Kehler v. Eudaly

• Decision Date: 24 October 1996
• Docket Number: No. 2-94-204-CV,2-94-204-CV
• Citation: 933 S.W.2d 321
• Parties: Grace KEHLER, individually and on behalf of the Estates of Michael Trekell and Jayson Kehler, deceased, and Lester C. Trekell and June E. Trekell, Appellant, v. Harold EUDALY, M.D., Saint Joseph Hospital and John W. Koechel, Ph.D., Appellees.
• Court: Texas Court of Appeals

Page 321

933 S.W.2d 321

Grace KEHLER, individually and on behalf of the Estates of Michael Trekell and Jayson Kehler, deceased, and Lester C. Trekell and June E. Trekell, Appellant, v. Harold EUDALY, M.D., Saint Joseph Hospital and John W Koechel, Ph.D., Appellees.

No. 2-94-204-CV.

Court of Appeals of Texas Fort Worth.

Oct. 24, 1996.

Rehearing Overruled Dec. 5, 1996.

Darrell L. Keith, Sue S. Walker, Law Firm of Darrell L. Keith, P.C., Fort Worth, for appellant.

James G. Bennett, Bennett & Hall, L.L.P., Daniel R. Barrett, Fielding, Barrett & Taylor, Richard Griffith, Carol J. Traylor, Cantey & Hanger, Franklin Moore, Murphy, Moore & Bell, Don Driver, Fort Worth, for appellees.

Before DAY, LIVINGSTON and HOLMAN, JJ.

OPINION

LIVINGSTON, Justice.

In this appeal we must determine whether Texas law recognizes a cause of action based on a defendant's duty to protect third parties who are injured by an actor's criminal conduct. Appellants appeal from a summary judgment entered by the trial court in favor of appellees, the defendants in the court below. Appellants sued the appellees for the death damages arising from the murders of Michael Trekell and his four-month-old son, Jayson Kehler, by James Bigby, who had been a patient of the doctors and hospital appellees at various times.

The suit was brought by Grace Kehler, Jayson's mother and alleged common-law wife of Michael Trekell, along with Michael's parents. The claims were asserted under the wrongful death and survival statutes, TEX. CIV. PRAC. & REM. CODE, §§ 71.001-71.011, 71.021 (Vernon 1986), against Bigby's medical providers, but not against Bigby. The trial court found that none of the defendants owed a duty to the victims and granted the defendants' summary judgment motions. We affirm.

FACTS

James Bigby and Michael Trekell had been friends since 1980. They shared an interest in auto mechanics and spent time at each other's homes. Michael and Grace met sometime in 1985 and began living together in 1986. Their son, Jayson, was born in August 1987.

Dr. Naifees Saifee, who was the Bigby family physician, had seen Bigby off and on for minor ailments from April 1979 to 1985. Bigby was an employee at Frito-Lay and was injured on the job in 1983. Bigby attempted to return to work but ultimately pursued a worker's compensation claim. Sometime in June 1985, Dr. Saifee saw Bigby for the job-related injury that caused lower back pain, headaches, rib and muscle injuries, cervical pain, and numbness in his arms. She referred him to a neurologist and an orthopedic surgeon for his physical conditions. In March 1986, she referred him to Dr. Allen Kent, an orthopedic surgeon for his back and neck pain. Later in September 1986, she referred him to a psychiatrist, appellee Dr. Harold Eudaly, for treatment of his depression. Dr. Eudaly first treated Bigby on September 3, 1996. He diagnosed Bigby as depressed and prescribed antidepressant medication. In August 1985, Dr. Saifee also referred Bigby to Dr. Lincoln Chin, a neurologist, because of the symptoms related to the job injury. He was simultaneously under the care of another orthopedic surgeon, Dr. John Stasikowski. The last time Dr. Saifee saw Bigby was on November 20, 1987.

Bigby's first hospitalization was on September 26, 1986 when he was admitted by Dr. Saifee to Saint Joseph Hospital for depression. His primary complaint was a burning sensation all over as a result of fumes from air vents during physical therapy. Dr. Eudaly was consulted and was the attending psychiatrist who diagnosed him with schizoaffective disorder with secondary diagnoses of back pain and severe headaches. While at Saint Joseph, he was also seen by Drs. Chin and Kent for pain. He was released by Dr. Eudaly on October 29, 1986 with a psychiatric diagnosis of acute schizoaffective disorder. On Bigby's release, Dr. Eudaly referred him to appellee Dr. John Koechel, a psychologist, for therapy and medication management sessions through about December 18, 1987. Dr. Koechel performed a psychological evaluation and diagnosed him with generalized anxiety disorder with passive-aggressive personality and antisocial traits.

