Gray v. Woodville Health Care Center, 08-05-00033-CV.

• Court: Court of Appeals of Texas
• Writing for the Court: Ann Crawford McClure
• Citation: 225 S.W.3d 613
• Parties: Martha GRAY, Rose Marie Salvato, and Edmund Higginbotham, Executor of the Estate of Mary Ann Higginbotham, Appellants, v. WOODVILLE HEALTH CARE CENTER d/b/a Woodville Convalescent Center d/b/a Cantex Health Care Centers d/b/a Denison Healthcare Center, Ltd. Co., and Kerry Evans, M.D., Appellees.
• Docket Number: No. 08-05-00033-CV.,08-05-00033-CV.
• Decision Date: 03 August 2006

225 S.W.3d 613 Martha GRAY, Rose Marie Salvato, and Edmund Higginbotham, Executor of the Estate of Mary Ann Higginbotham, Appellants,
v.
WOODVILLE HEALTH CARE CENTER d/b/a Woodville Convalescent Center d/b/a Cantex Health Care Centers d/b/a Denison Healthcare Center, Ltd. Co., and Kerry Evans, M.D., Appellees. No. 08-05-00033-CV. Court of Appeals of Texas, El Paso. August 3, 2006. Rehearing Overruled October 4, 2006.

[225 S.W.3d 614]

R.A. Eichelberger, Baytown, for Appellants.

[225 S.W.3d 615]

David Michael Walsh IV, Dallas, Marvin C. Moos, Ebanks, Smith & Carlson, L.L.P., Houston, for Appellees.

Before BARAJAS, C.J., McCLURE, and CHEW, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

Martha Gray, Rose Marie Salvato, and Edmund Higginbotham, Executor of the Estate of Mary Ann Higginbotham appeal from summary judgments granted in favor of Dr. Kerry Evans and Woodville Healthcare Center. At issue is whether Appellants presented evidence of causation to support their negligence claims. Because they did not, we affirm.

FACTUAL SUMMARY

Brayton Gray was eighty years old when he entered the Woodville nursing home on December 27, 1999. He was recovering from surgery due to a right hip fracture sustained ten days earlier. At the time of his admission, Gray had undergone angioplasty, was suffering from Parkinson's disease, and was considered anorexic. During his stay at Woodville, Gray developed two infections. The first was an upper respiratory infection which was treated with antibiotics. The second was a urinary tract infection which required hospitalization on January 23, 2000.

On January 26, 2000, Gray's condition worsened and he became non-responsive. Dr. Evans noted that he spoke with Gray's family regarding his condition and recommended Gray be placed under hospice care. The family agreed. Gray was transferred back to Woodville with Dr. Evans' diagnosis being end stage Parkinson's disease and malnutrition. Dr. Evans discontinued all of Gray's medications except for Dulcolax for constipation, Tylenol for fever or pain, and Thorazine for any anxiety. Dr. Evans also ordered a diet of thickened liquids if requested. Gray died the next day.

Appellants are Gray's daughters—Martha Gray, Rose Marie Salvato, and Edmund Higginbotham as Executor of the Estate of Mary Ann Higginbotham. They filed a wrongful death suit alleging medical malpractice, gross negligence, and negligence per se. Dr. Evans and Woodville filed motions for summary judgment on both traditional and no-evidence grounds. They contended Appellants had failed to present any evidence of causation or breach of the standard of care. The trial court granted Dr. Evans' no-evidence motion and Woodville's traditional and no-evidence motions.

DEPRIVATION OF CONSTITUTIONAL RIGHTS

In their first issue, Appellants claim Appellees violated Gray's Fourteenth Amendment rights to life, liberty, and property by depriving him of the right to make his own healthcare decisions necessary to sustain life. The Fourteenth Amendment mandates that no State shall "deprive any person of life, liberty, or property without due process of law." Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 278, 110 S.Ct. 2841, 2851, 111 L.Ed.2d 224 (1990). It is inapplicable here because there has been no state action. Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948). Appellants produced no evidence that the actions of Dr. Evans and Woodville relate to "state action." Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172-73, 92 S.Ct. 1965, 1973, 32 L.Ed.2d 627 (1972); Black v. Jackson, 82 S.W.3d 44, 54 (Tex. App.-Tyler 2002, no pet.)(a litigant who alleges a constitutional violation by a private citizen must also allege facts showing

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that the conduct of the private citizen can in some way be ascribed to an act or decision by the state).

