Wheeler v. Methodist Hosp.

• Court: Texas Court of Appeals
• Writing for the Court: Lee Duggan, Jr.
• Citation: Wheeler v. Methodist Hosp., 95 S.W.3d 628 (Tex. App. 2002)
• Decision Date: 19 December 2002
• Docket Number: No. 01-98-00922-CV.,01-98-00922-CV.
• Parties: James M. WHEELER, M.D., Appellant, v. THE METHODIST HOSPITAL, Appellee.

95 S.W.3d 628

James M. WHEELER, M.D., Appellant, v. THE METHODIST HOSPITAL, Appellee.

No. 01-98-00922-CV.

Court of Appeals of Texas, Houston (1st Dist.).

December 19, 2002.

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Bobbie G. Bayless, Spencer Warren Creed, Houston, for Appellant.

Kenneth E. Broughton, Houston, for Appellee.

Panel consists of Justices HEDGES,^* NUCHIA and DUGGAN.^**

OPINION ON REHEARING

LEE DUGGAN, JR., Justice (Retired).

Appellant's motion for rehearing is denied, the opinion issued in this case on December 28, 2000 is withdrawn, and the following opinion is issued in its place, changing our treatment of appellant's issues on discovery (one, two, three, five, and six) and immunity (seven).

Appellant, James M. Wheeler, M.D., appeals a summary judgment in favor of appellee, The Methodist Hospital. We reverse and remand.

I. Factual Background

Wheeler is a physician specializing in obstetrics and gynecology. From approximately July 1988 until March 1995, he had privileges to practice at Methodist. During this time, Wheeler entered into a practice improvement plan (PIP) that restricted his practice. As part of the PIP, he was required to consult with certain doctors in connection with his treatment of patients. In March 1995, Wheeler performed a successful outpatient procedure, after which the patient requested to go home. When Wheeler attempted to contact certain physicians for consultation (to comply with the PIP), his calls were not returned. Rather than wait for a returned phone call from one of these physicians while the patient remained in the hospital, Wheeler allowed the patient to go home as requested. Shortly thereafter, on March 17, 1995, Wheeler was contacted by telephone by Drs. David Zepeda and Terry Simon. (Dr. Zepeda was the acting chief of staff because the chief of staff, Dr. Joe Leigh Simpson, was out of town.) Later that same day, Wheeler voluntarily resigned from Methodist. The substance of the telephone conversation between Wheeler, Zepeda, and Simon is disputed — Wheeler said they informed him that he would be suspended when Dr. Simpson returned from out of town because, by discharging his patient before obtaining a consultation, he did not comply with the PIP; Drs. Zepeda and Simon said they informed Wheeler that he was suspended.

On March 24, 1995, Methodist notified Wheeler by letter that his voluntary resignation had been received. The letter stated:

This will serve as official notification of the acceptance of your voluntary resignation from the Medical Staff of The Methodist Hospital, notice of which was received in the Hospital's Medical Staff Services Department at 3:30 p.m., on Friday March 17, 1995.

Please be advised that as your Medical Staff membership and clinical privileges were suspended at the time of your resignation, the Hospital will list your status as suspended, until final approval of your deletion from the Medical Staff by the Board of Directors, whose next meeting is scheduled for Wednesday, July 26, 1995.

As you voluntarily resigned while under investigation, the Hospital, as required, will report this action to the National Practitioner Data Bank through the Texas State Board of Medical Examiners.

Should you have any questions, please feel free to contact Mrs. Jane B. Lee, Senior Vice President, or Mrs. Claire Reid, Manager, Medical Staff Services.

(Emphasis added).

As stated in the letter to Wheeler, Methodist issued an adverse action report (the "Report") to the National Practitioner Data Bank ("the Data Bank").¹ The Report, which identifies Methodist as the reporting entity and the individual submitting the report as Claire W. Reid (the manager of Methodist's medical staff services), provides as follows:

Date of the Report: 03/20/95

Report Type: Unknown

Type of Action Taken: Clinical Privileges (C)

Action Classification: VOL SURR OF PRIV: OTHER (63590)

Date of the Action: 03/17/95

Length of Action: PERMANENT Effective Date: 03/17/95

Reporter's Description of Action: On 3/17/95, James M. Wheeler, M.D., was summarily suspended for failure to adhere to the terms of a practice improvement plan (PIP). The PIP was developed based on concerns identified by the serviceQM [sic] committees during intensive review of his cases. Concerns included: performing cystoscopies without delineated privileges; frequent lavh [sic] complications; failure to secure timely surgical consults; questionable indications for induction of labor; unusual forcepts [sic] complications; failure to respond to emergency calls; following notice of suspension, Dr. Wheeler resigned later that same day.

