Walgreens v Stewart: Assault not med-mal - Good to have that confirmed by the Court of Appeals

Houston Court of Appeals rebuffs pharmacy chain's bid to have suit in which plaintiff alleged he was assaulted by store employee treated as a health care liability claim subject to the strictures of the the Texas Medical Liability Act, including the expert report requirement. Walgreen Company v Charles Stewart, No. 01-17-00080-CV (Tex.App. - Houston, Nov. 30, 2017) 

WALGREEN COMPANY, Appellant,
v.
CHARLES STEWART, Appellee.

No. 01-17-00080-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued November 30, 2017.    

Phil Griffis, Jerry D. Mason, for Walgreen Co., Appellant.

Harry C. Arthur, Charles Stewart, for Charles Stewart, Appellee.

On Appeal from the 125th District Court, Harris County, Texas, Trial Court Case No. 2015-52136.
  

Panel consists of Justices Higley, Massengale, and Lloyd.

MEMORANDUM OPINION

RUSSELL LLOYD, Justice.

In this interlocutory appeal, Walgreen Company appeals the trial court's order denying its motion to dismiss Charles Stewart's suit alleging claims for assault and negligence. In its sole issue, Walgreen contends that the trial court erred in denying its motion to dismiss because Stewart's claims are health care liability claims, and Stewart failed to provide an expert report and curriculum vitae as required by Chapter 74 of the Civil Practice and Remedies Code. 

We affirm.

Background

On October 18, 2013, Stewart went to the Walgreen store located at 105 West Road in Houston, Texas, to purchase prescription medication. According to Stewart's pleadings, he was engaged in an "animated discussion" with the pharmacist when a Walgreen employee physically attacked him, resulting in serious injury.

On September 3, 2015, Stewart sued Walgreen for assault^[1] and negligent hiring, supervision, training, and retention. His petition alleges that the Walgreen employee "acted intentionally, knowingly, or recklessly when physically attacking and making contact with [Stewart] and that the "employee's contact caused substantial bodily injury to [Stewart]." He further alleges that Walgreen was negligent in its own right for failing to properly "hire, supervise, train or retain competent employees," which resulted in Stewart's assault and subsequent injuries.

On July 11, 2016, Walgreen filed a motion to dismiss Stewart's suit for failure to serve an expert report and curriculum vitae in accordance with the Texas Medical Liability Act ("TMLA"). On July 25, 2016, Stewart filed a response to Walgreen's motion to dismiss, arguing that his claims do not constitute health care liability claims and, therefore, he was not required to serve an expert report and curriculum vitae. On July 26, 2016, Walgreen filed a reply to Stewart's response.

On January 25, 2017, the trial court denied Walgreen's motion to dismiss. This interlocutory appeal followed.

Standard of Review

Generally, we review a district court's ruling on a motion to dismiss under Chapter 74 of the Texas Civil Practices and Remedies Code for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex. 2001). However, when the issue, as in this case, involves the applicability of Chapter 74 to the plaintiff's claims and requires an interpretation of the TMLA, i.e., a question of law, we apply a de novo standard of review. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012); Methodist Hosp. v. Halat, 415 S.W.3d 517, 520 (Tex. App.-Houston [1st Dist.] 2013, no pet.).

When interpreting a statute, our primary goal is to ascertain and give effect to the intent of the legislature. See F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007). Where the statutory text is clear, we presume that the words chosen are the surest guide to legislative intent. Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010). We rely upon the definitions prescribed by the legislature and any technical or particular meaning the words have acquired. See TEX. GOV'T CODE ANN. § 311.011(b) (West 2013). Otherwise, we apply the words' plain and common meanings, unless the legislature's contrary intention is apparent from the context or such a construction would lead to absurd results. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008).

Discussion

The issue before us is whether the trial court properly determined that Stewart's claims are not health care liability claims. Only health care liability claims are subject to the expert report requirement in section 74.351 of the Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2013).^[2]

Section 74.001(a)(13) of the Texas Civil Practices and Remedies Code states that a "health care liability claim" is

a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract.

Id. § 74.001(a)(13). This definition consists of three elements: (1) the defendant is a health care provider or physician; (2) the claimant's cause of action is for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care; and (3) the defendant's alleged departure from accepted standards proximately caused the claimant's injury or death. Loaisiga v. Cerda, 379 S.W.3d 248, 255 (Tex. 2012). The party asserting application of the TMLA carries the burden to show the causes of action asserted are health care liability claims. Reddy v. Veedell, 509 S.W.3d 435, 438 (Tex. App.-Houston [1st Dist.] 2014, pet. denied); Brown v. Villegas, 202 S.W.3d 803, 806 (Tex. App.-San Antonio 2006, no pet.). Walgreen contends that Stewart's suit satisfies all three elements.

Walgreen argues that it qualifies as a health care provider under the TMLA. Specifically, it contends that "[its] activities involved in the dispensing of prescription medication to [Stewart] resulted in this claim and, therefore, [Walgreen] is a `health care provider' for purposes of the suit."

Section 74.001(12)(A) defines "health care provider" as "any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including: . . . (iv) a pharmacist[.]" TEX. CIV. PRAC. & REM. CODE § 74.001(12)(A)(iv) (West 2015). "Pharmacist" is narrowly defined for the purposes of Chapter 74 as "one licensed under Chapter 551, Occupations Code, who, for the purposes of this chapter, performs those activities limited to the dispensing of prescription medicines which result in health care liability claims and does not include any other cause of action that may exist at common law against them, including but not limited to causes of action for the sale of mishandled or defective products." Id. § 74.001(22). Therefore, a pharmacist can be sued pursuant to Chapter 74 only for "the dispensing of prescription medicines that result in health care liability claims." Randol Mill Pharmacy v. Miller, 465 S.W.3d 612, 617 (Tex. 2015).

In this case, Stewart has sued a pharmacy, Walgreen, not the individual pharmacist employed by Walgreen. Walgreen argues that this distinction is irrelevant for purposes of the TMLA. In support of its argument, Walgreen relies on Rendon v. Walgreen, 144 F. Supp.3d 894 (N.D. Tex. 2015). There, the plaintiff sued Walgreen alleging that its pharmacist filled his prescription with the wrong medication, causing him to fall and injure himself after ingesting the medicine. See id. at 895. The court stated that the fact that the plaintiff sued a pharmacy rather than a pharmacist was immaterial because claims against both pharmacists and pharmacies are subject to the TMLA "with respect to `those activities limited to the dispensing of prescription medicines which result in health care liability claims.'" Id. at 898 (quoting Randol Mill Pharmacy, 465 S.W.3d at 619).<sup>[3]</sup> The court concluded that "[t]he only action Walgreen is alleged to have taken—through its employee, the pharmacist—is that it gave Rendon the wrong medicine. Therefore, because Rendon's claims are solely premised on Walgreen's `dispensing of prescription medicines,' Walgreen is a `health care provider' for TMLA purposes in this case." Id.

"[L]icensed pharmacists and pharmacies are health care providers for purposes of the Medical Liability Act with respect to `those activities limited to the dispensing of prescription medicines which result in health care liability claims.'" Randol Mill Pharmacy,465 S.W.3d at 619 (citing TEX. CIV. PRAC. & REM. CODE § 74.001(22)). "They are not considered health care providers with respect to `any other cause of action that may exist at common law against them, including but not limited to causes of action for the sale of mishandled or defective products.'" Randol Mill Pharmacy, 465 S.W.3d at 619. Here, Stewart's claims are not premised on the dispensing of prescription medicines. Rather, Stewart alleges that a Walgreen employee, not its pharmacist, physically assaulted Stewart while he was arguing about a prescription with the pharmacist, and that Walgreen negligently hired, supervised, trained, and retained the non-pharmacist employee who he alleges assaulted him. Stewart's claims are not based on any effect arising from Walgreen's dispensing of prescription medicines, and therefore, Walgreen is not a health care provider for TMLA purposes in this case. See id.^[4]

We hold that Stewart's claims are not health care liability claims, and the trial court properly denied Walgreen's motion to dismiss Stewart's suit. Accordingly, we overrule Walgreen's issue.^[5]

Conclusion

We affirm the trial court's order denying Walgreen's motion to dismiss.

