Schultz v. Rural/Metro Corp. of New Mexico-Texas

• Decision Date: 13 November 1997
• Docket Number: No. 14-96-01079-CV,MEXICO--TEXAS,14-96-01079-CV
• Citation: 956 S.W.2d 757
• Parties: Camelia Joyce SCHULTZ, Representative of the Estate of Philip M. Farr, Deceased, Appellant, v. RURAL/METRO CORPORATION OF NEWd/b/a American Medical Transport, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 757

956 S.W.2d 757

Camelia Joyce SCHULTZ, Representative of the Estate of Philip M. Farr, Deceased, Appellant, v. RURAL/METRO CORPORATION OF NEW MEXICO--TEXAS d/b/a American

Medical Transport, Appellee.

No. 14-96-01079-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Nov. 13, 1997.

William J. Cronin, Bruce A. Rokohl, Houston, for appellant.

Catherine Noelie Fuller, Houston, for appellee.

Before YATES, EDELMAN and O'NEILL, JJ.

OPINION

ONEILL, Justice.

Camelia Joyce Schultz, representative of the Estate of Philip M. Farr ("Schultz"), appeals from a summary judgment granted in favor of Rural/Metro Corporation of New Mexico--Texas d/b/a American Medical Transport ("AMT"), in a negligence action. Schultz contends the trial court erred in applying the absolute two-year limitations period contained in the Medical Liability and Insurance Improvement Act (hereinafter "article 4590i") because (1) the statute does not apply to her negligence claims, (2) the summary judgment proof was inadequate to show that AMT was a "health care provider" within the meaning of the statute, and (3) the statute is unconstitutional as applied to her claims.Finding AMT's summary judgment proof insufficient to invoke the article 4590i limitations period, we reverse the judgment of the trial court and remand for further proceedings.

Background

At the time of the incident giving rise to this suit, Philip M. Farr was a seventy-five year old, terminally ill cancer patient undergoing radiation therapy at Peakwood Rehabilitation Center ("Peakwood") in Houston, Texas. Because he needed assistance getting to Peakwood from the hospital, his wife arranged for AMT, a private ambulance company, to transport him. On March 3, 1993, while being transported to Peakwood, Farr fell from the stretcher and suffered injuries. Although he died six days later, it is undisputed that Farr's death was related to the cancer and not to the fall.

On December 1, 1995, Schultz filed suit against AMT for negligence. AMT successfully moved for summary judgment on the ground that Schultz's claims were barred by article 4590i's two-year limitations period. See TEX.REV.CIV. STAT. ANN. art. 4590i, § 10.01 (Vernon Supp.1997). Schultz concedes that if article 4590i applies, her claims are time barred. Conversely, AMT does not dispute that if article 4590i does not apply, Schultz's claims are timely under the tolling provisions of § 16.062(a) of the Texas Civil Practice & Remedies Code. ¹ See TEX. CIV. PRAC. & REM.CODE ANN. § 16.062(a) (Vernon 1997). Consequently, we must determine whether AMT established as a matter of law that article 4590i applies to Schultz's claims.

Standard of Review

The appropriate standard to be followed when reviewing a summary judgment is well-established. The movant has the burden to show that there exist no genuine issues of material fact and that it is entitled to judgment as a matter of law. See Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985); Karl v. Oaks Minor Emergency Clinic, 826 S.W.2d 791, 794 (Tex.App.--Houston [14th Dist.] 1992, writ denied). In determining whether there is a material fact issue that would preclude summary judgment, evidence favorable to the nonmovant will be taken as true, and every reasonable inference must be indulged in its favor. See id. A defendant moving for summary judgment on an affirmative defense must expressly present and conclusively prove all essential elements of that defense as a matter of law; there can be no genuine issues of material fact. See Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). The movant asserting limitations as the basis for summary judgment assumes the burden to show as a matter of law that the suit is time barred. See Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983); Kyle v. West Gulf Maritime Ass'n, 792 S.W.2d 805, 808 (Tex.App.--Houston [14th Dist.] 1990, no writ).

Discussion

To invoke the article 4590i limitations provision, AMT must show that Schultz's cause of action is a "health care liability claim" as defined in section 1.03(a)(4). See TEX.REV.CIV. STAT. ANN. art. 4590i, § 1.03(a)(4) (Vernon Supp.1997). That section defines a "health care liability claim" as

a cause of action against a health care provider or a physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety....

Id. (emphasis added). A "health care provider" is defined as any person, partnership, professional association, corporation, facility, or institution duly licensed or chartered in the State of Texas to provide health care as a registered nurse, hospital, dentist, podiatrist, pharmacist, or nursing home, or an officer, employee, or agent thereof acting in the course and scope of his employment.

