Cox v. Klug

• Decision Date: 10 June 1993
• Docket Number: No. 07-93-0049-CV,07-93-0049-CV
• Citation: 855 S.W.2d 276
• Parties: Mary COX and Husband, James Cox, Appellants, v. Panpit KLUG, M.D., Appellee.
• Court: Texas Court of Appeals

Page 276

855 S.W.2d 276

Mary COX and Husband, James Cox, Appellants, v. Panpit KLUG, M.D., Appellee.

No. 07-93-0049-CV.

Court of Appeals of Texas Amarillo.

June 10, 1993.

Rehearing Overruled July 6, 1993.

Kinkead Law Offices, Mark Taboada, Amarillo, for appellants.

Office of Gen. Counsel, Texas Tech University/Texas Tech University Health Sciences Center, Kevin Williams, Lubbock, for appellee.

Before REYNOLDS, C.J., and DODSON and POFF, JJ.

REYNOLDS, Chief Justice.

With seven points of error, Mary Cox and husband, James Cox, challenge the take-nothing summary judgment rendered in their medical malpractice action against Panpit Klug, M.D. Because the Coxes' action against Dr. Klug is barred, we will overrule the points and affirm.

Naming Dr. Klug, Texas Tech Clinics a/k/a Texas Tech University Health Sciences Center (Texas Tech Center), which is a governmental unit, and The Don and Sybil Harrington Cancer Center, Inc. (Harrington Cancer Center), as defendants, the Coxes initiated the action underlying this appeal on 24 May 1990. They sought to recover monetary damages for the alleged misdiagnosis of Mary Cox's medical condition on the theory that Dr. Klug, an employee of Texas Tech Center in Amarillo, was negligent, and that her employer and the Harrington Cancer Center, at whose facilities the alleged misdiagnosis was made, were vicariously liable for her negligence.

Pointing out that the Coxes' allegations of its improper diagnosis and misrepresentation of Mary Cox's medical condition constitute the practice of medicine, which it is precluded by law from doing, the Harrington Cancer Center moved for, and was granted, summary judgment on the ground that it had no duty to do the things the Coxes alleged it negligently failed to do. The trial court severed the Coxes' action against the Harrington Cancer Center, and decreed the summary judgment rendered to be a final judgment. The Coxes did not appeal from the judgment, thereby permitting it to become final in the trial court. Shell Petroleum Corp. v. Royal Petroleum Corp., 135 Tex. 12, 137 S.W.2d 753, 759 (1940).

Following the filing of the motion for summary judgment by the Harrington Cancer Center, Texas Tech Center moved for summary judgment on the ground that the Coxes failed to give it notice of their claim as required by statute, and that it had no actual notice of the claim. In this connection, it is observed that sovereign immunity to suit against a governmental unit has been waived in limited circumstances by the Texas Tort Claims Act. Tex.Civ.Prac. & Rem.Code Ann. § 101.025 (Vernon 1986). One of the limitations is that the governmental unit is entitled to receive notice of the claim against it not later than six months after the day that the incident giving rise to the claim occurred. Tex.Civ.Prac. & Rem.Code Ann. § 101.101(a) (Vernon 1986). The failure of the claimant to give the notice required, absent actual notice by the governmental unit, perpetually bars the claimant's action. Reese v. Dept. of Hwys. & Public Transp., 831 S.W.2d 529, 531 (Tex.App.--Tyler 1992, writ denied).

The court granted Texas Tech Center's motion for summary judgment, decreed that the Coxes take nothing by their action against Texas Tech Center, severed this part of the action, and ordered the summary judgment rendered to be a final judgment. The Coxes did not appeal from the judgment, also permitting it to become a final judgment in the trial court. Shell Petroleum Corp. v. Royal Petroleum Corp., 137 S.W.2d at 759.

After the take-nothing summary judgment rendered in the Coxes' action against Texas Tech Center became final, Dr. Klug moved for summary judgment, supported by her affidavit and a request for the court to take judicial notice of the documents filed in the cause. In her affidavit, Dr. Klug avowed that since 1985 and at all times material, including 24 November 1987 when she last saw Mary Cox, she has been employed by Texas Tech Center in Amarillo. As the ground for summary judgment, she invoked the statutory provision of the Texas Tort Claims Act, which reads:

A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.

Tex.Civ.Prac. & Rem.Code Ann. § 101.106 (Vernon 1986).

The Coxes responded to the motion by representing that the bar provided by section 101.106 operates only when the prior judgment was rendered on the merits of the same subject matter. Since the prior judgment in favor of Texas Tech Center was rendered on their failure to comply with the notice requirement, they argue that the judgment was not rendered on the merits and, therefore, it cannot serve to bar their action against Dr. Klug.

Following a hearing, the trial court granted Dr. Klug's motion for summary judgment and rendered a take-nothing judgment in the Coxes' action against the doctor. The Coxes perfected their appeal from this judgment, presenting seven points of error.

With their first three points, the Coxes charge the trial court with error in granting the summary judgment, because there was a genuine issue as to (1) the negligence of Dr. Klug, (2) the damages caused by her negligence, and (3) the causal link between Dr. Klug's negligence and their damages and none of the issues was addressed by Dr. Klug in her motion for summary judgment. Using their fourth point, the Coxes fault the court for granting the summary judgment, because Dr. Klug did not present any evidence to show she was an employee entitled to governmental immunity. And by their seventh point, the Coxes contend the court erred in granting summary judgment, because to hold that Dr. Klug was entitled to summary judgment for...