Opinion=20
issued September 28, 2006
In The
Court of Appeals
For The
First District of =
Texas
NO. 01-04-00551-CV
__________
THAO =
CHAU AND HA=20
DIEN DO, INDIVIDUALLY AND AS NEXT FRIEND OF THEIR MINOR CHILDREN, =
S.D. AND=20
H.D., Appellants
V.
JEFFERSON RIDDLE,=20
M.D. AND GREATER HOUSTON ANESTHESIOLOGY, P.A., Appellees
On =
Appeal from=20
the 55th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2002-36481-A
DISSENTING=20
OPINION
<=
/SPAN>The=20
majority opinion breathtakingly expands the scope of the Good =
Samaritan=20
affirmative defense. Because the majority=E2=80=99s construction =
of the statute is=20
important to the jurisprudence of this State and is, I believe, =
contrary=20
to controlling law, I respectfully dissent. I would reverse and =
remand=20
this case for trial on the merits.
Background=20
Facts
<=
/SPAN>This=20
is an appeal from a summary judgment entered in favor of appellees =
Jefferson Riddle, M.D. and Greater Houston Anesthesiology, P.A.=20
(collectively, GHA) and against appellants Thao Chau and Ha Dien =
Do,=20
individually and as next friend of their minor children, S.D. and =
H.D.=20
(collectively, the Dos). Dr. Riddle, whose actions are the subject =
of=20
appellants=E2=80=99 underlying malpractice suit, was on call for =
emergency=20
anesthesiology services at Memorial Hermann Southwest Hospital =
when=20
appellant Thao Chau was admitted for an emergency caesarian =
section. Dr.=20
Riddle responded to the emergency and was associated with the =
delivery=20
team assembled by the obstetrician, Dr. Le, to provide =
anesthesiology=20
services for the delivery and immediate post-delivery care. S.D., =
one of=20
Thao Chau=E2=80=99s twins delivered by Dr. Le, was born floppy and =
did not begin=20
breathing. Dr. Le asked Dr. Riddle to intubate him. Having =
determined that=20
he could safely leave the mother, Dr. Riddle consented and =
intubated S.D.=20
Dr. Riddle testified by affidavit that he used a stethoscope to =
listen to=20
S.D.=E2=80=99s chest and determined that air was traveling to the =
baby=E2=80=99s lungs=20
before returning to the mother. He did not secure the breathing =
tube and=20
then listen again to be sure it was in the right place, actions =
which the=20
Dos=E2=80=99 expert, Dr. Katz, testified are standard practice and =
would have=20
taken a few seconds. Nor did Dr. Riddle check S.D.=E2=80=99s =
end-tidal carbon=20
dioxide to be sure that S.D. was properly intubated. Instead, he =
handed=20
S.D. off to the neo-natal team of residents and nurses, who =
listened for=20
breathing sounds, performed CPR, and administered epinephrine. =
Twelve=20
minutes later, the on-call neonatologist, Dr. Ruiz-Puyana, arrived =
in the=20
delivery room, received S.D., and determined that he had been =
intubated=20
into the esophagus. She reintubated S.D., and he began to breathe. =
S.D.=20
suffered severe permanent brain damage due to lack of oxygen. =
<=
/SPAN>Months=20
after the deadline in the trial court=E2=80=99s docket control =
order for=20
designating experts, filing new pleadings, and filing dispositive =
motions,=20
GHA filed new pleadings asserting the Good Samaritan affirmative =
defense,=20
together with a motion for summary judgment on that defense. The =
Good=20
Samaritan defense invoked by GHA, which has since been superseded, =
was=20
then set out at section 74.001 of the Texas Civil Practice and =
Remedies=20
Code.
At GHA=E2=80=99s request, the =
trial court enforced=20
its docket control order and a prior order limiting the =
Dos=E2=80=99 experts. The=20
court prohibited the Dos from designating an additional expert on =
the Good=20
Samaritan defense and struck summary judgment evidence critical to =
that=20
defense on the grounds that it was untimely filed and conclusory. =
The=20
court did not enforce the docket control order against GHA. It =
sustained=20
GHA=E2=80=99s objections to the Dos=E2=80=99 summary judgdment =
proofs and overruled the=20
Dos=E2=80=99 objections to GHA=E2=80=99s summary judgment proofs. =
Following a hearing, the=20
trial court granted summary judgment to GHA and dismissed the =
Dos=E2=80=99 claims=20
with prejudice. The majority affirms. I dissent.
Standard of Proof=20
of Summary Judgment
<=
/SPAN>GHA=20
filed a no-evidence and traditional summary judgment motion on the =
Dos=E2=80=99=20
negligence claims and a traditional summary judgment on its Good =
Samaritan=20
affirmative defense. See Tex. R. Civ. P. 166a(b), =
(i).=20
<=
/SPAN>Because=20
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=20
moving for summary judgment on an affirmative defense cannot bring =
a=20
no-evidence motion for summary judgment on that defense. =
Quanaim v.=20
Frasco Rest. & Catering, 17 S.W.3d 30, 43 (Tex. =
App.=E2=80=94Houston [14th=20
Dist.] 2000, pet. denied). Rather, a defendant moving for summary =
judgment=20
on an affirmative defense must conclusively prove all elements of =
that=20
defense as a matter of law. American Tobacco Co. v. =
Grinnell, 951=20
S.W.2d 420, 425 (Tex. 1997); Montgomery v. Kennedy, 669 =
S.W.2d 309,=20
310=E2=80=9311 (Tex. 1984); Quanaim, 17 S.W.3d at 43. In =
reviewing a=20
traditional motion for summary judgment, the reviewing court must =
take all=20
evidence favorable to the non-movant as true and make all =
reasonable=20
inferences in favor of the non-movant. KPMG Peat Marwick v. =
Harrison=20
County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999);=20
Montgomery, 669 S.W.2d at 311; Quanaim, 17 S.W.3d at =
41. If=20
the movant=E2=80=99s motion and summary judgment proof establish =
its right to=20
summary judgment as a matter of law, the burden shifts to the =
non-movant=20
to establish a genuine issue of material fact. Quanaim, 17 =
S.W.3d=20
at 41=E2=80=9342. The existence of a legal duty is a question of =
law for the court=20
to decide based on the surrounding facts. See id. at 43.=20
GHA=E2=80=99s Motion for=20
Summary Judgment
<=
/SPAN>In=20
their fifth issue, the Dos contend the trial court erred in =
entering=20
summary judgment in favor of GHA on its Good Samaritan defense and =
dismissing their claims. I agree.
<=
/SPAN>Former Section 74.001 of the Civil =
Practice and=20
Remedies Code
<=
/SPAN>Former=20
section 74.001 of the Texas Civil Practice and Remedies Code, =
under which=20
GHA brought its motion for summary judgment, provided, in relevant =
part:
&=
nbsp; (a) A=20
person who in good faith administers emergency care . . . at the =
scene of=20
an emergency but not in a hospital . . . is not liable in civil =
damages=20
for an act performed during the emergency unless the act is =
wilfully or=20
wantonly negligent.
&=
nbsp; (b) This=20
section does not apply to care administered:
&=
nbsp; &n=
bsp; (1) =
; for=20
or in expectation of remuneration; or
&=
nbsp; .=20
. . .
