Lloyd v. Ray

• Decision Date: 24 September 1980
• Docket Number: No. 16336,16336
• Citation: 606 S.W.2d 545
• Parties: Catherine LLOYD, Appellant, v. Dr. Robert S. RAY, Individually and Dr. Robert S. Ray Association, Appellee.
• Court: Texas Court of Appeals

Page 545

606 S.W.2d 545

Catherine LLOYD, Appellant, v. Dr. Robert S. RAY, Individually and Dr. Robert S. Ray Association, Appellee.

No. 16336.

Court of Civil Appeals of Texas, San Antonio.

Sept. 24, 1980.

Rehearing Denied Oct. 22, 1980.

Van H. Johnson, San Antonio, for appellant.

Paul M. Green, Mark J. Cannan, Lang, Cross, Ladon, Boldrick & Green, San Antonio, for appellee.

OPINION

KLINGEMAN, Justice.

This is a summary judgment proceeding involving the effect of a release executed by the plaintiff, Catherine Lloyd, in a prior suit against another doctor. Plaintiff appeals from a summary judgment that she take nothing in her suit against Dr. Robert S. Ray, Individually and as Dr. Robert S. Ray Associates. Plaintiff will sometimes hereinafter be referred to as "Lloyd," and defendant as "Dr. Ray."

In 1973, Lloyd was fitted with an intrauterine device by a gynecologist, Dr. Juan Garcia-Perez. Several months later, Dr. Garcia-Perez purportedly removed the device and assured Lloyd that he had done so. During the next four years Lloyd experienced various problems and consulted a number of doctors in an attempt to determine the cause of her abdominal problems. On December 30, 1976, she consulted Dr. Ray and X rays were taken, one of which showed the presence of the intrauterine device that was supposedly removed by Dr. Garcia-Perez and which was floating around in her abdominal cavity. Dr. Ray did not inform plaintiff that the intrauterine device was still present. Lloyd thereafter consulted another physician in September of 1977, who discovered the presence of the device in her abdominal cavity, after which the device was removed. Lloyd subsequently filed a suit for damages against Dr. Garcia-Perez, alleging negligence, and also violation of the Texas Deceptive Trade Practices Act, in which she asked for treble damages and attorney's fees. This case never went to trial and Lloyd signed a release, the construction of which is involved in the case before us. ¹ In such transaction she received the sum of $5,000, and a take-nothing judgment was thereafter entered in Lloyd's suit against Dr. Garcia-Perez. The suit herein was filed by Lloyd on March 9, 1979, against Dr. Ray for negligence in failing to properly diagnose the presence of the intrauterine device in Lloyd's abdominal cavity, and seeking damages against appellee for medical expenses incurred and pain and suffering experienced by appellant from the date appellee should have discovered, from his X rays, the intrauterine device until the time the device was actually removed from appellant's abdomen.

Appellee filed a motion for summary judgment asserting that he was entitled to a summary judgment as a matter of law because (a) appellant fully released her claims by the prior settlement agreement, and (b) appellant is entitled to only one satisfaction of the same injuries.

The trial court's rendition of summary judgment here can only be sustained if the record establishes as a matter of law that (a) the release appellant executed precluded her from maintenance of any suit against appellee, or (b) appellant has received full satisfaction for her damages. The record before us fails to establish either of such elements as a matter of law and the summary judgment for appellee must fall.

Appellant relies heavily on McMillen v. Klingensmith, 467 S.W.2d 193 (Tex.1971). In McMillen, the Supreme Court of Texas held that the unity of release rule would no longer be followed in Texas and that releases thereafter executed would only be effective to release those parties named or otherwise specifically identified thereto. In so holding the Court preserved the rule that a claimant in no event would be entitled to recover more than the damages required for full satisfaction of his damages.

Appellee concedes that McMillen abolished the unity of release rule and that he is not named in the release, but asserts he is otherwise specifically identified. We have carefully studied the release here involved and we do not consider it as either naming appellee or otherwise specifically identifying him. ² Appellee attempts to distinguish McMillen from this case on the ground that McMillen concerned joint tortfeasors who acted to produce indivisible injuries, one aggravating injuries produced by the first, and, further, that Dr. Ray is at best a successive tortfeasor. The Court in McMillen did not define a successive tortfeasor, or pass on the effect thereof. The Court in McMillen did refer to the defendants in McMillen as subsequent tortfeasors and applied the rule developed in that case to such defendants. We hold that Dr. Ray falls in the same category as the defendants in McMillen and the rule set forth in McMillen applies to the release executed by appellant, and, therefore, the release signed in the Garcia-Perez case was ineffective as a release of appellee.

Appellee also asserts that the summary judgment is proper because appellant has received full satisfaction of her damages by the acceptance of the sum of $5,000 and the execution of the release hereinabove discussed. We reject this contention for a number of reasons. The case before us is a separate and...