&=
nbsp;
Opinion=20
issued September 28,=20
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
O P I =
N I O=20
N
<=
/SPAN>Thao=20
Chau and Ha Dien Do, individually and as next friend of their =
minor=20
children, S.D. and H.D. (collectively referred to as =E2=80=9Cthe =
Dos=E2=80=9D), appeal=20
the trial court=E2=80=99s order granting Jefferson Riddle, M.D. =
and Greater=20
Houston Anesthesiology, P.A.=E2=80=99s (=E2=80=9CGHA=E2=80=9D) =
motion for summary judgment and=20
dismissing the Dos=E2=80=99 claims against them. In five issues, =
the Dos argue=20
that (1) the trial court erred in striking their expert=E2=80=99s =
affidavit and=20
their second supplemental designation of expert witnesses; (2) the =
trial=20
court erred in striking two paragraphs from another =
expert=E2=80=99s affidavit;=20
(3) the trial court erred in overruling their objections to the =
affidavits=20
filed by two defense experts; and (4) the trial court erred in =
granting=20
Riddle and GHA=E2=80=99s motion for summary judgment and =
dismissing the Dos=E2=80=99=20
claims. We affirm.
Background
<=
/SPAN>On=20
October 29, 2001, Dr. Jefferson Riddle was an on-call =
anesthesiologist at=20
Memorial Southwest Hospital. On this same day, Thao Chau, pregnant =
with=20
twins, went into labor at Memorial Southwest and remained in labor =
until=20
the morning of October 30, 2001. Ms. Chau=E2=80=99s obstetrician, =
Dr. Le, decided=20
to perform an emergency cesarean section, and Dr. Riddle was =
called to=20
provide anesthesia for Ms. Chau during the surgery. After an =
unsuccessful=20
attempt to use epidural anesthesia, Dr. Riddle administered =
general=20
anesthesia to Ms. Chau.
<=
/SPAN>At=20
2:46 a.m. on October 30, 2001, S.D. was delivered =
=E2=80=9Cfloppy,=E2=80=9D without any=20
tone and very pale. The neonatal team took over S.D.=E2=80=99s =
care, but, after=20
failing to resuscitate him, Dr. Le asked Dr. Riddle to assist. Dr. =
Riddle=20
proceeded to intubate S.D. Afterwards, Dr. Riddle, using a =
stethoscope,=20
listened and reported hearing breath sounds in S.D.=E2=80=99s =
chest. He also=20
reported seeing S.D.=E2=80=99s chest rise. At this time, the =
neonatal team=20
proceeded with the resuscitation, and Dr. Riddle returned to Ms. =
Chau, who=20
was experiencing bleeding from a uterine atony. ![3DFootnote](3D"")
<=
/SPAN>S.D.=E2=80=99s=20
endotracheal tube was secured by a nurse on the neonatal team. Two =
members=20
of S.D.=E2=80=99s neonatal team reported hearing breath sounds in =
S.D.=E2=80=99s chest,=20
although one other member reported not hearing breath sounds. The =
neonatal=20
team started chest compressions as S.D. remained unresponsive. Dr. =
Ruiz-Puyana, an on-call neonatologist, arrived in the operating =
room=20
approximately 13 to 15 minutes after S.D. was delivered and took =
over=20
efforts to resuscitate him. Dr. Ruiz-Puyana reported not hearing =
breath=20
sounds and found that the intubation tube was lodged in =
S.D.=E2=80=99s esophagus.=20
Dr. Ruiz-Puyana extubated and re-intubated S.D., at which time his =
color=20
improved, but he still did not have a heart rate. Dr. Ruiz-Puyana =
then=20
administered medications and afterwards detected a heart rate. =
S.D.=20
suffered permanent brain damage due to a lack of oxygen. =
<=
/SPAN>On=20
July 22, 2002, the Dos brought a healthcare liability suit against =
Dr.=20
Riddle alleging medical malpractice in his care of S.D. The suit =
also=20
named GHA, Riddle=E2=80=99s employer, as being vicariously liable =
for the alleged=20
negligence.
<=
/SPAN>The=20
trial court granted Riddle and GHA=E2=80=99s motion to limit =
expert testimony to=20
one witness in each area of expertise. The Dos de-designated Dr. =
Scott=20
Reeves and left Dr. Ronald Katz as their testifying anesthesiology =
expert.