&=
nbsp; (c) If=20
the scene of an emergency is in a hospital . . . a person who in =
good=20
faith administers emergency care is not liable in civil damages =
for an act=20
performed during the emergency unless the act is willfully or =
wantonly=20
negligent, provided that this subsection does not apply to care=20
administered:
&=
nbsp; &n=
bsp; (1) =
; by=20
a person who regularly administers care in a hospital emergency =
room=20
unless such person is at the scene of the emergency for reasons =
wholly=20
unrelated to the person=E2=80=99s work in administering health =
care; or
&=
nbsp; &n=
bsp; (2) =
; by=20
an admitting or attending physician of the patient or a treating =
physician=20
associated by the admitting or attending physician of the patient =
in=20
question.
&=
nbsp; (d) For=20
purposes of subsections (b)(1) and (c)(1), a person who would =
ordinarily=20
receive or be entitled to receive a salary, fee, or other =
remuneration for=20
administering care under such circumstances to the patient in =
question=20
shall be deemed to be acting for or in expectation of remuneration =
even if=20
the person waives or elects not to charge or to receive =
remuneration on=20
the occasion in question.
Former Tex.=20
Civ. Prac. & Rem. Code Ann. =C2=A7 =
74.001.
<=
/SPAN>Because=20
it is undisputed that the scene of S.D.=E2=80=99s emergency =
intubation was a=20
hospital, former section 74.001(c) governs this case. To prove its =
Good=20
Samaritan defense under section 74.001(c), GHA had to establish as =
a=20
matter of law that Dr. Riddle administered care to S.D. in good =
faith in=20
an emergency and was not wantonly or wilfully negligent and that =
he was=20
not excluded from the protection of the Good Samaritan statute by =
former=20
subsection 74.001(c)(1) or (c)(2).
<=
/SPAN>The=20
parties do not dispute that Dr. Riddle=E2=80=99s actions with =
respect to S.D. were=20
undertaken in an emergency and that they were not wantonly or =
wilfully=20
negligent. However, in order to prove that Dr. Riddle was not =
excluded=20
from the protection of the Good Samaritan statute by former =
subsection=20
74.001(c)(1) or (2), GHA also had to establish as a matter of law =
(1) that=20
Dr. Riddle was not a person who regularly administers care in an =
emergency=20
room, or, if he was such a person, that he was at the scene of =
S.D.=E2=80=99s=20
intubation for reasons =E2=80=9Cwholly unrelated to [his] work in =
administering=20
health care,=E2=80=9D and thus was not excluded from the =
protection of the Good=20
Samaritan statute by former subsection 74.001(c)(1) and (2) that =
Dr.=20
Riddle was not =E2=80=9Ca treating physician associated by the =
admitting or=20
attending physician=E2=80=9D for S.D. and thus was not excluded =
from the=20
protection of the Good Samaritan statute by former subsection=20
74.001(c)(2). If GHA established as a matter of law that Dr. =
Riddle was=20
entitled to the protection of section 74.001(c) because he was at =
the=20
scene for reasons wholly unrelated to his work in administering =
emergency=20
anesthesiology services, satisfying subsection 74.001(c)(1), GHA =
would=20
also have to prove (3) that Dr. Riddle was not legally entitled to =
payment=20
for his emergency services to S.D., i.e., he would not =
=E2=80=9Cordinarily=20
receive or be entitled to receive a salary, fee, or other =
remuneration for=20
administering care under such circumstances,=E2=80=9D so that he =
was not excluded=20
from the protection of the Good Samaritan statute by former =
subsection=20
74.001(d), which applied when a physician contended he was not =
excluded by=20
former subsection 74.001(c)(1). See Former Tex. Civ. Prac. & Rem. =
Code=20
Ann. =C2=A7 =
74.001(c)(1) and=20
(d).
<=
/SPAN>I=20
would hold that GHA failed to prove as a matter of law that Dr. =
Riddle was=20
not excluded from the protection of the former Good Samaritan =
statute.=20
Rather, the summary judgment evidence raises substantial fact =
issues as to=20
whether he was excluded by former section 74.001(c)=E2=80=99s =
exclusionary=20
provisions. ![3DFootnote](3D"")
Therefore, GHA did not prove its=20
entitlement to summary judgment.
(1) Dr.=20
Riddle=E2=80=99s exclusion from protection by former subsection=20
74.001(c)(1)
<=
/SPAN>Dr.=20
Katz, the Dos=E2=80=99 expert, testified by affidavit:
7. When an anesthesiologist is =
=E2=80=9Con call,=E2=80=9D in our=20
field of anesthesiology the custom and practice is that the=20
anesthesiologist =E2=80=9Con call=E2=80=9D expects and anticipates =
that there will be=20
emergencies. This is something he is trained for when he is a =
resident in=20
anesthesia. He (or she) knows he is there to respond to =
emergencies=20
requiring his skill and expertise, and this a part of his routine =
and the=20
reason he is needed in a hospital. By virtue of being =E2=80=9Con =
call,=E2=80=9D an=20
anesthesiologist is agreeing and expecting to be responding to =
emergencies=20
and procedures which are performed without much advance notice. =
Indeed,=20
being =E2=80=9Con call,=E2=80=9D the anesthesiologist assumes =
the duty to provide=20
anesthesia services on an emergency basis to patients of the =
hospital.=20
This duty arises out of hospital protocols, his hospital =
privileges to=20
practice anesthesiology and provide coverage, his group=E2=80=99s =
agreement with=20
the hospital, his agreement to be =E2=80=9Con call,=E2=80=9D and =
professional standards of=20
care.
Anesthesiologists who are =
hospital-based such=20
as Dr. Riddle, who work in the operating rooms and Labor and =
Delivery=20
Rooms, and who are =E2=80=9Con call,=E2=80=9D essentially =
specialize in responding to=20
emergencies. An anesthesiologist who is =E2=80=9Con =
call=E2=80=9D may be expected by=20
the hospital to perform services as complex and long as those for =
general=20
anesthesia during an operation, a cesarean section, or as simple =
and short=20
as the intubation of a patient, including newborns.
Anesthesiologists routinely respond =
to=20
emergencies in a hospital because of our extensive experience and =
training=20
in resuscitation. This is part of our job and one of the =
reasons why=20
we are needed at the hospital to care for its patients. We have =
more=20
training and experience in intubating patients and can usually do =
so more=20
quickly than other physicians or health care providers during an=20
emergency. A patient who is not getting oxygen, or is getting =
little=20
oxygen, is always an emergency.
(Emphasis added.)
<=
/SPAN>Since=20
Dr. Riddle was on call for emergency anesthesiology services and =
was=20
associated with the labor and delivery team to render =
anesthesiology=20
services to Thao Chau and her twins during the labor and delivery, =
it is=20
logically impossible for GHA to prove as a matter of law that Dr. =
Riddle=20
was in the hospital for reasons =E2=80=9Cwholly unrelated to [his] =
work=E2=80=9D as an=20
on-call anesthesiologist when he intubated S.D. and, thus, that he =
was not=20
excluded from the protection of the Good Samaritan statute by =
former=20
subsection 74.001(c)(1). Rather, all the evidence was to the =
contrary,=20
i.e., that he was excluded from protection as a Good =
Samaritan by subsection 74.001(c)(1). Notably, the panel does =
not even=20
address this issue, even though GHA had to prove all elements =
of the=20
Good Samaritan statute to establish its entitlement to summary=20
judgment.
