Hernandez v. Lukefahr

• Decision Date: 05 May 1994
• Docket Number: No. C14-93-00336-CV,C14-93-00336-CV
• Citation: 879 S.W.2d 137
• Parties: Rey HERNANDEZ, Sr., and Lucy Hernandez, Individually, and as Heirs at Law of the Estate of Rey Hernandez, Jr., Deceased, Connie Viscaino, Daniel Viscaino, Elvera Hernandez, and Evelyn Lopez, Appellants, v. Dr. James L. LUKEFAHR, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 137

879 S.W.2d 137

Rey HERNANDEZ, Sr., and Lucy Hernandez, Individually, and as Heirs at Law of the Estate of Rey Hernandez, Jr., Deceased, Connie Viscaino, Daniel Viscaino, Elvera Hernandez, and Evelyn Lopez, Appellants, v. Dr. James L. LUKEFAHR, Appellee.

No. C14-93-00336-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

May 5, 1994.

James B. Manley, Houston, for appellants.

John C. Marshall, Deborah L. Novick, Houston, for appellee.

Before ROBERTSON, CANNON and DRAUGHN, JJ.

OPINION

ROBERTSON, Justice.

This appeal comes to us from the trial court's granting summary judgment in a suit filed alleging medical malpractice in the death of a two-month old infant. Appellee based his motion for summary judgment on the affirmative defense of the good samaritan statute at section 74.001(b)(3) of the Texas Civil Practice and Remedies Code. Appellants bring three points of error on appeal, two of which assert the existence of a fact question precluding the granting of summary judgment, and a third asserting that appellee offered insufficient summary judgment proof in support of his motion. We affirm the judgment of the trial court.

Appellants brought suit originally against four defendants for the death of two-month old Rey Hernandez, Jr.: Pasadena Bayshore Hospital, Inc., d/b/a Bayshore Medical Center; Dr. James L. Lukefahr; Dr. Dennis L. Barstasis; and Linda Hishke, in her capacity as administrator of the aforenamed Bayshore Medical Center. Appellants settled with one other defendant physician and took a nonsuit with prejudice as to both Pasadena Bayshore Hospital d/b/a Bayshore Medical Center and Linda Hishke.

It is beyond dispute that this case involves tragic facts and circumstances. Two-month old Rey Hernandez, Jr. was brought to the emergency room of Bayshore Medical Hospital by his grandmother because he was having respiratory problems. She herself administered CPR to the infant before taking him to the hospital. Dr. Lukefahr, a pediatrician, was on another floor of the hospital visiting with the family of a patient when a nurse informed him of the hospital's emergency call over the loudspeaker for a pediatrician to go immediately to the emergency room. Dr. Lukefahr responded to the call and, when he arrived at the emergency room, saw the emergency room physician performing CPR on an infant. Dr. Lukefahr joined the rescue efforts. After over one hour of attempting to resuscitate the child, Dr. Lukefahr noted that the infant's pupils were fixed and dilated and that the cardiac monitor showed no activity. Dr. Lukefahr pronounced the infant dead. The family stayed with the infant while awaiting the arrival of the medical examiner, and during this time they noticed some movement by the infant. They informed a nearby nurse of the movement but the nurse did not make any inquiry, stating that the movement had to have been induced by the medication given in the resuscitation efforts. However, a pulse was found on the infant approximately one and one-half hours later, and the infant was transported to Texas Children's Hospital. A few days later the infant's cardiac and respiratory activity ceased completely.

Because there has been no trial in this matter, the above facts are only a general review of the circumstances resulting in the tragic death of the infant. However, appellee contends that certain facts are not in dispute, and these facts concern the applicability of the good samaritan statute. As of the date of the alleged malpractice the statute read as follows:

(a) A person who in good faith administers emergency care at the scene of an emergency or in a hospital is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent.

(b) This section does not apply to care administered:

(1) for or in expectation of remuneration;

(2) by a person who was at the scene of the emergency because he or a person he represents as an agent was soliciting business or seeking to perform a service for remuneration;

(3) by a person who regularly administers care in a hospital emergency room; or

(4) by an admitting physician or a treating physician associated by the admitting physician of the patient bringing a health-care liability claim.

Act approved June 16, 1977, 65th Leg., R.S., ch. 817, 1977 Tex.Gen.Laws 2039, 2054, amended by Act of May 22, 1993, 73rd Leg., R.S., ch. 960, § 1, 1993 Tex.Gen.Laws 4193, 4194 (current version at TEX.CIV.PRAC. & REM.CODE ANN. § 74.001 (Vernon Supp.1994)).