<=
/SPAN>Riddle=20
and GHA moved for both traditional and no-evidence summary =
judgments. The=20
motion asserted that there was no evidence that Dr. Riddle was =
negligent=20
in his care of S.D. and, in the alternative, if there was a fact =
issue on=20
this claim, Dr. Riddle should prevail under a traditional summary =
judgment=20
because he proved his Good Samaritan affirmative defense. =
<=
/SPAN>In=20
response to the summary judgment motion, the Dos submitted two =
affidavits=20
from Dr. Reeves, their previously de-designated expert. Dr. Reeves =
testified that an =E2=80=9Con call=E2=80=9D anesthesiologist =
expects emergencies, which=20
include intubating newborns. Dr. Reeves further testified that Dr. =
Riddle=20
cannot prevail on the Good Samaritan defense because he became =
associated=20
with Dr. Le when Le asked him to assist in the ceasarian section;=20
therefore, Dr. Riddle became S.D.=E2=80=99s physician while =
intubating him. Also,=20
despite what Dr. Riddle asserted in his affidavit, Dr. Reeves =
testified=20
that Dr. Riddle would be entitled to remuneration for =
S.D.=E2=80=99s intubation,=20
which would also fall outside the Good Samaritan statute. The Dos =
filed a=20
second supplemental designation of expert witnesses that =
re-designated Dr.=20
Reeves as an additional anesthesiology expert.
<=
/SPAN>Dr.=20
Riddle and GHA moved to strike Dr. Reeves=E2=80=99s affidavits as =
well as the Dos=E2=80=99=20
second supplemental designation of expert witnesses. The Dos did =
not=20
respond to the motion, and it was granted. Dr. Riddle and GHA then =
filed a=20
motion to strike paragraphs six and nine of Dr. Katz=E2=80=99s =
affidavit for not=20
being probative on the issue of whether Dr. Riddle was entitled to =
receive=20
remuneration for his services of S.D. Again, the Dos did not =
respond, and=20
the trial court granted the motion. Finally, at a hearing on the =
motion=20
for summary judgment, the trial court granted summary judgment to =
Dr.=20
Riddle and GHA, and the case was dismissed with prejudice. =
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; Expert Testimony
<=
/SPAN>In=20
issues one and two, the Dos argue that the trial court erred in =
striking=20
their second amended designation of expert witnesses, Dr. =
Reeves=E2=80=99s=20
affidavits, and paragraphs six and nine of Dr. Katz=E2=80=99s =
affidavit. In issues=20
three and four, the Dos contend that the trial court erred in =
overruling=20
their objections to the affidavits filed by two defense=20
experts.
Designation of=20
Expert Witnesses
<=
/SPAN>Exclusion=20
of expert testimony is reviewed under an abuse of discretion =
standard.=20
McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex. 2003). A =
trial court=20
abuses its discretion if it acts arbitrarily, unreasonably, or =
without=20
reference to guiding rules or principles. Powers v. =
Mem=E2=80=99l Hermann Hosp.=20
Sys., 81 S.W.3d 463, 465 (Tex. App.=E2=80=94Houston [1st =
Dist.] 2002, pet.=20
denied). Under an abuse of discretion standard, a reviewing court =
may not=20
substitute its own judgment for that of the trial court. Bowie =
Mem=E2=80=99l=20
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).=20
=
=
Unless=20
otherwise ordered by the court, a party must designate experts =
within a=20
specified time frame. See Tex. R. Civ. P. 195.2. A =
party has=20
a duty to amend or supplement responses to discovery when the =
party learns=20
that the discovery was incomplete or incorrect. See Tex. R. Civ. P. 193.5. =
Testimony=20
not disclosed in response to discovery is permitted upon a showing =
of good=20
cause or if its use would not unfairly surprise or prejudice the =
other=20
party. Tex. R. Civ. =
P.=20
193.6. Exclusion of a witness for a party=E2=80=99s failure to =
timely or properly=20
designate a witness is a sanction available to the trial court. =
Tex. R. Civ. P. 193.6. =
<=
/SPAN>Here,=20
the modified docket control order indicated that only one expert =
per=20
specialty could be designated. Accordingly, the Dos designated Dr. =
Ronald=20
Katz as their testifying anesthesiology expert. In their second=20
supplemental designation of expert witnesses, the Dos =
re-designated Dr.=20
Reeves without de-designating Dr. Katz. The Dos filed no response =
to Dr.=20
Reeves and GHA=E2=80=99s motion to strike; therefore, we hold that =
the trial court=20
acted within its discretion when it struck Dr. Reeves as a =
sanction for=20
the Dos=E2=80=99 failure to timely or properly designate him. =
See=20
id.
Summary Judgment=20
Evidence
<=
/SPAN>In=20
addition to striking their expert designation, the trial court =
struck Dr.=20
Reeves=E2=80=99s affidavits and two paragraphs in Dr. =
Katz=E2=80=99s affidavit that were=20
filed in response to Dr. Riddle=E2=80=99s and GHA=E2=80=99s motion =
for summary=20
judgment.
<=
/SPAN>To=20
obtain reversal of a judgment based on error in the admission or =
exclusion=20
of evidence, an appellant must show that the trial court=E2=80=99s =
ruling was in=20
error and that the error was calculated to cause and probably did =
cause=20
rendition of an improper judgment. Gee v. Liberty Mut. Fire =
Ins.=20
Co., 765 S.W.2d 394, 396 (Tex. 1989). The summary judgment =
rule=20
provides that summary judgment proof must contain facts that would =
be=20
admissible in evidence. United Blood Servs. v. Longoria, =
938 S.W.2d=20
29, 30 (Tex. 1997); see also=20
Tex. R. Civ. =
P.=20
166a(f). To prove facts through an interested witness, the =
testimony must=20
be uncontroverted, clear, positive, direct, credible, free from=20
contradiction, and susceptible to being readily controverted.=20
McIntyre, 109 S.W.3d at 749.