Wheeler, however, claims the statement in the Report that he was "summarily suspended for failure to adhere to the terms of a PIP" is false.

II. Procedural History

On November 13, 1996, Wheeler filed suit against Methodist alleging defamation and business disparagement.² Methodist responded with a general denial and the affirmative defenses of (1) the statute of limitations, (2) statutory privileges under the Texas Medical Practice Act (TMPA), article 4495b of the Texas Revised Civil Statutes,³ and the Health Care Quality Improvement Act (HCQIA), 42 U.S.C.A. §§ 11101-52, and (3) Texas common law privileges. Based on these same affirmative defenses, Methodist also filed a motion for summary judgment under Rule 166a(b).⁴ The trial court granted summary judgment in favor of Methodist without stating the precise grounds for its decision.

Wheeler appealed the summary judgment. After reviewing the appeal, this Court determined that the judgment, which lacked a "Mother Hubbard clause," did not dispose of Wheeler's disparagement claim. Because Methodist did not challenge Wheeler's claim for business disparagement in its motion for summary judgment, we determined the summary judgment was interlocutory and abated the appeal with instructions that Wheeler show us within 60 days that the business disparagement claim was disposed of, or the appeal would be dismissed for want of jurisdiction. Wheeler obtained a severance of the business disparagement claim within the requisite time period, rendering the summary judgment final for the purposes of this appeal. Thus, Wheeler's only claim before us on appeal is for defamation.

III. Standard of Review

Summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Marchal v. Webb, 859 S.W.2d 408, 412 (Tex.App.-Houston [1st Dist.] 1993, writ denied). A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff's causes of action or if the evidence establishes an affirmative defense as a matter of law. Johnson, 891 S.W.2d at 644; Marchal, 859 S.W.2d at 412. Once the movant has established a right to a summary judgment, the burden shifts to the nonmovant, who must respond and present any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Marchal, 859 S.W.2d at 412.

On appeal, we cannot consider any ground for reversal that was not expressly presented to the trial court by written motion, answer, or other response to the motion for summary judgment. Clear Creek Basin Auth., 589 S.W.2d at 677; Hussong v. Schwan's Sales Enter., Inc., 896 S.W.2d 320, 323 (Tex.App.-Houston [1st Dist.] 1995, no writ). We will affirm the summary judgment if any theory advanced in the motion for summary judgment is meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996); Cigna Ins. Co. v. Rubalcada, 960 S.W.2d 408, 411 (Tex.App.-Houston [1st Dist.] 1998, no pet.).

Methodist argued in the trial court that it was entitled to summary judgment because: (1) Wheeler's defamation claim was barred by the statute of limitations; (2) Methodist was entitled to statutory immunity for its actions; and (3) Methodist's communications were privileged. On appeal, Wheeler asserts in his first three issues that the trial court erred in denying his motion to compel the production of discovery.⁵ In his fourth through ninth issues, Wheeler asserts the trial court improperly granted summary judgment in favor of Methodist.

IV. Analysis

We need not determine whether the trial court erred in denying Wheeler's discovery requests if Methodist was entitled to summary judgment as a matter of law based on any of its affirmative defenses. Therefore, we begin our analysis with Wheeler's fourth issue.

A. Issue four — Whether Wheeler's claim is barred by limitations.

Methodist argued in its summary judgment motion that it was entitled to summary judgment as a matter of law, because: (1) Wheeler's defamation claim was filed after the one-year statute of limitations expired; (2) the discovery rule did not apply to toll the limitations period; or (3) if the discovery rule did apply, Wheeler did not exercise reasonable care and diligence to discover the nature of his injury. In his fourth issue, Wheeler argues the trial court erred in granting summary judgment because Wheeler's claim is not barred by limitations, or, alternatively, because there is a genuine issue of material fact regarding the discovery rule exception.

1. Accrual in a defamation cause of action

When the statute of limitations expired depends on when Wheeler's cause of action accrued. Generally, a defamation claim accrues when the matter is published or circulated. Roe v. Walls Regional Hosp., Inc., 21 S.W.3d 647, 651 (Tex.App.-Waco 2000, no pet.). However, the discovery rule applies to a defamation claim if the matter is not public knowledge. Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 394 (Tex.App.-Houston [1st Dist.] 1993, writ dism'd w.o.j.); see Kelley v. Rinkle, 532 S.W.2d 947, 949 (Tex.1976). When...