Id. § 1.03(a)(3) (emphasis added).

AMT does not itself purport to be a "physician" or "health care provider," but claims to be an agent of its Medical Director, Dr. Smith, a physician, and thus to fit within the section 1.03(a)(3) definition of a "health care provider." AMT's argument presupposes that a "physician" is impliedly subsumed within the section 1.03(a)(3) definition of a "health care provider," and that therefore agents of physicians may also be considered "health care providers." Even assuming, without deciding, the validity of AMT's presumption, ² we do not believe AMT met its summary judgment burden to establish an agency relationship under the statute.

An agency is the consensual relationship between two parties where one, the agent, acts on behalf of the other, the principal, and is subject to the principal's control. See Lone Star Partners v. NationsBank Corp., 893 S.W.2d 593, 599 (Tex.App.--Texarkana 1994, writ denied). An agency relationship will not be presumed, and the party asserting the relationship has the burden to prove its existence. See Johnson v. Owens, 629 S.W.2d 873, 875 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.). In proving the existence of an agency relationship, it is essential to show that the alleged principle has both the right (1) to assign the agent's task, and (2) to control the means and details of the process by which the agent will accomplish the assigned task. Id. (citing New Terminal Warehouse Corp. v. Wilson, 589 S.W.2d 465 (Tex.Civ.App.--Houston [14th Dist.] 1979), writ ref'd n.r.e. per curiam, 605 S.W.2d 855 (Tex.1980). An agency relationship may be shown by direct testimony or by circumstantial evidence showing "the relationship of the parties and their conduct concerning the transaction at hand." Spangler v. Jones, 861 S.W.2d 392, 397 (Tex.App.--Dallas 1993, writ denied) (citing Kirby Forest Indus., Inc. v. Dobbs, 743 S.W.2d 348, 356 (Tex.App.--Beaumont 1987, writ denied)).

To establish that its employees (John Conyers and Barbara Thomas) were acting as agents of Dr. Smith while transporting Farr, AMT offered the affidavits of the following AMT employees, none of whom were involved in the actual transport: (1) Tim Brumm, Central Texas Area Manager, (2) Patty Nateghi, Communications Supervisor, and (3) Robert E. Underdown, Director of Risk Management. ³ Those affidavits, in pertinent part, contain the following statements:

Tim Brumm:

4. [AMT] fully consented to the fiduciary and agency relationship with its Medical Director, Dr. Smith, who was licensed to practice medicine in the state of Texas on March 3, 1993.

5. On March 3, 1993, [AMT] and its employees, including John Conyers and Barbara Thomas, acted as agents for Dr. Smith under his control, supervision, medical protocols, medical direction, and Texas license to practice medicine.

6. Through this agency relationship, [AMT] provided health care to the patients it treated and transported.

Patty Nateghi:

6. [AMT] was Dr. Smith's agent under the consensual working relationship on March 3, 1993.

7. [AMT] provided health care to patients while working as Dr. Smith's agent under his medical direction, medical protocols, supervision, control and Texas medical license.

Robert Underdown:

6. Under the agreed and consensual working relationship, [AMT] was at all times, including March 3, 1993, providing health care to patients as Dr. Smith's agent, acting under his control, medical protocols, supervision, medical direction, and Texas license to practice medicine.

It is undisputed that the foregoing affiants are interested witnesses. Consequently, to support summary judgment, the evidence presented in their affidavits must be "clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and [capable of being] readily controverted." TEX.R. CIV. P. 166a (c); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991). Moreover, the summary judgment affidavits must set forth "such facts as would be admissible in evidence," not mere conclusions. TEX.R. CIV. P. 166a(f); Crain v. Davis, 417 S.W.2d 53, 55 (Tex.1967).

AMT's summary judgment affidavits present no evidence of a consensual relationship with Dr. Smith, his right to assign the tasks of AMT's employees, or his right to control the means and details of the process by which those employees would accomplish those tasks. See Johnson, 629 S.W.2d at 875. Neither do the affidavits present evidence of the parties' conduct from which we might imply these elements. See Spangler, 861 S.W.2d at 397. The mere appointment of Dr. Smith as AMT's Medical Director, absent evidence of the nature of the relationship or the doctor's control, is insufficient to support a finding of agency. See Thompson v. Schmitt, 115 Tex. 53, 274 S.W. 554, 557 (1925). Self-serving statements by interested witnesses as to what they knew or intended are not easily controverted and will not support a motion for summary judgment. See Allied Chem. Corp. v. De Haven, 752 S.W.2d 155, 158 (Tex.App.--Houston [14th Dist.] 1988, writ denied). Testimony comprised only of legal conclusions is insufficient to support summary judgment as a matter...