<=
/SPAN>Dr. Reeves=E2=80=99s =
Affidavits
<=
/SPAN>Dr.=20
Riddle and GHA filed an objection to and a motion to strike the =
Dos=E2=80=99=20
summary judgment evidence. Specifically, they sought to strike Dr. =
Reeves=E2=80=99s two affidavits=E2=80=94Exhibit A, dated September =
15, 2003, and Exhibit=20
G, dated January 15, 2003. The objection was that neither =
affidavit would=20
be admissible at trial in this case. See Tex. R. Civ. P. 166a(f); =
United=20
Blood Servs., 938 S.W.2d at 30. They further objected that =
neither=20
affidavit was adequate summary judgment evidence on causation. The =
Dos did=20
not respond to the motion.
<=
/SPAN>When the Dos filed =
their=20
summary judgment response, Dr. Reeves was not their designated =
expert. The=20
affidavit of an expert who is not properly designated may not be =
used as=20
evidence in a summary judgment context. Cunningham v. =
Columbia/St.=20
David=E2=80=99s Healthcare, 185 S.W.3d 7, 10=E2=80=9311 (Tex. =
App.=E2=80=94Austin, no pet.);=20
Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 274 =
(Tex.=20
App.=E2=80=94Austin 2002, pet. denied). Where the expert=E2=80=99s =
testimony will be=20
excluded at trial on the merits, it will be excluded from a =
summary=20
judgment proceeding. Ersek, 69 S.W.3d at 273. The =
affidavits were=20
inadmissible as summary judgment proof per rule =
166a(f)
of the Texas Rules =
of Civil=20
Procedure. Tex. R. Civ. =
P.=20
166a(f); see also Ersek, 69 S.W.3d at 271. =
=
Accordingly,=20
because Dr. Reeves was not properly designated, because we have =
already=20
held that the trial court did not abuse its discretion in striking =
the=20
Dos=E2=80=99 second supplemental designation in which they =
re-designated Dr.=20
Reeves, and because Dr. Reeves would be unable to testify during =
the trial=20
on the merits, we hold that the trial court did not abuse its =
discretion=20
in striking Dr. Reeves=E2=80=99s affidavits filed in response to =
Dr. Riddle and=20
GHA=E2=80=99s motion for summary judgment.
=
We=20
overrule issue one.
<=
/SPAN>Dr.=20
Katz=E2=80=99s Affidavit
=
In=20
issue two, the Dos contend that the trial court erred in striking=20
paragraphs six and nine of Dr. Katz=E2=80=99s affidavit. =
<=
/SPAN>In=20
seeking the protection of the Good Samaritan statute, Dr. Riddle =
testified=20
that he was not entitled to receive payment for the services =
provided to=20
S.D. He asserted that neither he nor anyone he was familiar with =
in Harris=20
County would have been entitled to remuneration =E2=80=9Cunder =
these=20
circumstances.=E2=80=9D In response, the Dos offered the affidavit =
of Dr. Katz, a=20
board-certified anesthesiologist from California, to support their =
contention that Dr. Riddle was entitled to compensation. Dr. =
Riddle and=20
GHA moved to have paragraphs six and nine struck from Dr. =
Katz=E2=80=99s affidavit=20
for not being probative on the issue of whether Dr. Riddle was =
entitled to=20
remuneration for the intubation of S.D. because they were =
conclusory and=20
Dr. Katz was not qualified to opine about the billing practices of =
a=20
Houston-based anesthesiologist.=20
=
=
The=20
paragraphs that were struck stated the following:
<=
/SPAN>6.=20
Anesthesiologists are hospital=E2=80=93based doctors, meaning we =
rarely have=20
offices where we see patients, and usually our medical practice is =
at a=20
hospital. When we render anesthesia services, we expect to be =
compensated,=20
whether we perform those services =E2=80=9Con call=E2=80=9D or =
during the regular workday;=20
it is our practice to charge (or for the hospital to charge if we =
are=20
salaried and at a teaching facility) for those services. =
. . . .