(2) Dr.=20
Riddle=E2=80=99s exclusion from protection by former subsection=20
74.001(c)(2)
<=
/SPAN>Likewise,=20
it would seem to be impossible for GHA to prove as a matter of law =
that=20
Dr. Riddle was not excluded from the protection of the Good =
Samaritan=20
statute by former subsection 74.001(c)(2). That is, it would seem =
to be=20
impossible for GHA to prove, under the circumstances of this case, =
(1)=20
that Dr. Riddle was not a treating physician when he intubated =
S.D. and=20
(2) that Dr. Riddle was not associated with the labor and delivery =
team=20
charged with S.D.=E2=80=99s delivery and immediate post-delivery =
care assembled by=20
Dr. Le. The majority, however, disagrees.
<=
/SPAN>The=20
majority ignores the pertinent parts of the affidavit of Dr. =
Katz=E2=80=94the=20
non-movants=E2=80=99 expert=E2=80=94in which Dr. Katz =
testifies exactly how, when,=20
and why Dr. Riddle was associated with S.D.=E2=80=99s care, =
established a=20
physician/patient relationship with S.D. as S.D.=E2=80=99s =
treating physician, and=20
committed malpractice. Dr. Katz testified by affidavit:
8. It is foreseeable that an =
anesthesiologist=20
may have to intubate a newborn when called to assist in a cesarian =
section=20
such as the one in this case. This is because it happens on an =
anesthesiologist=E2=80=99s watch from time to time where there =
is no=20
neonatologist, where he/she has not yet arrived, or even where =
the=20
neonatologist is present but requests assistance. By virtue of =
the fact=20
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=20
delivery team, he may be sharing the care and responsibility of =
the mother=20
and child (or children) being delivered.
. . . . Generally, the decision for an =
emergency=20
cesarean involves the OB-GYN=E2=80=99s concern that the baby is in =
distress and=20
not receiving enough oxygen. By training and experience, an=20
anesthesiologist has more expertise in ventilating and =
intubating. He=20
routinely performs intubations for general anesthesia and is often =
called=20
to perform intubation or assist in difficult intubations, in an =
operating=20
room or otherwise, because he is usually the most qualified to do =
so.=20
Where a neonatologist is not present in the Labor and Delivery =
Room=20
or the neonatologist is having difficulty with intubation, from =
time to=20
time an anesthesiologist is needed to intubate the newborn if =
he can do=20
so because the mother is stable. In fact, he can expect that =
on=20
occasion, he will be needed to do this.
. . . .
10. In my opinion, Jefferson Riddle, =
M.D.=20
failed to follow the above standards of reasonable, prudent and =
accepted=20
care for an anesthesiologist in performing medical services for =
Thao Chau=20
and [S.D.], in at least the following acts or =
omissions:
<=
/SPAN> <=
/SPAN>1. Dr.=20
Riddle was [S.D.]=E2=80=99s treating physician while intubating =
[S.D.]. He=20
could have refused to intubate him if the anesthetized mother was =
in=20
crisis or medically unstable and he had to choose her. However, =
once he=20
agreed to intubate [S.D.], laid hands on him, and undertook to =
intubate=20
[S.D.], Dr. Riddle became one of [S.D.]=E2=80=99s physicians. It =
was Dr. Riddle=E2=80=99s=20
responsibility to perform that intubation within the standard of=20
reasonably prudent anesthesia care.
<=
/SPAN> <=
/SPAN>2. Specifical=
ly,=20
the standard of care required him to intubate =
properly=E2=80=94into the=20
trachea=E2=80=94check for breath sounds with a stethoscope to =
determine that=20
he was properly intubated into the trachea and not the esophagus,=20
secure the endotracheal tube, check end-tidal CO2 to ensure =
that the=20
tube was in the trachea and check again for breath sounds. These =
tasks=20
only require a few seconds of an anesthesiologist, who is =
already=20
skilled and experienced at this procedure and must do this before =
leaving=20
the patient.
11. In this case, Dr. Riddle breached =
the=20
standards of reasonably prudent and acceptable anesthesia care and =
did not=20
properly perform the above which was below the standard of =
care.=20
Specifically, he did not secure the tube after intubation, then =
ensure=20
that [S.D.] was properly intubated by listening for breath sound=20
again, after he had secured the tube, to make sure it was =
still in=20
the right place. He also did not check the end-tidal CO2 to ensure =
the=20
infant was properly intubated.
In fact, Dr. Riddle intubating [S.D.] =
without=20
securing the tube and ensuring it was in the right place likely =
caused=20
more serious risk to [S.D.] than if he had declined to do so at =
all,=20
claiming he could not leave the mother. As an anesthesiologist, he =
is=20
considered to be more skilled at intubation. It is highly =
likely that=20
those who weren=E2=80=99t anesthesiologists, especially the =
residents with limited=20
experience, assumed that if he did it, it must have been done =
correctly,=20
and were much less likely to question whether the baby=E2=80=99s =
difficulties were=20
whether they had a good airway. As a result, [S.D.] wasn=E2=80=99t =
reintubated=20
until the neonatologist arrived several minutes later and did so. =
This=20
contributed to the baby=E2=80=99s hypoxia and brain =
damage.
(Emphasis added.) The majority ignores =
this expert=20
testimony directly on point, even though we are required to review =
the=20
non-movant=E2=80=99s evidence=E2=80=94not the =
movant=E2=80=99s=E2=80=94in the most favorable light=20
and to draw all reasonable conclusions in the non-movant=E2=80=99s =
favor. KPMG=20
Peat Marwick, 988 S.W.2d at 748.
<=
/SPAN>The=20
majority also errs by affirming the trial court=E2=80=99s order =
striking paragraph=20
9 of Dr. Katz=E2=80=99s affidavit on the irrelevant ground that =
one subsection of=20
the paragraph is =E2=80=9Cnot . . . probative on the issue of =
whether Dr. Riddle=20
was entitled to remuneration for the intubation of S.D.=E2=80=9D =
The expert=20
testimony in this paragraph is highly probative on the issue of =
whether=20
Dr. Riddle was =E2=80=9Ca treating physician associated by the =
admitting or=20
attending physician=E2=80=9D for S.D. and was thus excluded from =
the protection of=20
the Good Samaritan affirmative defense by former subsection =
74.001(c)(2).=20
Dr. Katz testified in the relevant part of paragraph 9:
9. From the time that Dr. Riddle =
began=20
providing the anesthesia for the cesarean section in this case, he =
became=20
=E2=80=9Cassociated with=E2=80=9D the attending physician, Dr. =
Le. He became Dr. Le=E2=80=99s=20
partner, associate or colleague of the Labor and Delivery team, =
and they=20
had to work together for all the patients involved in the =
birth=E2=80=94the mother=20
and the children. Both obstetrician and anesthesiologist in a =
C-section=20
are treating both the mother and the child because whatever they =
do to the=20
mother is also being done to and affects the child who is in that =
mother=E2=80=99s=20
body, whether by administering drugs, providing oxygen, and the =
like. It=20
is their job to care for both the mother and the child/children. =
So it is=20
disingenuous for an anesthesiologist during a C-section to say he =
had no=20
responsibility for the child, especially under the =
circumstances where=20
there was no neonatologist present, the baby was in distress, he =
had=20
undertaken to intubate the child, and his adult patient (the =
mother) was=20
not in crisis. It is below the standard of care for an =
anesthesiologist=20
providing anesthesia during a C-section to care for only the =
mother and=20
not the child as well where the mother is medically stable. =
Caring for=20
both is a juggling act the anesthesiologist must manage within the =
standards of care.