On July 2, 1987, Dr. Eudaly admitted Bigby to CPC Oakbend Hospital after receiving a call from Dr. Koechel indicating Bigby was suicidal. He appeared "withdrawn, cried easily and his mood was pervasively depressed." Dr. Koechel performed another psychological evaluation and diagnosed him with "major depression with melancholia, passive-aggressive personality and prominent anti-social traits." Dr. Eudaly's diagnosis was dysthymic disorder and secondarily chronic muscle strain. During his stay, he left a suicide note in an administrator's box and asked nurses about fruit pits with poison. After treatment and therapy, he was released on October 29, 1986, much improved. Between September 29, 1986 and December 18, 1987, Dr. Koechel saw Bigby forty times.

Bigby had scheduled an appointment with Dr. Eudaly on November 10, 1987, but did not keep it. Dr. Koechel saw Bigby for an office visit on November 23, 1987. Dr. Koechel recommended that Bigby be admitted again because of the severity of his depression. That night, Bigby's mother took him to the emergency room at Saint Joseph Hospital because she thought he had overdosed, which was "unconfirmed."

Later, on December 1, 1987, Dr. Eudaly heard from Bigby and recommended admission to Saint Joseph Hospital because of increasing depression of major depressive disorder. During this stay, Bigby received electroshock therapy (ECT) treatments that improved his mood.

On December 11, 1987, Bigby left the hospital after his third ECT treatment before being officially discharged from the hospital. He called the hospital indicating he did not intend to return, despite the nurses' requests to do so. Dr. Eudaly was notified by the hospital, and he told the staff to allow Bigby to stay out overnight. The next morning when Dr. Eudaly and Bigby talked, Dr. Eudaly encouraged Bigby to return, or at least continue his medication (which had been discontinued during the ECT treatment) and continue outpatient treatment. Bigby did not return and Dr. Eudaly changed Bigby's status to "discharged" on December 12, 1987 with a final psychiatric diagnostic impression of major depressive disorder.

On December 18, Dr. Koechel saw Bigby for an office visit. Bigby complained about the ECT treatments and said he wasn't going back. Dr. Koechel apparently did not inform Dr. Eudaly of Bigby's intent.

Eleven days after Bigby left the hospital, he killed two Frito-Lay employees. The next day, he killed Michael and Jayson and was subsequently convicted of capital murder on both counts and sentenced to death. See Bigby v. State, 892 S.W.2d 864, 870 (Tex.Crim.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2617, 132 L.Ed.2d 860 (1995).

PROCEDURAL HISTORY

On December 1, 1989, appellants filed suit against the doctors and hospital appellees and Dr. Saifee and Jane A. Bernhardt, C.S.W. Dr. Saifee filed and was granted a summary judgment in her favor, which was severed from this suit, and appellants nonsuited Bernhardt.

All remaining appellees subsequently filed motions for summary judgment that were granted. Appellants have appealed those summary judgments except for the summary judgment in favor of defendant CPC Oakbend Hospital. The trial court found that the appellees owed no legal duty to the appellants as a matter of law. While some of the appellees asserted various bases for their motions, they each contained the "no legal duty" theory upon which the judgment was ultimately entered.

STANDARD OF REVIEW

In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Cate v. Dover Corp., 790 S.W.2d 559, 562 (Tex.1990); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, Acker v. Texas Water Comm'n, 790 S.W.2d 299, 301-02 (Tex.1990), and all doubts about the existence of a genuine issue of a material fact are resolved against the movant. Cate, 790 S.W.2d at 562; Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant, the appellants. Great Am. Reserve Ins. Co., 391 S.W.2d at 47.

In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the nonmovant will be accepted as true. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995); Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Evidence that favors the movant's position will not be considered unless it is uncontroverted. Great Am. Reserve Ins. Co., 391 S.W.2d at 47. The summary judgment will be affirmed only if the record establishes that the movant has conclusively proven all essential elements of the movant's cause of action or defense as a matter of law. City of Houston, 589 S.W.2d at 678.

A defendant is entitled to summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiff's cause of action cannot be established. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995); Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex.1975). To accomplish this, the defendant-movant must present summary judgment evidence that negates an element of the plaintiff's claim. Once this evidence is presented, the burden shifts to the plaintiff to put on competent controverting evidence that proves the existence of a genuine issue of material fact on the element challenged by the defendant. Centeq Realty, 899 S.W.2d at 197.

In reviewing the summary judgment evidence, we are only...