Casarez v. NME Hospitals, Inc.

• Decision Date: 18 August 1994
• Docket Number: No. 08-93-00182-CV,08-93-00182-CV
• Citation: 883 S.W.2d 360
• Parties: Raymond CASAREZ, Appellant, v. NME HOSPITALS, INC., d/b/a Sierra Medical Center, and Genaro Vasquez, M.D., Appellees.
• Court: Texas Court of Appeals

Page 360

883 S.W.2d 360

Raymond CASAREZ, Appellant, v. NME HOSPITALS, INC., d/b/a Sierra Medical Center, and Genaro Vasquez, M.D., Appellees.

No. 08-93-00182-CV.

Court of Appeals of Texas El Paso.

Aug. 18, 1994.

Rehearing Overruled Sept. 21, 1994.

Malcolm McGregor, John C. Schwambach, Jr., El Paso, for appellant.

Larry W. Hicks, Hadley A. Huchton, Hicks & Associates, Yvonne K. Puig, Kay C. Jenkins, Kemp, Smith, Duncan & Hammond, P.C., El Paso, for appellees.

Before BARAJAS, C.J., and KOEHLER and LARSEN, JJ.

OPINION

LARSEN, Justice.

Raymond Casarez, plaintiff, brought this suit against Genaro Vasquez, M.D., and NME Hospitals d/b/a Sierra Medical Center (Sierra or the hospital), alleging that their negligence proximately caused his contraction of the human immunodeficiency virus (HIV). Both defendants filed motions for summary judgment, on different grounds. The trial court granted summary judgment for both defendants, and plaintiff Casarez appeals. We affirm the summary judgment as to Dr. Vasquez, but conclude that summary judgment should not have been granted the hospital on statute of limitations grounds. We therefore affirm in part and reverse and remand in part.

FACTS

On March 27, 1989, Genaro Vasquez, a physician specializing in pulmonary disease, admitted a patient to Sierra Medical Center. The patient was terminally ill with acquired immune deficiency syndrome (AIDS). In his deposition testimony, Dr. Vasquez related his procedure upon admission of the AIDS patient as follows:

A: When I admitted him [the patient] to the hospital and I knew this diagnosis, as I told you, I communicated this to the people in the hospital by means of doing a history and physical and doing an admission instruction on the patient. In both of those I mentioned the admitting diagnosis, which was HIV positive reactive. I communicated to the nurses. And then from then on, they do whatever they need to do, as well as to all people.

Q: Now you're telling me that the hospital understood that this was an AIDS patient?

A: Yes, sir.

Q: And in your admitting diagnosis and your doctor's instructions, did you state what precautions should be taken with respect to the treatment of this patient?

A: I did not specifically state any precautions, because that was not what I was supposed to do. I am supposed to admit a patient with a diagnosis, make a diagnosis and treat that patient for that diagnosis. Whatever precautions are to be taken depends on what I establish as a diagnosis for that particular patient.

Similarly, in affidavit testimony, the doctor testified:

On March 27, 1989, I admitted an HIV positive patient to SIERRA MEDICAL CENTER. On March 28, 1989, I took the history of the patient and thus communicated his HIV positive status to the Quality Assurance Committee and Infectious Disease Control Committee of SIERRA MEDICAL CENTER. These committees are responsible for instituting isolation procedures for HIV positive patients. Once I communicated my patient's HIV status to SIERRA MEDICAL CENTER personnel, the hospital took steps to impose universal isolation. Universal precautions were being observed on March 30, 1989. This patient died at SIERRA MEDICAL CENTER on April 12, 1989.

. . . . .

According to the Guidelines for Prevention of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health-Care and Public Safety Workers, employers should establish a detailed work practices program that includes standard operating procedures for all activities having the potential for exposure; appropriate personal protective equipment should be made available routinely by the employer to reduce the risk of exposure.

The hospital posted a sign outside the AIDS patient's door informing all visitors and attendants they must speak with the charge nurse before entering the patient's room. The hospital provided gloves and masks, but no gowns or goggles, outside the room. It is undisputed that plaintiff and all the hospital workers knew that they were attending an AIDS patient.

The patient's family hired plaintiff Raymond Casarez, a certified nursing assistant, to provide additional care as a private duty nurse. Mr. Casarez was trained in treating patients with infectious diseases, including AIDS, had cared for other AIDS patients in the past, and knew how AIDS is transmitted. Casarez was educated in isolation techniques for preventing the spread of HIV and in deposition testified "[y]ou should know, if you're certified, how to take care of a patient, and you shouldn't have to be told about isolation." On April 11, 1989, the patient received respiratory treatment which irritated a sore on his mouth. Mr. Casarez, as part of his job duties, was swabbing the sore when the patient involuntarily spewed blood and mucus over Casarez's mouth, eyes, and arm. The patient died the next day.

