Dominguez v. Kelly

• Decision Date: 14 March 1990
• Docket Number: No. 08-89-00206-CV.,08-89-00206-CV.
• Citation: 786 S.W.2d 749
• Parties: Genovevo DOMINGUEZ, Appellant, v. John KELLY, M.D., Appellee.
• Court: Texas Court of Appeals

786 S.W.2d 749

Genovevo DOMINGUEZ, Appellant, v. John KELLY, M.D., Appellee.

No. 08-89-00206-CV.

Court of Appeals of Texas, El Paso.

January 10, 1990.

Rehearing Overruled March 14, 1990.

Richard R. Alvarado, Odessa, for appellant.

Perry Davis, Jr., Joel B. Locke, Shafer, Davis, McCollum, Ashley, O'Leary & Stoker, Odessa, for appellee.

Before FULLER, WOODARD and KOEHLER, JJ.

OPINION

WOODARD, Justice.

This is an appeal from a summary judgment granted in favor of Dr. Kelly. We affirm.

On December 31, 1986, the doctor examined a minor female that had been brought to him by a member of the Texas Department of Human Services, and concluded that the child had been abused in various ways, including sexually. The doctor informed the social worker and forwarded his written report to her. He also made successive accounts of the matter to the Ector County Sheriff's Department.

Plaintiff Dominguez sued the doctor for negligence and intentional, malicious, bad faith conduct in the diagnosing and reporting of his conclusions. It was alleged that these factors caused the law enforcement officials to institute criminal proceedings against Mr. Dominguez for aggravated sexual assault.

The social worker stated the doctor announced, after his examination, that the child had been abused vaginally, rectally and had syphilis. The doctor's written report depicted an unusually small child, a sexually abused deprivational dwarf, who exhibited the classic behavior of a chronically abused child by never crying out, in pain or otherwise, during his examination of her. She was filthy, had lice and showed signs of sexual assault and recent beatings. It continued to describe bruises, burns, tears and abrasions. It described bruises made by large hands on the thighs, presumably made while attempting to pull them apart to sexually abuse her.

The doctor's affidavit, made in his Motion for Summary Judgment, explained his former suspicions of syphilis and that subsequent testing negated this condition. The doctor stated all of his communications were to the agency and the sheriff's department.

Photographs substantiating the physical characterization of the bruises, abrasions and tears were also proffered along with an affidavit that stated the child's mother pled nolo contendere to a felony third injury to a child charge, and the Appellant made the same plea to a failure to report child abuse charge.

Traditional notions of liability in negligence actions require a finding of a duty, a breach of that duty, the breach was a proximate cause of injuries and that damages occurred. McKinley v. Stripling, 763 S.W.2d 407 (Tex.1989). It is a well established principle of law that a physician is liable for malpractice or negligence only where there is a physician-patient relationship as a result of a contract, express or implied, that the doctor will treat the patient with proper professional skill and there is a breach of professional duty to the patient. Salas v. Gamboa, 760 S.W.2d 838 (Tex.App.—San Antonio 1988, no writ). In such cases where no physician-patient relationship exists, the doctor's only duty is to conduct the examination in a manner not to cause harm to the person being examined. Johnston v. Sibley, 558 S.W.2d 135 (Tex.Civ.App.—Tyler 1977, writ ref'd n.r. e.). Therefore, Appellant's cause of action for negligence must fail as the doctor had no duty to him.

Appellant further alleged that the doctor knowingly, intentionally, maliciously and in bad faith made his conclusions which were the basis for local law enforcement officials to institute criminal proceedings. This pleading, although incomplete, comes to us without special exception and suggests a cause of action for malicious prosecution. In deference to Massey v. Armco Steel Company, 652 S.W.2d 932 (Tex.1983), which stands for the proposition that a pleading defect may not be resolved by a summary judgment, we shall consider the evidence in light of an alleged cause of action for malicious prosecution. The plaintiff in a malicious prosecution case has the burden of proving seven essential elements: (1) the commencement of a criminal prosecution against him, (2) which was caused by the defendant or through his aid or cooperation, (3) which terminated in favor of the plaintiff by acquittal, (4) that the plaintiff was not guilty of the charge brought against him, (5) that no probable cause existed for the filing of the charge, (6) that it was done with malice, and (7) that the plaintiff was thereby damaged. Stewart v. Control Data Corporation, 580 S.W.2d 879 (Tex.Civ.App.—Texarkana 1979, no writ). There is evidence that the Plaintiff pled nolo contendere to charges contributed to by the reports given by the doctor. There is no evidence of any final determination. The Appellee failed to negate this essential element of the cause of action.

The Appellee relies on immunity under Tex.Fam.Code Ann. sec. 34.03 (Vernon 1986), which is granted to "any person reporting pursuant to this chapter," but denying it to any person reporting in bad faith or with malice. In construing statutes, courts will not look to any one phrase, clause or sentence but will look to the entire act to determine the legislative intent. City of Corpus Christi v. Southern Community Gas Company, 368 S.W.2d 144 (Tex.Civ.App.—San Antonio 1963, writ ref'd n.r.e.). A provision will not be given meaning out of harmony with other provisions and inconsistent with the purpose of the act, though it would be susceptible of such construction if standing alone. Black v. American Bankers Insurance Company, 478 S.W.2d 434 (Tex.1972). Tex.Fam. Code Ann. sec. 34.01 mandates a report by those having cause to believe there is child abuse. Section 34.011 directs the Texas Department of Human Resources to promulgate a reporting form. Tex.Fam. Code Ann. sec. 34.02 (Vernon Supp.1990) states the reports shall be nonaccusatory and reflect "the reporter's belief that a child has been" abused. It requires a doctor to make an oral report within forty-eight hours after he suspects abuse and make a written report within five days. The reports are to be made to state or local law enforcement, and to the Texas Department of Human Services or an agency designated by the court to be responsible for the protection of children. Section 34.05 commands the agency receiving the report to investigate and includes the seeking of a physical, psychological or psychiatric examination in the proper case.

In this case, the child was brought to the doctor pursuant to Section 34.05. Section 34.04 expressly denies any privileged communication between doctor and patient in any proceeding regarding child abuse.

Appellant contends the reports were not entitled to immunity as the written report did not conform to the explicit form requirement of Section 34.02, namely there is no name and address of the child or the person responsible for the child. He also contends there is no stated designation that the written report is the required follow-up report. Imprecise compliance with form requirements, per se, will not vitiate an immunity provision. There was substantial compliance in this case.

Summary judgment should never be granted when the issues are inherently those for a jury or trial judge, as in cases involving intent, reliance, reasonable care, uncertainty and the like. Dan Lawson & Associates v. Miller, 742 S.W.2d 528 (Tex. App.—Fort Worth 1987, no writ). Appellant contends that because he alleges the report was made in bad faith or with malice, it concerns the Appellee's intent, and therefore, cannot be subject to a summary judgment.

It has been said that a defendant in a malicious prosecution action is not liable where there was no probable cause if he was not actuated by malice, or, though he was actuated by malice, if ...