<=
/SPAN>9.=20
From the time that Dr. Riddle began providing the anesthesia for =
the=20
cesarean section in this case, he became =E2=80=9Cassociated =
with=E2=80=9D the attending=20
physician, Dr. Le. He became Dr. Le=E2=80=99s partner, associate =
or colleague on=20
the Labor and Delivery team, and they had to work together for all =
the=20
patients involved in the birth=E2=80=94the mother and the =
children. Both=20
obstetrician and anesthesiologist in a C-section are treating both =
the=20
mother and the child because whatever they do to the mother is =
also being=20
done to and affects the child who is in that mother=E2=80=99s =
body, whether by=20
administering drugs, providing oxygen, and the like. It is their =
job to=20
care for both the mother and the child/children. So it is =
disingenuous for=20
an anesthesiologist during a C-section to say he had no =
responsibility for=20
the child, especially under the circumstances where there was no=20
neonatologist present, the baby was in distress, he had undertaken =
to=20
intubate the child, and his adult patient (the mother) was not in =
crisis.=20
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=20
child as well where the mother is medically stable. Caring for =
both is a=20
juggling act the anesthesiologist must manage within the standards =
of=20
care.
<=
/SPAN>[S.D.]=20
was and would have been Dr. Riddle=E2=80=99s responsibility in any =
event, as the=20
=E2=80=9Con call=E2=80=9D anesthesiologist. If the mother had =
delivered without C-section,=20
and the baby was not breathing, in the absence of a neonatologist, =
as the=20
=E2=80=9Con call=E2=80=9D anesthesiologist, Dr. Riddle would =
likely have been called in=20
specifically for the baby who didn=E2=80=99t have an established =
airway as the =E2=80=9Con=20
call=E2=80=9D anesthesiologist.
<=
/SPAN>Anesthesiologists=20
routinely perform intubations for general anesthesia, and are =
often called=20
to perform intubations or assist in difficult intubations, in an =
operating=20
room or otherwise, because they are usually the most qualified to =
do so by=20
experience and training. In these situations, anesthesiologists =
(or the=20
hospital if they are in a teaching hospital and the =
anesthesiologists are=20
salaried) commonly charge and are entitled to charge for these =
services.=20
The intubation of [S.D.] is no different from the intubation of =
other=20
patients in which anesthesiologists commonly charge and are =
entitled to=20
charge for their services.
<=
/SPAN>=E2=80=9CThe=20
relevant standard for an expert=E2=80=99s affidavit opposing a =
motion for summary=20
judgment is whether it presents some probative evidence of the =
facts at=20
issue.=E2=80=9D Ryland Group, Inc. v. Hood, 924 S.W.2d 120, =
122 (Tex.=20
1996). A conclusory statement of an expert witness is insufficient =
to=20
create a question of fact to defeat summary judgment. =
McIntyre, 109=20
S.W.3d at 749. A party offering an expert=E2=80=99s affidavit must =
demonstrate=20
that the witness =E2=80=9Cpossesses special knowledge as to the =
very matter on=20
which he proposes to give an opinion.=E2=80=9D Gammill v. Jack =
Williams=20
Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998).
<=
/SPAN>Paragraph=20
six of Dr. Katz=E2=80=99s affidavit states, in pertinent part, =
that, when an=20
anesthesiologist renders anesthesia services, whether on call or =
during=20
the regular workday, =E2=80=9Cit is our practice to charge for =
those services.=E2=80=9D=20
The testimony in paragraph nine states that Dr. Riddle became =
responsible=20
for S.D. when he assumed the care of Mrs. Chau. As such, he was =
entitled=20
to compensation for intubating S.D. after birth.=20
=
While =
Dr. Katz purported to have personal knowledge of the facts recited =
in his=20
affidavit, his statement regarding Dr. Riddle=E2=80=99s =
entitlement to=20
compensation is a legal conclusion with no supporting facts or=20
rationale. See McIntyre, 109 S.W.3d at 749 (holding that =
Maryland=20
doctor not qualified to testify about =E2=80=9Cwhat=E2=80=99s =
ordinarily billed or what=20
the law ordinarily allows people to recover for their medical =
services in=20
the State of Texas=E2=80=9D). Dr. Katz=E2=80=99s affidavit makes =
no claims that, within=20
this particular locale, an anesthesiologist acting within the=20
circumstances of these facts would have been entitled to =
compensation.=20
See id. A conclusory statement of an expert is insufficient =
to=20
create a question of fact to defeat a summary judgment. Id.=20
Consequently, this testimony is not probative of the issue at =
hand,=20
and, as such, the trial court did not abuse its discretion in =
striking it.=20
<=
/SPAN>We=20
overrule issue two.
