Armendarez v. Tarrant County Hosp. Dist.

• Decision Date: 26 July 1989
• Docket Number: No. 2-88-075-CV,2-88-075-CV
• Citation: 781 S.W.2d 301
• Parties: Richard ARMENDAREZ, Rachel Armendarez, Individually and as Next Friend of Allen Armendarez, Appellants, v. TARRANT COUNTY HOSPITAL DISTRICT, Dr. Robin Schlaudt, Dr. Arthur Garcia, and Dr. Anna Lozano, Appellees.
• Court: Texas Court of Appeals

Page 301

781 S.W.2d 301

Richard ARMENDAREZ, Rachel Armendarez, Individually and as Next Friend of Allen Armendarez, Appellants, v. TARRANT COUNTY HOSPITAL DISTRICT, Dr. Robin Schlaudt, Dr Arthur Garcia, and Dr. Anna Lozano, Appellees.

No. 2-88-075-CV.

Court of Appeals of Texas,

Fort Worth.

July 26, 1989.

On Rehearing Dec. 13, 1989.

Priddy & Chovanec, Laurance L. Priddy, Jose, Henry & Brantley, Michael J. Henry, Fort Worth, for appellants.

Tim Curry, Crim. Dist. Atty., Randall D. Moore, Asst., Fort Worth, for Tarrant County Hosp. Dist.

Shannon, Gracey, Ratliff & Miller, D. Michael Wallach, Anne Gardner, for Schlaudt, Garcia and Lozano.

Before HILL, FARRIS and MEYERS, JJ.

OPINION

HILL, Justice.

Richard and Rachel Armendarez, individually and as next friend of their son Allen, appeal from a summary judgment that they take nothing in their medical malpractice action brought against the Tarrant County Hospital District and Drs. Robin Schlaudt, Arthur Garcia, and Anna Lozano as a result of the defendants' alleged negligence in connection with Allen's birth. In twelve points of error, the Armendarezes contend that governmental immunity, one of the doctrines relied upon by the defendants in their motions for summary judgment, was waived because the alleged negligent actions of the defendants involved the use of tangible personal property, which would create a waiver of the doctrine under the provisions of TEX.CIV.PRAC. & REM.CODE ANN. sec. 101.021 (Vernon 1986); that the defendant doctors are not protected by governmental or official immunity; that governmental immunity violates good public policy and should be abolished; and that the granting of such immunity, or the limitation of liability based upon such immunity, violates the Equal Protection, Due Process, and the Privileges and Immunities Clauses of the United States Constitution and article I, sections 3, 3a, 13, and 19 of the Texas Constitution.

We reverse and remand for trial, because we find that the trial court erred in granting summary judgment in favor of the Hospital District, since the summary judgment evidence raises a fact issue as to whether Allen's injury was negligently caused by the use of tangible personal property, a vacuum extractor, thereby establishing a waiver of governmental immunity under the provisions of TEX.CIV.PRAC. & REM.CODE ANN. sec. 101.021 (Vernon 1986). We further find that the trial court erred by granting summary judgment in favor of Drs. Schlaudt, Garcia, and Lozano, because the summary judgment proof failed to establish that they were entitled to official immunity as a matter of law, since there was no summary judgment proof that their duties are uniquely different from those engaged in the same duties in the private sector or that they were exercising a function unique to government. We also decline to abolish the doctrine of governmental immunity or to find that the application of the doctrine or the limitation of liability under the Texas Tort Claims Act, as it relates to the Hospital District, violates the appellants' rights under either the United States or Texas Constitutions. In view of our rulings on the remaining points of error, we have determined that it is unnecessary to consider points of error complaining of limitations as to the liability of the physicians.

In points of error numbers two, three, and four, the appellants urge that the trial court erred in granting the Hospital District's motion for summary judgment because the treatment of Allen and Rachel Armendarez involved the use of tangible personal property, including the failure to properly interpret prenatal and delivery records, and failure to properly follow hospital procedure manuals, as well as the use of vacuum extraction equipment. They contend that since the use of tangible personal property was involved, that governmental immunity was waived under the provisions of The Texas Tort Claims Act, section 101.021 of the Texas Civil Practice and Remedies Code.