[S.D.] was and would have been Dr. =
Riddle=E2=80=99s=20
responsibility in any event, as the =E2=80=9Con call=E2=80=9D =
anesthesiologist. If the=20
mother had delivered without C-section, and the baby was not =
breathing, in=20
the absence of a neonatologist, as the =E2=80=9Con call=E2=80=9D =
anesthesiologist, Dr.=20
Riddle would likely have been called in specifically for the baby =
who=20
didn=E2=80=99t have an established airway as the =E2=80=9Con =
call=E2=80=9D=20
anesthesiologist.
(Emphasis=20
added).
<=
/SPAN>Dr.=20
Katz=E2=80=99s affidavit=E2=80=94with or without paragraph =
9=E2=80=94is more than sufficient to=20
raise a fact issue as to whether Dr. Riddle was excluded from the=20
protection of the Good Samaritan statute as the anesthesiologist=20
associated with the labor and delivery team by the attending =
physician for=20
the mother and children during the labor and delivery, Dr. Le, and =
as=20
S.D.=E2=80=99s treating physician for the delivery of emergency =
anesthesiology=20
services, including intubation.
<=
/SPAN>Nor=20
can the majority find support for its legal conclusion in the law. =
It=20
cites no law in support of its conclusion that Dr. Riddle =
was not=20
S.D.=E2=80=99s treating physician for the intubation, and it =
ignores=20
well-established Texas law to the contrary. Under that law, a =
physician=20
cannot be liable for malpractice unless he breaches a duty flowing =
from=20
the physician-patient relationship. St. John v. Pope, 901 =
S.W.2d=20
420, 423 (Tex. 1995); Majzoub v. Appling, 95 S.W.3d 432, =
436 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2002, pet. denied). The question =
of duty is a=20
question of law that must be decided in a medical malpractice case =
before=20
the issue of the standard of care arises. St. John, 901 =
S.W.2d at=20
424; Gross v. Burt, 149 S.W.3d 213, 221 (Tex. =
App.=E2=80=94Fort Worth 2004,=20
pet. denied); Majzoub, 95 S.W.3d at 436. The duty to treat =
a=20
patient with proper professional skill arises from the consensual=20
relationship between the physician and the patient. St. =
John, 901=20
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=20
to the physician-patient relationship may be implied, the =
=E2=80=9Con-call=E2=80=9D status=20
of a physician does not automatically impose a duty. =
Majzoub, 95=20
S.W.3d at 436. Rather, if there has been no prior relationship =
between the=20
physician and the patient, the physician must take some =
affirmative action=20
to treat the patient to create such a relationship. Id.; =
Lection=20
v. Dyll, 65 S.W.3d 696, 705 (Tex. App.=E2=80=94Dallas 2001, =
pet. denied)=20
(=E2=80=9C[O]n-call physician may assume a duty to the patient if =
he takes some=20
affirmative action to treat the patient.=E2=80=9D). Similarly, a =
physician=E2=80=99s mere=20
presence in the labor and delivery unit of a hospital is =
inadequate to=20
establish a physician-patient relationship unless the physician =
takes some=20
affirmative step towards advancing the relationship. Reynosa v. =
Huff, 21 S.W.3d 510, 513 (Tex. App.=E2=80=94San Antonio 2000, =
no pet.).=20
<=
/SPAN>A=20
physician may decline treatment and thereby decline to create a=20
physician-patient relationship, but once the physician agrees to =
examine=20
or treat the patient, the relationship arises. St. John, =
901 S.W.2d=20
at 424; Gross, 149 S.W.3d at 221=E2=80=9322; =
Majzoub, 95 S.W.3d at=20
436. =E2=80=9CTreatment=E2=80=9D is defined as =E2=80=9Cthe action =
or manner of treating a patient=20
medically or surgically.=E2=80=9D Lection, 65 S.W.3d at 705 =
n.5. Once the=20
physician-patient relationship is established, the physician owes =
the=20
patient a duty to treat him with the skills of a trained, =
competent=20
professional, and a breach of that duty may give rise to a =
malpractice=20
action. Gross, 149 S.W.3d at 222.
<=
/SPAN>Dr.=20
Riddle was asked by Dr. Le, the head of the labor and delivery =
team, to=20
intubate S.D. He could have refused to do so had he determined =
that it was=20
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=E2=80=9322;=20
Majzoub, 95 S.W.3d at 436. However, having determined that =
he could=20
safely leave the mother, Dr. Riddle consented to treat S.D. and =
became=20
S.D.=E2=80=99s treating physician for the intubation, contrary to =
the majority=E2=80=99s=20
conclusion. See St. John, 901 S.W.2d at 424; Gross, =
149=20
S.W.3d at 221=E2=80=9322; Majzoub, 95 S.W.3d at =
436.
<=
/SPAN>The=20
majority, likewise, cites no law in support of its =
conclusion that=20
Dr. Riddle was not associated with the labor and delivery team, =
and=20
therefore with S.D.=E2=80=99s care, by the admitting or attending =
physician, Dr.=20
Le, for his delivery and immediate post-delivery care. Rather, the =
majority states that
Dr. Le testified that he was the =
attending=20
physician for Ms. Chau, but Dr. Ruiz-Puyana, the neonatologist, =
was the=20
attending physician for S.D. Dr. Katz=E2=80=99s affidavit makes no =
contention that=20
Dr. Riddle was, in any way, associated with Dr. Ruiz-Puyana. As =
such, we=20
hold that Dr. Riddle was not associated with S.D.=E2=80=99s =
attending physician=20
within the meaning of the Good Samaritan statute.
The majority overlooks the material fact =
that Dr.=20
Le was the head of the labor and delivery team and that he =
associated Dr.=20
Riddle with the team as anesthesiologist before the delivery. It =
also=20
overlooks the material facts that Dr. Ruiz-Puyana was an on-call=20
physician, exactly like Dr. Riddle, and that she did not arrive to =
take=20
over S.D.=E2=80=99s care until twelve minutes after Dr. =
Riddle intubated=20
S.D. Thus, it is Dr. Ruiz-Puyana=E2=80=94not Dr. =
Riddle=E2=80=94who, under Texas law,=20
might be able to argue that she had no physician/patient =
relationship with=20
S.D. at the time of the intubation. See Majzoub, 95 S.W.3d =
at 436;=20
Lection, 65 S.W.3d at 705.
