Dennis v. Allison, 08-83-00128-CV
| Decision Date | 27 April 1984 |
| Docket Number | No. 08-83-00128-CV,08-83-00128-CV |
| Citation | 678 S.W.2d 511 |
| Parties | Myrna DENNIS, Appellant, v. T.H. ALLISON, Appellee. |
| Court | Texas Court of Appeals |
John Holman Barr, Dallas, Joel W. Westbrook, Thomas A. Clarke, Westbrook, Schroeder & Piker, San Antonio, for appellant.
Richard E. Gray, Stephen F. Fink, Thompson & Knight, Dallas, for appellee.
Before STEPHEN F. PRESLAR, C.J., and OSBORN and SCHULTE, JJ.
Appellant patient sued her psychiatrist. The case went to the jury on the theory of breach of implied warranty of compliance of ethical commandments of the psychiatric calling. Of importance here are three special issues (1, 2 and 3) in which the jury found that the Appellee had impliedly warranted he would fully comply with the ethical commandments of his calling and that he had breached the warranty proximately causing damage to his patient. The trial court granted the Appellee's motion to disregard the above jury findings as immaterial and entered a take nothing judgment. We affirm.
Myrna Dennis had been Dr. Allison's patient for thirteen years and she had become very dependent on him for mental and emotional support. So much so, that in August, 1978, she flew from Brownsville to Dallas to seek his help. The crisis at that time concerned her employment as a teacher. Informed of her problem, Dr. Allison instructed her to come to Dallas. He arranged to meet her at her hotel across from Baylor Medical Center and did so early on a Monday evening. The doctor had spent the earlier part of the day in bed recuperating from excessive drinking. While in the hotel room, Allison struck her several times with a belt and engaged in some sexual activity with her. The parties dispute the extent and character of Allison's acts. After this activity, Allison gave her a sedative and promised to call her the following morning. He did not call and she checked into the Baylor Medical Center where she was placed in the psychiatric facility. Allegedly because of the incident, she was unable to teach for the year, and thereafter had trouble holding employment. Her testifying psychiatrist (not Allison) testified that in his opinion the incident rendered her unemployable. There was other evidence that she had not been well regarded as a teacher and that her unemployability predated the incident. The jury's damage award was $12,000.00 for lost wages and $50,000.00 for future lost compensation.
As we interpret Appellant's first point, it is that the trial court erred in disregarding as immaterial the jury's findings to Special Issues Nos. 1, 2 and 3. Rule 418(d) Tex.R.Civ.P. Issues 2 and 3 are dependent on Number One so our consideration is restricted to the first issue. In that issue, the jury found that Dr. Allison impliedly warranted that he would, at all times in his treatment and relationship with Myrna Dennis, comply fully with the ethical commandments of his calling as a psychiatrist. It is well to remember that the court did not grant a judgment notwithstanding the verdict, but rather granted Appellee's motion to disregard the jury's favorable answers as being immaterial.
Special issues which should not have been submitted or which erroneously submit questions of law are immaterial. 4 R. McDonald, Texas Civil Practice, sec. 17.31 (1971). If, as contended by Appellee, a breach of an implied warranty of compliance with the ethical commandments of a calling will not support a judgment for Appellant, then, the trial court was correct in declaring the finding of special issues in regard thereto immaterial and disregarding them. Although we believe it was error to submit the issue, it was invited. Appellant insisted on the submission in spite of admonishment by the court, amended her pleadings to meet the objection that there were no pleadings to support it, and the court so charged the jury over objections of Appellee. In so insisting, Appellant abandoned her alternative theories.
Appellant has not provided us with a case in this or any other jurisdiction recognizing a cause of action for breach of an implied warranty of ethical commandments of a psychiatric calling. It is well settled that in undertaking the treatment of a patient, the practitioner impliedly contracts that he possesses the reasonable degree of skill and learning possessed by others of his profession, and that he will use reasonable and ordinary care and skill in the application of such knowledge to accomplish the purpose for which he is employed. Rose v. Friddell, 423 S.W.2d 658 (Tex.Civ.App.--Tyler 1967, writ ref'd n.r.e.). Here, Appellant chose not to submit her case on any recognized standard of care or any other recognized cause of action. Other remedies were available as evidenced by the alternative pleadings of Appellant alleging assault and malpractice.
The Supreme Court of Texas expressed in Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77, 78 (Tex.1977), that the availability of alternative remedies militates strongly against recognition of implied warranties. It is apparent that the direction taken by Appellant was motivated, at least in part, by her seeking to impose treble damages under the Deceptive Trade Practices Act. But even in this regard, Section 12.01 of the Medical Liability and Insurance Act art. 4590i (Vernon Supp.1984), provides:
Notwithstanding any other law, no provisions of Section 17.41-17.63, Business & Commerce Code, shall apply to physicians or health care providers ... with respect to claims for damages for personal injury ... resulting, or alleged to have resulted, from negligence on the part of any physician or health care provider.
Although Appellant's theory as submitted was not one of negligence, it does depend on an alleged duty imposed by operation of law. The action also seeks damages for personal injuries. A reading of Texas State Optical, Inc. v. Barbee, 417 S.W.2d 750 (Tex.Civ.App.--Beaumont), affirmed, Barbee v. Rogers, 425 S.W.2d 342 (Tex.1968), indicates that Texas has observed a distinction in applying the doctrine of implied warranties to sales and services and that a professional cannot be held liable for the breach of an implied warranty for the performance of professional health care duties absent a sale of goods. The case of Dorney v. Harris, 482 F.Supp. 323 (D. Colo.1980) sets forth this distinction. In that case, the Federal District Court stated:
A dentist or physician offers and is paid for his professional services and skill. That is...
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