Our research reveals a surprisingly limited amount of case law on the statute. Only three Texas cases even mention the statute. E.g., Wheeler v. Yettie Kersting Memorial Hospital, 866 S.W.2d 32, 50 (Tex.App.--Houston [1st Dist.] 1993, n.w.h.); Eoff v. Hal and Charlie Peterson Found., 811 S.W.2d 187, 192 (Tex.App.--San Antonio 1991, no writ); Howell v. City Towing Assocs., Inc., 717 S.W.2d 729, 731-32 (Tex.App.--San Antonio 1986, writ ref'd n.r.e.). None of these cases involve applying the statute to a medical doctor, thereby making the instant case one of first impression despite the statute's existence since 1961. See Darrell L. Keith, Medical Expert Testimony in Texas Medical Malpractice Cases, 43 BAYLOR L.REV. 1, 132 n. 850 (1991) (noting statute's original enactment in 1961 "to encourage reluctant physicians to administer emergency care to victims without delay"). Even throughout the United States, there are but a handful of cases interpreting comparable statutes in each state. See Comment, Robert A. Mason, Good Samaritan Laws--Legal Disarray: An Update, 38 MERCER L.REV. 1439, 1443 (1987). Thus, it is fortunate that the facts of this case do not demand anything more than an objective analysis of the plain language of the statute.

Because appellee raised the affirmative defense of the good samaritan statute in his motion for summary judgment, his was the burden to prove all essential elements of the affirmative defense. TEX.R.CIV.P. 166a(c); Murphy v. McDermott, Inc., 807 S.W.2d 606, 612 (Tex.App.--Houston [14th Dist.] 1991, writ denied). The summary judgment proceeding is not designed to deny a party the right to a trial by jury but, rather, to "eliminate patently unmeritorious claims and untenable defenses." City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 n. 5 (1979). Thus, the burden is never shifted to the non-movant until the movant establishes his right to judgment as a matter of law. Id. at 678.

Dr. Lukefahr submitted an affidavit with his motion setting out the extent of his involvement with the infant on the day in question. The statute sets out four exceptions which will preclude application of the affirmative defense. Dr. Lukefahr's summary judgment proof must therefore show that he falls within the statute as a matter of law, that is, that none of the exceptions within the statute remove him from the protection of the statute.

The first exception in the statute applies to a person who administers the care "for or in expectation of remuneration." The uncontroverted testimony of Dr. Lukefahr shows that he did not receive any compensation for his services that day, nor did he render his services in expectation of compensation. The second exception also does not apply because Dr. Lukefahr was likewise not acting as an agent on behalf of any entity seeking or expecting remuneration for the services.

The third exception applies to "a person who regularly administers care in a hospital emergency room." Appellants argue strenuously that Dr. Lukefahr's affirmative defense fails for this reason. However, Dr. Lukefahr's affidavit establishes that he was not baby Rey's doctor, he had never before seen the infant or the infant's mother, and he was not one of the doctors who specializes and or is routinely assigned to an emergency room, including the emergency room at Bayshore Medical Center. Dr. Lukefahr's affidavit is uncontroverted in this respect. Indeed, the affidavit asserts that there was an emergency room physician present at the time of the incident who had begun resuscitation procedures on the infant and who was doing so when Dr. Lukefahr arrived. Appellants assert that Dr. Barstasis, the emergency room physician, was not present during the entire resuscitation efforts. We cannot fathom how this fact helps appellants' argument that Dr. Lukefahr regularly practices in the emergency room. Dr. Barstasis, the emergency room physician, would be the type of physician excluded from the statute because of his regular practice of emergency medical care. Appellants do not dispute that Dr. Lukefahr was not present in the emergency room when the infant arrived, nor do they dispute Dr. Lukefahr's assertion that he was visiting his own patient on a floor of the hospital when he responded to the emergency call. We find no merit in appellants' contention that Dr. Lukefahr regularly practiced medicine in the emergency room setting, particularly in the absence of summary judgment proof sufficient to raise a fact question.

The fourth exception in the statute applies to care administered "by an admitting physician or a treating physician associated by the admitting physician of the patient bringing a health-care liability claim." Although there is no admitting physician in the fact scenario before us, appellants argue that because Dr. Lukefahr "treated" the infant, he became a treating physician within the meaning of this fourth exception. This interpretation of the statute fails for two reasons. First, to say that any physician who assists in an emergency automatically becomes a treating physician would obviously frustrate the purpose of the statute, that purpose being to encourage physicians, and anyone else, to render aid in an emergency without fear of potential liability. See Robert A. Mason, Good Samaritan Laws--Legal Disarray: An Update, 38 MERCER L.REV. 1439, 1440-41 (1987) (noting original fears that such aid would result in malpractice...