Espalin v. Childrens' Med. Center Dallas

• Decision Date: 08 September 2000
• Docket Number: No. 05-99-00981-CV,05-99-00981-CV
• Citation: 27 S.W.3d 675
• Parties: (Tex.App.-Dallas 2000) MARK ESPALIN AND IRASEMA ESPALIN, INDIVIDUALLY AND AS NEXT FRIEND OF AUTUMN NICOLE ESPALIN, A MINOR, Appellants v. CHILDREN'S MEDICAL CENTER OF DALLAS AND DR. TODD MASSEY, Appellees
• Court: Texas Court of Appeals

Page 675

27 S.W.3d 675 (Tex.App.-Dallas 2000)

MARK ESPALIN AND IRASEMA ESPALIN, INDIVIDUALLY AND AS NEXT FRIEND OF AUTUMN NICOLE ESPALIN, A MINOR, Appellants v. CHILDREN'S MEDICAL CENTER OF DALLAS AND DR. TODD MASSEY, Appellees

No. 05-99-00981-CV

In The Court of Appeals Fifth District of Texas at Dallas

September 8, 2000

On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. 97-10460-L

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Justices Lagarde, Whittington, and Moseley

OPINION

Opinion By Justice Whittington

Mark and Irasema Espalin, individually and as next friend of their minor daughter, Autumn Nicole Espalin, (collectively, the "Espalins"), appeal the trial court's summary judgment in favor of Children's Medical Center of Dallas ("Children's") and Dr. Todd Massey. In four points of error, the Espalins contend the trial judge erred in granting (i) Children's no-evidence summary judgment motion because the Espalins raised more than a scintilla of evidence on every challenged element of their claims against Children's, (ii) Children's motion for a rule 166a(c) summary judgment on the Espalins' claims for imputed negligence and imputed failure to obtain informed consent because Children's failed to establish as a matter of law that Dr. Steves Ring, Dr. Massey, and Dr. Gary Cieslak were not Children's agents or employees or, alternatively, summary judgment was improper because the Espalins' summary judgment evidence raised material fact issues regarding whether Drs. Ring, Massey, and Cieslak were Children's agents or employees, and (iii) Dr. Massey's no-evidence summary judgment motion because the Espalins raised more than a scintilla of evidence on the challenged elements of their informed consent claim. For the reasons that follow, we reverse the trial court's judgment to the extent it grants summary judgment on the Espalins' informed consent claim against Dr. Massey and remand that claim to the trial court for further proceedings. In all other respects, we affirm the trial court's judgment.

Factual Background

Mark and Irasema are the natural parents of Autumn. Autumn was born on May 27, 1995 with major heart defects: coarctation of the aorta and a ventricular septal defect (VSD) with a large patent ductus arteriosus (PDA). She was admitted to Children's for further evaluation and management of her heart condition. At the time of her admission, Autumn was able to move all extremities of her body. On December 12, 1995, Autumn underwent surgery to repair the coarctation and PDA. Dr. Ring, a thoracic and cardiovascular surgeon, performed the surgery in which Dr. Massey assisted and Dr. Cieslak administered anesthesia. After the operation, Autumn was unable to move her lower extremities. She was later diagnosed with permanent paraplegia of her lower extremities, caused by a lack of oxygen to her spinal cord during surgery.

Procedural Background

The Espalins sued Children's and Drs. Ring, Massey, and Cieslak on multiple grounds of negligence, including the failure to warn and obtain informed consent with respect to paraplegia and to advise of appropriate alternative treatments. On April 7, 1999, Drs. Ring and Massey filed a joint motion for partial summary judgment on the issue of informed consent. In the motion, the doctors alleged they were entitled to summary judgment because the summary judgment evidence showed the Espalins were aware of the risk of paraplegia and, in spite of the risk, consented to the surgery. ¹ The doctors relied, in part on the deposition testimony of the Espalins' expert witness, Dr. Kevin Turley. Regarding the issue of informed consent, Dr. Turley testified Dr. Massey "obtained it, clearly, and . . . that an informed consent, as far as paraplegia, was delivered by the previous note." That same day, Dr. Massey also filed a motion for a no-evidence summary judgment on the Espalins' other negligence and gross negligence causes of action against him. In his motion, Massey claimed there was no evidence (i) he failed to comply with the applicable standard of care, (ii) his failure to comply with the standard of care was the proximate cause of harm to the Espalins, and (iii) his acts and/or omissions constituted gross negligence or malice. In support of his motion, Dr. Massey relied on Dr. Turley's deposition testimony in which Dr. Turley stated that, after reviewing Autumn's medical records, he would not offer any opinion regarding whether Dr. Massey breached the standard of care and was withdrawing the criticisms and opinionsmade about Dr. Massey in a previous report. Dr. Turley further testified he did not believe Dr. Massey was responsible for any of the alleged negligent acts or omissions in this case.