The Hospital District's motion for summary judgment was grounded on its claim that the appellants failed to state a cause of action coming within an exception to its claim of governmental immunity, and failed to raise any genuine issue of material fact. The appellants urged that governmental immunity was waived because the treatment of mother and child during labor involved, as alleged by them, the misuse of tangible personal property such as prenatal records and vacuum extraction equipment. The appellants alleged that each of the defendants was negligent in several respects, including misinterpretation of prenatal records generated as part of prenatal care and hospital records generated during the birth process, and in utilizing vacuum extraction equipment instead of performing a delivery by cesarean section, and that each or all of the acts of negligence proximately caused the injuries and damages of which they complain.

Ordinarily, a defendant who moves for summary judgment has the burden of showing as a matter of law that no material issue of fact exists as to the plaintiff's cause of action. Griffin v. Rowden, 654 S.W.2d 435, 435-36 (Tex.1983). However, in this case the Hospital District relies on the affirmative defense of governmental immunity. It is undisputed that the Hospital District is a governmental entity to which the doctrine of governmental immunity would be applicable. In a case in which an affirmative defense is established, the burden of raising a disputed fact issue shifts to the non-movant. Palmer v. Enserch Corp., 728 S.W.2d 431 (Tex.App.--Austin 1987, writ ref'd n.r.e.); Hittner and Liberato, Summary Judgments in Texas, 20 St. Mary's L.J. 243, 272 (1989). We therefore examine the summary judgment evidence to see if it establishes that there are any disputed fact issues.

The appellants assert that the summary judgment evidence shows that there are fact issues with regard to whether their claim comes within the waiver of governmental immunity provided in section 101.021 of the Texas Civil Practice and Remedies Code. That section provides that a governmental unit in the state is liable for personal injury and death proximately caused by the wrongful acts or omissions or negligence of employees acting within the scope of employment, when the personal injury or death is caused by a condition or use of tangible personal or real property, if the governmental unit would be liable under Texas law as a private person.

Among the allegations of negligence, the appellants alleged that the defendants were negligent and fell below the standard of care "c. in misinterpretation of the prenatal records generated as part of the prenatal care of Rachel Armendarez, with the result that they failed to recognize that Allen Armendarez was too large to be born through normal delivery; d. in misinterpretation of the hospital records being generated during the birth process including fetal monitoring records and prenatal records, with the result that they failed to recognize that fetal pelvic disproportion existed so that birth through normal delivery should not be attempted; e. in utilizing vacuum extraction equipment in order to deliver the head of Allen Armendarez as opposed to performing a cesarean section; f. in misusing and misinterpreting hospital procedure manuals indicating that additional testing leading to a cesarean section should have been utilized." The petition alleged these acts of negligence were proximate causes of Allen's injuries.

While the summary judgment evidence may indicate that the appellees should have performed a cesarean section rather than a vaginal delivery, there is no summary judgment evidence that indicates that any of the appellees misinterpreted any records in any way. In his deposition testimony, Dr. Arthur Lester, the appellants' expert, testified that under the circumstances, which included a young mother, a large baby, a mother who had gained too much weight during pregnancy, and a two-hour period during labor without further dilation of the mother, that the performance of a vaginal delivery, as opposed to a cesarean delivery, was not good medical practice. He said that the hospital records indicated that the baby was large and that the mother had gained too much weight during pregnancy. The appellants do not refer us to any summary judgment evidence that any of the appellees had misinterpreted the records so as to be unaware of those facts. In fact the appellants refer us to evidence that shows Dr. Schlaudt was aware of the mother's excessive weight gain, and that he had consulted with another physician about it. They also mention that Dr. Schlaudt wrote many of the records. We find that the appellants failed to meet their burden of raising a disputed fact issue as to any prenatal or other hospital records.

With respect to the appellants' allegations as to the misuse or misinterpretation of the hospital procedure manuals, the appellants fail to refer us to any summary judgment evidence which shows that any of the appellees made any use of the hospital procedure manuals. As the appellants acknowledge, a nonuse of personal property does not trigger a waiver of immunity under the Tort Claims Act. See Seiler v. Guadalupe Valley Hospital, 709 S.W.2d 37, 38 (Tex.App.--Corpus Christi 1986, writ ref'd n.r.e.). We therefore find that the appellants have failed to meet their burden of raising a disputed fact issue as to the misuse or misinterpretation of the hospital procedure manuals. We overrule point of error number three.

The summary judgment evidence indicates that the physicians at the hospital delivered Allen vaginally, using a vacuum extractor, equipment used in lieu of forceps, to help bring out the child's head. The use of the extractor resulted in a bruise to the child's head. After the extractor had been used, the doctors experienced difficulty in getting the child delivered because a shoulder was lodged within the mother. As a...