Blackburn v. Columbia Med Ctr. Arlington Subsidiary

• Decision Date: 27 September 2001
• Docket Number: No. 2-00-426-CV,2-00-426-CV
• Parties: (Tex.App.-Fort Worth 2001) JANE T. BLACKBURN, APPELLANT v. COLUMBIA MEDICAL CENTER OF ARLINGTON SUBSIDIARY, L.P. D/B/A COLUMBIA MEDICAL CENTER OF ARLINGTON, APPELLEE
• Court: Texas Court of Appeals

Page 263

58 S.W.3d 263 (Tex.App.-Fort Worth 2001)

JANE T. BLACKBURN, APPELLANT v. COLUMBIA MEDICAL CENTER OF ARLINGTON SUBSIDIARY, L.P. D/B/A COLUMBIA MEDICAL CENTER OF ARLINGTON, APPELLEE

No. 2-00-426-CV

Court of Appeals of Texas, Fort Worth

September 27, 2001

From the 352nd District Court of Tarrant County

[Copyrighted Material Omitted]

PANEL A: DAY, HOLMAN, and GARDNER, JJ.

OPINION

GARDNER, JUSTICE

I. Introduction

In this medical malpractice case, Appellant Jane T. Blackburn, plaintiff in the trial court, advances three issues and appeals from two summary judgments granted in favor of Appellee Columbia Medical Center of Arlington Subsidiary, L.P. d/b/a Columbia Medical Center of Arlington ("Columbia").¹ In her first and third issue, Blackburn contends that Columbia was not entitled to judgment on its traditional motion for summary judgment because it failed to negate the existence of a joint enterprise with Medical Imaging of Dallas ("Medical Imaging"), the radiology group used by Columbia, as a matter of law. In her second and third issue, Blackburn further contends that Columbia was not entitled to summary judgment on its no-evidence motion because she produced more than a scintilla of evidence raising genuine issues of material fact on each of the four elements of a joint enterprise with Medical Imaging. We affirm.

II. Factual and Procedural Background

Blackburn's suit against Columbia and the other defendants alleged that, on December 22, 1996, Blackburn was involved in a motor vehicle accident in which she sustained injuries to her head, neck, and upper torso. Emergency medical personnel at the scene transported her to Columbia Medical Center. Upon arrival, Blackburn gave a history of prior cervical fusions and complained of upper back and head pain, chest pain, and breathing difficulties.

Multiple x-rays and plain films of Blackburn's spine were obtained in Columbia's radiology department. Columbia's radiology department was owned and operated by the hospital, but radiological services were provided by licensed radiologists furnished by Medical Imaging under a contract with Columbia. There was no radiologist on duty that evening, but the emergency room physician, Dr. DelPrincipe, reviewed the x-rays and plain films and noted his observations of the cervical portion of Blackburn's spine. Dr. DelPrincipe diagnosed Blackburn with cervical strain and soft tissue contusions, prescribed pain medication, applied a soft cervical collar, and instructed Blackburn to follow up with her primary care physician in two days.

On the following day, Dr. Phyllis Noss, a radiologist employed by Medical Imaging in Columbia's Radiology Department, reviewed Blackburn's x-rays and plain films and found no fracturing.² Dr. Noss did not recommend any further action with regard to Blackburn's treatment.

As instructed by Dr. DelPrincipe, Blackburn visited her primary care physician Dr. Nawrocki, who began treating Blackburn with muscle relaxants, anti-inflammatories, and physical therapy. Within a few weeks, Blackburn alleged, she developed symptoms in her lower extremities. These symptoms included pain, spasms, increased turning in and downward of her feet, and continued pain in her neck and left arm. Blackburn also complained of a decreased ability to stand and walk without assistance.

Blackburn maintains that as a result of her alleged worsening condition, she went to Arlington Memorial Hospital's emergency room on January 25, 1997. She was examined by an emergency room physician, and further x-rays were reviewed by radiologist Dr. Thomas Telle. Dr. Telle noted only mild bulges in a few of the cervical vertebra and some narrowing of the spinal column.³ Blackburn was released with a prescription for anti-dizziness medication and a recommendation to follow up with her primary care physician.