<=
/SPAN>Under=20
any reasonable interpretation of the law and the facts, GHA failed =
to=20
establish as a matter of law that Dr. Riddle was not excluded from =
the=20
protection of the Good Samaritan statute by either former =
subsection=20
74.001(c)(1) or former subsection 74.001(c)(2). Rather, there is=20
substantial evidence that he was excluded from the =
statute=E2=80=99s protection.=20
Because there is a material fact issue as to whether Dr. Riddle =
was=20
excluded from the protection of the Good Samaritan Statute, I =
would hold=20
that GHA=E2=80=99s motion for summary judgment fails. See =
Quanaim, 17=20
S.W.3d at 41=E2=80=9342. Consequently, unlike the majority, I =
would not find it=20
necessary to determine whether GHA satisfied former section =
74.001(d) of=20
the Code by establishing as a matter of law that Dr. Riddle =
=E2=80=9Cwould=20
ordinarily receive or be entitled to receive . . . =
remuneration=E2=80=9D for the=20
professional services he rendered to S.D.=E2=80=9D when offering =
his services to=20
S.D. =E2=80=9Cfor reasons wholly unrelated to [his] work in =
administering health=20
care=E2=80=9D in accordance with subsections 74.001(c)(1) and (d). =
See=20
Former Tex. Civ. Prac. =
&=20
Rem. Code =
Ann. =C2=A7=20
74.001(c)(1), (d).
<=
/SPAN>I=20
would sustain the Dos=E2=80=99 sixth issue.
The =
Trial Court=E2=80=99s=20
Order Striking Dr. Reeves and his Expert AffidavitsThe =
majority=20
also errs in its holding, in response to the Dos=E2=80=99 first =
issue, that the=20
trial court did not err in striking the Dos=E2=80=99 expert on the =
Good Samaritan=20
defense, Dr. Reeves, and his affidavits, under a docket control =
order=20
whose deadline for designating experts expired on April 21, =
2003,=20
four months before GHA =
asserted its=20
Good Samaritan defense and simultaneously moved for summary =
judgment=E2=80=94in=20
pleadings untimely filed two months after the June 20, 2003 =
deadline in the same docket control order for filing new =
pleadings,=20
filing dispositive motions, and challenging experts. Thus, GHA =
invoked the=20
docket control order against the Dos at the same time it was =
blatantly=20
violating the same order.
<=
/SPAN>The=20
Dos timely filed a response to GHA=E2=80=99s surprise August 29 =
motion for summary=20
judgment on its simultaneously asserted affirmative defense, =
attaching the=20
two affidavits from Dr. Reeves, one responding to the Good =
Samaritan=20
defense and one supporting the Dos=E2=80=99 malpractice =
allegations. On the=20
afternoon of October 2, the day before the summary judgment=20
hearing, GHA filed its objections to the Dos=E2=80=99 summary =
judgment=20
evidence and a motion to strike that evidence=E2=80=9418 days =
after the evidence=20
had been filed and a half-day before the scheduled hearing. GHA =
objected=20
to both of Dr. Reeves=E2=80=99 affidavits on the ground that Dr. =
Reeves was not=20
properly designated as an expert and, therefore, his affidavits =
could not=20
be used in a summary judgment context. It also argued that neither =
of Dr.=20
Reeves=E2=80=99 affidavits showed causation because neither =
=E2=80=9Cprovides any=20
explanation of how Dr. Riddle=E2=80=99s conduct resulted in harm =
to S.D. or=20
Plaintiffs.=E2=80=9D GHA made similar objections to Dr. =
Katz=E2=80=99s=20
affidavits.
<=
/SPAN>The=20
trial court began the hearing as scheduled the next day, October =
3. At the=20
hearing, the Dos moved for a continuance on the ground that GHA =
had=20
interjected a great deal of new material into its reply to their =
summary=20
judgment response and that it had also objected to their summary =
judgment=20
evidence only the day before. The Dos sought additional time to =
respond to=20
GHA=E2=80=99s pleadings, which they contended were more in the =
nature of a new=20
summary judgment motion than a reply, citing surprise and their =
inability=20
to respond to lengthy pleadings filed on the afternoon before the =
hearing,=20
including their inability even to contact their experts in the =
time=20
available to respond to GHA=E2=80=99s new pleadings. The Dos cited =
Texas Rule of=20
Civil Procedure 166a(c), which they contended entitled them to 21 =
days=20
notice of new summary judgment pleadings, and Rule 1, which =
provides that=20
=E2=80=9C[t]he proper objective of rules of civil procedure is to =
obtain a just,=20
fair, equitable and impartial adjudication of the rights of =
litigants=20
under established principles of substantive law.=E2=80=9D =
See Tex. R. Civ. P. 1, =
166a(c); see=20
also State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991)=20
(discouraging gamesmanship).
<=
/SPAN>The=20
trial court continued the hearing until October 17 and ordered the =
Dos to=20
supplement their pleadings on or before October 10. On that date, =
the Dos=20
filed their second supplemental response and second supplemental=20
designation of experts, redesignating Dr. Reeves to testify on =
reasonable=20
and necessary medical treatment and the duties of physicians in =
response=20
to GHA=E2=80=99s complaint that Dr. Reeves had been improperly =
designated as a=20
summary judgment witness. On October 14, three days before the =
continued=20
hearing resumed, GHA filed a motion to strike the Dos=E2=80=99 =
second supplemental=20
designation of experts. GHA=E2=80=99s sole argument this time was =
that the Dos=E2=80=99=20
designation of Dr. Reeves was untimely under the docket control =
order=20
setting April 21, 2003 as the final date for the =
plaintiffs=E2=80=99 designation=20
of experts and its order setting July 11, 2003 as the final date =
for=20
choosing one physician to testify on malpractice. In other words, =
GHA=20
simply untimely recast its prior objections that Dr. Reeves was =
not=20
properly designated as an expert witness under the trial =
court=E2=80=99s docket=20
control order and under its order limiting the Dos=E2=80=99 =
experts. GHA again=20
requested that Dr. Reeves and his affidavits be struck.
<=
/SPAN>The=20
hearing went forward as scheduled three days later, on October 17. =
By=20
order entered October 22, the trial court granted GHA=E2=80=99s =
motion for summary=20
judgment and its motions to strike Dr. Reeves as an expert witness =
and Dr.=20
Reeves=E2=80=99 affidavits and portions of Dr. Katz=E2=80=99s =
affidavit as summary=20
judgment evidence. The court dismissed the Dos=E2=80=99 claims =
with=20
prejudice.
<=
/SPAN>The=20
majority erroneously states that the Dos did not respond to =
GHA=E2=80=99s motion=20
to strike Dr. Reeves=E2=80=99 affidavits and to strike the =
Dos=E2=80=99 second=20
supplemental designation of expert witnesses and thus the trial =
court did=20
not err in striking Dr. Reeves and his affidavits. Not only are =
the=20
majority=E2=80=99s statements incompatible with the record, but =
the Dos=E2=80=99 counsel=20
expressly informed the panel at oral argument, upon questioning by =
the=20
panel, that the Dos=E2=80=99 responses to GHA=E2=80=99s motions to =
strike Dr. Reeves and=20
his affidavits were in the Dos=E2=80=99 response to GHA=E2=80=99s =
reply to the Dos=E2=80=99=20
response to GHA=E2=80=99s motion for summary judgment. This =
statement is borne out=20
by a review of the record. Thus, the majority=E2=80=99s affirmance =
of the trial=20
court=E2=80=99s sanctions order is based on an incorrect reading =
of the record.=20
The factual support the majority finds for the trial =
court=E2=80=99s actions is=20
simply not there. Nor can the trial court=E2=80=99s sanctions =
motion be justified=20
on the basis of law.
