Wilson v. Winsett
| Decision Date | 25 March 1992 |
| Docket Number | No. 07-90-0271-CV,07-90-0271-CV |
| Citation | 828 S.W.2d 231 |
| Parties | Kathryn WILSON, Individually and as Executrix of the Estate of Gerela Standifer, Deceased, and Melisha Sell, Deborah Wells and Dane Ballew, Appellants, v. Merrill WINSETT, M.D., Appellee. |
| Court | Texas Court of Appeals |
John Judge, Amarillo, for appellants.
Gibson, Ochsner & Adkins, Thomas C. Riney and Kenneth S. Muncy, Amarillo, for appellee.
Before REYNOLDS, C.J., and BOYD and POFF, JJ.
In this medical malpractice action, the trial court rendered a take-nothing summary judgment upon concluding as a matter of law that Doctor Merrill Winsett, who examined Gerela Standifer at the request of the Texas Rehabilitation Commission so it could determine her rehabilitative potential, had no duty to inform her of, nor injured her by not disclosing, a particular finding in his examination. Agreeing, we will affirm.
When Gerela Standifer applied for Social Security disability benefits, the Texas Rehabilitation Commission requested that Doctor Merrill Winsett examine her for the purpose of furnishing to the Commission his opinion of her rehabilitative potential. By an appointment made by the Commission, Mrs. Standifer appeared for, and Doctor Winsett performed, the examination. During his examination, the doctor found, recorded, and included in his report to the Commission without elaboration or recommendation, the presence of a three centimeter hilar mass on Mrs. Standifer's right lung. Mrs. Standifer, who was treated by other doctors before and after Doctor Winsett's examination, did not request, nor did the doctor give her, any report of the examination.
Approximately four months later, another physician discovered that the mass, alleged to be consistent with bronchogenic carcinoma, had increased in size. Almost a year afterward, Mrs. Standifer died.
Kathryn Wilson, individually and as Executrix of the Estate of Gerela Standifer, Deceased, Melisha Sell, Deborah Wells, and Dane Ballew, collectively referred to as the executrix for simplicity, brought this medical malpractice suit against Doctor Winsett. The executrix alleged a physician-patient relationship was established by the doctor and the decedent by their conduct, and the doctor was negligent in breaching his duty to, in brief, inform the decedent of the presence of the hilar mass on her lung, resulting in her not seeking treatment for the carcinogenic mass which was the proximate cause of her death. Alternatively, the executrix alleged that Doctor Winsett owed the decedent a duty to conduct the examination in a manner not to cause harm to her, and that she was injured by the doctor's failure to warn, disclose, or advise her of the mass.
After answering, Doctor Winsett moved for summary judgment on the ground that no physician-patient relationship ever existed between him and the decedent and, therefore, as a matter of law, no duty of care arose between them. The executrix responded, urging unresolved fact issues regarding the physician-patient relationship and the doctor's duty resulting therefrom, and concerning his duty not to cause her harm.
Following a hearing, the trial court rendered a take-nothing summary judgment. The executrix challenges the judgment on two points of error, contending the court erroneously held (1) there was not a physician-patient relationship and Doctor Winsett owed no duty of ordinary care to the decedent, and (2) there was no injury to the decedent by the doctor.
At the outset, the executrix candidly concedes no disagreement with the law that a physician is liable for malpractice or negligence only when 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. Salas v. Gamboa, 760 S.W.2d 838, 840 (Tex.App.--San Antonio 1988, no writ); Johnston v. Sibley, 558 S.W.2d 135, 137 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.). The Johnston court held
that where a doctor, as here, conducts an examination of an injured employee solely for the purpose of evaluating the employee's disability for the insurance carrier after a claim for workmen's compensation has been filed, and the doctor neither offers nor intends to treat, care for or otherwise benefit the employee and does not injure him during the course of the examination, the doctor is not liable for negligence in a suit for medical malpractice. His duty to use a professional...
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