[1] Stewart alleges that Walgreen is liable for its employee's conduct under the doctrine of respondeat superior.

[2] Section 74.351(a) requires a plaintiff, in cases involving a health care liability claim, to serve on the defendant one or more expert reports, on or before the 120th day after the defendant's original answer is filed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2013).

[3] In Randol Mill Pharmacy v. Miller, the Texas Supreme Court held that the pharmacy and its employees were engaged in "the dispensing of prescription medicines" when they compounded the injectable drug administered to the plaintiff by her physician which caused the plaintiff to have an adverse reaction. 465 S.W.3d 612, 621 (Tex. 2015).

[4] In Randol Mill Pharmacy, the Texas Supreme Court noted that in the typical case against a pharmacy involving claims of incorrectly filled prescriptions, courts generally agree that the TMLA applies. 465 S.W.3d at 617 (citing Walgreen Co. v. Hieger, 243 S.W.3d 183, 185-86 (Tex. App.-Houston [14th Dist.] 2007, pet. denied)(analyzing sufficiency of expert report in claim alleging pharmacy incorrectly filled prescription with wrong medication); HEB Grocery Co. v. Farenik, 243 S.W.3d 171, 173 (Tex. App.-San Antonio 2007, no pet.) (same); see also Gingrich v. Scarborough, No. 09-09-00211-CV, 2010 WL 1711067, at *5 (Tex. App.-Beaumont Apr. 29, 2010, no pet.) (mem. op.) (holding that plaintiff's expert report was insufficient as to claim that pharmacy negligently filled prescription for "excessive" medications that led to drug toxicity).

[5] Because Stewart's suit does not satisfy the first element of a health care liability claim, we need not consider the second and third elements. See Rio Grande Valley Vein Clinic, P.A. v. Guerrero, 431 S.W.3d 64, 65 (Tex. 2014) ("Under the Medical Liability Act, a health care liability claim must satisfy three elements[.]").

Walgreens' Notice of Interlocutory Appeal
from denial by the 125th District Court 

Appealed Order Denying Dismissal 

Slippery floor at hospital is not a medical condition after all - Texas Supreme Court (Comment on Ross v St Luke's Episcopal Hospital)

In 2013 a panel of the Fourteenth Court of Appeals found itself compelled to rule that injury sustained by a hospital visitor's fall on a slippery floor was a health care liability claim, and that the visitor's lawsuit had to be dismissed because the Plaintiff had not filed an expert report explaining how the wet floor constituted medical malpractice, or rather more specifically, how the wet floor departed from the applicable standard of medical care. 

Why did the panel reach the absurd conclusion that a wet floor is medical malpractice, and therefore required proof of malpractice by expert testimony under the Health Care Liability Act? It did so because it felt duty-bound to follow Texas Supreme Court precedent to the effect that a claim need not constitute a medical malpractice claim to be treated as such for purposes of a lawsuit brought against a health care provider, and therefore required a medical malpractice expert report. 

In the meantime, a doctor who owned cattle that had been allowed to wander onto a rural road causing a collision sought dismissal of the lawsuit that the injured driver brought against him because no medical-export report regarding the cow-car-collision and the applicable standard of care had been filed. The attorney for the doctor, too, was just relying on Texas Supreme Court precedent, and zealously protecting the interests of his client, who happened to be a doctor. Or so the story went. 
  
Finally, last Friday, the Supremes announced that an ordinary negligence claim is not a health care liability claim after all if it does not arise out of provision of healthcare. Therefore, the hospital visitor who slipped and fell was not required to file an expert report. Good grief. Why did it take so long for the Supremes to come to their senses and admit the obvious? Why did they only do so after the roaming-cow med-mal practice case had made the news, and exposed the level of absurdity of which tort reform, both legislative and judicial, had reached? 

But in Fourteenth Court of Appeals got reversed in the process, and told that they -- rather than the Supremes -- had gotten it wrong. 

The irony (if not absurdity): They were just following binding precedent from the Texas Supreme Court. As an intermediate court, they said, they did not have the authority to go against the Supreme Court. They were just following orders. They felt compelled to march in lock-step and become extras in a theater of the absurd. 

Perhaps the roaming cows would not have come home to roost had the underlings on the inferior court been brave enough to say that the emperors had lost their wits and had no clothes. The Supremes would have had to affirm them.

Perhaps the Fourteenth Court of Appeals should have mopped up the slippery-slope mess that med-mal litigation had become thanks to "tort reform", rather than merely griping, and -- in the case of the one justice on the panel who has since made it to the policymaking level and become one of the emperors with stare decisis powers - concur in the absurdity without writing a separate opinion. 

Affirmed and Memorandum Opinion filed March 19, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00885-CV

LEZLEA ROSS, Appellant

V.

ST. LUKE'S EPISCOPAL HOSPITAL, Appellee

On Appeal from the 215th District Court

Harris County, Texas

Trial Court Cause No. 2010-75291

M E M O R A N D U M     O P I N I O N

Appellant Lezlea Ross appeals from the trial court’s interlocutory order dismissing her suit against appellee St. Luke’s Episcopal Hospital. The trial court dismissed the suit because Ross failed to file an expert report as required by Section 74.351 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (West 2011).

The sole issue on appeal is whether Ross’s claim based on a slip and fall occurring on the Hospital’s premises is a ―health care liability claim (HCLC) to which the expert-report requirement applies. Compelled by stare decisis, we hold that this claim is an HCLC, and we affirm.

BACKGROUND

Ross slipped and fell in the lobby of St. Luke’s Episcopal Hospital after visiting a patient.

Ross brought this action against the Hospital and its maintenance and training contractor, Aramark Management Services L.P.

After the Texas Supreme Court decided Texas West Oaks Hospital, LP v. Williams, 371 S.W.3d 171, 179–80 (Tex. 2012), the Hospital filed a motion to dismiss because Ross did not file an expert report explaining how the Hospital had breached a standard of care, or an expert report from a physician demonstrating how said breach caused Ross an injury. The trial court granted the Hospital’s motion, decreed that Ross’s claims against the Hospital were HCLCs subject to Chapter 74, dismissed with prejudice Ross’s claims against the Hospital, and ordered that Ross pay attorneys fees of $1,000. Ross filed a timely notice of appeal from the trial court’s interlocutory order. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(10) (West Supp. 2012).

ANALYSIS

In a single issue, Ross contends the trial court erred by granting theHospital’s motion to dismiss because her slip and fall claim is not an HCLC within the meaning of Chapter 74.

Ross was not a patient at the Hospital; she did not have a physician-patient relationship with any health care provider at the Hospital. She was a visitor, injured in the lobby of the Hospital. Yet, the Texas Supreme Court instructs that these facts are irrelevant for purposes of determining whether Ross brings an HCLC.

The Hospital, a health care provider, is the defendant. The Hospital is a defendant because of the condition of its floors in the lobby, not because of any act or omission related to health care—unless the decision to have polished floors is health care—which the Hospital does not allege here. Yet, the Texas Supreme Court instructs that a connection between the act or omission and health care is
unnecessary for purposes of determining whether Ross brings an HCLC.

Ross likely never imagined that, under the Texas Supreme Court’s construction, the plain language of the Texas Medical Liability Act would swallow her garden-variety slip and fall case. But it has. And, having failed to file an expert report as required by the Act, Ross owes the Hospital $1,000 in mandatory fees.

Ross does not contest that an allegation that the floors are slippery is a ―safety-related claim. Ross does not attempt to remove her claim from the Texas Supreme Court’s construction of the requites of the Act: A claimant (plaintiff), a defendant health care provider, and a harm or loss (safety). Ross argues simply that this court should ignore Williams because to apply it demands that we affirm.
 
Because the result in this case is absurd, Ross urges, this court should resort to TEX. GOV’T CODE ANN. § 311.021(3) (West 2005) (stating that the Legislature is presumed to have intended a ―just and reasonable result), to disregard the TexasSupreme Court decision on point. We are without such authority. See Lubbock Cnty., Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (―It is not the function a court of appeals to abrogate or modify established precedent.
That function lies solely with this Court. Generally, the doctrine of stare decisis dictates that once the Supreme Court announces a proposition of law, the decision is considered binding precedent. (citations omitted)). Thus, we must overrule her sole issue.

