Salas v. Gamboa, 04-88-00311-CV

• Decision Date: 30 November 1988
• Docket Number: No. 04-88-00311-CV,04-88-00311-CV
• Citation: 760 S.W.2d 838
• Parties: Roberto SALAS, Jr., and Dolores A. Salas, Individually and on Behalf of Roberto Salas III, Deceased, Appellants, v. Jose GAMBOA, M.D., Appellee.
• Court: Texas Court of Appeals

Page 838

760 S.W.2d 838

Roberto SALAS, Jr., and Dolores A. Salas, Individually and on Behalf of Roberto Salas III, Deceased, Appellants, v. Jose GAMBOA, M.D., Appellee.

No. 04-88-00311-CV.

Court of Appeals of Texas,

San Antonio.

Nov. 30, 1988.

Clem Lyons, Stephen Dittlinger, Southers & Lyons, San Antonio, for appellants.

Sharon E. Calloway, Cynthia Day King, Groce, Locke & Hebdon, San Antonio, for appellee.

Before ESQUIVEL, BUTTS and REEVES, JJ.

OPINION

BUTTS, Justice.

This is a summary judgment case. TEX.R.CIV.P. 166a. Appellants, Roberto Salas, Jr. and Dolores A. Salas, individually and on behalf of their deceased son, Roberto Salas, III, sued Jose Gamboa, M.D. and Southwest General Hospital, pursuant to TEX.REV.CIV.STAT.ANN. art. 4590i (Vernon Supp.1988). In their health care liability claim against the hospital and Dr. Gamboa, plaintiffs alleged that both were negligent in refusing to provide emergency medical care to their child, and the refusal proximately caused the death of the child and the injuries and damages sustained by plaintiffs.

The trial court granted Gamboa's motion for summary judgment and severed the case, making this judgment final.

The record discloses that the mother gave birth to the child at home attended by a midwife at 4:20 p.m., February 13, 1987. Although the baby was breathing, he did not cry. The midwife ministered to him to no avail for a few minutes, cleaned him, wrapped him, and told the father to take him to a doctor. He first took the child to Southwest General Hospital. He testified by deposition that he was refused treatment there. He then drove to a building in the next block, remembering there was a "child doctor" there. His deposition testimony reflects he first went to an office across the hall from Gamboa's but was told that the doctor was not there. He went across the hall to Gamboa's office. He stated he told the woman there that his baby was "changing color," by which was meant bluish tones of the skin, and that the baby "needed help." The woman testified, however, he did not tell her this, rather, only that he wanted the baby "checked." She stated she did not know there was an emergency. The woman, a medical technician, went into the office and told the defendant, Gamboa, that the father wanted the baby checked.

Gamboa, in deposition testimony, indicated he did not know there was an emergency. He told the medical technician he would not see the baby and he instructed that the father be told to take the baby to Santa Rosa Hospital, where there are facilities especially for treating newborn babies. The father took the baby to Santa Rosa Children's Hospital, arriving about 6:40 p.m. The baby died five days later.

Dr. Gamboa testified he never talked with the father and never saw the child. He testified that he never treated the plaintiffs or their family, that he did not know, and had never met, the father. The following exchange occurred:

Q: Did you ever agree to see Mr. Salas as a doctor to treat or see Mr. Salas or his son?

A: No.

Q: Did you ever agree to see anyone in Mr. Salas's family as a doctor?

A: No. I don't know the gentleman ... I've never seen him.

The deposition testimony of the father reflects the following:

Q: You never talked to Dr. Gamboa, did you?

A: No, ma'am, not personally.

* * *

* * *

Q: Has Dr. Gamboa ever seen you as a patient?

A: No, ma'am.

Q: Has he ever seen your son as a patient?

A: No, ma'am.

Q: And Dr. Gamboa never agreed to see your son as a patient?

A: No, ma'am.

Q: No doctor looked at your son until you reached the Santa Rosa Hospital, is that correct?

A: Correct.

Dr. Gamboa moved for summary judgment, alleging the failure of plaintiffs to show there was a physician/patient relationship existing between the father or the child upon which to predicate the action for medical malpractice. ¹ Attached to the motion as summary judgment evidence was the affidavit of Gamboa, stating that at no time did he have a doctor/patient relationship with plaintiffs or their son, that he had never met them or agreed to treat them. He stated he had never billed them for medical services provided. Further he denied that his office was an emergency room and stated he did not advertise that the general public would be treated there for emergencies. While the affidavit of the father, which was attached to the response, stressed an emergency situation, it failed to controvert the lack of a physician/patient relationship.

TEX.R.CIV.P. 166a(c) provides that the motion for summary judgment shall state the specific grounds therefor. A defendant who moves for summary judgment has the burden of showing as a matter of law that no material issue of fact exists as to the plaintiff's cause of action. Griffin v. Rowden, 654 S.W.2d 435, 435-436 (Tex.1983). It must be shown he is entitled to judgment as a matter of law. See Wilcox v. St. Mary's University of San Antonio, 531 S.W.2d 589, 592-593 (Tex.1975). The summary judgment proof must establish as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).

It is a well established principle of law that a physician is liable for malpractice or negligence only where there is a physician/patient relationship as a result of a contract, express or implied, that the doctor will treat the patient with proper professional skill, and there is a breach of professional duty to the patient. Johnston v. Sibley, 558 S.W.2d 135, 137 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.). Pinckley v. Gallegos, 740 S.W.2d 529, 531 (Tex.App.--San Antonio 1987, writ den'd), iterated the necessary elements of medical malpractice as (1) a duty of the physician to act according to a certain standard; (2) breach of the applicable standard of care; (3) injury; and (4) casual connection between the breach of care and the harm. In Hidalgo v. Surety Savings and Loan...