 779, 785, the Supreme Court used language as follows:

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222 S.W.2d 248, 1949 Tex. App. LEXIS 2020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-shannon-west-texas-memorial-hospital-texapp-1949.