CONCLUSION

Having overruled Ross’s sole issue on appeal, we affirm the trial court’s order.

/s/ Sharon McCally, Justice

Panel consists of Justices Brown, Christopher, and McCally. (Brown, J., concurring without opinion).

Footnotes:

Ross testified by deposition that a man was buffing the lobby floor.

See Williams, 371 S.W.3d at 188–89 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West Supp. 2012)). ―[A] claim need not involve a patient-physician relationship for it to be an HCLC.2 Id. at 189.3

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(2).][3 See Williams, 371 S.W.3d at 186 (allegations pertaining to safety need not be ―directly related to health care‖).

See id. at 184 (holding that ―safety in the context of the Act has the broadest meaning: ―untouched by danger; not exposed to danger; secure from danger, harm or loss‖ (quotations omitted)).

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(1) (the trial court shall enter an order that awards fees and costs). During oral argument, the Hospital withdrew its request for fees on appeal.

FOR FURTHER READING

OUCH! THE EXPANDING DEFINITION OF HEALTH CARE LIABILITY CLAIMS UNDER THE TEXAS MEDICAL LIABILITY ACT AND WHY TEXAS TOOK IT TOO FAR

Comment by Jamie L. Vaughan*

Expert's confirmation that patient's fall caused injury deemed adequate to satisfy med-mal law

Expert doc was needed to certify blunt-force trauma and further validate coronor's ruling for civil liability purposes.

After med-mal reform, and a series of Supreme Court decision toughening the standards for pursuing health-care liability claims, including the threat of sanctions if deadlines are missed, or an inadequate or no expert report is served, immediate interlocutory appeals by healthcare providers/defendants have proliferated. This is one of them. Nothing can be taken for granted, and many PI attorneys are now reluctant to even bring such suits. Here, the reviewing court affirms the trial court's determination that the expert report was adequate. The defendant had contended otherwise and sought dismissal and attorney's fees. The facts alone, and the obvious injuries of the nursing home patient who was not properly handled and restrained, fell, and died, would not have sufficed to keep the case alive on the docket. An expert was needed to satisfy the statute.

M E M O R A N D U M O P I N I O N

This is an accelerated appeal by Nexion Health at Humble, Inc. d/b/a Humble Healthcare Center (hereinafter “HHC") from the denial of a motion to dismiss in a healthcare liability suit. HHC raises three issues concerning the denial of the motion and the failure to award attorney's fees and costs.

We affirm.

This appeal arises from a suit for damages, based on allegations of negligence against two nursing facilities.[1] Jeanette Blanc was a non-ambulatory patient at a nursing home, when an employee allegedly dropped her while giving her a bath. This fall caused a fracture of Blanc's hip. After surgery for the broken hip, Blanc was moved to HHC's facility. Soon thereafter, an employee at HHC's facility loaded Blanc into a van for transport to a doctor's appointment. Because Blanc was not properly secured in the vehicle, she was thrown out of her wheelchair and hit the floor of the van, resulting in facial contusions, swelling, nose lacerations and abrasions, as well as swelling to both knees and shins. After treatment for these injuries, Blanc returned to HHC's facility. A short time later, Blanc died. According to the coroner, Blanc died from “[c]omplications of blunt force injury with left hip fracture".

Because this is a healthcare liability claim, it is governed by Chapter 74 of the Texas Civil Practice and Remedies Code, which requires the claimant to furnish an expert report within 120 days after suit is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008). Appellees attached an expert report to their original petition. This report was prepared by David P. Wright, M.D. The two healthcare defendants objected to the expert report on a number of grounds. The defendants moved to dismiss for failure to comply with Chapter 74. The parties reached a Rule 11 agreement that plaintiff would provide an amended report. After the amended expert report was filed, the defendants filed a second motion to dismiss for failure to comply with Chapter 74. The trial court denied this motion and HHC filed this appeal.

* * *

In Wright, the supreme court held that an expert report must express the causal relationship in terms of reasonable medical probability and must summarize the causal relationship between the facility's failure to meet the applicable standard of care and Blanc's injury. Id. at 53. In Wright, the court found the expert report lacked information linking the expert's conclusion to the alleged breach. Id. See also Davis v. Spring Branch Med. Ctr., Inc., 171 S.W.3d 400, 410 (Tex. App.-Houston [14th Dist.] 2005, no pet.)(found no causal link between conclusory statements in expert report that failure to follow doctor orders regarding tube feeding, weighing of patient, and check of gastric tube position robbed plaintiff of quality of life and hastened loss of her legs).

Here, Dr. Wright did link the alleged breach (the failure to properly supervise and restrain Blanc in the vehicle) to the injury (the lacerations, contusions, neurological and cognitive insult contributing to her overall ill health and demise). Thus, the trial court could have determined the report did establish a causal relationship between the alleged breach of the applicable standard of care and the injury. As Dr. Wright's opinion explains, the fall from the wheelchair caused lacerations and contusions, but may have also causes cognitive and neurological complications that hastened her death. This is sufficient to establish a causal link between the breach of the standard of care and the injury.

Nexion Health at Humble Inc v. Whitley (Tex.App.- Houston [14th Dist.] Aug. 25, 2009)
(HCLC denial of motion to dismiss affirmed, expert report adequate)
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00052-CV Nexion Health at Humble, Inc. d/b/a Humble Healthcare Center v. Carolyn Whitley;
Clifton Kelly; Diddie Blanc; Billie Ray Kelly; and Judy Williams, Representative of the Estate of Jeanette Blanc, Deceased
Appeal from 11th District Court of Harris County
Trial Court Judge: Mark Davidson

Justice Evelyn Keyes vindicated

Good Samaritan Defense Undone

Texas Supreme Court vindicates Justice Keyes criticism of performance of one of two new members of the Fourteenth Court of Appeals in health care liability suit brought on behalf of brain-injured newborn. Former judge of the 55th District Court, - who now sits on the other Houston Court of Appeals thanks to gubernatorial appointment - had come to the aid of doctor who disavowed pecuniary interest in (mis)treating distressed infant and claimed Good Samaritan status in bid to have parents' malpractice suit dismissed.

Chau v. Jefferson Riddle, M.D., No. 07-0035 (Tex. Feb. 15, 2008)(per curiam)(reversing summary judgment in favor of defendant anesthesiologist based on good samaritan defense)

DISSENTING OPINION BY JUSTICE EVELYN KEYES IN THE COURT BELOW

[footnotes omitted]

In The Court of Appeals For The First District of Texas

NO. 01-04-00551-CV
__________

THAO CHAU AND HA DIEN DO, INDIVIDUALLY AND AS NEXT FRIEND OF THEIR MINOR CHILDREN, S.D. AND H.D., Appellants

V.

JEFFERSON RIDDLE, M.D. AND GREATER HOUSTON ANESTHESIOLOGY, P.A., Appellees

On Appeal from the 55th District Court [Judge Jeff Brown]
Harris County, Texas
Trial Court Cause No. 2002-36481-A

DISSENTING OPINION BY JUSTICE EVELYN KEYES

The majority opinion breathtakingly expands the scope of the Good Samaritan affirmative defense. Because the majority’s construction of the statute is important to the jurisprudence of this State and is, I believe, contrary to controlling law, I respectfully dissent. I would reverse and remand this case for trial on the merits.

Background Facts

This is an appeal from a summary judgment entered in favor of appellees Jefferson Riddle, M.D. and Greater Houston Anesthesiology, P.A. (collectively, GHA) and against appellants Thao Chau and Ha Dien Do, individually and as next friend of their minor children, S.D. and H.D. (collectively, the Dos). Dr. Riddle, whose actions are the subject of appellants’ underlying malpractice suit, was on call for emergency anesthesiology services at Memorial Hermann Southwest Hospital when appellant Thao Chau was admitted for an emergency caesarian section. Dr. Riddle responded to the emergency and was associated with the delivery team assembled by the obstetrician, Dr. Le, to provide anesthesiology services for the delivery and immediate post-delivery care. S.D., one of Thao Chau’s twins delivered by Dr. Le, was born floppy and did not begin breathing. Dr. Le asked Dr. Riddle to intubate him. Having determined that he could safely leave the mother, Dr. Riddle consented and intubated S.D. Dr. Riddle testified by affidavit that he used a stethoscope to listen to S.D.’s chest and determined that air was traveling to the baby’s lungs before returning to the mother. He did not secure the breathing tube and then listen again to be sure it was in the right place, actions which the Dos’ expert, Dr. Katz, testified are standard practice and would have taken a few seconds. Nor did Dr. Riddle check S.D.’s end-tidal carbon dioxide to be sure that S.D. was properly intubated. Instead, he handed S.D. off to the neo-natal team of residents and nurses, who listened for breathing sounds, performed CPR, and administered epinephrine. Twelve minutes later, the on-call neonatologist, Dr. Ruiz-Puyana, arrived in the delivery room, received S.D., and determined that he had been intubated into the esophagus. She reintubated S.D., and he began to breathe. S.D. suffered severe permanent brain damage due to lack of oxygen.

