Praesel v. Johnson
| Decision Date | 01 February 1996 |
| Docket Number | No. 13-93-581-CV,13-93-581-CV |
| Parties | Stan PRAESEL and Louise Herbert, Appellants, v. Raymond JOHNSON, M.D., Stephen P. Waller, M.D., Sadler Clinic Association, and Hans Wendenburg, M.D., Appellees. |
| Court | Texas Court of Appeals |
M. Karinne McCullough, Giessel, Barker & Lyman, Houston, John D. Ellis, Jr., Houston, Tina VanDalsem Snelling, Marilyn Kulifay, Hirsch, Robinson, Sheiness & Glover, Houston, for appellees.
On appeal from the 334th District Court of Harris County, Texas.
Before FEDERICO G. HINOJOSA, Jr., CHAVEZ and SAM BASS, 1 JJ.
This is an appeal from take-nothing summary judgments in a lawsuit asserting a survival action and wrongful-death claims. Appellants, Stan Praesel and Louise Herbert, sued appellees, Raymond Johnson, M.D., Stephen P. Waller, M.D., Hans Wendenburg, M.D., and the Sadler Clinic Association, after Terri Lynn Praesel was killed in a traffic accident. The accident occurred when Ronald Peterson, an epileptic, lost control of his car after suffering a grand mal seizure while driving on a public highway. Each of the appellees was engaged in some aspect of Peterson's medical treatment. Appellants alleged that appellees had negligently failed 1) to warn Peterson not to drive, 2) to report Peterson's condition to the Texas Medical Advisory Board, and 3) to protect the driving public from Peterson's condition.
The appellees each moved for summary judgment on the ground that they breached no duty imposed by Texas law. The trial court granted a take-nothing summary judgment in favor of each appellee.
By their first point of error, appellants contend that the trial court erred in concluding that physicians owe the public no duty to warn epileptic patients not to drive. By their second point of error, appellants complain that the trial court dismissed the entire case without addressing their claim that Peterson's medical treatment "was below the reasonable medical standard of care for epileptics."
The accident occurred on February 4, 1991, and Terri Lynn Praesel died on that day. As summary judgment evidence, Johnson, Waller, and the Sadler Clinic attached affidavits stating that Peterson last reported seizure activity to them in 1986. These affidavits establish that Johnson, Waller, and the Sadler Clinic had no knowledge that Peterson suffered any seizures during the four-year period preceding the collision made the basis of this suit. Appellants did not controvert this evidence.
In his motion for summary judgment, Wendenburg admitted that Peterson had informed him of a seizure that occurred ten months before the traffic accident. However, Wendenburg testified by affidavit and deposition that he specifically warned Peterson not to drive. Appellants controverted Wendenburg's affidavit and deposition testimony with affidavits from Peterson and his wife. That fact issue is immaterial to this appeal, however, because Wendenburg moved for summary judgment on the sole ground that he owed appellants no duty to warn Peterson not to drive. The existence of a duty is a threshold question that may preempt the need to determine whether the standard of care was breached. See St. John v. Pope, 901 S.W.2d 420, 424 (Tex.1995). Because the summary judgments involved in this case were based solely on the absence of a legal duty, the issue of whether Wendenburg warned Peterson not to drive is not properly under consideration.
By their first point of error, appellants contend that the trial court erred in concluding that physicians owe the public no duty to warn epileptic patients not to drive. Appellants argue that physicians owe the driving public a duty to warn epileptic patients not to drive.
Whether appellees owed a duty to appellants to warn Peterson not to drive is a question of law. See SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 351 (Tex.1995). Appellants, relying chiefly on Gooden v. Tips, 651 S.W.2d 364 (Tex.App.--Tyler 1983, no writ), argue that Texas law recognizes a physician's duty to warn certain patients not to drive.
The Gooden case arose from a traffic accident caused when one of Dr. Tips' patients lost control of her car while driving under the influence of Quaaludes that Dr. Tips had prescribed. Gooden alleged that Dr. Tips was aware that his patient had a long history of abusing drugs and could not be expected to take her medication as prescribed. Gooden also asserted that Dr. Tips deviated from the customary standards of medical care by prescribing Quaaludes and by failing to warn his patient not to drive while under the drug's influence. Id. at 365. Based on the undisputed lack of a doctor-patient relationship between Gooden and Dr. Tips, the trial court granted summary judgment in favor of Dr. Tips. Id. at 366.
