Park Place Hosp. v. Estate of Milo

• Decision Date: 02 November 1995
• Docket Number: No. 94-1176,94-1176
• Citation: 909 S.W.2d 508
• Parties: 39 Tex. Sup. Ct. J. 70 PARK PLACE HOSPITAL, Dorris Jones and George Zuzukin, M.D., Petitioners, v. The ESTATE OF Lola MILO, Yannequa Graham, James Milo, Individually and as Parent and Legal Guardian of the Minor, Jamie Milo, Katherine Graham, a/n/f of Sholanda January, and Katherine Graham, Individually, Respondents.
• Court: Texas Supreme Court

Page 508

909 S.W.2d 508

39 Tex. Sup. Ct. J. 70

PARK PLACE HOSPITAL, Dorris Jones and George Zuzukin, M.D. Petitioners, v. The ESTATE OF Lola MILO, Yannequa Graham, James Milo Individually and as Parent and Legal Guardian of the Minor Jamie Milo, Katherine Graham, a/n/f of Sholanda January, and Katherine Graham, Individually, Respondents.

No. 94-1176.

Supreme Court of Texas.

Argued Sept. 7, 1995.

Decided Nov. 2, 1995.

Curry L. Cooksey, Beaumont, Joel Randal Sprott, Peggy R. Ban, Houston, for Petitioners.

K. Omari Fullerton, Houston, for Respondents.

SPECTOR, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and GONZALEZ, HIGHTOWER, HECHT, CORNYN, ENOCH, OWEN and BAKER, Justices, join.

In this wrongful death case, we consider whether the court of appeals erred in reversing and remanding a summary judgment granted in favor of a hospital, a doctor, and a nurse. Because the defendants' summary judgment evidence defeated causation as a matter of law, we hold that summary judgment was properly granted. Accordingly, we reverse the judgment of the court of appeals.

I.

On June 11, 1989, Lola Milo was admitted to Park Place Hospital in Port Arthur, Texas, for surgery to repair a hiatal hernia. The hernia operation was performed by Dr. Hassam Fadhli. During this operation, Dr. Fadhli inadvertently cut Milo's stomach, which required sutures to repair. After Milo was discharged from the hospital, she returned to the hospital's emergency room at least seven more times complaining of pain, breathing problems, and lack of bowel function. As a result of the complications from the hernia operation, Milo was readmitted to Park Place on July 15, 1989. It was determined that Milo's sutures had rotted, causing gangrene, and she was diagnosed as being in sepsis and resultant shock.

Dr. George Zuzukin became involved in Milo's care after she was in critical condition and on a respirator. According to Dr. Zuzukin's affidavit, breathing only with the assistance of a machine would not be beneficial to Milo in the long term, and he therefore attempted to wean her from the respirator on both July 30 and July 31. Each attempt was unsuccessful. Three days later, Dr. Zuzukin ordered the nurse in charge of Milo's care, Dorris Jones, to again attempt to wean Milo from the machine. After Nurse Jones carried out the doctor's orders, Milo went into sudden cardiac and respiratory arrest. As a result, she suffered severe brain damage and lapsed into a coma from which she never emerged. Milo was transferred to St. Luke's Hospital in Houston, where she died some four months later. The death certificate lists the immediate cause of death as ischemic brain damage, and the underlying causes of death as respiratory and cardiac arrest, abdominal sepsis, and abdominal abscess.

II.

Milo's husband, three minor children, and mother sued Park Place Hospital, Dr. Fadhli, Dr. Zuzukin, Nurse Jones, and two staff physicians--Dr. Cecil A. Walkes and Dr. Joseph N. Badlissi. Milo's survivors alleged causes of action against all the defendants under the Texas Wrongful Death Statute, TEX.CIV.PRAC. & REM.CODE §§ 71.002 & 71.004, the Texas Survival Statute, TEX.CIV.PRAC. & REM.CODE § 71.021, and general medical negligence. The plaintiffs subsequently nonsuited Dr. Fadhli, and the trial court entered an order dismissing him from the case. Dr. Badlissi was never served; Dr. Walkes was nonsuited, but no court order was entered dismissing him.

The hospital, Dr. Zuzukin, and Nurse Jones then moved for summary judgment. The trial court granted summary judgment on all claims for the hospital, Dr. Zuzukin, and Nurse Jones on September 10, 1993. Ten days after granting the summary judgment, the trial court severed all claims against these defendants from any claims against Dr. Badlissi and Dr. Walkes. The plaintiffs filed a motion for a new trial on October 11, 1993, and filed an appeal ninety-one days ¹ after the trial court rendered its order of severance.

The defendants argue that the appellate timetable ran from the issuance of the summary judgment rather than from the signing of the severance order. See TEX.R.APP.P. 41(a). We disagree. All parties and all issues before the trial court must be disposed of before a summary judgment becomes final and appealable. See Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex.1993). The summary judgment in this case did not dispose of the claims against Walkes and Badlissi, and it contained no "Mother Hubbard" clause. Thus, it was not a final, appealable order. See id. at 590-91. Although the plaintiffs had filed notice to nonsuit Walkes, the appellate timetable could not be triggered until a signed, written order of the court dismissed him. See Farmer v. Ben. E. Keith Co., 907 S.W.2d 495 (Tex.1995). Until the trial court rendered its severance order, the summary judgment for the hospital, Dr. Zuzukin, and Nurse Jones did not become final and appealable. See Mafrige, 866 S.W.2d at 591. Accordingly, the plaintiffs timely perfected their appeal.

III.

The gravamen of the plaintiffs' medical malpractice claims against Dr. Zuzukin, Nurse Jones, and the hospital was that they improperly and prematurely attempted to wean Milo from the respirator, which in turn led to the cardiac and respiratory arrest that eventually caused Milo's death. The hospital, Dr. Zuzukin, and Nurse Jones moved for summary judgment; in order to prevail, they were required to prove that there was no genuine issue as to any material fact and that they were entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c). In reviewing a summary judgment, we must accept as true evidence favoring the nonmovant, indulging every reasonable inference and resolving all doubts in the nonmovant's favor. Nixon v. Mr. Property Management, 690 S.W.2d 546, 549 (Tex.1985).

As support for their summary judgment motion, the defendants relied upon the deposition of Dr. Louis H. Roddy, a pulmonary specialist who was originally designated as an expert witness by the plaintiffs. Dr. Roddy was asked whether he could predict the chances of survival of someone in Milo's condition,...