Hatley v. Kassen

• Citation: 859 S.W.2d 367
• Decision Date: 03 December 1992
• Docket Number: No. 05-91-01122-CV,05-91-01122-CV
• Parties: Judy HATLEY and William Johnson, Appellants, v. Lisa KASSEN, R.N.; Dallas County Hospital District D/B/A Parkland Memorial Hospital; Gurjeet S. Kalra, M.D.; and the University of Texas Southwestern Medical Center at Dallas, Appellees.
• Court: Court of Appeals of Texas

Page 367

859 S.W.2d 367

Judy HATLEY and William Johnson, Appellants, v. Lisa KASSEN, R.N.; Dallas County Hospital District D/B/A Parkland Memorial Hospital; Gurjeet S. Kalra M.D.; and the University of Texas Southwestern Medical Center at Dallas, Appellees.

No. 05-91-01122-CV.

Court of Appeals of Texas Dallas.

Dec. 3, 1992.

David R. Weiner, John K. Horany, Law Office of Windle Turley, P.C., Dallas, for appellant.

Thomas L. Cox, Jr., Dallas County Hosp. Dist., Richard Bernays, Touchstone Bernays Beall Smith & Johnson, Dallas, Robbie Malone, Asst. Atty. Gen., James Ludlum, Jr., Ludlum & Ludlum, Austin, for state.

Before ENOCH, C.J., and BISSETT ¹ and CARVER ², JJ.

OPINION

ENOCH, Chief Justice.

Judy Hatley and William Johnson appeal from a summary judgment granted in favor of University of Texas Southwestern Medical Center at Dallas (Southwestern) and Gurjeet S. Kalra, M.D., and a directed verdict granted in favor of Lisa Kassen, R.N., and Dallas County Hospital District d/b/a Parkland Hospital (Parkland). We reverse and remand.

FACTS

Pennie Johnson, now deceased, was the daughter of Judy Hatley and William Johnson. Pennie Johnson was a chronic mental-health patient. After multiple admissions over nearly a ten-year period, Johnson's treatment team decided that long-term institutionalization was not therapeutic. Instead, she became an outpatient in the forensic unit of the Dallas County Mental Health & Mental Retardation System (MHMR). Thereafter, a difficult-patient file was developed for use by treating physicians. The recommended treatment was to discharge Johnson when she presented herself to any mental health care provider unless she displayed significantly different symptoms than those she had in the past.

On February 13, 1988 at 11:55 p.m., a Department of Public Safety trooper discovered Johnson walking down the Dallas North Tollway and threatening to harm herself. The trooper took Johnson to Parkland's emergency room, where Johnson sought voluntary admission.

Robert L. Knowles, R.N., a Parkland employee, recorded in his nursing assessment that Johnson complained of feeling more depressed and that she had taken medication seven times that day, a dosage exceeding the prescription. He testified that a Parkland employee confiscated her pills and placed them in the nurses' station "after staff witnessed her taking them." Knowles testified that after Johnson was discharged, Johnson asked for her pills to be returned and became verbally abusive when they were not returned. Knowles asked Lisa Kassen, R.N., the charge nurse at the Parkland psychiatric emergency room, to determine whether it was appropriate to keep Johnson's medication.

Kassen testified that Johnson threatened to throw herself in front of a car if her medication was not returned to her. Kassen stated that she, Dr. Kalra, and Knowles jointly decided not to return the medication. Kassen told Johnson that she would return the medication only if Johnson agreed to go home in a taxi paid for by Parkland. Johnson responded that she did not want to go home.

Dr. Kalra testified that in February 1988, he was a third-year resident at Southwestern and worked at Parkland's psychiatric emergency room from time to time. He evaluated Johnson after midnight on February 14 and decided that Johnson should be discharged in accordance with the difficult-patient file because there was no change in her mental status. He testified that he personally did not take medication away from Johnson, that he was unaware of Johnson's threat to take her life if her medicine was not returned, and that he participated in the decision not to return the medication to Johnson.

Phyllis Jones testified that she was employed by Dallas County MHMR in Parkland's psychiatric emergency room when she saw Johnson at about 12:15 a.m. on February 14 at Dr. Kalra's request. Jones testified that she and Dr. Kalra observed Johnson taking pills and that Dr. Kalra took the pills away from Johnson and placed them in the nurses' station.