Months after the deadline in the trial court’s docket control order for designating experts, filing new pleadings, and filing dispositive motions, GHA filed new pleadings asserting the Good Samaritan affirmative defense, together with a motion for summary judgment on that defense. The Good Samaritan defense invoked by GHA, which has since been superseded, was then set out at section 74.001 of the Texas Civil Practice and Remedies Code.

At GHA’s request, the trial court enforced its docket control order and a prior order limiting the Dos’ experts. The court prohibited the Dos from designating an additional expert on the Good Samaritan defense and struck summary judgment evidence critical to that defense on the grounds that it was untimely filed and conclusory. The court did not enforce the docket control order against GHA. It sustained GHA’s objections to the Dos’ summary judgdment proofs and overruled the Dos’ objections to GHA’s summary judgment proofs. Following a hearing, the trial court granted summary judgment to GHA and dismissed the Dos’ claims with prejudice. The majority affirms. I dissent.

Standard of Proof of Summary Judgment

GHA filed a no-evidence and traditional summary judgment motion on the Dos’ negligence claims and a traditional summary judgment on its Good Samaritan affirmative defense. See Tex. R. Civ. P. 166a(b), (i).

Because a no-evidence motion for summary judgment places the burden on the non-movant to present enough evidence to be entitled to a trial, a party moving for summary judgment on an affirmative defense cannot bring a no-evidence motion for summary judgment on that defense. Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 43 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Rather, a defendant moving for summary judgment on an affirmative defense must conclusively prove all elements of that defense as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Montgomery v. Kennedy, 669 S.W.2d 309, 310–11 (Tex. 1984); Quanaim, 17 S.W.3d at 43. In reviewing a traditional motion for summary judgment, the reviewing court must take all evidence favorable to the non-movant as true and make all reasonable inferences in favor of the non-movant. KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Montgomery, 669 S.W.2d at 311; Quanaim, 17 S.W.3d at 41. If the movant’s motion and summary judgment proof establish its right to summary judgment as a matter of law, the burden shifts to the non-movant to establish a genuine issue of material fact. Quanaim, 17 S.W.3d at 41–42. The existence of a legal duty is a question of law for the court to decide based on the surrounding facts. See id. at 43.
GHA’s Motion for Summary Judgment

In their fifth issue, the Dos contend the trial court erred in entering summary judgment in favor of GHA on its Good Samaritan defense and dismissing their claims. I agree.
Former Section 74.001 of the Civil Practice and Remedies Code
Former section 74.001 of the Texas Civil Practice and Remedies Code, under which GHA brought its motion for summary judgment, provided, in relevant part:
(a) A person who in good faith administers emergency care . . . at the scene of an emergency but not in a hospital . . . is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent.

(b) This section does not apply to care administered:

(1) for or in expectation of remuneration; or
. . . .

(c) If the scene of an emergency is in a hospital . . . a person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is willfully or wantonly negligent, provided that this subsection does not apply to care administered:

(1) by a person who regularly administers care in a hospital emergency room unless such person is at the scene of the emergency for reasons wholly unrelated to the person’s work in administering health care; or

(2) by an admitting or attending physician of the patient or a treating physician associated by the admitting or attending physician of the patient in question.

(d) For purposes of subsections (b)(1) and (c)(1), a person who would ordinarily receive or be entitled to receive a salary, fee, or other remuneration for administering care under such circumstances to the patient in question shall be deemed to be acting for or in expectation of remuneration even if the person waives or elects not to charge or to receive remuneration on the occasion in question.
Former Tex. Civ. Prac. & Rem. Code Ann. § 74.001.

Because it is undisputed that the scene of S.D.’s emergency intubation was a hospital, former section 74.001(c) governs this case. To prove its Good Samaritan defense under section 74.001(c), GHA had to establish as a matter of law that Dr. Riddle administered care to S.D. in good faith in an emergency and was not wantonly or wilfully negligent and that he was not excluded from the protection of the Good Samaritan statute by former subsection 74.001(c)(1) or (c)(2).

The parties do not dispute that Dr. Riddle’s actions with respect to S.D. were undertaken in an emergency and that they were not wantonly or wilfully negligent. However, in order to prove that Dr. Riddle was not excluded from the protection of the Good Samaritan statute by former subsection 74.001(c)(1) or (2), GHA also had to establish as a matter of law (1) that Dr. Riddle was not a person who regularly administers care in an emergency room, or, if he was such a person, that he was at the scene of S.D.’s intubation for reasons “wholly unrelated to [his] work in administering health care,” and thus was not excluded from the protection of the Good Samaritan statute by former subsection 74.001(c)(1) and (2) that Dr. Riddle was not “a treating physician associated by the admitting or attending physician” for S.D. and thus was not excluded from the protection of the Good Samaritan statute by former subsection 74.001(c)(2). If GHA established as a matter of law that Dr. Riddle was entitled to the protection of section 74.001(c) because he was at the scene for reasons wholly unrelated to his work in administering emergency anesthesiology services, satisfying subsection 74.001(c)(1), GHA would also have to prove (3) that Dr. Riddle was not legally entitled to payment for his emergency services to S.D., i.e., he would not “ordinarily receive or be entitled to receive a salary, fee, or other remuneration for administering care under such circumstances,” so that he was not excluded from the protection of the Good Samaritan statute by former subsection 74.001(d), which applied when a physician contended he was not excluded by former subsection 74.001(c)(1). See Former Tex. Civ. Prac. & Rem. Code Ann. § 74.001(c)(1) and (d).

I would hold that GHA failed to prove as a matter of law that Dr. Riddle was not excluded from the protection of the former Good Samaritan statute. Rather, the summary judgment evidence raises substantial fact issues as to whether he was excluded by former section 74.001(c)’s exclusionary provisions.

Because the Dos did not file a cross-motion for summary judgment, I do not considerwhether Dr. Riddle was barred as a matter of law from asserting the Good Samaritanaffirmative defense. See Tex. R. Civ. P. 166a(c) (“Issues not expressly presented tothe trial court by written motion, answer or other response shall not be considered onappeal as grounds for reversal.”); CU Lloyd’s of Texas v. Feldman, 977 S.W.2d 568,569 (Tex. 1998) (before court of appeals may reverse summary judgment for oneparty and render judgment for other party, both parties must ordinarily have soughtfinal judgment relief in cross-motions for summary judgment).Close Therefore, GHA did not prove its entitlement to summary judgment.
(1) Dr. Riddle’s exclusion from protection by former subsection 74.001(c)(1)
Dr. Katz, the Dos’ expert, testified by affidavit:

7. When an anesthesiologist is “on call,” in our field of anesthesiology the custom and practice is that the anesthesiologist “on call” expects and anticipates that there will be emergencies. This is something he is trained for when he is a resident in anesthesia. He (or she) knows he is there to respond to emergencies requiring his skill and expertise, and this a part of his routine and the reason he is needed in a hospital. By virtue of being “on call,” an anesthesiologist is agreeing and expecting to be responding to emergencies and procedures which are performed without much advance notice. Indeed, being “on call,” the anesthesiologist assumes the duty to provide anesthesia services on an emergency basis to patients of the hospital. This duty arises out of hospital protocols, his hospital privileges to practice anesthesiology and provide coverage, his group’s agreement with the hospital, his agreement to be “on call,” and professional standards of care.

