Lection v. Dyll

• Decision Date: 20 June 2001
• Docket Number: No. 05-98-01089-CV.,05-98-01089-CV.
• Citation: 65 S.W.3d 696
• Parties: Sandra M. LECTION, Appellant, v. Louis DYLL, M.D., Appellee.
• Court: Texas Court of Appeals

65 S.W.3d 696

Sandra M. LECTION, Appellant, v. Louis DYLL, M.D., Appellee.

No. 05-98-01089-CV.

Court of Appeals of Texas, Dallas.

June 20, 2001.

Ben C. Martin, Law Office of Ben C. Martin, Dallas, for Appellant.

Michelle E. Robberson, Paige A. Lueking, Cooper & Scully, PC, Dallas, for Appellee.

Before Justices LAGARDE, MOSELEY, and FITZGERALD.

OPINION ON REHEARING

FITZGERALD, Justice.

We grant appellant's motion for rehearing, withdraw our October 30, 2000 opinion, and vacate the October 30, 2000 judgment. The following is now the opinion of the Court.

Sandra M. Lection appeals the take-nothing summary judgment rendered against her in her suit for medical malpractice against Louis Dyll, M.D. This case was heard in the trial court by Judge Sheehan sitting for Judge Anne Ashby. Lection contends the trial court committed procedural error in reconsidering Dyll's motion for summary judgment and challenges the court's determination that no doctor-patient relationship existed between Dyll and her. On original submission, we affirmed the trial court's judgment. We have re-examined the relevant facts and pertinent authorities relating to the physician-patient relationship and conclude that Dyll failed to sustain his summary judgment burden to prove he owed no duty to Lection. Accordingly, we reverse the judgment of the trial court and remand for further proceedings.

FACTUAL BACKGROUND

On August 15, 1992, Lection was taken by ambulance to the emergency room of The Medical Center of Mesquite with symptoms of slurred speech, hemiparesis, severe headache, dizziness, and other neurological symptoms. Dr. Nabeel Syed, the emergency room physician on duty, examined Lection, had an EKG and CT-scan performed, and then requested a nurse to page the neurologist on call. At about 7:00 p.m., Dyll, who was the neurologist on call that day, telephoned the emergency room to speak with Syed. After Syed gave Dyll the results of Syed's examination and testing, Syed asked Dyll if anything further needed to be done. Dyll responded that "no further treatment needed to be done for this patient at the time," that "it sounded like she had a hemiplegic migraine" and that "nothing further needed to be done," which included admission into the hospital. According to both Syed and Dyll, during this telephone conversation, a nurse told Syed that Lection "was no longer in the room" and he so informed Dyll. When Syed told Dyll the patient had left the hospital and asked Dyll "is that okay," Dyll said it was all right that the patient had gone home. Syed stated that "admission would be based on what Dyll had told" him, and that he could have contacted the patient to return "if it needed to be done," but "based on her [Lection's] physical findings what Dr. Dyll had told me [Syed], and how she was at the time she left the hospital, [Syed] didn't think she needed to come back or be admitted." Had the patient still been at the hospital, Syed would have discharged her based on what Dyll said. Dyll also told Syed to "just have her come back to my office on Monday."

A factual dispute exists whether Lection left the hospital during or after Syed's telephone conference with Dyll. According to the doctors, Lection left before being discharged and while the two doctors were speaking on the phone. However, Syed stated in his deposition that he was waiting to hear from the neurologist and the cardiologist before making a decision on the correct course of treatment, and that what he (Syed) ultimately decided to do depended upon what Dyll told him to do. Syed told Lection and her husband that he wanted to hear from the neurologist before making a decision about discharge. Lection and her husband testified by deposition that Syed told Lection to go home over their objection and that Syed said Lection only had a "hysterical migraine" or something to that effect. Lection argues that Syed must have said she had a "hemiplegic migraine," thus relating Dyll's diagnosis to her and proving she did not leave the hospital until after Syed had concluded his telephone consultation with Dyll.