Tony Manning, a Parkland security officer, testified that he responded to a call at approximately 12:30 a.m. on February 14. Dr. Kalra told him that Johnson was not going to be seen by the emergency psychiatric division, that she might create a scene, and that she should be escorted out of the hospital. Manning testified that Johnson told Dr. Kalra: "If you don't give me my drugs, I'll go jump in front of a truck." Dr. Kalra refused to return the drugs, and Johnson left the hospital unescorted.

Approximately thirty minutes after she left Parkland, Johnson stepped out into traffic on Interstate 35, was hit by a truck, and died at the scene.

SUMMARY JUDGMENT STANDARD OF REVIEW

Appellants' first seven points of error assert that the trial court erred by granting summary judgment to Southwestern and Dr. Kalra. Therefore, we will first set out the applicable standard of review:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Rule 166a of the Texas Rules of Civil Procedure provides a method of summarily ending a case that involves only a question of law and no genuine question of fact. TEX.R.CIV.P. 166a; Spencer v. City of Dallas, 819 S.W.2d 612, 615 (Tex.App.--Dallas 1991, no writ). The trial court's duty is to determine if there are any fact issues to try, not to weigh the evidence or determine its credibility and try the case on affidavits. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952). The purpose of rule 166a is to eliminate patently unmeritorious claims or untenable defenses. The rule is not meant to deprive the litigants of their right to a full hearing on the merits of any real issue of fact. Spencer, 819 S.W.2d at 615.

To be entitled to summary judgment, the defendants must either disprove an essential element of the plaintiffs' cause of action as a matter of law or establish all the elements of their defense as a matter of law. Id. Once the movant establishes a right to summary judgment on the issues presented, the nonmovant has the duty to respond by presenting the trial court with the genuine issues of material fact that preclude summary judgment. Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 215 (Tex.App.--Houston [1st Dist.] 1986, no writ). When a summary judgment order does not specify the grounds on which it was granted, the order will be upheld on any ground that meets the above criteria. See Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex.App.--Houston [1st Dist.] 1988, writ denied).

SUICIDE AS THE SOLE CAUSE OF DEATH DEFENSE

In points of error two and seven, appellants contend that summary judgment was granted erroneously in favor of Dr. Kalra and Southwestern under the affirmative defense of suicide as the sole cause of death. Appellants argue that the deposition evidence in support of Dr. Kalra's motion was insufficient because (1) the deponent was not established as an expert qualified to testify regarding the applicable standard of care; (2) the applicable standard of care was not set out; and (3) the deponent failed to address whether suicide was the sole cause of the damages sustained. They further urge that if Dr. Kalra's motion for summary judgment was granted in error, then Southwestern's motion was also granted in error because Dr. Kalra acted as Southwestern's agent.

The applicable statute provides:

It is an affirmative defense to a civil action for damages for personal injury or death that the plaintiff, at the time the cause of action arose, was ... committing or attempting to commit suicide, and the plaintiff's conduct in committing or attempting to commit suicide was the sole cause of the damages sustained; provided, however, if the suicide or attempted suicide was caused in whole or in part by a failure on the part of any defendant to comply with an applicable legal standard, then such suicide or attempted suicide shall not be a defense.

TEX.CIV.PRAC. & REM.CODE ANN. § 93.001(a)(2) (Vernon Supp.1992).

To be entitled to judgment, Dr. Kalra and Southwestern have the burden of proving as a matter of law that (1) that Johnson was committing or attempting to commit suicide and (2) that this conduct was the sole cause of the damages. Once these two elements are established, it becomes appellants' burden to establish that the suicide or attempted suicide was caused wholly or partially by the failure of Dr. Kalra and Southwestern to comply with standard medical practices. Appellants admitted in their fifth amended petition that "Johnson did in fact throw herself in front of a pickup truck ... and was pronounced dead at the scene." Therefore, Dr. Kalra and Southwestern must prove that Johnson's conduct was the sole cause of her death.

In a joint motion for summary judgment, Southwestern and Dr. Kalra attached an excerpt from the deposition of Roger Gary Butler, M.D. to support their affirmative defense of suicide as the sole cause of death. In the deposition, Dr. Butler testified: "[b]ecause Pennie was so consistent throughout her visits and the issue was always the same, that she was chronically suicidal, and there wasn't much else to do, I feel that, you know, the standard of care was met based on that." Dr. Butler also stated that everything that could have been done in treating Johnson at Parkland was done.

As pointed out by appellants, the summary judgment proof does not establish Dr. Butler's credentials. An expert's testimony is admissible if (1) specialized knowledge or information exists pertinent to the facts at issue; (2) the witness possesses...