<=
/SPAN>Texas=20
Rule of Civil Procedure 63 provides that =E2=80=9C[p]arties may =
amend their=20
pleadings, respond to pleadings on file of other parties, . . . =
and file=20
such other pleas as they may desire by filing such pleas with the =
clerk=20
at such time as not to operate as a surprise to the opposite=20
party.=E2=80=9D Tex. =
R. Civ. P.=20
63 (emphasis added). The rule further provides that pleadings, =
pleas,=20
and responses filed within seven days of trial =
=E2=80=9Cshall be=20
filed only after leave of the judge is obtained, which leave shall =
be=20
granted by the judge unless there is a showing that such filing =
will=20
operate as a surprise to the opposite party.=E2=80=9D Id. A =
summary=20
judgment proceeding is a =E2=80=9Ctrial=E2=80=9D within the =
meaning of this rule.=20
Fletcher v. Edwards, 26 S.W.3d 66, 74 (Tex. =
App.=E2=80=94Waco 2000, pet.=20
denied); see also Sosa v. Cent. Power & Light, 909 =
S.W.2d 893,=20
895 (Tex. 1995) (per curiam) (holding that Rule 63 applies to =
pleadings=20
filed within seven days of summary judgment proceedings). Here =
there was=20
no showing that the Dos were not surprised by GHA=E2=80=99s =
untimely objection to=20
their expert and expert affidavits or that they failed to bring =
their=20
concerns to the attention of the trial court. The record reveals =
quite the=20
contrary.
<=
/SPAN>Notably,=20
GHA did not couch its motion to strike Dr. Reeves and his =
affidavits as a=20
motion for the exclusion of testimony from an untimely designated =
expert=20
under Texas Rule of Civil Procedure 193.6. See Tex. R. Civ. P. 193.6. =
Had it done=20
so, the Dos would have had the opportunity to establish good cause =
for=20
their late designation of Dr. Reeves. See Alvarado v. Farah =
Mfg.=20
Co., 830 S.W.2d 911, 914=E2=80=9315 (Tex. 1992) (discussing =
good cause to=20
admit testimony not timely identified when Rule 215 discovery =
sanctions=20
are sought and opining, =E2=80=9CThe good cause exception permits =
a trial court to=20
excuse a failure to comply with discovery in difficult or =
impossible=20
circumstances=E2=80=9D); Cunningham v. Columbia/St. =
David=E2=80=99s Healthcare Sys.,=20
L.P., 185 S.W.3d 7, 11 (Tex. App.=E2=80=94Austin 2005, no =
pet.) (testimony=20
from untimely designated expert will be excluded =E2=80=9Cunless =
the trial court=20
determines that the party seeking to introduce the evidence =
established=20
either (1) the existence of good cause for its failure or (2) that =
it=20
would not unfairly surprise or prejudice the other parties to =
admit the=20
evidence=E2=80=9D).
<=
/SPAN>GHA=20
merely sought enforcement of the docket control order against the =
Dos.=20
Enforcement of a docket control order is reviewed under an abuse =
of=20
discretion standard. Clanton v. Clark, 639 S.W.2d 929, 931 =
(Tex.=20
1982); G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply Co., =
177 S.W.3d=20
537, 544 (Tex. App.=E2=80=94Dallas 2005, no pet.). Exclusion of =
expert testimony=20
is, likewise, reviewed under an abuse of discretion standard. =
McIntyre=20
v. Ramirez, 109 S.W.3d 741, 749 (Tex. 2003). A trial court =
abuses its=20
discretion if it acts arbitrarily, unreasonably, or without =
reference to=20
guiding rules or principles. Powers v. Mem=E2=80=99l Hermann =
Hosp. Sys., 81=20
S.W.3d 463, 465 (Tex. App.=E2=80=94Houston [1st Dist.] 2002, pet. =
denied).=20
<=
/SPAN>The=20
trial court plainly was not following any rule of civil procedure, =
specifically including Rule 193.6, its own docket control order, =
or any=20
other guidelines when it arbitrarily and capriciously accepted =
GHA=E2=80=99s=20
invitation to enforce its April 21 deadline for the Dos=E2=80=99 =
designation of=20
experts and its June 20 order limiting them to one expert =
physician while=20
not enforcing the provisions in the same order forbidding =
GHA from=20
supplementing its pleadings after June 20, filing a motion for =
summary=20
judgment after June 20, and challenging expert witnesses after =
June 20.=20
Rather, without any justification at all, the court deprived the =
Dos of=20
any opportunity to conduct discovery, name experts, or obtain =
summary=20
judgment evidence on GHA=E2=80=99s untimely asserted Good =
Samaritan affirmative=20
defense. This is the very definition of arbitrary and capricious=20
enforcement of the rules to the prejudice of one of the parties. =
See=20
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, =
241=E2=80=9342 (Tex.=20
1986) (=E2=80=9CThe test for abuse of discretion is . . . whether =
the court acted=20
without reference to any guiding rules and principles.=E2=80=9D). =
<=
/SPAN>GHA=20
and the majority rely on Ersek v. Davis & Davis, P.C., =
69=20
S.W.3d 268 (Tex. App.=E2=80=94Austin 2002, pet. denied), as =
authority for=20
sustaining the trial court=E2=80=99s ruling striking Dr. Reeves as =
an expert.=20
Ersek is inapplicable here. In that case, the plaintiff =
knew that=20
his cause of action required expert testimony, yet he waited for =
over a=20
year after filing his claim to designate his expert. Id. at =
270.=20
Indeed, the plaintiff contended that he had complied with the =
discovery=20
rules by filing disclosures =E2=80=9Cdesignating no expert witness =
before the=20
deadline and then supplementing his response identifying [the =
expert]=20
after the deadline=E2=80=9D in response to a motion for summary =
judgment filed by=20
the defendants. Id. at 270=E2=80=9371. In other words, in =
Ersek, the=20
plaintiff tried to sandbag the defendants and got caught. Here, =
exactly=20
the opposite is the case, and the defendants=E2=80=99 behavior =
here should be=20
rewarded no more than the plaintiff was rewarded in Ersek. =
Rather,=20
I agree with Texas Rule of Civil Procedure 1 that the =
=E2=80=9C[t]he proper=20
objective of rules of civil procedure is to obtain a just, fair, =
equitable=20
and impartial adjudication of the rights of litigants under =
established=20
principles of substantive law.=E2=80=9D Tex. R. Civ. P. 1. I =
also agree=20
with the Supreme Court of Texas that we should not reward =
gamesmanship and=20
secrecy. See Alvarado, 830 S.W.2d at 915; Lowry, 802 =
S.W.2d=20
at 671.
