Floyd v. Willacy County Hosp. Dist.

• Decision Date: 27 February 1986
• Docket Number: No. 13-85-375-CV,13-85-375-CV
• Citation: 706 S.W.2d 731
• Parties: Diane FLOYD, et al., Appellants, v. WILLACY COUNTY HOSPITAL DISTRICT, et al., Appellees.
• Court: Texas Court of Appeals

Page 731

706 S.W.2d 731

Diane FLOYD, et al., Appellants, v. WILLACY COUNTY HOSPITAL DISTRICT, et al., Appellees.

No. 13-85-375-CV.

Court of Appeals of Texas,

Corpus Christi.

Feb. 27, 1986.

Rehearing Denied March 20, 1986.

Michael R. Ezell, Harlingen, for appellants.

Peter R. Meeker, Fred E. Davis, Austin, for appellees.

Before UTTER, SEERDEN and BENAVIDES, JJ.

OPINION

UTTER, Justice.

This is an appeal from a summary judgment in a wrongful death action. Appellants, as the legal survivors of Donald Wayne Floyd, deceased, sued the Willacy County Hospital District (the hospital), Dr. Joseph Montgomery-Davis, Martha Regina Birzer Lunsford (Nurse Lunsford) and Upjohn Health Care of the Rio Grande Valley. Summary judgment and a severance order were entered by the trial court disposing of all causes of action asserted against the hospital on the premise that the hospital was immune from liability under the Texas Tort Claims Act. ¹ We affirm in part and reverse and remand in part.

On May 9, 1980, the deceased and Ms. Frances Farrell were driving back to Houston from McAllen when the deceased began experiencing chest pains. As they approached Raymondville, the deceased was perspiring heavily and his "color" appeared to be "bad." Ms. Farrell decided to take him to the nearest hospital, which happened to be Willacy County Hospital. Upon arrival at the hospital, the deceased was complaining of pain in his arm and loss of feeling in his hand. Ms. Farrell helped him into the hospital waiting room and then went to get assistance. She first encountered Dr. Montgomery-Davis and told him that she had a man in the waiting room who was very sick and needed help. Dr. Montgomery-Davis told her to speak to Nurse Lunsford. Ms. Farrell told Nurse Lunsford that they were from out of town and had no local physician. According to Ms. Farrell, Nurse Lunsford then told her that since they had no local physician and the hospital's facilities were inadequate, they should go to Valley Baptist Medical Center in Harlingen for treatment.

Nurse Lunsford testified, through deposition, that Dr. Montgomery-Davis told her to tell Ms. Farrell to take the deceased to Valley Baptist because the hospital's facilities were inadequate to deal with his problem and the only cardiac equipment owned by the hospital was already in use. In any event, Ms. Farrell and the deceased left the hospital in an attempt to make it to Valley Baptist for emergency treatment. Mr. Floyd suffered a heart attack enroute and died.

In their first two points of error, appellants assert that they have pled a cause of action under Section 3 of the Texas Tort Claims Act, which states the conditions under which governmental units can be liable for personal injuries or death. The pertinent portion of the Act is as follows:

Each unit of government in the state shall be liable for money damages for personal injuries or death when so caused [proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising] ... from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. [emphasis ours] ²

This Section provides for waiver of governmental immunity in three general areas: (1) use of publicly-owned motor vehicles; (2) injuries arising from some condition or use of real property (premises defects); and, (3) injuries arising from some condition or use of personal property. City of Denton v. Page, 701 S.W.2d 830 (Tex.1986); Salcedo v. El Paso Hospital District, 659 S.W.2d 30 (Tex.1983).

Although appellants assert eleven "particulars" by which they allege that the hospital was negligent, their claim, in essence, is that the hospital was negligent in failing to use available drugs and equipment to render emergency medical care to the deceased.

Appellants do not contend that the hospital's refusal to render medical aid to decedent was the result of negligence in the use of any tangible property or because of a defect or malfunction in any equipment, but rather, appellants contend that the non-use of the tangible property was actually a misuse of such tangible property. In contending that they have plead a cause of action within the waiver provision of the Texas Tort Claims Act, appellants rely on several cases. ³ However, a careful reading of these cases reveals that in each instance some use of property was involved and negligence was alleged in connection with the use thereof, or in the failure to supply additional equipment. There is no such allegation in the case at bar.

