Ricky v. Franklin

• Decision Date: 09 November 2010
• Docket Number: No. 05-08-00011-CV.,05-08-00011-CV.
• Citation: 325 S.W.3d 771
• Parties: Ricky and Janice TURNER, Individually and as next friend of K.M.T., a Minor, Appellants, v. Jonathan FRANKLIN, M.D. and Evan Cohn, M.D., Appellees.
• Court: Texas Court of Appeals

325 S.W.3d 771

Ricky and Janice TURNER, Individually and as next friend of K.M.T., a Minor, Appellants,

v.Jonathan FRANKLIN, M.D. and Evan Cohn, M.D., Appellees.

No. 05-08-00011-CV.

Court of Appeals of Texas,Dallas.

Aug. 13, 2010.

Rehearing Overruled Nov. 9, 2010.

COPYRIGHT MATERIAL OMITTED.

Kirk L. Pittard, Durham & Pittard, LLP, Dallas, TX, for Appellants.

Vernon L. Krueger, Stewart & Stimmel, LLP, R. Brent Cooper, Diana L. Faust, Cooper & Scully, P.C., Ty Bailey, Stinnett Thiebaud & Remington, L.L.P., Dallas, TX, for Appellees.

Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.

OPINION

Opinion By Justice MOSELEY.

For some health care liability claims arising from the provision of “emergency medical care,” the claimant must show by a preponderance of the evidence that the defendant deviated from the applicable standard(s) of care “with wilful and wanton negligence.” See Tex. Civ. Prac. & Rem.Code Ann. § 74.153 (Vernon 2005). ¹ The issues before us on this appeal are: (1) do the plaintiffs' health care liability claims arise from the provision of “emergency medical care” within the meaning of section 74.153; and, if the answer to that question is “yes,” then (2) what does “wilful and wanton negligence” mean; (3) can the issue of “wilful and wanton negligence” ever be disposed of through summary judgment; and (4) was it properly disposed of by summary judgment here.

This lawsuit arises out of the medical care that K.M.T., the fourteen-year-old son of appellants Ricky and Janice Turner, received in the emergency department of Presbyterian Hospital in Allen. Even though the summary judgment evidence indicates K.M.T.'s condition was diagnosed and treated as a non-emergency, we conclude the Turners' claims arise from the provision of “emergency medical care” within the meaning of section 74.153. ² We also conclude that in the context of section 74.153, “wilful and wanton negligence” means “gross negligence.” Finally, after reviewing the summary judgment evidence, we affirm the trial court's no-evidence summary judgment as to appellee Evan Cohn, M.D., reverse the trial court's traditional summary judgment as to appellee Jonathan Franklin, M.D., and remand the case for further proceedings.

Background

Shortly after midnight on April 3, 2003, K.M.T. awoke with sudden and severe pain in his lower left abdominal region and swelling in his left testicle. His parents took him to the emergency department of Presbyterian Hospital in Allen. The nurse's notes indicate K.M.T. described his symptoms as nausea and a pain level of “10” on a scale of one to ten. K.M.T. was examined by Franklin, an emergency department physician, who suspected K.M.T. had either testicular torsion or epididymitis. Testicular torsion is a condition whereby the testicle becomes twisted on its own spermatic cord and, if not treated within four to six hours, the testicle will die. Epididymitis is inflammation of the epididymis; it has many of the same symptoms as torsion but is not considered an emergency condition and is treated with antibiotics.

Franklin ordered pain medication for K.M.T. and a scrotal ultrasound in an effort to rule out torsion. A technician performed the ultrasound and called Cohn, the radiologist on call that night, at home to review the images. She told Cohn she observed arterial blood flow in both testicles and she did not see evidence of torsion. After reviewing the ultrasound images from his home, Cohn faxed a report to the emergency department; the report stated K.M.T. had epididymitis with no evidence of torsion. Based on his examination of K.M.T. and his review of Cohn's report, Franklin diagnosed K.M.T. with epididymitis, prescribed pain medication and antibiotics, and discharged him at approximately 3:45 a.m.

K.M.T. sought medical treatment for the same complaint over the next several days. He saw his pediatrician twice and also returned to the same emergency department. Each time, the diagnosis of epididymitis was confirmed, and K.M.T. was released. When the symptoms did not improve, K.M.T. returned to his pediatrician on April 9, 2003. The pediatrician ordered a new ultrasound. The radiologist who reviewed the new ultrasound noted a “left testicular tumor.” Based on the results of this new ultrasound, K.M.T.'s pediatrician referred him to a urologist, Dr. William Strand.

