Gooden v. Tips

• Decision Date: 28 April 1983
• Docket Number: No. 12-81-0075-C,12-81-0075-C
• Citation: 651 S.W.2d 364
• Parties: Earl GOODEN, et al., Appellants, v. Eugene TIPS, M.D., Appellee.
• Court: Texas Court of Appeals

Page 364

651 S.W.2d 364

43 A.L.R.4th 139

Earl GOODEN, et al., Appellants, v. Eugene TIPS, M.D., Appellee.

No. 12-81-0075-C.

Court of Appeals of Texas,

Tyler.

April 28, 1983.

Barney L. McCoy, Deirdre Darrouzet, Houston, for appellants.

Keven Dubose, Ryan & Marshall, Houston, for appellee.

McKay, Justice.

This is an appeal from a summary judgment. Earl and Mellie Gooden originally brought suit against Edith and Mearle Goodpasture, seeking damages for personal injuries sustained by Earl Gooden when he was struck by a car driven by Edith Goodpasture. During discovery proceedings, the Goodens learned that at the time of the collision, Edith was under the influence of the drug Quaalude, which had been prescribed for her by Dr. Tips. Thereafter the Goodens amended their petition to include Dr. Tips as a defendant, alleging that he was negligent in prescribing said drug for Edith and in failing to warn her not to drive an automobile while under the influence of said drug. Dr. Tips then filed a motion for summary judgment based solely upon the pleadings, alleging that since there was no doctor-patient relationship between himself and the plaintiff there was no duty on his part owed to the plaintiff. The trial court granted Dr. Tips' motion for summary judgment, and thereafter granted the joint motion of the parties to sever the cause of action against Dr. Tips from the cause of action against the Goodpastures. The Goodens then perfected their appeal from the summary judgment in favor of Dr. Tips.

In their sole point of error, appellants contend the trial court erred in granting Dr. Tips' motion for summary judgment because genuine issues of material fact exist which preclude summary judgment.

At the outset we observe that Dr. Tips' motion for summary judgment was directed solely to appellants' pleadings and was not supported by affidavits, depositions or other summary judgment proof. Therefore this court takes as true every allegation of the pleadings against which the motion is directed. Holmes v. Canlen Management Corp., 542 S.W.2d 199, 201 (Tex.Civ.App.--El Paso 1976, no writ); Wood Truck Leasing v. American Auto Ins. Co., 526 S.W.2d 223, 224-5 (Tex.Civ.App.--San Antonio 1975, no writ); Gottlieb v. Hofheinz, 523 S.W.2d 7, 10 (Tex.Civ.App.--Houston [1st Dist.] 1975, writ dism'd); Garza v. Perez, 443 S.W.2d 855, 857 (Tex.Civ.App.--Corpus Christi 1969, no writ). All doubts as to the existence of a genuine issue of material fact are resolved against the movant. Garza v. Perez, supra. If the pleading, when liberally construed, is sufficient in law to show a fact issue, the motion for summary judgment should be denied. Holmes v. Canlen Management Corp., supra; Gottlieb v. Hofheinz, supra; 4 McDonald, Texas Civil Practice § 17.26.8 (rev. 1971).

Paragraph V of Plaintiff's Fourth Amended Original Petition alleges:

For approximately twenty (20) years prior to this collision, Defendant, Edith Goodpasture, was under the care and treatment of Defendant, Eugene Tips, M.D. Dr. Tips treated Defendant, Edith Goodpasture, for various medical problems, including depression and an ensuing drug abuse. As a result of his observation and treatment, Defendant, Dr. Tips, knew that Defendant, Edith Goodpasture, had a long history of abusing drugs, and could not be expected to take the medicine prescribed for her in the manner intended. Defendant, Dr. Tips, furthermore, did not warn Defendant, Edith Goodpasture, not to drive an automobile, or operate machinery, while under the influence of such drugs, including Quaalude, that were prescribed for Defendant, Edith Goodpasture, by Defendant, Dr. Tips. In continuing to prescribe the various drugs for Defendant, Edith Goodpasture, and in failing to warn Defendant, Edith Goodpasture, not to drive an automobile while under the influence of the drugs, including Quaalude, Dr. Tips deviated from the usual and customary care of a psychiatrist and physician in Harris County, Texas, under the same or similar circumstances. Defendant, Dr. Tips, conduct was a proximate cause of the injuries sustained by the Plaintiff, Earl Gooden. Plaintiffs learned of this conduct during discovery proceedings, on or about July 11, 1978.

The pertinent portions of Dr. Tips' motion for summary judgment are set out below:

I.