<=
/SPAN>Dr.=20
Riddle=E2=80=99s Affidavit
<=
/SPAN>In=20
issue three, the Dos contend that the trial court erred in =
overruling=20
their objections to Dr. Riddle=E2=80=99s affidavit offered in =
support of his=20
contention that he was not entitled to remuneration for intubating =
S.D.=20
<=
/SPAN>The=20
Dos objected to paragraph six of Dr. Riddle=E2=80=99s affidavit =
where he stated=20
that he =E2=80=9Cwas only entitled to bill for and only did bill =
for the=20
anesthesia services I provided to my patient, Thao Chau,=E2=80=9D =
and that he was=20
=E2=80=9Cnot entitled to charge for the intubation of =
[S.D.]=E2=80=9D and was =E2=80=9Conly=20
entitled to charge for the services directly related to the =
patient=E2=80=99s care=20
and treatment.=E2=80=9D The paragraphs in question stated as =
follows:
I was only entitled to bill for and only =
did bill=20
for the anesthesia services I provided to my patient, Thao Chau. I =
would=20
not ordinarily receive or ordinarily be entitled to receive =
remuneration=20
under the above described circumstances for the emergency =
intubation of=20
[S.D.] Neither myself nor anyone else that I am familiar with in =
Harris=20
County would have charged a fee for the emergency intubation of =
[S.D.] or=20
to any other person under the circumstances of this case. I did =
not charge=20
for the intubation of [S.D.], I was not entitled to charge for the =
intubation of [S.D.], and I did not render the intubation related =
care to=20
[S.D.] in expectation of compensation. This is not a situation for =
which I=20
have ever or would ever charge for.
As the only anesthesiologist =
administering=20
anesthesia to Ms. Chau during her cesarean section, I am only =
entitled to=20
charge for the services directly related to that patient=E2=80=99s =
care and=20
treatment.
In their objection to the summary =
judgment=20
evidence, the Dos asserted that (1) Dr. Riddle is not an attorney =
and,=20
pursuant to Texas Rule of Evidence 702, is not qualified to =
comment on=20
what he is =E2=80=9Centitled to=E2=80=9D; (2) his statement was =
conclusory; (3) he cannot=20
testify as a lay witness under rule 701 because he has not =
demonstrated=20
=E2=80=9Cwhat rational basis leads him to that =
conclusion=E2=80=9D; and (4) the statement=20
=E2=80=9Cunder the circumstances of this case=E2=80=9D is =
=E2=80=9Cdeceptively vague.=E2=80=9D
<=
/SPAN>In=20
McIntyre, the Texas Supreme Court held that =E2=80=9Cproof =
that Dr.=20
McIntyre is not legally entitled to remuneration under any=20
conceivable circumstance or theory is unnecessary.=E2=80=9D =
McIntyre, 109=20
S.W.3d at 746 (emphasis added). A person seeking protection of the =
Good=20
Samaritan statute must prove that he would neither ordinarily =
receive nor=20
ordinarily be entitled to receive remuneration. Id. at 747. =
If a=20
person presents evidence that he does not customarily receive =
payment=20
under the circumstances in question, he can negate the first prong =
of=20
section 74.001(d). Id. at 746. =
<=
/SPAN>Unlike=20
Dr. Katz=E2=80=99s legal conclusion regarding billing practices, =
Dr. Riddle=E2=80=99s=20
affidavit provides =E2=80=9Csupporting facts or rationale=E2=80=9D =
for his statement that=20
he does not ordinarily receive payment for and is not entitled to =
bill for=20
S.D.=E2=80=99s intubation. See id. at 749. Furthermore, =
because=20
McIntyre only requires that Dr. Riddle prove that he does =
not=20
customarily receive payment under the circumstances in question, =
the Dos=20
cannot prove that the alleged error was calculated to cause and =
probably=20
did cause, rendition of an improper judgment. See Gee, 765 =
S.W.2d=20
at 396. Finally, the Dos=E2=80=99 complaints regarding Dr. =
Riddle=E2=80=99s use of the=20
term =E2=80=9Cunder the circumstances of this case=E2=80=9D are =
unfounded considering that=20
the Good Samaritan statute uses the term =E2=80=9Cunder such =
circumstances=E2=80=9D and=20
the McIntyre case refers to =E2=80=9Cunder the =
circumstances in question.=E2=80=9D=20
See Tex. Civ. =
Prac. &=20
Rem. Code Ann. =C2=A7 74.001(d); McIntyre, 109 =
S.W.3d at 746.=20
<=
/SPAN>Accordingly,=20
we overrule issue three.
<=
/SPAN>Marie=20
Walton=E2=80=99s Affidavit
<=
/SPAN>In=20
issue four, the Dos contend that the trial court erred in =
overruling their=20
objections to Marie Walton=E2=80=99s affidavit where she testified =
that, as the=20
director of operations for Preferred Healthcare Business =
Services=E2=80=94the=20
company that provided billing services for Dr. Riddle and =
GHA=E2=80=94she knew=20
that Dr. Riddle could only charge for the anesthesia he =
administered to=20
his patient, Thao Chau.
=
The=20
Dos objected to Walton=E2=80=99s affidavit for containing =
=E2=80=9Cseveral self-serving=20
conclusory statements . . . about =E2=80=98GHA=E2=80=99s billing =
guidelines=E2=80=99 and=20
=E2=80=98applicable guidelines.=E2=80=99 However, none of those =
guidelines have been=20
proved up as a business record, attached or even described, if =
indeed they=20
exist.=E2=80=9D They objected to the =E2=80=9Crank =
hearsay,=E2=80=9D and conclusory, self-serving=20
affidavit. The paragraphs in question stated as =
follows:
The charge for =
anesthesia=20
services provided to Thao Chau on October 30, 2001 was $734.50. =
Dr. Riddle=20
charged only for the anesthesia services he provided to Thao Chau =
on=20
October 20, 2001.