Strand saw K.M.T. the same day. Strand's impression was that K.M.T. did not have a testicular tumor, but, instead, had testicular torsion. Strand performed left scrotal exploratory surgery that same day and found and removed a torsed, nonviable left testicle.

The Turners filed suit asserting health care liability claims against Franklin and Cohn. They alleged: (1) Cohn incorrectly interpreted the scrotal ultrasound as being consistent with epididymitis with no evidence of torsion; and (2) Franklin failed to consult a urologist and incorrectly diagnosed epididymitis instead of testicular torsion.

Franklin and Cohn moved for traditional summary judgment, see Tex.R. Civ. P. 166a(c), arguing the evidence proved as a matter of law that their conduct did not rise to the level of willful and wanton negligence, as required by section 74.153. Cohn also filed a no-evidence motion for summary judgment, see Tex.R. Civ. P. 166a(i), arguing the Turners could not present sufficient evidence to raise a genuine issue of fact that he acted with willful and wanton negligence.

In response, the Turners argued that section 74.153 did not apply because appellees did not render “emergency medical care” to K.M.T. as defined by the statute. They also argued that whether a physician was willfully and wantonly negligent is a matter that can only be determined by the jury and is never an appropriate issue for summary judgment. Further, they argued the summary judgment evidence did not disprove willful and wanton negligence as a matter of law and that they raised a genuine issue of material fact on the element of willful and wanton negligence.

The trial court granted appellees' motions and rendered final judgments in favor of each appellee. ³ The Turners appeal.

Standards of Review

We review a summary judgment de novo. Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex.2007). When we review a traditional summary judgment in favor of a defendant, we determine whether the defendant conclusively disproved an element of the plaintiff's claim or conclusively proved every element of an affirmative defense.

Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Smith v. Deneve, 285 S.W.3d 904, 909 (Tex.App.-Dallas 2009, no pet.); see also Tex.R. Civ. P. 166a(c). We take evidence favorable to the non-movant as true, and we indulge every reasonable inference and resolve every doubt in favor of the non-movant. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994).

When we review a no-evidence summary judgment, we inquire whether the non-movant adduced sufficient evidence to raise a genuine issue of fact on the challenged elements. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.); see also Tex.R. Civ. P. 166a(i). All conflicts in the evidence are disregarded, and the evidence that tends to support the non-movant is accepted as true. Connor v. Waltrip, 791 S.W.2d 537, 539 (Tex.App.-Dallas 1990, no writ). A no-evidence motion for summary judgment should be denied if the evidence is sufficient for reasonable and fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.2008) (per curiam). On the other hand, if the evidence is so weak as to create only a mere surmise or suspicion of a fact's existence, the evidence is in legal effect “no evidence,” and summary judgment is proper. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004); Smith, 285 S.W.3d at 909.

Discussion

A. Does Section 74.153 Apply?

Section 74.153 governs health care liability claims for injuries or death arising from the provision of “emergency medical care” in a hospital emergency department, or in an obstetrical unit or surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department. It provides that, for such claims, the claimant

may prove that the treatment or lack of treatment by the physician or health care provider departed from accepted standards of medical care or health care only if the claimant shows by a preponderance of the evidence that the physician or health care provider, with wilful and wanton negligence, deviated from the degree of care and skill that is reasonably expected of an ordinarily prudent physician or health care provider in the same or similar circumstances.

Tex. Civ. Prac. & Rem.Code Ann. § 74.153 (emphasis added).

In their first issue, the Turners assert section 74.153 does not apply to their claims because appellees did not provide “emergency medical care.” As stated in the Turners' brief: “Because Dr. Franklin diagnosed a non-emergency condition and treated [K.M.T.'s] condition in a non-emergent manner, Franklin cannot now take advantage of the protections in section 74.153 concerning the provision of emergency care which he did not provide.” ⁴

1. “Emergency Medical Care”

The statutory definition of “emergency medical care” as used in section 74.153 comprises two elements: (1) the type of care provided (i.e., “bona fide emergency services”), and (2) the circumstances under which those services are provided. Specifically, the legislature defined “emergency medical care” as

bona fide emergency services provided after the sudden onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part....

Tex. Civ. Prac. &...