Casarez was tested for HIV on May 8, 1989 because he feared exposure to the virus from the dying patient's body fluids. He received test results showing he was HIV positive on June 19, 1989. ¹ He filed this suit against Dr. Vasquez and Sierra Medical Center on June 18, 1991.

SUMMARY JUDGMENT FOR DR. VASQUEZ

Mr. Casarez's lawsuit alleged that Dr. Vasquez negligently caused Mr. Casarez's exposure to HIV in the following ways:

(1) In failing to order universal precautions before the incident;

(2) In failing to warn the plaintiff and others of the dangerous condition of the AIDS patient and the dangers of working with an AIDS patient when not properly protected;

(3) In failing to comply with OSHA and other governmental regulations relating to the care of AIDS patients;

(4) In failing to include in his chart adequate orders for the protection of the health care workers attending [the patient];

(5) In failing to make an appropriate clinical assessment of the progression of the disease and symptomatology in his patient and resulting determination of the need for isolation, barrier protections, universal precautions, etc., sufficient to protect Plaintiff and anyone else who might reasonably foreseeably come into contact with that patient.

Plaintiff ascribes to Dr. Vasquez the "duty to take whatever steps are reasonable under the circumstances to reduce the likelihood of injury to third parties who may be injured by that patient." We formulate the question presented by Dr. Vasquez here as follows: what duty does a physician owe the hospital, health care workers, visitors, and third parties to insure that a hospital in-patient with an infectious disease does not transmit the disease to others?

The question of whether a legal duty exists under any particular set of facts is one of law. Gooden v. Tips, 651 S.W.2d 364, 366 (Tex.App.--Tyler 1983, no writ); Producers Grain Corp. v. Lindsay, 603 S.W.2d 326, 329 (Tex.Civ.App.--Amarillo 1980, no writ). In asserting that Dr. Vasquez breached a duty to him, Mr. Casarez relies chiefly upon two cases; we do not read either as imposing a duty upon the doctor under the facts here.

Plaintiff relies first upon Gooden v. Tips. There plaintiff was struck by an automobile driven by Dr. Tips' patient, who was under the influence of prescription quaaludes at the time of the accident. Gooden urged that the doctor negligently breached his duty to use reasonable care to protect the driving public where the physician's negligence in diagnosis or treatment of his patient contributed to the plaintiff's injuries. The Tyler Court held that there was a fact issue as to whether Dr. Tips' failure to warn his patient not to drive while taking quaaludes proximately resulted in a third party's injuries. Dr. Tips' summary judgment in that case was based solely on the lack of a physician-patient relationship between himself and the injured person. There is no question that Mr. Casarez's claims are not founded on any physician-patient relationship, but we believe the case may be distinguished on another ground.

In Gooden the Court found the harm, an automobile accident, was:

[A] reasonably foreseeable consequence of the physician's failure to warn his patient not to drive. There [in other cases discussed], as here, the physicians knew, or in the exercise of ordinary care should have known, that their patient's condition ... could seriously impair the patient's ability to drive a motor vehicle. Gooden, 651 S.W.2d at 369-70.

In contrast, the summary judgment evidence in this case established that Mr. Casarez was well aware of the methods by which HIV could be transmitted, and also was well-versed in isolation techniques when treating AIDS patients. Moreover, the hospital retained control over protocols within its walls, and it possessed the duty to warn third persons of the dangers involved in treating and visiting its patients. The harm to Casarez, therefore, was not a reasonably foreseeable consequence of the physician's failure to order a health care professional, not in the doctor's employ, to use precautions of which he was already well aware.

The second case relied upon by plaintiff is W.C.W. v. Bird, 840 S.W.2d 50 (Tex.App.--Houston [1st Dist.] 1992, writ granted), reversed by the Texas Supreme Court in Bird v. W.C.W., 868 S.W.2d 767 (Tex.1994). That case involved a parent who sued his daughter's psychiatrist for negligently misdiagnosing her as a victim of sexual abuse. The Supreme Court there held that "a mental health professional owes no professional duty of care to a third party to not negligently misdiagnose a condition of a patient." Bird, 868 S.W.2d at 772. Thus, the case no longer supports plaintiff's theory of recovery against Dr. Vasquez.

Although we agree that the doctor did have a duty to insure that the hospital and health care workers within the hospital knew they were treating an AIDS patient, we find that he established as a matter of law his full compliance with that duty. Because the protocol for dealing with AIDS patients was well known by 1989, and it is undisputed that Mr. Casarez was...