Pursuant to =
GHA=E2=80=99s billing=20
guidelines, Dr. Riddle was the primary anesthesiologist providing=20
anesthesia services to Thao Chau and may only charge for the =
anesthesia=20
services he provided to Thao Chao. [sic]
Pursuant to such =
guidelines,=20
Dr. Riddle did not submit a bill for the intubation of [S.D.] He =
would not=20
be able to bill for the intubation of [S.D.] I am not familiar =
with anyone=20
in Harris County who would send a bill for providing emergency =
care for=20
[S.D.] under the circumstances of this case. An anesthesiologist =
would not=20
ordinarily receive or ordinarily be entitled to receive payment =
under the=20
circumstances in which the emergency care was provided to [S.D.]=20
Pursuant to the =
applicable=20
billing guidelines, Dr. Riddle would not be entitled to payment =
for a=20
procedure that was not related to his patient, Thao Chau, on =
October 30,=20
2001.
The Dos complain =
that (1)=20
Walton is not an attorney and therefore not qualified to comment, =
as an=20
expert, on what Dr. Riddle is entitled to charge; (2) she cannot =
comment,=20
as a lay witness, because she =E2=80=9Chas not demonstrated to us =
what rational=20
basis leads her to that conclusion=E2=80=9D; and (3) the term =
=E2=80=9Cthe circumstances=20
of this case=E2=80=9D is =E2=80=9Cdeceptively vague.=E2=80=9D =
=
Walton=20
testified that she has personal knowledge of the facts of this =
case and,=20
as such, she can certainly testify to what Dr. Riddle=E2=80=99s =
ordinary billing=20
practices are. Furthermore, as we held above, McIntyre only =
requires that Dr. Riddle prove that he does not customarily =
receive=20
payment under the circumstances in question. Thus, the Dos cannot =
prove=20
that the alleged error regarding Walton=E2=80=99s testimony =
regarding=20
=E2=80=9Centitlement=E2=80=9D was calculated to cause, and =
probably did cause, rendition=20
of an improper judgment. See Gee, 765 S.W.2d at 396. =
Finally, the=20
Dos=E2=80=99 complaints regarding Walton=E2=80=99s use of the term =
=E2=80=9Cthe circumstances of=20
this case=E2=80=9D are unfounded considering that the Good =
Samaritan statute uses=20
the term =E2=80=9Cunder such circumstances=E2=80=9D and the =
McIntyre case refers to=20
=E2=80=9Cunder the circumstances in question.=E2=80=9D See Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 74.001(d); McIntyre, 109 S.W.3d at 746. =
=
We=20
overrule issue four.
Summary =
Judgment
=
In=20
issue five, the Dos contend that the trial court erred in granting =
the=20
motion for summary judgment and dismissing their claims. Dr. =
Riddle and=20
GHA=E2=80=99s summary judgment consisted of (1) a traditional =
summary judgment in=20
which they asserted that the Good Samaritan affirmative defense =
precluded=20
recovery and (2) a no-evidence =
summary=20
judgment in which they asserted that there was no evidence that =
Dr. Riddle=20
had a duty to care for S.D., there was no evidence of a breach of =
the=20
alleged duty, and there was no evidence that the breach of the =
alleged=20
duty caused S.D.=E2=80=99s injuries.
Good Samaritan
=
In=20
a traditional summary judgment, the movant bears the burden of =
proof.=20
Tex. R. Civ. P. =
166a(c);=20
Roskey v. Tex. Health Facilities Comm=E2=80=99n, 639 S.W.2d =
302, 303 (Tex.=20
1982). All doubts concerning the existence of a genuine issue of =
fact must=20
be resolved against the movant. Montgomery v. Kennedy, 669 =
S.W.2d=20
309, 311 (Tex. 1984). Once the movant proves a right to a summary=20
judgment, the burden shifts to the nonmovant to present evidence =
creating=20
genuine issues of material fact. Phon Son Van v. Pena, 990 =
S.W.2d=20
751, 753 (Tex. 1999). A defendant moving for summary =
judgment on an=20
affirmative defense has the burden to establish conclusively that =
defense.=20
McIntyre, 109 S.W.3d at 748.
=
Under=20
certain circumstances, the Good Samaritan statute exempts a person =
who=20
responds to a medical emergency from liability for ordinary =
negligence.=20
The statute provides in relevant part:
<=
/SPAN>Liability=20
for Emergency Care
<=
/SPAN>(a) A=20
person who in good faith administers emergency care . . . is not =
liable in=20
civil damages for an act performed during the emergency unless the =
act is=20
wilfully or wantonly negligent.
<=
/SPAN>(b) This=20
section does not apply to care administered:
&=
nbsp; (1) for=20
or in expectation of remuneration; or
&=
nbsp; (2)by=20
a person who was at the scene of the emergency because he or a =
person he=20
represents as an agent was soliciting business or seeking to =
perform a=20
service for remuneration.