<=
/SPAN>The=20
majority also relies on Cunningham, 185 S.W.3d 7, cited =
above. Its=20
reliance on that case is also misplaced. As stated above,=20
Cunningham holds that if a party fails to timely designate =
an=20
expert witness =E2=80=9Cthen testimony from that expert will be =
excluded unless=20
the trial court determines that the party seeking to introduce the =
evidence established either (1) the existence of good cause for =
its=20
failure or (2) that it would not unfairly surprise or prejudice =
the other=20
parties to admit the evidence despite the inadequate =
discovery.=E2=80=9D 185=20
S.W.3d at 11. Cunningham lends no support to the trial =
court=E2=80=99s=20
rulings in this case. Indeed, as the Cunningham court aptly =
opined,=20
=E2=80=9CA primary purpose of the discovery rules is to prevent =
trial by ambush.=E2=80=9D=20
Id. at 14; see also Alvarado, 830 S.W.2d at 915. =
That=20
purpose was entirely ignored by both the trial court and the =
majority, and=20
it does apply here=E2=80=94to GHA, not to the Dos.
<=
/SPAN>I=20
would hold that the trial court=E2=80=99s orders striking the =
Dos=E2=80=99 expert, Dr.=20
Reeves, and his affidavits were clearly arbitrary and capricious, =
and I=20
would sustain the Dos=E2=80=99 first issue.
The Trial Court=E2=80=99s Order =
Striking Portions of Dr.=20
Katz=E2=80=99s Affidavit and Overruling the Dos=E2=80=99 =
Objections to GHA=E2=80=99s=20
Evidence
<=
/SPAN>In=20
their second issue, the Dos contend the trial court erred in =
striking=20
paragraphs 6 and 9 of Dr. Katz=E2=80=99s affidavit. Paragraph 9 is =
set out in part=20
above, and both paragraphs are set out in the majority opinion.=20
<=
/SPAN>Paragraphs=20
6 and 9 of Dr. Katz=E2=80=99s affidavit constitute the =
Dos=E2=80=99 summary judgment=20
proofs regarding Dr. Riddle=E2=80=99s status as an on-call =
anesthesiologist and as=20
the anesthesiologist charged with administering anesthesiology =
during the=20
C-section and delivery in this case, the standard of care Dr. =
Riddle owed=20
S.D. in those circumstances, and his right to charge for his =
services in=20
administering anesthesiology to the mother and the infants in her =
body and=20
in intubating S.D. after his birth. In agreeing with the trial =
court=E2=80=99s=20
order striking these paragraphs, the majority cursorily addresses=20
only Dr. Katz=E2=80=99s opinion regarding Dr. =
Riddle=E2=80=99s right to charge for=20
his services, misconstrues the import of Dr. Riddle=E2=80=99s =
testimony on that=20
point, determines Dr. Katz=E2=80=99s testimony is conclusory, and =
then affirms the=20
order striking all of the critical summary judgment proof =
contained in=20
these paragraphs with no further argument or citation to =
authority. It=20
states that =E2=80=9C[w]hile Dr. Katz purported to have personal =
knowledge of the=20
facts recited in his affidavit, his statement regarding Dr. =
Riddle=E2=80=99s=20
entitlement to compensation is a legal conclusion with no =
supporting facts=20
or rationale,=E2=80=9D and, therefore, it was properly struck as =
=E2=80=9Cconclusory.=E2=80=9D I=20
would hold that it was error for the trial court to strike any of =
this=20
vital testimony.
<=
/SPAN>The=20
majority relies on a statement in McIntyre v. Ramirez, in =
which the=20
Supreme Court of Texas held, shortly before GHA filed its motion =
for=20
summary judgment, that a Maryland doctor was not qualified to =
testify=20
about =E2=80=9Cwhat=E2=80=99s ordinarily billed or what the law =
ordinarily allows people=20
to recover for their medical services in the State of =
Texas.=E2=80=9D=20
McIntyre, 109 S.W.3d at 750. In McIntyre, the =
defendant=20
obstetrician, Dr. McIntyre, was not on call, but happened =
to be in=20
a hospital labor and delivery area visiting one of his own =
patients when=20
he responded to an emergency page for Ramirez, whom he had never =
seen, but=20
who was in the process of delivering an infant with no doctor =
present;=20
there were indications that the infant=E2=80=99s shoulder had =
become lodged=20
against the mother=E2=80=99s pelvic bone, a condition called =
shoulder dystocia;=20
and the infant, whom Dr. McIntyre delivered after several =
unsuccessful=20
attempts, suffered neurological impairment as a result of the =
shoulder=20
dystocia. See id. at 743. The Ramirezes=E2=80=99 expert, a =
Maryland=20
obstetrician, opined conclusorily that Dr. McIntyre =E2=80=9Cwas =
entitled to bill=20
and receive a fee for the delivery of baby Colby Ramirez.=E2=80=9D =
Id. at=20
749.
<=
/SPAN>The=20
Supreme Court of Texas first addressed Ramirez=E2=80=99s claim =
that Dr. McIntyre=E2=80=99s=20
inability to avail himself of the Good Samaritan statute was =
established=20
by Dr. McIntyre=E2=80=99s testimony that he practiced obstetrical =
medicine, he=20
routinely delivered babies at the hospital, and he was in the =
hospital for=20
the purpose of treating his own obstetrical patient, from whom he =
expected=20
to be compensated, on the day he delivered Colby Ramirez. =
Id. at=20
749. The court opined, =E2=80=9CThe testimony cited by Ramirez is =
not probative of=20
the circumstances of this case, which involved a medical emergency =
and an=20
absence of any pre-existing relationship or duty to respond to =
that=20
emergency.=E2=80=9D Id. In other words, the fact that Dr. =
McIntyre was an=20
obstetrician who was visiting his own patient in the hospital, =
where he=20
was not on call, did not establish either that he had a =
pre-existing=20
relationship with Ramirez or that he had a duty to deliver her =
baby. The=20
unpredicated legal conclusion of Ramirez=E2=80=99s expert, an =
obstetrician=20
practicing in Maryland, =E2=80=9Cwith no supporting facts or =
rationale=E2=80=9D did not=20
raise a fact question sufficient to defeat summary judgment. =
Id. at=20
749=E2=80=9350.
<=
/SPAN>I=20
have no disagreement with the supreme court=E2=80=99s rationale or =
holding in=20
McIntyre, but I disagree with the majority in this case =
that the=20
rationale of McIntyre applies here. The issue under former=20
subsections 74.001(c)(1) and (d) in this case, if it were to be =
reached,=20
is whether Dr. Riddle had a legal right to bill for his =
services=20
assuming (as I do not) that he intubated S.D. =E2=80=9Cfor reasons =
wholly=20
unrelated to [his] work in administering health care=E2=80=9D and =
thus was not=20
excluded as a Good Samaritan by former subsection 74.001(c)(1). If =
he did=20
have a legal right to bill for the post-delivery intubation, he =
would=20
still be excluded as a Good Samaritan by former subsection =
74.001(d), even=20
if his services were entirely voluntary and not part of his job as =
the=20
on-call anesthesiologist and even if he did not bill for them.=20
Specifically, former subsection 74.001(d) provided that, for =
purposes of=20
former subsection 74.001(c)(1), =E2=80=9Ca person who would =
ordinarily receive or=20
be entitled to receive a salary, fee, or other remuneration for=20
administering care under such circumstances to the patient in =
question=20
shall be deemed to be acting for or in expectation of remuneration =
even if=20
the person waives or elects not to charge or to receive =
remuneration on=20
the occasion in question.=E2=80=9D Former Tex. Civ. Prac. & Rem. =
Code=20
Ann. =C2=A7 =
74.001(d). Thus,=20
under former subsections 74.001(c)(1) and (d), if GHA had =
established that=20
Dr. Riddle was not at the hospital for the purpose of rendering =
emergency=20
anesthesiology services, such as intubation, when he intubated =
S.D.=E2=80=94which=20
it did not prove, in contrast to the McIntyre =
defendant=E2=80=94it would=20
still have had to prove, for purposes of satisfying former =
subsection=20
74.001(d), that an on-call staff anesthesiologist, called to =
deliver=20
emergency anesthesiology services to a patient in Texas, is not =
legally=20
entitled to charge for those services.