On April 23, 1999, Children's filed a motion for summary judgment on all the Espalins' causes of action. In its motion, Children's alleged it was entitled to summary judgment because there was no evidence (i) Children's breached any duty owed directly to Autumn or that any employee or agent of Children's breached the standard of care applicable to Autumn, (ii) Dr. Ring, Dr. Massey, or Dr. Cieslak was Children's agent or employee, and (iii) Dr. Massey was negligent. Children's also alleged the summary judgment evidence established there were no genuine issues of material fact regarding whether Dr. Ring, Dr. Massey, or Dr. Cieslak was Children's agent or employee.

On May 11, 1999, the Espalins filed responses to the summary judgment motions and a first amended petition. In the amended petition, the Espalins added various causes of action for negligence as to each defendant. Regarding the informed consent cause of action, the Espalins alleged only that Children's and Dr. Massey failed to properly warn and obtain complete informed consent from the Espalins with respect to alternate forms of treatment and the risks associated with those alternate forms of treatment prior to the December 12, 1995 surgery. The informed consent cause of action against Dr. Ring also claimed Dr. Ring failed to properly warn and obtain complete informed consent with respect to alternate forms of treatment and the risks associated with the same and added that he failed to properly warn and obtain complete informed consent from the Espalins with respect to the risk of paraplegia. On May 17, 1999, Children's filed its reply to the Espalins' response and amended petition.

On May 18, 1999, the trial judge signed an order granting Dr. Ring and Dr. Massey's motion for partial summary judgment on informed consent. ² That same day, the Espalins nonsuited their claims against (i) Dr. Massey for negligence and (ii) Children's directly for the failure to use ordinary care in the selection of physicians and in periodically monitoring physicians for competency and as respondeat superior for the negligence of Dr. Massey. The Espalins expressly reserved "the right to continue to prosecute their claims against Dr. Massey for failure to obtain informed consent" and "all other claims" against Children's. On May 19, 1999, the trial judge granted Children's motion for summary judgment without specifying the grounds.

On June 11, 1999, the trial judge signed the "Agreed Motion to Sever" all claims and causes of action asserted against Children's by the Espalins. The order concluded with the following: "IT IS FURTHER ORDERED that all relief not expressly granted in the hospital's summary judgment is hereby denied in the severed action." The trial court's order did not indicate that a separate cause number had been assigned to the severed claims and causes. Six days later, on June 17, 1999, the Espalins filed their notice of appeal in this cause.

On August 5, 1999, the trial judge signed an order approving an agreed motion to sever all claims by the Espalins against Dr. Massey into "a separate and severed cause of action . . . Cause Number DV99-6480." The trial judge further ordered that the "interlocutory order dismissing these claims be made final." The Espalins did not file a separate notice of appeal as to Dr. Massey. Two months later, the trial judge signed an agreed order granting the Espalins' motion for nonsuit with prejudice as to Dr. Ring and Dr. Cieslak.

Jurisdiction

Initially, we must determine which causes of action and parties are properly before this Court on appeal. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993); New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990). A summary judgment that does not dispose of all issues and parties is interlocutory and may not be appealed absent statutory authority permitting an interlocutory appeal. See Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. 1985) (orig. proceeding); Schlipf v. Exxon Corp., 644 S.W.2d 453, 454 (Tex. 1982). Alternatively, the trial judge may sign an order severing a party, cause of action, or issue, thereby rendering an otherwise interlocutory summary judgment final. See Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 312 (Tex. 1994) (otherwise final judgment that fails to dispose of all parties and all issues may be made final for purposes of appeal by severing parties and issues disposed of by judgment into different cause); Hood v. Amarillo Nat'l Bank, 815 S.W.2d 545, 547 (Tex. 1991) (summary judgment which does not dispose of all parties and issues in pending suit is interlocutory and not appealable unless judge orders severance); Schlipf, 644 S.W.2d at 454 (no appeal will lie from partial summary judgment unless judge orders severance). An order granting a severance is effective when signed, regardless of whether the district clerk creates a separate physical file with a different cause number. McRoberts v. Ryals, 863 S.W.2d 450, 452-53 (Tex. 1993). Following such a severance, the judgment becomes final and may be appealed without a separate physical file or different number. See Martinez, 875 S.W.2d at 313...