<=
/SPAN>(c) If=20
the scene of an emergency is in a hospital or other health care =
facility=20
or means of medical transport, a person who in good faith =
administers=20
emergency care is not liable in civil damages for an act performed =
during=20
the emergency unless the act is wilfully or wantonly negligent, =
provided=20
that this subsection does not apply to care =
administered:
&=
nbsp; (1)by=20
a person who regularly administers care in a hospital emergency =
room=20
unless such a 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; (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.
<=
/SPAN>(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 receive remuneration =
on the=20
occasion in question.
<=
/SPAN>(e) This=20
section does not apply to a person whose negligent act or omission =
was a=20
producing cause of the emergency for which care is being =
administered.=20
Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 74.001.
<=
/SPAN>The=20
Good Samaritan statute has separate provisions to apply depending =
on the=20
physical location at which the emergency care was rendered. See =
id.=20
=C2=A7 74.001(a), (c). Here, the scene of the emergency was a =
labor and=20
delivery room in a hospital. Accordingly, this case implicates =
section=20
74.001(c), which applies when the scene of the emergency is a =
hospital.=20
See id. =C2=A7 74.001(c). Dr. Riddle =
testified that=20
he acted in good faith and without wilful or wanton negligence, =
and the=20
Dos did not present any contraverting evidence on this issue; =
therefore,=20
Dr. Riddle is exempt from liability under section 74.001(c), =
unless he is=20
excepted by some other provision of the statute.
=
Pre-existing Relationship or=20
Duty
=
The=20
purpose of the Good Samaritan statute is to protect persons who =
respond to=20
an emergency absent a pre-existing relationship or duty to =
respond. See=20
McIntyre, 109 S.W.3d at 747=E2=80=9378. While consent =
may be implied,=20
the =E2=80=9Con call=E2=80=9D status of a physician does not =
automatically impose a duty.=20
St. John v. Pope, 901 S.W.2d 420, 424 (Tex. 1995). =
<=
/SPAN>The=20
Dos contend that the duty of an anesthesiologist to a patient in =
the=20
process of giving birth also extends to the unborn child. They =
offer the=20
affidavit of Dr. Katz, which states that =E2=80=9Cit is =
foreseeable that an=20
anesthesiologist may have to intubate a newborn when called to =
assist in a=20
cesarean section,=E2=80=9D and that, =E2=80=9Cfrom time to =
time,=E2=80=9D an anesthesiologist is=20
needed to intubate the newborn if he can do so because the mother =
is=20
stable. In his deposition, Dr. Katz testified that, if Dr. Riddle =
found=20
that he could not leave his patient to assist with the intubation, =
then he=20
had no responsibility to the child. The Dos contend =
that Dr.=20
Riddle owed a duty to S.D., and, as such, is precluded from =
seeking=20
exemption from liability under the Good Samaritan=20
statute.
=
Dr.=20
Katz testified that Dr. Riddle could have chosen not to intubate =
S.D. In=20
his affidavit, he testified that
Dr. Riddle was =
[S.D.=E2=80=99s]=20
treating physician while intubating [S.D.] He could have =
refused=20
to intubate him if the anesthetized mother was in crisis or =
medically=20
unstable and he had to choose her. However, once he agreed to =
intubate=20
[S.D.], laid hands on him, and undertook to intubate [S.D.], Dr. =
Riddle=20
became one of [S.D.=E2=80=99s] physicians. It was Dr. =
Riddle=E2=80=99s responsibility to=20
perform that intubation within the standard of reasonably prudent=20
anesthesia care.
(Emphasis added.) These statements do =
not=20
establish a pre-existing relationship or impart an affirmative =
duty on the=20
part of Dr. Riddle to act. Rather, they seem to merely give =
instances when=20
the assistance of an anesthesiologist may be sought to resolve an=20
emergency situation and suggest that any assistance on the=20
anesthesiologist=E2=80=99s part is discretionary. As such, the Dos =
failed to=20
establish a pre-existing relationship or an affirmative duty on =
the part=20
of Dr. Riddle to act on behalf of S.D.
<=
/SPAN>Emergency
<=
/SPAN>The=20
Dos contend that a lack of oxygen in a newborn may be a medical =
emergency,=20
however, because the anesthesiologist can expect that this might =
happen=20
and is trained to handle such a situation, then it is not a =
medical=20
emergency for the purposes of the Good Samaritan statute. Just =
because an=20
anesthesiologist has trained to respond to such emergencies does =
not make=20
them any less of an emergency.
<=
/SPAN>The=20
Good Samaritan statute serves to shield from liability a person =
who acts=20
without a pre-existing duty. See Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 74.001; see also McIntyre, 109 S.W.3d at =
747. Even=20
Dr. Katz acknowledged that a =E2=80=9Cpatient who is not getting =
oxygen, or is=20
getting little oxygen, is always an emergency.=E2=80=9D Having =
already held that=20
Dr. Riddle did not have a pre-existing relationship with S.D., we =
hold=20
that S.D.=E2=80=99s status at birth created an emergency for Dr. =
Riddle within the=20
Good Samaritan statute.