Appellants also rely on Trinity River Authority v. Williams, 689 S.W.2d 883 (Tex.1985), as holding that a "non-use" of property will trigger Section 3 of the Texas Tort Claims Act. Appellants have misread Trinity River Authority. It was a case involving the dangerous condition of property, i.e., a premises defect, not the negligent use of property. Id. at 885.

This is a "non-use" case. See Green v. City of Dallas, 665 S.W.2d at 569; Brantley v. City of Dallas, 545 S.W.2d at 286. This Court recently addressed the question of whether a "non-use" of property will invoke the waiver provision of Section 3 in Vela v. Cameron County, 703 S.W.2d 721 (Tex.App.--Corpus Christi 1985, writ pending). Citing the Texas Supreme Court in Salcedo, we held that Section 3 is not triggered in such an instance. ⁴ Accordingly, governmental immunity from liability has not been waived. Appellants' first two points of error are overruled.

Appellants argue, in their third point of error, that the decedent's constitutional rights under the Equal Protection Clause ⁵ were violated by the hospital because the hospital "categorized out-patients into two different classes: (1) Those who were regular patients of the hospital's staff doctors; and (2) Those who were not regular patients of the hospital's staff doctors." Their argument is that such a distinction violates the Equal Protection Clause because "members of the first class were entitled to both non-emergency and emergency health care services, whereas members of the second class were denied both non-emergency and emergency health care services." ⁶ Appellants also pled this violation under 42 U.S.C. § 1983 (1981), which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

A suit for wrongful death is a cause of action conferred by statute upon the surviving husband, wife, children, and parents of the decedent. City of Houston v. Stoddard, 675 S.W.2d 280 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Tarrant County Hospital District v. Jones, 664 S.W.2d 191 (Tex.App.--Fort Worth 1984, no writ); Tex.Rev.Civ.Stat.Ann. art. 4675 (Vernon 1952). The plaintiff in a wrongful death action may assert any cause of action that the decedent could have asserted had he survived. Vassallo v. Nederl-Americk Stoomv Maats Holland, 162 Tex. 52, 344 S.W.2d 421 (1961).

Although appellants pled that this "two-class" categorization of patients deprived the deceased of his constitutional right "to be treated equally by the Willacy County Hospital ... even though no rational governmental purpose served as the basis for such distinction [emphasis ours]," pleadings do not constitute summary judgment proof. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); Miller v. Soliz, 648 S.W.2d 734 (Tex.App.--Corpus Christi 1983, no writ). Appellants, in their response to the hospital's motion for summary judgment, failed to assert their claim of liability against the hospital based upon the deprivation of constitutional rights as alleged in their petition. However, the non-movant is not required to answer or respond to the motion for summary judgment in order to contend on appeal that the grounds expressly presented to the trial court by the movant were insufficient as a matter of law. Miller v. Soliz, 648 S.W.2d at 739. It is the movant's burden to establish his entitlement to summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense. Id.

In its motion for summary judgment, the hospital relied upon sovereign immunity to defeat "any ground of recovery" alleged by appellants. The hospital's summary judgment proof went only to the issue of "some condition or use of tangible property," and wholly failed to address the consitutional deprivation claim.

We now turn to whether appellants have stated a cause of action based on an equal protection violation. As stated above, appellants contend that the hospital had a policy which "categorized out-patients into two different classes," depending upon whether the person seeking treatment was a regular patient of a staff doctor. Appellants base this contention on a handwritten memorandum prepared by the Director of Nursing Service and circulated to the nursing staff. Nurse Lunsford testified by deposition that it was her understanding that the memorandum reflected hospital policy. The memorandum is as follows:

Attention to All. Please do not make the mistake of ignoring this notice or failing to read it. Do not call a doctor re. a pt. [patient] who does not have a family doctor here--unless, it is obviously a matter of life or death. (Regardless of how much pain the person is in.) You have no idea how much trouble this causes the hospital and doctors and ultimately yourself if you do it....