Hardy v. Fleming, 6562

• Decision Date: 22 June 1977
• Docket Number: No. 6562,6562
• Citation: 553 S.W.2d 790
• Parties: Karl HARDY, Appellant, v. Dr. B. K. FLEMING, Appellee.
• Court: Texas Court of Appeals

Page 790

553 S.W.2d 790

Karl HARDY, Appellant, v. Dr. B. K. FLEMING, Appellee.

No. 6562.

Court of Civil Appeals of Texas, El Paso.

June 22, 1977.

Rehearing Denied July 20, 1977.

Miller, Gann & Perdue, Jim M. Perdue, Andrew L. Todesco, J. Richard Cheney, Houston, for appellant.

Bailey, Williams, Westfall, Lee & Fowler, James A. Williams, William Dixon Wiles, Dallas, for appellee.

OPINION

WARD, Justice.

This is a medical malpractice case where summary judgment was rendered for the Defendant Doctor. Prior to the present suit, the Plaintiff had lost a workmen's compensation suit which was based on the same heart attack which he now claims was caused by the Doctor's negligence. The principal question concerns the correctness of the trial Court's action in sustaining the Defendant's plea of collateral estoppel where the Defendant asserting the plea was not a party or in privity with a party to the earlier litigation. We affirm.

On August 6, 1971, the Plaintiff, Karl Hardy, while at home suffered an apparent heart attack. He immediately placed himself under the care of the Defendant, Dr. B. K. Fleming, and was thereafter treated by that Doctor for about a month. On September 10th, the Defendant advised the Plaintiff that he could return to full duty work at the Columbian Carbon Black Company at Seminole. The Plaintiff's employment was physically strenuous and required that the Plaintiff sack carbon black, put the sacks on pallets, and move them to a cooler. On September 12th, the Plaintiff returned to his employment on a full duty basis, but, after only a few hours of work, he experienced additional heart problems and, according to him, suffered another heart attack.

Hardy then filed his claim for compensation based on this latter attack, and thereafter instituted suit to recover his benefits under the Texas Workmen's Compensation Act by cause entitled "Karl Hardy v. Insurance Company of North America," Cause No. 6463 in the District Court of Gaines County, Texas. Upon trial before a jury, the Court submitted Special Issue No. 1 to the jury inquiring whether Mr. Hardy had sustained a heart attack on September 12, 1971. According to the judgment rendered, the finding to this issue was that the Plaintiff, Karl Hardy, did not sustain a heart attack on September 12, 1971. Based upon that finding, judgment was entered that Hardy take nothing from the Insurance Company of North America. That judgment, which was in July, 1973, has become final.

Hardy next filed this present suit in the District Court of Gaines County to recover his alleged damages sustained from being under the care of Dr. Fleming during August and September, 1971. This malpractice suit was based upon the alleged negligence of the Doctor in: (a) advising Mr. Hardy that he could return to work on a full-time basis when it was not safe to do so; (b) failing to advise Hardy of the nature and extent of the damage done to his heart and of his physical condition; (c) failing to perform such tests and procedures to determine the nature of the damage and injuries done to Hardy's heart as would have been done by a competent and ordinary prudent physician; and (d) failing to refer Hardy to an appropriate medical specialist. The Plaintiff further alleged that he returned to work on the date authorized by Dr. Fleming and, "within four hours, suffered a massive heart attack brought on by the work and exertion associated with his employment."

By way of answer, the Doctor has pled the above matters regarding Cause No. 6463, the submission of the special issue regarding the heart attack on September 12, 1971, the finding by the jury that Hardy did not sustain the heart attack, the final judgment, and that because of the principle of estoppel by judgment, Hardy is now prohibited in the present case from contending that he sustained a heart attack on September 12, 1971. The Doctor filed his first amended motion for summary judgment setting forth two points of law: (1) the doctrine of collateral estoppel bars the present action; and (2) there is no genuine issue of proximate causation in the case. The summary judgment proof consisted of the depositions of the two parties, certified copy of the judgment in Cause No. 6463, the Defendant's answers to the Plaintiff's interrogatories, and the depositions of Dr. William Gordon, Dr. J. B. Jensen, and Dr. Moses Muzquiz, Jr. As stated, the trial Court entered summary judgment for the Defendant on his motion which advanced the two grounds.

The Defendant's first point attacks the summary judgment on the ground that the doctrine of collateral estoppel is not applicable in this case. The Plaintiff points out that Dr. Fleming had no relationship with the Columbian Carbon Black Company, nor with the Insurance Company of North America. Thus, the issue to be determined is whether Dr. Fleming, who is a stranger to the prior suit, may assert the doctrine of collateral estoppel in this subsequent independent suit brought by the same Plaintiff.

The parties recognize the authorities and agree as to the principles. They agree that the tendency of the Courts has been toward an abandonment of the requirement of mutuality and the retention of the requirement of privity only to the party against whom the plea of collateral estoppel is made in the second case. They disagree as to the present rule in this State. The problem is ably discussed in Stephenson, "The Doctrine of Equitable Estoppel under Texas Law," 36 Tex.B.J. 45 (1973). See "Estoppel by...