Reversing the trial court's summary judgment, the Gooden court held that "under proper facts, a physician can owe a duty to use reasonable care to protect the driving public where the physician's negligence in diagnosis or treatment of his patient contributes to plaintiff's injuries." Id. at 369. The court concluded that Gooden's petition alleged facts that might support a determination that Dr. Tips' was guilty of " 'misfeasance' as opposed to 'nonfesance.' " Id. at 370 n. 3. Accordingly, the basis for any liability to the driving public under Gooden must involve the defendant doctor's "misfeasance" rather than "merely failing to confer a benefit upon" the driving public. Id. (quoting Prosser, Handbook of the Law of Torts, § 56, at 339-40 (4th ed. 1971)).
This duty was further discussed in Flynn v. Houston Emergicare, Inc., 869 S.W.2d 403 (Tex.App.--Houston [1st Dist.] 1993, writ denied). The Flynn case arose from a traffic accident involving a patient who was driving home from treatment at an Emergicare clinic. Id. at 404. The patient in Flynn drove himself to the clinic, where he sought treatment for chest pains. After determining that the patient's complaints were the result of cocaine use, the Emergicare doctor prescribed medication to slow the patient's heart rate and lower his blood pressure. The Emergicare doctor then released the patient without warning him not to drive. Id.
Flynn asserted that Emergicare had negligently failed 1) to fully diagnose and monitor the patient's condition, 2) to admit the patient to a hospital for observation and then assure his safe return from the hospital, and 3) to warn the patient not to drive. Id. at 404-05. Flynn supported these allegations of negligence with the affidavit of a doctor who stated that he would have warned the patient not to drive. Flynn did not, however, assert that the administration of any drug or other affirmative act by the Emergicare doctor created the impairment that resulted in the traffic accident. Id. at 405.
The Flynn court discussed the earlier Gooden case in its opinion. The Flynn court focused on the aspect of the Gooden decision, characterizing Gooden's allegation against Dr. Tips as a claim of misfeasance rather than nonfeasance. Flynn, 869 S.W.2d at 405-06. Based on that distinction, the Flynn court concluded that the Emergicare doctor was guilty only of nonfeasance because the doctor did not create the cocaine impairment that resulted in the accident. Consequently, the Flynn court held that Emergicare owed the public no duty to warn its patient not to drive following the patient's use of cocaine. Id. at 406.
Under Gooden and Flynn, a physician only has a duty to the public to warn his patients not to drive when it is the doctor's actions that have threatened the public's interest. This duty does not require a physician to warn his patient not to drive when the doctor's actions have merely failed to confer a beneficial safeguard that might have protected the driving public.
In the instant case, appellants do not allege that appellees created Peterson's epilepsy or caused the seizure that resulted in the traffic accident which killed Mrs. Praesel. Instead, appellants complain that appellees' nonfeasance caused Mrs. Praesel's death. Our research has shown that neither Gooden nor Flynn nor any other Texas authority has imposed such a duty on physicians. Whether this court should be the first in Texas to recognize such a duty requires consideration of several "factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant." Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). We may also take into account the law of other states. SmithKline Beecham, 903 S.W.2d at 351.
Appellants cite us to the Iowa case of Freese v. Lemmon, 210 N.W.2d 576 (Iowa 1973), which recognizes that the public is the beneficiary of a physician's duty to warn epileptic patients not to drive. Like the instant case, the Freese suit was based on an allegation that the plaintiffs' injuries were caused when a driver suffered a seizure and lost control of his car. The Freeses sued the driver and the driver's doctor. In their pleading, the Freeses alleged that the driver consulted the doctor for diagnosis and treatment of seizures less than three months before the driver had the seizure that caused the Freeses' injuries. Id. at 578. The Freeses alleged that the doctor was negligent 1) in his diagnosis and treatment of the driver and 2) in advising the driver that he could drive or in failing to warn the driver not to drive. Id. Under these circumstances, the Iowa Supreme Court held that the Freeses had not failed "to state a claim on which any relief may be granted under any state of facts which could be proved." Id. at 580.
The facts underlying appellants' claim against Johnson, Waller, and the Sadler Clinic are...
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