Anesthesiologists who are hospital-based such as Dr. Riddle, who work in the operating rooms and Labor and Delivery Rooms, and who are “on call,” essentially specialize in responding to emergencies. An anesthesiologist who is “on call” may be expected by the hospital to perform services as complex and long as those for general anesthesia during an operation, a cesarean section, or as simple and short as the intubation of a patient, including newborns.

Anesthesiologists routinely respond to emergencies in a hospital because of our extensive experience and training in resuscitation. This is part of our job and one of the reasons why we are needed at the hospital to care for its patients. We have more training and experience in intubating patients and can usually do so more quickly than other physicians or health care providers during an emergency. A patient who is not getting oxygen, or is getting little oxygen, is always an emergency. (Emphasis added.)

Since Dr. Riddle was on call for emergency anesthesiology services and was associated with the labor and delivery team to render anesthesiology services to Thao Chau and her twins during the labor and delivery, it is logically impossible for GHA to prove as a matter of law that Dr. Riddle was in the hospital for reasons “wholly unrelated to [his] work” as an on-call anesthesiologist when he intubated S.D. and, thus, that he was not excluded from the protection of the Good Samaritan statute by former subsection 74.001(c)(1). Rather, all the evidence was to the contrary, i.e., that he was excluded from protection as a Good Samaritan by subsection 74.001(c)(1). Notably, the panel does not even address this issue, even though GHA had to prove all elements of the Good Samaritan statute to establish its entitlement to summary judgment.

(2) Dr. Riddle’s exclusion from protection by former subsection 74.001(c)(2)

Likewise, it would seem to be impossible for GHA to prove as a matter of law that Dr. Riddle was not excluded from the protection of the Good Samaritan statute by former subsection 74.001(c)(2). That is, it would seem to be impossible for GHA to prove, under the circumstances of this case, (1) that Dr. Riddle was not a treating physician when he intubated S.D. and (2) that Dr. Riddle was not associated with the labor and delivery team charged with S.D.’s delivery and immediate post-delivery care assembled by Dr. Le. The majority, however, disagrees.

The majority ignores the pertinent parts of the affidavit of Dr. Katz—the non-movants’ expert—in which Dr. Katz testifies exactly how, when, and why Dr. Riddle was associated with S.D.’s care, established a physician/patient relationship with S.D. as S.D.’s treating physician, and committed malpractice. Dr. Katz testified by affidavit:

8. It is foreseeable that an anesthesiologist may have to intubate a newborn when called to assist in a cesarian section such as the one in this case. This is because it happens on an anesthesiologist’s watch from time to time where there is no neonatologist, where he/she has not yet arrived, or even where the neonatologist is present but requests assistance. By virtue of the fact that a child is about to be delivered, when a neonatologist is not present, the anesthesiologist knows that as a part of the labor and delivery team, he may be sharing the care and responsibility of the mother and child (or children) being delivered.

. . . . Generally, the decision for an emergency cesarean involves the OB-GYN’s concern that the baby is in distress and not receiving enough oxygen. By training and experience, an anesthesiologist has more expertise in ventilating and intubating. He routinely performs intubations for general anesthesia and is often called to perform intubation or assist in difficult intubations, in an operating room or otherwise, because he is usually the most qualified to do so. Where a neonatologist is not present in the Labor and Delivery Room or the neonatologist is having difficulty with intubation, from time to time an anesthesiologist is needed to intubate the newborn if he can do so because the mother is stable. In fact, he can expect that on occasion, he will be needed to do this.

. . . .

10. In my opinion, Jefferson Riddle, M.D. failed to follow the above standards of reasonable, prudent and accepted care for an anesthesiologist in performing medical services for Thao Chau and [S.D.], in at least the following acts or omissions:

1. Dr. Riddle was [S.D.]’s treating physician while intubating [S.D.]. He could have refused to intubate him if the anesthetized mother was in crisis or medically unstable and he had to choose her. However, once he agreed to intubate [S.D.], laid hands on him, and undertook to intubate [S.D.], Dr. Riddle became one of [S.D.]’s physicians. It was Dr. Riddle’s responsibility to perform that intubation within the standard of reasonably prudent anesthesia care.

2. Specifically, the standard of care required him to intubate properly—into the trachea—check for breath sounds with a stethoscope to determine that he was properly intubated into the trachea and not the esophagus, secure the endotracheal tube, check end-tidal CO2 to ensure that the tube was in the trachea and check again for breath sounds. These tasks only require a few seconds of an anesthesiologist, who is already skilled and experienced at this procedure and must do this before leaving the patient.

11. In this case, Dr. Riddle breached the standards of reasonably prudent and acceptable anesthesia care and did not properly perform the above which was below the standard of care. Specifically, he did not secure the tube after intubation, then ensure that [S.D.] was properly intubated by listening for breath sound again, after he had secured the tube, to make sure it was still in the right place. He also did not check the end-tidal CO2 to ensure the infant was properly intubated.

In fact, Dr. Riddle intubating [S.D.] without securing the tube and ensuring it was in the right place likely caused more serious risk to [S.D.] than if he had declined to do so at all, claiming he could not leave the mother. As an anesthesiologist, he is considered to be more skilled at intubation. It is highly likely that those who weren’t anesthesiologists, especially the residents with limited experience, assumed that if he did it, it must have been done correctly, and were much less likely to question whether the baby’s difficulties were whether they had a good airway. As a result, [S.D.] wasn’t reintubated until the neonatologist arrived several minutes later and did so. This contributed to the baby’s hypoxia and brain damage.
(Emphasis added.) The majority ignores this expert testimony directly on point, even though we are required to review the non-movant’s evidence—not the movant’s—in the most favorable light and to draw all reasonable conclusions in the non-movant’s favor. KPMG Peat Marwick, 988 S.W.2d at 748.

The majority also errs by affirming the trial court’s order striking paragraph 9 of Dr. Katz’s affidavit on the irrelevant ground that one subsection of the paragraph is “not . . . probative on the issue of whether Dr. Riddle was entitled to remuneration for the intubation of S.D.” The expert testimony in this paragraph is highly probative on the issue of whether Dr. Riddle was “a treating physician associated by the admitting or attending physician” for S.D. and was thus excluded from the protection of the Good Samaritan affirmative defense by former subsection 74.001(c)(2). Dr. Katz testified in the relevant part of paragraph 9:

9. From the time that Dr. Riddle began providing the anesthesia for the cesarean section in this case, he became “associated with” the attending physician, Dr. Le. He became Dr. Le’s partner, associate or colleague of the Labor and Delivery team, and they had to work together for all the patients involved in the birth—the mother and the children. Both obstetrician and anesthesiologist in a C-section are treating both the mother and the child because whatever they do to the mother is also being done to and affects the child who is in that mother’s body, whether by administering drugs, providing oxygen, and the like. It is their job to care for both the mother and the child/children. So it is disingenuous for an anesthesiologist during a C-section to say he had no responsibility for the child, especially under the circumstances where there was no neonatologist present, the baby was in distress, he had undertaken to intubate the child, and his adult patient (the mother) was not in crisis. It is below the standard of care for an anesthesiologist providing anesthesia during a C-section to care for only the mother and not the child as well where the mother is medically stable. Caring for both is a juggling act the anesthesiologist must manage within the standards of care.

[S.D.] was and would have been Dr. Riddle’s responsibility in any event, as the “on call” anesthesiologist. If the mother had delivered without C-section, and the baby was not breathing, in the absence of a neonatologist, as the “on call” anesthesiologist, Dr. Riddle would likely have been called in specifically for the baby who didn’t have an established airway as the “on call” anesthesiologist. (Emphasis added).

Dr. Katz’s affidavit—with or without paragraph 9—is more than sufficient to raise a fact issue as to whether Dr. Riddle was excluded from the protection of the Good Samaritan statute as the anesthesiologist associated with the labor and delivery team by the attending physician for the mother and children during the labor and delivery, Dr. Le, and as S.D.’s treating physician for the delivery of emergency anesthesiology services, including intubation.

