Wynn v. Mid-Cities Clinic

628 S.W.2d 809, 1981 Tex. App. LEXIS 4656
CourtCourt of Appeals of Texas
DecidedDecember 22, 1981
Docket9012
StatusPublished
Cited by5 cases

This text of 628 S.W.2d 809 (Wynn v. Mid-Cities Clinic) 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
Wynn v. Mid-Cities Clinic, 628 S.W.2d 809, 1981 Tex. App. LEXIS 4656 (Tex. Ct. App. 1981).

Opinions

BLEIL, Justice.

Faye Wynn appeals from an instructed verdict granted against her in this medical malpractice action. She sought recovery based on the primary negligence of Dr. Robert L. Nelson in administering excessive x-ray radiation causing serious injuries. We reverse and remand for a new trial because the evidence raised fact questions which should have been submitted to the jury.

On appeal from an instructed verdict we view all the evidence and inferences therefrom in the light most favorable to appellant. Collora v. Navarro, 574 S.W.2d 65 (Tex.1978); Henderson v. Travelers Ins. Co., 544 S.W.2d 649 (Tex.1976). When reasonable minds may differ as to the truth of controlling facts, the issue must go to the jury. Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365 (1948). And we must indulge every proper inference from the evidence against the trial court’s action in withdrawing the case from the jury. Echols v. Wells, 510 S.W.2d 916 (Tex.1974); Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859 (1956). With these guidelines in mind, we turn to the facts developed during the trial.

This suit was brought against Drs. J. Natcher Stewart and Robert Nelson, Osteopaths who specialize in surgery and radiology, respectively; Mid-Cities Clinic; and Mid-Cities Memorial Hospital, Inc. During the relevant times Dr. Stewart owned the clinic and was the primary stockholder of the hospital, a private corporation. Dr. Nelson was an employee of the clinic and hospital. In October of 1967, Faye Wynn was referred to Dr. Stewart for evaluation of the lump in her right breast. Dr. Stewart’s examination of Mrs. Wynn confirmed the existence of the lump. On November 5, she was admitted to the hospital for testing. When biopsy results revealed that the growth was cancerous, he performed a radical mastectomy. After surgery he referred her to Dr. Nelson for radiation therapy.

Dr. Nelson planned a course of treatment to deliver approximately 4,000 rads, a unit of radiation dosage measurement, to the supraclavicular area, the right shoulder and arm; and about 3,500 rads to the mediasti-num area. These dosages were administered in twelve separate treatments, three weekly over a one month period. The twelfth and final radiation treatment was given to Faye Wynn on December 15, 1967, the last time Dr. Nelson saw Mrs. Wynn in a professional capacity.

Since 1967, Faye Wynn has survived with no evidence of recurring cancer. However, she has experienced other disabling complications and ten hospitalizations since that time. The radiation administered to her by Dr. Nelson did cause injuries to the right shoulder area, including destruction and deterioration of the collar bone and the first five ribs; alteration of her skin, muscles, blood vessels, and nerves to a leather-like fibrotic consistency with cracking and ulceration, collapse of her right chest wall, and loss of use of her arm. Appellees concede that the radiation caused her injuries but deny the existence of any evidence that the treatment was excessive.

Dr. Stewart testified that in prescribing x-ray radiation dosage, the physician is to prescribe enough radiation to destroy cancer cells, but not so much that it destroys major normal cells. The cancer cells are more susceptible to destruction by x-ray radiation than are normal cells, so that it [811]*811takes less radiation to destroy the cancerous cell than it does a normal cell. He also stated radiation is dangerous and must be carefully controlled and that a doctor should not give too little, nor too much radiation. In following Faye Wynn as a patient, Dr. Stewart said that her radiation burns did not manifest themselves for about eight years and indicated that he himself did not definitely diagnose her postoperative problems as being radiation caused until May, 1976. From the time of the x-ray radiation treatments in 1967, through the last time Dr. Stewart saw Mrs. Wynn as a patient in 1979, no doctor ever told her that her problems were due to radiation or excessive radiation.

Dr. Nelson testified that the job of a radiologist is to administer enough radiation to destroy cancer cells, but not so much to destroy normal tissue. Dr. Nelson’s records indicated that he administered 4,080 rads to the supraclavicular area.

Jack Morgan, a radiological physicist, who has worked with determining patient dosage for radiation treatment for about thirty years, testified he calibrates x-ray equipment and is able to make calculations and computations to determine, under given circumstances, what dosage of radiation a patient would receive from the machine used to administer the radiation to Faye Wynn. He calculated the number of rads actually given to the supraclavicular area to be 5,052, or 26% more than that prescribed by Dr. Nelson.

The thrust of the motion for instructed verdict and crux of the appellees’ argument on this appeal is that Faye Wynn failed to present any evidence of probative force showing that the defendants had departed from any standard of care in the treatment rendered and failed to show causation. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949), contains a clear statement of the law in Texas:

“... a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doetor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient’s injuries.”

Although a plaintiff still has the burden to prove by expert medical evidence what a reasonable medical practitioner of the same school and same or similar community, under the same or similar circumstances, would have done, this burden can be met by use of a defendant doctor’s own testimony. Wilson v. Scott, 412 S.W.2d 299 (Tex.1967). In Williams v. Bennett, 610 S.W.2d 144 (Tex.1980), it was again held that a doctor can, by his own testimony, establish the requisite standard of medical care by which his actions are judged. In that case, Dr. Bennett, the defendant, testified that it would be bad medical practice to dismiss a patient during the course of a virulent infectious process. He went on to say that when he had dismissed the patient her infection was not active. However, lay testimony showed that there was an active infection at the time of her discharge. The Supreme Court, in reversing a judgment notwithstanding the verdict, held that there was sufficient evidence to support the jury finding that the plaintiff was negligently discharged from the hospital by Dr. Bennett. The evidence here is strikingly similar to the type present in Williams v. Bennett, supra.

The testimony of the appellee doctors establishes a standard of care — that standard being to give just the right amount of radiation to kill the cancerous cells but not so much that the normal cells are harmed. Dr.

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Wynn v. Mid-Cities Clinic
628 S.W.2d 809 (Court of Appeals of Texas, 1981)

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Bluebook (online)
628 S.W.2d 809, 1981 Tex. App. LEXIS 4656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wynn-v-mid-cities-clinic-texapp-1981.