<=
/SPAN>Expectation=20
of Remuneration
<=
/SPAN>The=20
protection of the Good Samaritan statute is only available if the =
one=20
rendering emergency care proves that he would not ordinarily =
receive or=20
ordinarily be entitled to receive remuneration for such care.=20
McIntyre, 109 S.W.3d at 747. The Dos asserted that Dr. =
Riddle was=20
entitled to remuneration for S.D.=E2=80=99s intubation.
=
In=20
his affidavit, Dr. Riddle stated the following:
I am not a physician who regularly =
administers=20
care in the emergency room at Memorial Southwest Hospital or any =
other=20
hospital. I was not an attending or admitting physician of Thao =
Chau. I=20
was not an attending or admitting physician of [S.D.]. I was not a =
treating physician associated with Dr. Le. . . . I was not a =
treating=20
physician associated with Dr. Ruiz-Puyana.
I was only entitled to bill for and only =
did bill=20
for the anesthesia services I provided to my patient, Thao Chau. I =
would=20
not ordinarily receive or ordinarily be entitled to receive =
remuneration=20
under the above described circumstances for the emergency =
intubation of=20
[S.D.]. Neither myself nor anyone else that I am familiar with in =
Harris=20
County would have charged a fee for the emergency intubation of =
[S.D.] or=20
to any other person under the circumstances of this case. I did =
not charge=20
for the intubation of [S.D.], I was not entitled to charge for the =
intubation of [S.D.], and I did not render the intubation related =
care to=20
[S.D.] in expectation of compensation. This is not a situation for =
which I=20
have ever or would ever charge for.
To prove facts through an interested =
witness, the=20
testimony must be uncontroverted, clear, positive, direct, =
credible, free=20
from contradiction, and susceptible to being readily controverted. =
Tex. R. Civ. P. 166a(c); =
McIntyre, 109 S.W.3d at 749. The Dos objected to Dr. =
Riddle=E2=80=99s=20
affidavit. The trial court, however, allowed the affidavit as well =
as the=20
affidavit of billing specialist, Marie Walton, offered in support =
of=20
Riddle=E2=80=99s proposition that he was not entitled to =
remuneration. Having=20
already held that the trial court did not abuse its discretion in =
striking=20
the Dos=E2=80=99 summary judgment evidence on this issue, we hold =
that Dr.=20
Riddle=E2=80=99s summary judgment evidence conclusively =
established that he did=20
not act for or in expectation of remuneration within the meaning =
of=20
section 74.001(b)(1) and (d) of the Texas Civil Practice and =
Remedies=20
Code.
<=
/SPAN>Association &n=
bsp;
<=
/SPAN>The=20
Good Samaritan statute does not shield a treating physician =
associated by=20
the admitting or attending physician of the patient in question =
from=20
ordinary negligence during emergency care rendered to that patient =
in a=20
hospital. Tex. Civ. Prac. =
&=20
Rem. Code Ann. =C2=A7 74.001(c)(2). The Dos claim that, =
because Dr.=20
Riddle was working with Dr. Le, Ms. Chau=E2=80=99s obstetrician, =
he became=20
=E2=80=9Cassociated=E2=80=9D within the meaning of section =
74.001(c)(2) of the Good=20
Samaritan statue. The patient in question is S.D. Dr. Le testified =
that he=20
was the attending physician for Ms. Chau, but Dr. Ruiz-Puyana, the =
neonatologist, was the attending physician for S.D. Dr. =
Katz=E2=80=99s affidavit=20
makes no contention that Dr. Riddle was, in any way, associated =
with Dr.=20
Ruiz-Puyana. As such, we hold that Dr. Riddle was not associated =
with=20
S.D.=E2=80=99s attending physician within the meaning of the Good =
Samaritan=20
statute.
<=
/SPAN>We=20
hold that Dr. Riddle=20
and GHA conclusively established that Dr. Riddle is not excepted =
by any=20
provision of the statute and is therefore entitled to the Good =
Samaritan=20
affirmative defense. Having held =
that Dr.=20
Riddle and GHA conclusively established their Good Samaritan =
affirmative=20
defense, we need not evaluate their traditional and no-evidence =
summary=20
judgment motions on negligence.
<=
/SPAN>We=20
overrule issue five.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; Conclusion
<=
/SPAN>We=20
affirm the order of the trial court granting summary judgment and=20
dismissing the Dos=E2=80=99 claims.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
George=20
C. Hanks, Jr.
&n=
bsp; &nb=
sp; &nbs=
p; =
; =
&=
nbsp; Justice
Panel=20
consists of Justices Nuchia, Keyes, and Hanks.
Justice=20
Keyes,=20
=
dissenting.
|