Nor can the majority find support for its legal conclusion in the law. It cites no law in support of its conclusion that Dr. Riddle was not S.D.’s treating physician for the intubation, and it ignores well-established Texas law to the contrary. Under that law, a physician cannot be liable for malpractice unless he breaches a duty flowing from the physician-patient relationship. St. John v. Pope, 901 S.W.2d 420, 423 (Tex. 1995); Majzoub v. Appling, 95 S.W.3d 432, 436 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). The question of duty is a question of law that must be decided in a medical malpractice case before the issue of the standard of care arises. St. John, 901 S.W.2d at 424; Gross v. Burt, 149 S.W.3d 213, 221 (Tex. App.—Fort Worth 2004, pet. denied); Majzoub, 95 S.W.3d at 436. The duty to treat a patient with proper professional skill arises from the consensual relationship between the physician and the patient. St. John, 901 S.W.2d at 423; Majzoub, 95 S.W.3d at 436. No formalities of contract are required. St. John, 901 S.W.2d at 424. While consent to the physician-patient relationship may be implied, the “on-call” status of a physician does not automatically impose a duty. Majzoub, 95 S.W.3d at 436. Rather, if there has been no prior relationship between the physician and the patient, the physician must take some affirmative action to treat the patient to create such a relationship. Id.; Lection v. Dyll, 65 S.W.3d 696, 705 (Tex. App.—Dallas 2001, pet. denied) (“[O]n-call physician may assume a duty to the patient if he takes some affirmative action to treat the patient.”). Similarly, a physician’s mere presence in the labor and delivery unit of a hospital is inadequate to establish a physician-patient relationship unless the physician takes some affirmative step towards advancing the relationship. Reynosa v. Huff, 21 S.W.3d 510, 513 (Tex. App.—San Antonio 2000, no pet.).

A physician may decline treatment and thereby decline to create a physician-patient relationship, but once the physician agrees to examine or treat the patient, the relationship arises. St. John, 901 S.W.2d at 424; Gross, 149 S.W.3d at 221–22; Majzoub, 95 S.W.3d at 436. “Treatment” is defined as “the action or manner of treating a patient medically or surgically.” Lection, 65 S.W.3d at 705 n.5. Once the physician-patient relationship is established, the physician owes the patient a duty to treat him with the skills of a trained, competent professional, and a breach of that duty may give rise to a malpractice action. Gross, 149 S.W.3d at 222.

Dr. Riddle was asked by Dr. Le, the head of the labor and delivery team, to intubate S.D. He could have refused to do so had he determined that it was unsafe to leave his primary patient, the mother, Thao Chau. St. John, 901 S.W.2d at 424; Gross, 149 S.W.3d at 221–22; Majzoub, 95 S.W.3d at 436. However, having determined that he could safely leave the mother, Dr. Riddle consented to treat S.D. and became S.D.’s treating physician for the intubation, contrary to the majority’s conclusion. See St. John, 901 S.W.2d at 424; Gross, 149 S.W.3d at 221–22; Majzoub, 95 S.W.3d at 436.

The majority, likewise, cites no law in support of its conclusion that Dr. Riddle was not associated with the labor and delivery team, and therefore with S.D.’s care, by the admitting or attending physician, Dr. Le, for his delivery and immediate post-delivery care. Rather, the majority states that Dr. Le testified that he was the attending physician for Ms. Chau, but Dr. Ruiz-Puyana, the neonatologist, was the attending physician for S.D. Dr. Katz’s affidavit makes no contention that Dr. Riddle was, in any way, associated with Dr. Ruiz-Puyana. As such, we hold that Dr. Riddle was not associated with S.D.’s attending physician within the meaning of the Good Samaritan statute.

The majority overlooks the material fact that Dr. Le was the head of the labor and delivery team and that he associated Dr. Riddle with the team as anesthesiologist before the delivery. It also overlooks the material facts that Dr. Ruiz-Puyana was an on-call physician, exactly like Dr. Riddle, and that she did not arrive to take over S.D.’s care until twelve minutes after Dr. Riddle intubated S.D. Thus, it is Dr. Ruiz-Puyana—not Dr. Riddle—who, under Texas law, might be able to argue that she had no physician/patient relationship with S.D. at the time of the intubation. See Majzoub, 95 S.W.3d at 436; Lection, 65 S.W.3d at 705.

Under any reasonable interpretation of the law and the facts, GHA failed to establish as a matter of law that Dr. Riddle was not excluded from the protection of the Good Samaritan statute by either former subsection 74.001(c)(1) or former subsection 74.001(c)(2). Rather, there is substantial evidence that he was excluded from the statute’s protection. Because there is a material fact issue as to whether Dr. Riddle was excluded from the protection of the Good Samaritan Statute, I would hold that GHA’s motion for summary judgment fails. See Quanaim, 17 S.W.3d at 41–42. Consequently, unlike the majority, I would not find it necessary to determine whether GHA satisfied former section 74.001(d) of the Code by establishing as a matter of law that Dr. Riddle “would ordinarily receive or be entitled to receive . . . remuneration” for the professional services he rendered to S.D.” when offering his services to S.D. “for reasons wholly unrelated to [his] work in administering health care” in accordance with subsections 74.001(c)(1) and (d). See Former Tex. Civ. Prac. & Rem. Code Ann. § 74.001(c)(1), (d).

I would sustain the Dos’ sixth issue.

The Trial Court’s Order Striking Dr. Reeves and his Expert AffidavitsThe majority also errs in its holding, in response to the Dos’ first issue, that the trial court did not err in striking the Dos’ expert on the Good Samaritan defense, Dr. Reeves, and his affidavits, under a docket control order whose deadline for designating experts expired on April 21, 2003, four months before GHA asserted its Good Samaritan defense and simultaneously moved for summary judgment—in pleadings untimely filed two months after the June 20, 2003 deadline in the same docket control order for filing new pleadings, filing dispositive motions, and challenging experts. Thus, GHA invoked the docket control order against the Dos at the same time it was blatantly violating the same order.

The Dos timely filed a response to GHA’s surprise August 29 motion for summary judgment on its simultaneously asserted affirmative defense, attaching the two affidavits from Dr. Reeves, one responding to the Good Samaritan defense and one supporting the Dos’ malpractice allegations. On the afternoon of October 2, the day before the summary judgment hearing, GHA filed its objections to the Dos’ summary judgment evidence and a motion to strike that evidence—18 days after the evidence had been filed and a half-day before the scheduled hearing. GHA objected to both of Dr. Reeves’ affidavits on the ground that Dr. Reeves was not properly designated as an expert and, therefore, his affidavits could not be used in a summary judgment context. It also argued that neither of Dr. Reeves’ affidavits showed causation because neither “provides any explanation of how Dr. Riddle’s conduct resulted in harm to S.D. or Plaintiffs.” GHA made similar objections to Dr. Katz’s affidavits.

The trial court began the hearing as scheduled the next day, October 3. At the hearing, the Dos moved for a continuance on the ground that GHA had interjected a great deal of new material into its reply to their summary judgment response and that it had also objected to their summary judgment evidence only the day before. The Dos sought additional time to respond to GHA’s pleadings, which they contended were more in the nature of a new summary judgment motion than a reply, citing surprise and their inability to respond to lengthy pleadings filed on the afternoon before the hearing, including their inability even to contact their experts in the time available to respond to GHA’s new pleadings. The Dos cited Texas Rule of Civil Procedure 166a(c), which they contended entitled them to 21 days notice of new summary judgment pleadings, and Rule 1, which provides that “[t]he proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law.” See Tex. R. Civ. P. 1, 166a(c); see also State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991) (discouraging gamesmanship).

The trial court continued the hearing until October 17 and ordered the Dos to supplement their pleadings on or before October 10. On that date, the Dos filed their second supplemental response and second supplemental designation of experts, redesignating Dr. Reeves to testify on reasonable and necessary medical treatment and the duties of physicians in response to GHA’s complaint that Dr. Reeves had been improperly designated as a summary judgment witness. On October 14, three days before the continued hearing resumed, GHA filed a motion to strike the Dos’ second supplemental designation of experts. GHA’s sole argument this time was that the Dos’ designation of Dr. Reeves was untimely under the docket control order setting April 21, 2003 as the final date for the plaintiffs’ designation of experts and its order setting July 11, 2003 as the final date for choosing one physician to testify on malpractice. In other words, GHA simply untimely recast its prior objections that Dr. Reeves was not properly designated as an expert witness under the trial court’s docket control order and under its order limiting the Dos’ experts. GHA again requested that Dr. Reeves and his affidavits be struck.