According to Blackburn, her condition continued to deteriorate, and she sought further treatment over the next several months. In September 1997, a new x-ray by a chiropractor revealed that Blackburn had suffered a fracture at her third cervical vertebra. At this point, Blackburn claims she required the assistance of a cane and leg brace to walk. On October 31, 1997, corrective surgery was performed.⁴

Blackburn sued Columbia Medical Center, Dr. Noss, Arlington Memorial Hospital, and Dr. Telle. She alleged that Dr. Noss was negligent for misinterpreting Blackburn's radiographic studies; failing to reconcile her interpretation of the radiographic studies with Dr. DelPrincipe's interpretation; failing to report discrepancies between her interpretation of the radiographic studies and Dr. DelPrincipe's interpretation; failing to diagnose and report cervical spine mobility and possible acute traumatic instability; failing to recommend or order a cervical CT scan; and failing to recommend or order a neurological consultation. Blackburn further alleged that Dr. Noss was a partner, principal, or employee of Medical Imaging and was acting on behalf of Medical Imaging when she interpreted Blackburn's x-rays. Under that theory she asserted that any negligence of Dr. Noss was imputed to Medical Imaging.

Blackburn's only theory of liability against Columbia was for the actions of Dr. Noss under a theory of "joint enterprise" between Columbia and Medical Imaging. Specifically, Blackburn alleged Columbia was engaged in a joint enterprise in the operation of its Radiology Department with the radiology group of physicians known as Medical Imaging with whom Dr. Noss was a partner, principal, or employee. Under that theory, Blackburn asserted the alleged negligence of Dr. Noss was imputed to Columbia.⁵

Columbia filed both a no-evidence motion for summary judgment and a traditional motion for summary judgment. See Tex. R. Civ. P. 166a(c), (i). In its no-evidence motion, Columbia contended that Blackburn presented no evidence of any of the essential elements of her claim of joint enterprise liability:

1. an agreement, express or implied, between the Hospital and Medical Imaging of Dallas 2. a common purpose to be carried out between the Hospital and Medical Imaging of Dallas;

3. a community of pecuniary interest in that purpose between the Hospital and the Group;

4. an equal right to a voice in the direction of the enterprise, which gives an equal right of control to both the Hospital and the Group.

5. that acts of omissions of Dr. Noss breached the standard of care;

6. that acts or omissions of Dr. Noss were a proximate cause of any of [Blackburn's] alleged injury [sic];

7. that Medical Imaging of Dallas had the right to exercise control over the details of Dr. Noss' practice of medicine or the means and details of the performance of that practice; [or]

8. that Medical Imaging of Dallas was vicariously liable for the actions of Dr. Noss under an agency or respondeat superior theory.

In its traditional motion for summary judgment, Columbia Medical Center attached deposition excerpts from Dr. Bruce Railey, Dr. Puthuparambil T. Chacko, and Dr. Noss, which, it contended, conclusively established the following:

1. that a community of pecuniary interest in a common purpose did not exist between the Hospital and Medical Imaging of Dallas;

2. that an equal right to a voice in the direction of the enterprise, which gives an equal right of control to both the Hospital and the Group did not exist;

3. that Medical Imaging of Dallas is not vicariously liable for the actions of Dr. Noss; and

4. that Medical Imaging of Dallas did not have the right to exercise control over the details of Dr. Noss' practice of medicine.

Blackburn filed a response to both of Columbia's motions for summary judgment, attaching as proof the affidavits of Dr. Kendall Jones and Dr. Patrick Johnson, deposition excerpts of Dr. DelPrincipe, Dr. Noss, Dr. Bruce Railey,⁶ and Dr. Puthyparambil Chacko,⁷ and various medical records from Columbia Medical Center. In her response, Blackburn argued that her summary judgment evidence established that Dr. Noss was negligent; that her negligent conduct was a proximate cause of Blackburn's injuries; that Columbia Medical Center and Medical Imaging of Dallas were engaged in a joint enterprise in the Radiology Department at Columbia; and that Dr. Noss was the agent of Columbia, Medical Imaging, and/or both, and was acting within the scope of such agency while providing radiology services to Blackburn. The trial court granted both summary judgments in favor of Columbia, from which Blackburn appeals.

III. Discussion

A. Issues

Blackburn advances two arguments. First, Blackburn contends that, because Columbia failed to negate the existence of a joint enterprise with Medical Imaging as a matter of law, it was not entitled to judgment on its traditional motion for summary judgment. Secondly, Blackburn argues that, because her summary judgment evidence raised genuine issues of material fact as to each of the four elements of joint enterprise, Columbia was not entitled to judgment on its no-evidence motion for summary judgment.

Columbia responds that the trial court properly granted summary judgment in its favor because it conclusively negated two of the four essential elements of the theory of joint enterprise liability. Specifically, Columbia maintains: (1) that no community of pecuniary interest existed between Columbia and Medical Imaging, and (2) that no equal right of control existed between Columbia and Medical Imaging concerning the conduct at issue in the case. We agree with Columbia that it conclusively negated the element of community of pecuniary interest, and that Blackburn provided no evidence of the element. Therefore, we need not address the issue of equal right of control.

B. Standard of Review

1. Traditional Summary Judgment

In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is...