Stinnett v. Price

446 S.W.2d 893, 1969 Tex. App. LEXIS 2435
CourtCourt of Appeals of Texas
DecidedSeptember 29, 1969
Docket7977
StatusPublished
Cited by9 cases

This text of 446 S.W.2d 893 (Stinnett v. Price) 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
Stinnett v. Price, 446 S.W.2d 893, 1969 Tex. App. LEXIS 2435 (Tex. Ct. App. 1969).

Opinion

NORTHCUTT, Justice.

This is a medical malpractice case. Sidney E. Stinnett and wife, Dorothy Stinnett, brought this suit against Dr. William T. Price, a neurosurgeon, seeking to recover damages received by Mrs. Stinnett caused by the negligence of Dr. Price in performing an angiogram. At the conclusion of plaintiffs’ case the trial court granted defendant’s motion for instructed verdict and judgment rendered that the plaintiffs recover nothing. From that judgment the plaintiffs perfected this appeal. Hereinafter the parties will be referred to as they were in the trial court, the Stinnetts as plaintiffs and Price as defendant.

*894 This appeal is presented upon three points of error contending the court erred in granting an instructed verdict since there was sufficient evidence upon which plaintiffs were entitled to go to the jury; that the court erred in sustaining appellee’s exception to plaintiffs’ plea of res ipsa lo-quitur and in refusing to allow plaintiffs’ trial amendment.

Mrs. Stinnett had been a patient of Dr. Jere B. Johnson for some time before going to Dr. Price. The plaintiffs proved by Dr. Johnson the history of the condition of Mrs. Stinnett while being treated by Dr. Johnson. That history was substantially as follows: Mrs. Stinnett consulted Dr. Johnson on September 8, 1965; November 24, 1965; December 10, 1965; January 11, 1966; and June 25, 1966. On all of these visits her main complaint was severe headaches. On her last visit, June 25, 1966, she complained of severe headaches which were getting worse. At this last visit, Dr. Johnson concluded to recommend neurological examination by Dr. Price and if nothing was found, would have Dr. Brit-tain or Dr. Pennal in consultation.

Dr. Johnson testified that Mrs. Stinnett was complaining of severe headaches which had been going on for a time from September, 1965, to June, 1966; it was accompanied by severe episodes; that Mrs. Stinnett on this June 25, 1966 visit stated the headaches were getting worse and she stated that she was having noises in her ear. Dr. Johnson also testified those symptoms were enough in his mind that a brain tumor had to be ruled out. On that same day, Dr. Johnson called Dr. Price by phone and explained all these conditions to him and Mrs. Stinnett was placed in the hospital and Dr. Price then took charge of her as his patient.

Dr. Price performed a series of tests consisting of ordinary skull X-ray, brain scan, spinal tap and an echoencephologram. The skull X-ray indicated a pineal shift of five millimeters, ordinarily symptomatic of a growth in the brain or a malformation of blood vessels. From these tests, Dr. Price concluded that an angiogram was necessary and Dr. Johnson agreed that that was what should be done. Sometime between two and three hours after the angiogram was given Mrs. Stinnett, she had a stroke and was paralyzed on her right side. The defendant testified he felt that the stroke was in some way related to the injection of the contrast media, but the exact mechanism he just didn’t have any idea. He further testified that he had done probably 1,300 angiograms and had never seen one like this. It is plaintiffs’ contention that defendant did not inform Mrs. Stinnett of the risks in performing an angiogram.

It is stated in Wilson v. Scott, 412 S.W.2d 299 by the Supreme Court as follows :

“Physicians and surgeons have a duty to make a reasonable disclosure to a patient of risks that are incident to medical diagnosis and treatment. This duty is based upon the patient’s right to information adequate for him to exercise an informed consent to or refusal of the procedure. Salgo v. Leland Stanford Jr. Univ. Bd. of Trustees, 154 Cal.App.2d 560, 317 P.2d 170 (Ct.App.1957); Bowers v. Talmage, 159 So.2d 888 (Fla.App.1963); Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, on rehearing, 187 Kan. 186, 354 P.2d 670 (1960); 60 Colum.L. Rev. 1193 (1960); Annot. 99 A.L.R.2d 599 (1965).”

However, there is no evidence in this case that defendant did not disclose to Mrs. Stinnett the risks that were incident to this treatment. Defendant testified that he told her that he needed to do an angiogram because of the shift of the pineal gland; that he advised her that this test was much bigger than any test she had previously had and that it had definite risks involved, and that she asked him what those risks were, and he told her there was a possibility of a stroke.

The fact that the testimony of an interested witness is not accepted as evi *895 dence in his favor does not operate to convert it into evidence against him. Texas & N. O. R. Co. v. Grace, 144 Tex. 71, 188 S.W.2d 378; Texas & Pacific Ry. Co. v. Brown, 142 Tex. 385, 181 S.W.2d 68; R. T. Herrin Petroleum Transport Co. et al. v. Proctor, 161 Tex. 222, 338 S.W.2d 422.

Since Mrs. Stinnett gave her consent for the defendant to perform the angiogram and there is no evidence that defendant did not inform her of the risks involved, there was no issue to be submitted that the defendant was negligent in failing to inform the plaintiffs of the risks.

As to plaintiffs’ contention that the court erred in sustaining their plea of res ipsa loquitur, if considered an error, it would be a harmless error under this record. We think the rule of res ipsa lo-quitur is well expressed in the case of Goodnight v. Phillips, 418 S.W.2d 862 (n. r.e.) where the court stated:

“By his 20th point appellant complains of error of the trial court in sustaining exceptions to a plea of res ipsa loquitur. There are only very, very few instances where a pleading of res ipsa loquitur is applicable in medical malpractice cases. Where negligence is alleged against a doctor, it must be proved by expert medical testimony before the case can be developed. The doctrine of res ipsa loqui-tur is not applicable and recovery cannot be had without medical proof that the negligence actually occurred. Shockley v. Payne, Tex.Civ.App. (1961), 348 S.W.2d 775; Bell v. Umstattd, Tex.Civ.App. (1966), 401 S.W.2d 306; and, Loui-sell and Williams, Trial of Medical Malpractice Cases, § 14.05 and 14.06. The point is overruled.”

While the plaintiffs, on direct examination, were introducing the evidence of Dr. Ellis, a neurological surgeon, the following hypothetical situation was given and the questions and answers concerning that situation were as follows:

“Q. With regard to the clinical problem presented, doctor, let me give you a hypothetical situation.

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Bluebook (online)
446 S.W.2d 893, 1969 Tex. App. LEXIS 2435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stinnett-v-price-texapp-1969.