The hearing went forward as scheduled three days later, on October 17. By order entered October 22, the trial court granted GHA’s motion for summary judgment and its motions to strike Dr. Reeves as an expert witness and Dr. Reeves’ affidavits and portions of Dr. Katz’s affidavit as summary judgment evidence. The court dismissed the Dos’ claims with prejudice.

The majority erroneously states that the Dos did not respond to GHA’s motion to strike Dr. Reeves’ affidavits and to strike the Dos’ second supplemental designation of expert witnesses and thus the trial court did not err in striking Dr. Reeves and his affidavits. Not only are the majority’s statements incompatible with the record, but the Dos’ counsel expressly informed the panel at oral argument, upon questioning by the panel, that the Dos’ responses to GHA’s motions to strike Dr. Reeves and his affidavits were in the Dos’ response to GHA’s reply to the Dos’ response to GHA’s motion for summary judgment. This statement is borne out by a review of the record. Thus, the majority’s affirmance of the trial court’s sanctions order is based on an incorrect reading of the record. The factual support the majority finds for the trial court’s actions is simply not there. Nor can the trial court’s sanctions motion be justified on the basis of law.

Texas Rule of Civil Procedure 63 provides that “[p]arties may amend their pleadings, respond to pleadings on file of other parties, . . . and file such other pleas as they may desire by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party.” Tex. R. Civ. P. 63 (emphasis added). The rule further provides that pleadings, pleas, and responses filed within seven days of trial “shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.” Id. A summary judgment proceeding is a “trial” within the meaning of this rule. Fletcher v. Edwards, 26 S.W.3d 66, 74 (Tex. App.—Waco 2000, pet. denied); see also Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995) (per curiam) (holding that Rule 63 applies to pleadings filed within seven days of summary judgment proceedings). Here there was no showing that the Dos were not surprised by GHA’s untimely objection to their expert and expert affidavits or that they failed to bring their concerns to the attention of the trial court. The record reveals quite the contrary.

Notably, GHA did not couch its motion to strike Dr. Reeves and his affidavits as a motion for the exclusion of testimony from an untimely designated expert under Texas Rule of Civil Procedure 193.6. See Tex. R. Civ. P. 193.6. Had it done so, the Dos would have had the opportunity to establish good cause for their late designation of Dr. Reeves. See Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914–15 (Tex. 1992) (discussing good cause to admit testimony not timely identified when Rule 215 discovery sanctions are sought and opining, “The good cause exception permits a trial court to excuse a failure to comply with discovery in difficult or impossible circumstances”); Cunningham v. Columbia/St. David’s Healthcare Sys., L.P., 185 S.W.3d 7, 11 (Tex. App.—Austin 2005, no pet.) (testimony from untimely designated expert will be excluded “unless the trial court determines that the party seeking to introduce the evidence established either (1) the existence of good cause for its failure or (2) that it would not unfairly surprise or prejudice the other parties to admit the evidence”).

GHA merely sought enforcement of the docket control order against the Dos. Enforcement of a docket control order is reviewed under an abuse of discretion standard. Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982); G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply Co., 177 S.W.3d 537, 544 (Tex. App.—Dallas 2005, no pet.). Exclusion of expert testimony is, likewise, reviewed under an abuse of discretion standard. McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex. 2003).

A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules or principles. Powers v. Mem’l Hermann Hosp. Sys., 81 S.W.3d 463, 465 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).

The trial court plainly was not following any rule of civil procedure, specifically including Rule 193.6, its own docket control order, or any other guidelines when it arbitrarily and capriciously accepted GHA’s invitation to enforce its April 21 deadline for the Dos’ designation of experts and its June 20 order limiting them to one expert physician while not enforcing the provisions in the same order forbidding GHA from supplementing its pleadings after June 20, filing a motion for summary judgment after June 20, and challenging expert witnesses after June 20.

Rather, without any justification at all, the court deprived the Dos of any opportunity to conduct discovery, name experts, or obtain summary judgment evidence on GHA’s untimely asserted Good Samaritan affirmative defense. This is the very definition of arbitrary and capricious enforcement of the rules to the prejudice of one of the parties. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1986) (“The test for abuse of discretion is . . . whether the court acted without reference to any guiding rules and principles.”).

GHA and the majority rely on Ersek v. Davis & Davis, P.C., 69 S.W.3d 268 (Tex. App.—Austin 2002, pet. denied), as authority for sustaining the trial court’s ruling striking Dr. Reeves as an expert. Ersek is inapplicable here. In that case, the plaintiff knew that his cause of action required expert testimony, yet he waited for over a year after filing his claim to designate his expert. Id. at 270. Indeed, the plaintiff contended that he had complied with the discovery rules by filing disclosures “designating no expert witness before the deadline and then supplementing his response identifying [the expert] after the deadline” in response to a motion for summary judgment filed by the defendants. Id. at 270–71. In other words, in Ersek, the plaintiff tried to sandbag the defendants and got caught. Here, exactly the opposite is the case, and the defendants’ behavior here should be rewarded no more than the plaintiff was rewarded in Ersek. Rather, I agree with Texas Rule of Civil Procedure 1 that the “[t]he proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law.” Tex. R. Civ. P. 1. I also agree with the Supreme Court of Texas that we should not reward gamesmanship and secrecy. See Alvarado, 830 S.W.2d at 915; Lowry, 802 S.W.2d at 671.

The majority also relies on Cunningham, 185 S.W.3d 7, cited above. Its reliance on that case is also misplaced. As stated above, Cunningham holds that if a party fails to timely designate an expert witness “then testimony from that expert will be excluded unless the trial court determines that the party seeking to introduce the evidence established either (1) the existence of good cause for its failure or (2) that it would not unfairly surprise or prejudice the other parties to admit the evidence despite the inadequate discovery.” 185 S.W.3d at 11. Cunningham lends no support to the trial court’s rulings in this case. Indeed, as the Cunningham court aptly opined, “A primary purpose of the discovery rules is to prevent trial by ambush.” Id. at 14; see also Alvarado, 830 S.W.2d at 915. That purpose was entirely ignored by both the trial court and the majority, and it does apply here—to GHA, not to the Dos.

I would hold that the trial court’s orders striking the Dos’ expert, Dr. Reeves, and his affidavits were clearly arbitrary and capricious, and I would sustain the Dos’ first issue.

The Trial Court’s Order Striking Portions of Dr. Katz’s Affidavit and Overruling the Dos’ Objections to GHA’s Evidence

In their second issue, the Dos contend the trial court erred in striking paragraphs 6 and 9 of Dr. Katz’s affidavit. Paragraph 9 is set out in part above, and both paragraphs are set out in the majority opinion.

Paragraphs 6 and 9 of Dr. Katz’s affidavit constitute the Dos’ summary judgment proofs regarding Dr. Riddle’s status as an on-call anesthesiologist and as the anesthesiologist charged with administering anesthesiology during the C-section and delivery in this case, the standard of care Dr. Riddle owed S.D. in those circumstances, and his right to charge for his services in administering anesthesiology to the mother and the infants in her body and in intubating S.D. after his birth. In agreeing with the trial court’s order striking these paragraphs, the majority cursorily addresses only Dr. Katz’s opinion regarding Dr. Riddle’s right to charge for his services, misconstrues the import of Dr. Riddle’s testimony on that point, determines Dr. Katz’s testimony is conclusory, and then affirms the order striking all of the critical summary judgment proof contained in these paragraphs with no further argument or citation to authority. It states that “[w]hile Dr. Katz purported to have personal knowledge of the facts recited in his affidavit, his statement regarding Dr. Riddle’s entitlement to compensation is a legal conclusion with no supporting facts or rationale,” and, therefore, it was properly struck as “conclusory.” I would hold that it was error for the trial court to strike any of this vital testimony.

The majority relies on a statement in McIntyre v. Ramirez, in which the Supreme Court of Texas held, shortly before GHA filed its motion for summary judgment, that a Maryland doctor was not qualified to testify about “what’s ordinarily billed or what the law ordinarily allows people to recover for their medical services in the State of Texas.” McIntyre, 109 S.W.3d at 750. In McIntyre, the defendant obstetrician, Dr. McIntyre, was not on call, but happened to be in a hospital labor and delivery area visiting one of his own patients when he responded to an emergency page for Ramirez, whom he had never seen, but who was in the process of delivering an infant with no doctor present; there were indications that the infant’s shoulder had become lodged against the mother’s pelvic bone, a condition called shoulder dystocia; and the infant, whom Dr. McIntyre delivered after several unsuccessful attempts, suffered neurological impairment as a result of the shoulder dystocia. See id. at 743. The Ramirezes’ expert, a Maryland obstetrician, opined conclusorily that Dr. McIntyre “was entitled to bill and receive a fee for the delivery of baby Colby Ramirez.” Id. at 749.