<=
/SPAN>Dr.=20
Katz , having testified to Dr. Riddle=E2=80=99s duties as the =
on-call=20
anesthesiologist for the hospital where S.D. was born and his =
duties as=20
the member of the delivery team charged with providing =
anesthesiology and=20
related services during and after the delivery, testified =
regarding Dr.=20
Riddle=E2=80=99s legal right to charge for those services in =
paragraph 5 of his=20
affidavit, which was not struck, and paragraph 6, which was =
improperly struck:
5. I have knowledge and experience in =
the=20
practice of medicine and the specialty of anesthesiology. =
Thus, I am=20
familiar with the standards of reasonably prudent, ordinary and =
accepted=20
care for an anesthesiologist. This includes the standards of an =
anesthesiologist who is =E2=80=9Con call,=E2=80=9D who is on the =
medical team for an=20
emergency C-section for the birth of a child, and who is providing =
anesthesia, intubation, and related services in cases like or =
similar to=20
the C-Section for Thao Chau and the birth of [S.D.]. These =
standards of=20
care are national standards, which apply throughout the =
country to=20
anesthesiologists who provide medical services like or similar to =
those=20
which should have been provided for Thao Chau and her child, =
[S.D.], under=20
the same or similar circumstances.
6. Anesthesiologists are =
hospital-based=20
doctors, meaning we rarely have offices where we see patients, and =
usually=20
our medical practice is at a hospital. When we render anesthesia =
services,=20
we expect to be compensated, whether we perform those services =
=E2=80=9Con call=E2=80=9D=20
or during the regular workday; it is our practice to charge =
(or for=20
the hospital to charge if we are salaried and at a teaching =
facility)=20
for those services.
(Emphasis added.)
<=
/SPAN>In=20
the earlier paragraphs of his affidavit and in his curriculum =
vitae=20
attached to his affidavit, Dr. Katz fully established his =
credentials for=20
opining as to national standards of care and conditions of service =
and=20
billing for an on-call anesthesiologist on the staff of a =
hospital, and=20
opined as to the substance of those national standards, which he =
explained=20
in detail. He also opined as to his extensive review of the =
records and=20
materials in the case. Dr. Katz=E2=80=99s improperly struck =
testimony in paragraph=20
6 is thus entirely unlike the affidavit of the plaintiffs=E2=80=99 =
expert in=20
McIntyre, a physician board-certified in Maryland, who =
opined,=20
without substantiation or credentials, about local billing=20
practices in Texas under the unusual circumstances in which the =
defendant=20
physician who delivered emergency care was in the hospital =
fortuitously,=20
was not on call, and was not associated with the =
delivery=20
team by the attending physician, but merely responded to an =
emergency=20
call. McIntyre, 109 S.W.3d at 749. It is this kind of =
testimony=E2=80=94not=20
the testimony of an expert on national anesthesiology standards =
opining on=20
those standards=E2=80=94that the supreme court properly =
characterized as=20
presenting =E2=80=9Ca legal conclusion with no supporting facts or =
rationale=E2=80=9D and,=20
therefore, incompetent to defeat summary judgment. See id. =
at=20
749=E2=80=9350; see also Ryland Group, Inc. v. Hood, 924 =
S.W.2d 120, 122=20
(Tex. 1996) (per curiam).
<=
/SPAN>Even=20
without paragraph 6, I would hold that Dr. Katz=E2=80=99s =
testimony raised a=20
material fact issue as to whether Dr. Riddle was legally entitled =
to=20
charge for the emergency intubation he performed in the course of =
his work=20
as the on-call anesthesiologist and as the anesthesiologist =
associated=20
with the labor and delivery team by Dr. Le. However, I would also =
consider=20
the evidence in paragraph 6, which is, in my view, clearly =
competent=20
expert testimony by the non-movant=E2=80=99s expert on a material =
fact issue.=20
<=
/SPAN>Moreover,=20
because I believe the trial court improperly struck Dr. =
Reeves=E2=80=99 affidavit,=20
I would include it also in my analysis. See Trusty v. =
Strayhorn, 87=20
S.W.3d 756, 764 (Tex. App.=E2=80=94Texarkana 2002, no pet.) =
(=E2=80=9Cassuming the failure=20
to timely designate a testifying expert [under docket control =
order] would=20
bar consideration of that expert=E2=80=99s affidavit as summary =
judgment proof,=20
such a failure is a defect of form to which a party must object =
and obtain=20
a ruling to preserve error=E2=80=9D; it does =E2=80=9Cnot make =
[the] affidavit=20
incompetent, but inadmissible on proper objection.=E2=80=9D); =
Lection, 65=20
S.W.3d at 703 (failure to timely file summary judgment proof is =
defect of=20
form, not substance). Dr. Reeves reviewed the billing records and=20
testified, in the affidavit struck by the trial court, that Dr. =
Riddle=20
did, in fact, charge for his professional services for the entire =
time he=20
spent in the delivery room, including the time spent intubating=20
S.D.=E2=80=94testimony that contradicted Dr. Riddle=E2=80=99s =
testimony in his own=20
affidavit. The majority, having held that Dr. Reeves=E2=80=99s =
testimony was=20
properly struck, does not mention this testimony. I would hold, by =
contrast, that Dr. Reeves=E2=80=99 testimony, too, was more than =
sufficient to=20
raise a fact issue as to Dr. Riddle=E2=80=99s self-serving and =
conclusory=20
contention=E2=80=94as movant for summary judgment=E2=80=94that he =
was not entitled to bill=20
for those services.
<=
/SPAN>I=20
would sustain the Dos=E2=80=99 second issue. I would hold that the =
trial court=20
acted arbitrarily and capriciously in striking paragraphs 6 and 9 =
of Dr.=20
Katz=E2=80=99s affidavit. In addition, if I were to reach the =
issue of whether GHA=20
bore its burden of proving as a matter of law that Dr. Riddle was =
not=20
excluded from the protection of the Good Samaritan statute by =
subsections=20
74.001(c)(1) and (d), I would hold that it did not carry its =
burden.
Conclusion
<=
/SPAN>Because=20
GHA did not establish its Good Samaritan affirmative defense as a =
matter=20
of law, I would reverse and remand this case for trial on the=20
merits.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Evelyn=20
V. Keyes
&n=
bsp; &nb=
sp; &nbs=
p; =
; =
&=
nbsp; Justice
Panel consists of Justices Nuchia, =
Keyes, and=20
Hanks.
Justice Keyes,=20
dissenting. |