Defendant Tips is entitled to judgment as a matter of law because there is no doctor/patient relationship, and therefore no duty, between the Plaintiff, Earl Gooden, and Defendant Tips. In order for any kind of negligence action to lie against a defendant there must first be a duty flowing from the defendant to the plaintiff. In a medical malpractice action, this duty arises only from the existence of a doctor/patient relationship. In this case the only doctor/patient relationship was between Defendant Dr. Tips and Defendant Edith Goodpasture. The Plaintiff was only a third party, wholly unknown to Defendant Tips.

II.

In support of this motion, Defendant Tips relies solely upon the pleadings and motions that have been filed in this case. ¹

The trial court granted Dr. Tips' motion for summary judgment. Thereafter the parties' joint motion for severance was granted and an order entered to that effect, at which time the summary judgment became appealable. See Schieffer v. Patterson, 433 S.W.2d 418 (Tex.1968).

The question presented then, under the facts of this case, is this: When a physician prescribes a drug for his patient which the physician knows or should know has an intoxicating effect, does the physician have a duty to the public to warn that patient not to drive while under the influence of said drug? Or, stated another way, is the physician under a duty to take whatever steps are reasonable under the circumstances to reduce the likelihood of injury to third parties who may be injured by that patient because said patient is under the influence of an intoxicating drug prescribed by the physician? Stated thus, it would seem this is a question of first impression in Texas.

The question of whether a legal duty exists under a given set of facts is a question of law for the court. Producers Grain Corp. v. Lindsay, 603 S.W.2d 326, 329 (Tex.Civ.App.--Amarillo 1980, no writ); Jackson v. Associated Developers of Lubbock, 581 S.W.2d 208, 212 (Tex.Civ.App.--Amarillo 1979, writ ref'd n.r.e.); Taylor v. Colonial Savings Ass'n, 533 S.W.2d 61, 64 (Tex.Civ.App.--Houston [1st Dist.] ) rev'd on other grounds, 544 S.W.2d 116 (Tex.1976). We have found no Texas case imposing a duty such as that asserted by appellants, and appellants have cited none. However, we have likewise found no Texas case holding there is no such duty upon a physician under the facts stated above, and appellee has cited none. The cases relied upon by appellee, in our opinion, do not address the issue here presented for the reasons stated below.

Appellee relies upon three Texas cases to support his contention that no duty of care arises on the part of a physician unless a physician-patient relationship exists between the defendant physician and the plaintiff claiming injury. In Johnston v. Sibley, 558 S.W.2d 135 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.), the plaintiff claimed he had been injured on the job and submitted a workman's compensation claim alleging that such injury had resulted in permanent partial disability. The workman's compensation carrier employed Dr. Sibley to examine the plaintiff to determine the nature of the injury and whether any disability had resulted therefrom. Based on this examination, Dr. Sibley reported to the insurance company that no disability had resulted to the plaintiff. Plaintiff thereafter sued the doctor for malpractice, alleging that due to the doctor's negligence in failing to diagnose his disability, his claim for workmen's compensation benefits had been denied. The doctor moved for summary judgment on the ground that since no physician-patient relationship existed between the plaintiff and the doctor, the doctor owed no duty to plaintiff to use reasonable care in examining the plaintiff. The doctor's motion was granted, and plaintiff appealed. This court held that when a plaintiff seeks to hold a physician liable in malpractice for negligence in examining or treating the plaintiff, he (the plaintiff) must first establish the existence of a physician-patient relationship between himself and the doctor.

In Childs v. Weis, 440 S.W.2d 104 (Tex.Civ.App.--Dallas 1969, no writ), the plaintiff's wife, who was seven months pregnant, presented herself at the emergency room of Greenville Hospital with labor pains. The nurse on duty called Dr. Weis who apparently had charge of the emergency room that evening. Dr. Weis advised the nurse to tell Mrs. Childs "to call her [own] doctor in Garland and see what he wanted her to do." The nurse allegedly told Mrs. Childs that Dr. Weis had said "to go to my doctor in Dallas." Mrs. Childs left the hospital and gave birth about an hour later, and the infant died some twelve hours thereafter. Her husband, as next friend of his wife, sued Dr. Weis alleging the doctor was negligent in failing to provide adequate medical care and attention to his wife. The trial court granted Dr. Weis' motion for summary judgment on the ground that there was no evidence to establish a physician-patient relationship between the doctor and Mrs. Childs. On appeal plaintiff contended that a fact issue existed as to whether the physician-patient relationship had been established. It was plaintiff's position that such relationship had been established under the facts of that case, but the appellate court disagreed, finding an entire absence of evidence of a contract creating the physician-patient relationship. The court held that in absence of a contract creating such relationship, no duty arose on the part of the doctor to do that which an ordinarily prudent physician would do in the proper care and treatment of his patient.

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