The Supreme Court of Texas first addressed Ramirez’s claim that Dr. McIntyre’s inability to avail himself of the Good Samaritan statute was established by Dr. McIntyre’s testimony that he practiced obstetrical medicine, he routinely delivered babies at the hospital, and he was in the hospital for the purpose of treating his own obstetrical patient, from whom he expected to be compensated, on the day he delivered Colby Ramirez. Id. at 749. The court opined, “The testimony cited by Ramirez is not probative of the circumstances of this case, which involved a medical emergency and an absence of any pre-existing relationship or duty to respond to that emergency.” Id. In other words, the fact that Dr. McIntyre was an obstetrician who was visiting his own patient in the hospital, where he was not on call, did not establish either that he had a pre-existing relationship with Ramirez or that he had a duty to deliver her baby. The unpredicated legal conclusion of Ramirez’s expert, an obstetrician practicing in Maryland, “with no supporting facts or rationale” did not raise a fact question sufficient to defeat summary judgment. Id. at 749–50.

I have no disagreement with the supreme court’s rationale or holding in McIntyre, but I disagree with the majority in this case that the rationale of McIntyre applies here. The issue under former subsections 74.001(c)(1) and (d) in this case, if it were to be reached, is whether Dr. Riddle had a legal right to bill for his services assuming (as I do not) that he intubated S.D. “for reasons wholly unrelated to [his] work in administering health care” and thus was not excluded as a Good Samaritan by former subsection 74.001(c)(1). If he did have a legal right to bill for the post-delivery intubation, he would still be excluded as a Good Samaritan by former subsection 74.001(d), even if his services were entirely voluntary and not part of his job as the on-call anesthesiologist and even if he did not bill for them. Specifically, former subsection 74.001(d) provided that, for purposes of former subsection 74.001(c)(1), “a person who would ordinarily receive or be entitled to receive a salary, fee, or other remuneration for administering care under such circumstances to the patient in question shall be deemed to be acting for or in expectation of remuneration even if the person waives or elects not to charge or to receive remuneration on the occasion in question.” Former Tex. Civ. Prac. & Rem. Code Ann. § 74.001(d). Thus, under former subsections 74.001(c)(1) and (d), if GHA had established that Dr. Riddle was not at the hospital for the purpose of rendering emergency anesthesiology services, such as intubation, when he intubated S.D.—which it did not prove, in contrast to the McIntyre defendant—it would still have had to prove, for purposes of satisfying former subsection 74.001(d), that an on-call staff anesthesiologist, called to deliver emergency anesthesiology services to a patient in Texas, is not legally entitled to charge for those services.

Dr. Katz , having testified to Dr. Riddle’s duties as the on-call anesthesiologist for the hospital where S.D. was born and his duties as the member of the delivery team charged with providing anesthesiology and related services during and after the delivery, testified regarding Dr. Riddle’s legal right to charge for those services in paragraph 5 of his affidavit, which was not struck, and paragraph 6, which was improperly struck:

5. I have knowledge and experience in the practice of medicine and the specialty of anesthesiology. Thus, I am familiar with the standards of reasonably prudent, ordinary and accepted care for an anesthesiologist. This includes the standards of an anesthesiologist who is “on call,” who is on the medical team for an emergency C-section for the birth of a child, and who is providing anesthesia, intubation, and related services in cases like or similar to the C-Section for Thao Chau and the birth of [S.D.]. These standards of care are national standards, which apply throughout the country to anesthesiologists who provide medical services like or similar to those which should have been provided for Thao Chau and her child, [S.D.], under the same or similar circumstances.

6. Anesthesiologists are hospital-based doctors, meaning we rarely have offices where we see patients, and usually our medical practice is at a hospital. When we render anesthesia services, we expect to be compensated, whether we perform those services “on call” or during the regular workday; it is our practice to charge (or for the hospital to charge if we are salaried and at a teaching facility) for those services. (Emphasis added.)

In the earlier paragraphs of his affidavit and in his curriculum vitae attached to his affidavit, Dr. Katz fully established his credentials for opining as to national standards of care and conditions of service and billing for an on-call anesthesiologist on the staff of a hospital, and opined as to the substance of those national standards, which he explained in detail. He also opined as to his extensive review of the records and materials in the case. Dr. Katz’s improperly struck testimony in paragraph 6 is thus entirely unlike the affidavit of the plaintiffs’ expert in McIntyre, a physician board-certified in Maryland, who opined, without substantiation or credentials, about local billing practices in Texas under the unusual circumstances in which the defendant physician who delivered emergency care was in the hospital fortuitously, was not on call, and was not associated with the delivery team by the attending physician, but merely responded to an emergency call. McIntyre, 109 S.W.3d at 749. It is this kind of testimony—not the testimony of an expert on national anesthesiology standards opining on those standards—that the supreme court properly characterized as presenting “a legal conclusion with no supporting facts or rationale” and, therefore, incompetent to defeat summary judgment. See id. at 749–50; see also Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam).

Even without paragraph 6, I would hold that Dr. Katz’s testimony raised a material fact issue as to whether Dr. Riddle was legally entitled to charge for the emergency intubation he performed in the course of his work as the on-call anesthesiologist and as the anesthesiologist associated with the labor and delivery team by Dr. Le. However, I would also consider the evidence in paragraph 6, which is, in my view, clearly competent expert testimony by the non-movant’s expert on a material fact issue.

Moreover, because I believe the trial court improperly struck Dr. Reeves’ affidavit, I would include it also in my analysis. See Trusty v. Strayhorn, 87 S.W.3d 756, 764 (Tex. App.—Texarkana 2002, no pet.) (“assuming the failure to timely designate a testifying expert [under docket control order] would bar consideration of that expert’s affidavit as summary judgment proof, such a failure is a defect of form to which a party must object and obtain a ruling to preserve error”; it does “not make [the] affidavit incompetent, but inadmissible on proper objection.”); Lection, 65 S.W.3d at 703 (failure to timely file summary judgment proof is defect of form, not substance). Dr. Reeves reviewed the billing records and testified, in the affidavit struck by the trial court, that Dr. Riddle did, in fact, charge for his professional services for the entire time he spent in the delivery room, including the time spent intubating S.D.—testimony that contradicted Dr. Riddle’s testimony in his own affidavit. The majority, having held that Dr. Reeves’s testimony was properly struck, does not mention this testimony. I would hold, by contrast, that Dr. Reeves’ testimony, too, was more than sufficient to raise a fact issue as to Dr. Riddle’s self-serving and conclusory contention—as movant for summary judgment—that he was not entitled to bill for those services.

I would sustain the Dos’ second issue. I would hold that the trial court acted arbitrarily and capriciously in striking paragraphs 6 and 9 of Dr. Katz’s affidavit. In addition, if I were to reach the issue of whether GHA bore its burden of proving as a matter of law that Dr. Riddle was not excluded from the protection of the Good Samaritan statute by subsections 74.001(c)(1) and (d), I would hold that it did not carry its burden.

Conclusion

Because GHA did not establish its Good Samaritan affirmative defense as a matter of law, I would reverse and remand this case for trial on the merits.

Evelyn V. Keyes
Justice

Panel consists of Justices Nuchia, Keyes, and Hanks.
Justice Keyes, dissenting.

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THAO CHAU AND HA DIEN DO, INDIVIDUALLY, AND ON BEHALF OF THEIR MINOR CHILD, S.D.D. v. JEFFERSON RIDDLE, M.D. AND GREATER HOUSTON ANESTHESIOLOGY, P.A.; from Harris County; 1st district
Chau v. Riddle, M.D., No. 01-04-00551-CV, 212 S.W.3d 699, (Tex.App.- Houston [1st Dist.] Sep. 28, 2006)(majority opinion by Justice Hanks)