Lenger v. Physician's General Hospital, Inc.

455 S.W.2d 703, 42 A.L.R. 3d 722, 13 Tex. Sup. Ct. J. 391, 1970 Tex. LEXIS 220
CourtTexas Supreme Court
DecidedJune 10, 1970
DocketB-1496
StatusPublished
Cited by232 cases

This text of 455 S.W.2d 703 (Lenger v. Physician's General Hospital, Inc.) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lenger v. Physician's General Hospital, Inc., 455 S.W.2d 703, 42 A.L.R. 3d 722, 13 Tex. Sup. Ct. J. 391, 1970 Tex. LEXIS 220 (Tex. 1970).

Opinions

WALKER, Justice.

The question to be decided in this case, which is closely akin to a medical malpractice suit, is whether there is any evidence to support a finding that the negligence of the defendants was a proximate cause of plaintiff’s injuries and damage. Plaintiff is Dennis H. Lenger, who underwent surgery in a hospital operated by Physician’s General Hospital, Inc. Defendants are Hospital, Mrs. Pauline Jones, who attended plaintiff as a nurse for several days, and Mrs. Berdena Hightower, d/b/a Adamson Nurses Registry, who sent Mrs. Jones to [705]*705Hospital. Their motion for instructed verdict was granted by the trial court, and the Court of Civil Appeals affirmed. 438 S.W.2d 408. We affirm the judgment of the Court of Civil Appeals.

There is little dispute as to the events leading to the suit. Plaintiff entered the hospital on August 3, 1965. He was a patient of Dr. Frank Rainone, who is a surgeon in Arlington. After a number of a diagnostic tests, Dr. Rainone operated on August 10. A colon resection was performed at that time to remove a cancerous growth located in the middle transverse section of the colon. Following the operation and a brief stay in the recovery room, plaintiff was removed to a private room. He was under morphine sedation, was being fed intravenously, and had a Levin tube inserted through the nose into the stomach, which was being evacuated by a suction pump. Dr. Rainone had ordered that plaintiff receive nothing by mouth and that he be attended by private nurses around the clock.

As a result of erroneous instructions given by Hospital’s night charge nurse, the dietary department sent trays of solid food to plaintiff’s room for each of the three meals on August 12. Plaintiff protested eating this food and requested that Dr. Raino-ne be called. Mrs. Jones, who was attending plaintiff at the time, stated that she would not bother the doctor and assured plaintiff that the food would not have been sent to his room if it were not all right for him to eat. Plaintiff then ate most of the breakfast. After eating he felt as though he had gas on his stomach, which was quite sore from the surgery. Plaintiff also ate the noon meal. That afternoon it again seemed that he had gas on his stomach and the Levin tube would not drain. The tube was irrigated several times By Mrs. Jones with the assistance of Mrs. Kathryn Garnett, Supervisor of Nurses for Hospital. Mrs. Garnett said the tube had been clogged by the food. The food was not removed from plaintiff’s stomach. That evening he “felt terrible” and refused to eat the supper meal that was delivered to his room.

Plaintiff was given nothing more by mouth until August 13 when he was allowed to have a few ice chips, primarily to moisten his mouth and make him more comfortable. The Levin tube was removed on August 14, and the following day plaintiff was given water, ice chips and 7-Up. On August 16 he was placed on a full liquid diet. This diet included jello, beef broth, some of the thicker soups, certain cooked cereals, and soft drinks.

Plaintiff felt better for several days after August 12. During this period he was up from time to time, sat on the bed, moved around, and went to the bathroom. He began feeling worse on August 16, and his condition continued to deteriorate until Dr. Rainone operated again on August 20. It was then discovered that the two ends of the colon, which were sutured together during the first operation, had come completely apart. There was gas and fecal material in the abdominal cavity, and part of the small intestine had worked up into the colon at the point of separation. The small intestine had become so obstructed that it was filled with gas and its own secretions.

The colon could not be resutured because of the infection, and Dr. Rainone performed a double-barreled colostomy. On October 12 Dr. Rainone performed a third operation to undo the double-barreled colostomy. The remaining portion of the colon on the right side was then removed and the small intestine was joined to the descending colon on the left side of the body. Plaintiff was released from the hospital on October 30 and returned ■ to work about five months later.

The evidence will support findings that defendants were negligent in the several respects alleged and that their negligence is causally related to plaintiff’s eating the solid food on August 12. There is also evidence to warrant the conclusion that a person of ordinary prudence should have [706]*706foreseen that his eating the solid food at that time and under the circumstances might result in injury of some kind. The question here is whether the evidence will support the further conclusion that the two •meals eaten by plaintiff were a cause in fact of his subsequent difficulties.

The proof that must be made to establish causal .relation is easily stated in general terms, but it is often difficult to determine whether a sufficient showing has been made to warrant submission of the issue to the jury. Since liability cannot be made to turn upon speculation or conjecture, it is essential that the evidence show at least a reasonable probability that plaintiff’s complications were caused by defendants’ negligence. Insurance Co. of North America v. Myers, Tex.Sup., 411 S.W.2d 710. “The proof must establish causal connection beyond the point of conjecture. It must show more than a possibility. Verdicts must rest upon reasonable certainty of proof. Where the proof discloses that a given result may have occurred by reason of more than one proximate cause, and the jury can do no more than guess or speculate as to which was, in fact, the efficient cause, the submission of such choice to the jury has been consistently condemned by this court and by other courts.” Ramberg v. Morgan, 209 Iowa 474, 218 N.W. 492. See also Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779.

The trier of fact is usually allowed to decide the issue of causation in cases of this nature: (1) when general experience and common sense will enable a layman fairly to determine the causal relationship between the event and the condition; (2) when scientific principles, usually proved by expert testimony, establish a traceable chain of causation from the condition back to the event; and (3) when probable causal relationship is shown by expert testimony. See Parker v. Employers Mutual Liability Ins. Co., Tex.Sup., 440 S.W.2d 43. This does not mean that the court, in determining whether the issue should be submitted to the jury, must consider only evidence of one type to the exclusion of that falling into the other categories. In Insurance Co. of North America v. Kneten, Tex.Sup., 440 S.W.2d 52, the claimant suffered a heart attack shortly after sustaining an electric shock. The medical expert would only say that it was a strong possibility that the shock precipitated the attack, but his testimony did not rule out a medical relationship between the two. It was held that in view of the prompt onset of the attack following an event capable of causing it, the jury could reasonably conclude that the shock did, in fact, cause the attack.

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Bluebook (online)
455 S.W.2d 703, 42 A.L.R. 3d 722, 13 Tex. Sup. Ct. J. 391, 1970 Tex. LEXIS 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lenger-v-physicians-general-hospital-inc-tex-1970.