In support of their argument, Appellants rely on Cruzan for the proposition that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment. Cruzan, 497 U.S. at 278, 110 S.Ct. 2841. There, the Supreme Court considered the issue of whether a woman in an unconscious vegetative state had a constitutional right to demand that the hospital remove life-sustaining treatment. Id. at 269, 110 S.Ct. 2841. The patient's parents sought a court order to terminate their daughter's artificial nutrition when the hospital refused to do so. State action was implicated because the cost of hospitalization was being provided by the State of Missouri. Id. at 266-69, 110 S.Ct. 2841. Because Appellants have not produced evidence of state action, Cruzan is inapplicable. Consequently, Appellants lack standing to pursue the constitutional claims.

They lack standing for a second reason. The rights protected under the Fourteenth Amendment are personal rights. Shelley, 334 U.S. at 22, 68 S.Ct. 836. But Appellants filed suit solely under the Wrongful Death Act, not the Texas Survivor Statute. The purpose of the Wrongful Death Act is to provide a means whereby surviving spouses, children, and parents can personally recover for their loss of a family member. Cooper Tire & Rubber Co. v. Mendez, 155 S.W.3d 382, 415 (Tex.App.-El Paso 2004, pet. granted), citing Garza v. Maverick Market, Inc., 768 S.W.2d 273, 275 (Tex.1989); See Tex.Civ.Prac. & Rem. Code Ann. § 71.004(a)(Vernon 1997). It does not provide a recovery for Gray's injuries. Because Appellants lack standing to argue that Gray's constitutional rights were violated, we overrule Issue One.

DID APPELLANTS PRODUCE EVIDENCE OF CAUSATION?

We next address the fourth and fifth issues for review. The bases of the motions for summary judgment addressed Appellants' failure to produce evidence of proximate cause and breach of the standard of care. Appellants responded that they presented sufficient evidence to raise a genuine issue of material fact on the contested elements of their claims.

Standard of Review

A no-evidence motion for summary judgment is essentially a pretrial directed verdict and we apply the same legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003). The party moving for a no-evidence summary judgment must specifically state the elements as to which there is no evidence. Aguilar v. Morales, 162 S.W.3d 825, 834 (Tex.App.-El Paso 2005, pet. denied); See Tex.R.Civ.P. 166a(I). The burden then shifts to the non-movant to produce summary judgment evidence raising a genuine issue of material fact regarding each element challenged in the motion. Aguilar, 162 S.W.3d at 834. We view the evidence in the light most favorable to the non-movant and we must disregard all contrary evidence and inferences. King Ranch, 118 S.W.3d at 750. A genuine issue of material fact is raised if the non-movant produces more than a scintilla of evidence regarding the challenged element. Id. at 751. Less than a scintilla of evidence exists if the evidence is so weak as to create no more than a mere surmise or suspicion, however, when the evidence rises to a level that enables reasonable minds to differ in their conclusions then more than a scintilla of evidence exists. Id. In a case such as this one where the

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trial court's judgment does not specify the ground or grounds relied upon for its ruling, the summary judgment must be affirmed if any of the theories advanced is meritorious. Aguilar, 162 S.W.3d at 834, citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

Proximate Cause

As we have noted, this lawsuit alleged medical malpractice, gross negligence, and negligence per se. Proximate cause is an element for each of these causes of action. Hodgkins v. Bryan, 99 S.W.3d 669, 673 (Tex.App.-Houston [14th Dist.] 2003, no pet.), citing Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988)(a plaintiff may establish a medical malpractice claim if the plaintiff proves the physician breached the standard of care and that the breach was the proximate cause of the patient's injuries); First Assembly of God, Inc. v. Texas Utilities Elec. Co., 52 S.W.3d 482, 494 (Tex.App.-Dallas 2001, no pet.)(gross negligence...