The hospital records contain conflicting entries concerning whether and when Lection was discharged from the hospital. The emergency physician record shows Dyll as the "consulted physician," provides the diagnosis of "TIA/Headache—hemiplegic migraine,"¹ and describes the treatment plan: "⁽¹⁾ Discharge. See Dr. Kuboli/Deal [Dyll?] in the office on Monday. ⁽²⁾ Return to ER if sx worsen." The treatment record indicates the "Time ED Release" as 6:40 p.m., which was before Dyll's call. The emergency room progress notes state that at 6:15 p.m., Lection was "for discharge as per Dr. Syed—pending call fr. Dr. Jishi,"² Lection's IV was "dc'd," she was "off monitor," and she had stated she was "feeling better"; at 6:55 p.m., Lection was "awaiting disposition"; at 7:00 p.m., Dyll called and talked to Syed; and at 7:10 p.m., Lection "not in bed—left [without] signing for discharge instructions." At 7:30 p.m., the nurse called Lection at home and left a message. The 8:15 p.m. entry reads: "daughter Chris called back—instructions given via the phone— Dr. Dyll/Koholi's tel. # given—Pt doing better—just having a little headache." The next morning, Lection suffered a disabling stroke.

In his motion for summary judgment, Dyll alleged no physician-patient relationship existed because Lection left the hospital and Dyll's telephone conference with Syed did not create any duty of care to Lection. In response, Lection asserted that Dyll breached the standard of care for an on-call doctor by making an inappropriate diagnosis, failing to obtain adequate information from Syed to make a proper diagnosis, improperly instructing Syed, and failing to admit Lection to the hospital for evaluation and treatment.

The trial court denied Dyll's motion for summary judgment in April 1996. Dyll filed a motion for reconsideration, and Lection filed a response with supplemental summary judgment evidence. In May 1998, the trial court reconsidered, and granted, Dyll's motion for summary judgment.

In her sole issue on appeal, Lection asserts the trial court erred in granting Dyll's motion for summary judgment.

STANDARD OF REVIEW

We review a summary judgment de novo. See Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex.App.-San Antonio 2000, no pet.); Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). The standards for reviewing a traditional summary judgment are well established. See Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). In deciding whether there was a fact issue raised to preclude summary judgment, we accept all evidence favorable to the nonmovant as true, indulge the nonmovant with every favorable reasonable inference, and resolve any doubt in the nonmovant's favor. See Nixon, 690 S.W.2d at 548-49. We disregard all conflicts in the evidence and accept as true all evidence supporting the nonmovant. See Fought v. Solce, 821 S.W.2d 218, 219 (Tex.App.-Houston [1st Dist.] 1991, writ denied). All doubts as to the existence of a genuine issue as to a material fact are resolved against the movant. See id. (citing Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965)).

For a defendant to prevail on summary judgment, he must show there is no genuine issue of material fact concerning one or more essential elements of the plaintiff's cause of action or establish each element of an affirmative defense as a matter of law. See Tex.R.Civ.P. 166a(c); see Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990). Only after the defendant produces evidence entitling him to summary judgment does the burden shift to the plaintiff to present evidence raising a fact issue on the elements negated. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Muckelroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825, 828 (Tex.App.-Dallas 1994, writ denied).

The affidavit of an interested witness can support summary judgment if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. See Tex. R.Civ.P. 166a(c); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991); Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex.1986); Perez v. Cueto, 908 S.W.2d 29, 31 (Tex.App.-Houston [14th Dist.] 1995, no writ). The phrase "could have been readily controverted" means "the testimony at issue is of a nature which can be effectively countered by opposing evidence." Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989); see Tex. R.Civ.P. 166a(c). Self-serving statements in affidavits of interested witnesses concerning their state of mind are uncontrovertible because "the mental workings of an individual's mind are matters about which adversaries have no knowledge or ready means of confirming or controverting." Lukasik v. Blue Haven Pools, 21 S.W.3d 394, 399 (Tex.App.-San Antonio 2000, no pet.) (quoting Hayes v. E.T.S. Enters., Inc., 809 S.W.2d 652, 657 (Tex. App.-Amarillo 1991, writ denied)); see Dean v. Lowery, 952 S.W.2d 637, 640 (Tex. App.-Beaumont 1997, pet. denied); Allied Chem. Corp. v. DeHaven, 752 S.W.2d 155, 158 (Tex.App.-Houston [14th Dist.] 1988 writ denied); Bankers Commercial Life Ins. Co. v. Scott, 631 S.W.2d 228, 231 (Tex. App.-Tyler 1982, writ ref'd n.r.e.).

Hospital By-Laws

Before we can determine the merits of the trial court's ruling on Dyll's motion for summary judgment, we must determine what evidence was properly before the trial court. Dyll asserts that the Hospital By-Laws and "Rules and Regulations of the Medical Staff" were not competent summary judgment evidence because Lection did not present the trial court with a properly authenticated copy of the by-laws. Attached to Lection's March 25, 1996 "Supplemental Response" to Dyll's motion for summary...