Wisenbarger v. Gonzales Warm Springs Rehabilitation Hosp., Inc.

• Decision Date: 03 May 1990
• Docket Number: No. 13-89-226-CV,13-89-226-CV
• Citation: 789 S.W.2d 688
• Parties: Leland WISENBARGER, Appellant, v. GONZALES WARM SPRINGS REHABILITATION HOSPITAL, INC., Appellee.
• Court: Texas Court of Appeals

Page 688

789 S.W.2d 688

Leland WISENBARGER, Appellant, v. GONZALES WARM SPRINGS REHABILITATION HOSPITAL, INC., Appellee.

No. 13-89-226-CV.

Court of Appeals of Texas Corpus Christi.

May 3, 1990.

Rehearing Overruled May 17, 1990.

William J. Tinning, Law Office of William J. Tinning, Corpus Christi, for appellant.

Peter R. Meeker, Kevin A. Reed, Davis & Davis, Austin, for appellee.

Before NYE, C.J., and BENAVIDES and KENNEDY, JJ.

OPINION

BENAVIDES, Justice.

Leland Wisenbarger appeals a take-nothing judgment in his suit for medical negligence against Gonzales Warm Springs Rehabilitation Hospital, Inc. By six points of error, Wisenbarger contends that the trial court erred in including an instruction on unavoidable accident in the jury charge and in granting an interlocutory summary judgment for Warm Springs on his Deceptive Trade Practices Act (DTPA) cause of action. We affirm the judgment of the trial court.

Wisenbarger broke his back and severed his spine when he was thrown from his motorcycle after colliding with an automobile, rendering him paraplegic at the age of seventy-four. His initial treatment at Humana Hospital included repair of his broken back by surgical insertion of supporting rods and topical medication of a four-by-six inch road burn on the lower or sacral part of his back. A bed sore, or decubitus ulcer, subsequently developed on Wisenbarger's lower back on the area of the road burn. This decubitus ulcer was treated with topical ointments and wrappings.

After approximately three weeks at Humana, Wisenbarger transferred to Warm Springs to learn how to take care of himself as a paraplegic. At the time of his transfer and during his stay at Warm Springs, he wore a body jacket to protect his back while it healed from the accident and surgery. This jacket covered the decubitus ulcer on his lower back. During the two-month stay at Warm Springs, the bed sore on Wisenbarger's lower back was treated daily with ointments, whirlpool baths, and removal of dead tissue. Despite the medical attention, the decubitus ulcer progressed to the most serious stage, stage four, exposing his spinal cord. The decubitus ulcer was at stage four when Wisenbarger was released from Warm Springs and, in order to properly treat the ulcer, his treating physician at Warm Springs prescribed home health care. After ten days of home health care, Wisenbarger elected to have a plastic surgeon close his decubitus ulcer; his option was to let the ulcer heal without surgery.

Wisenbarger sued Warm Springs under the DTPA, and for breach of implied warranty, negligence, negligence per se, and gross negligence, asking for damages for mental anguish, disfigurement and medical expenses. Upon Warm Springs' motion for summary judgment, the causes of action brought under the DTPA and for breach of implied warranty were dismissed. At trial, a broadly worded charge regarding negligence was submitted to the jury. Over Wisenbarger's objection, the charge included an instruction on unavoidable accident. The jury found no negligence on the part of Warm Springs, and awarded no damages, and the trial court entered a take-nothing judgment in favor of Warm Springs.

By five points of error, Wisenbarger asserts that the trial court erred in submitting the instruction on unavoidable accident. By his sixth point of error, Wisenbarger contends that the trial court erred in granting Warm Springs' motion for summary judgment on the DTPA cause of action.

By one cross-point, Warm Springs asserts that the trial court erred in denying its motion to transfer venue.

DECEPTIVE TRADE PRACTICES

In his sixth point of error, Wisenbarger contends that the trial court erred in granting summary judgment to Warm Springs since he was a consumer who was injured as a result of violations of the DTPA. Wisenbarger based his DTPA cause of action on a breach of implied warranty of services.

Warm Springs' motion for summary judgment contended that Wisenbarger's cause of action under the DTPA was precluded as a matter of law by Tex.Rev.Civ.Stat.Ann. art. 4590i § 12.01(a) (Vernon Supp.1990). At the hearing on the motion for summary judgment, Warm Springs presented a number of cases in support of its position. Wisenbarger, on the other hand, relied primarily on concurring and dissenting opinions to the controlling case law on DTPA causes based on breach of implied warranty. Archibald v. Act III Arabians, 755 S.W.2d 84 (Tex.1988); Melody Home Manufacturing Co. v. Barnes, 741 S.W.2d 349 (Tex.1987). We find his arguments unpersuasive.

The purpose of a summary judgment is to eliminate patently unmeritorious claims or untenable defenses. Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.1972); Barrow v. Jack's Catfish Inn, 641 S.W.2d 624, 625 (Tex.App.--Corpus Christi 1982, no writ). Whether a particular legal principal is applicable in a case or governs a case is a matter of law for the trial court. See e.g. Clark v. Perez, 679 S.W.2d 710, 714 (Tex.App.--San Antonio 1984, no writ). Similarly, matters of statutory construction are questions of law for the trial court, rather than issues of fact. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989). A question of law may be properly resolved in a summary judgment. Clark, 679 S.W.2d at 714; cf. Johnson, 774 S.W.2d at 656.

Health care providers cannot be liable on a breach of implied warranty theory for improper treatment; such suits should be covered by theories of negligence. See Dennis v. Allison, 698 S.W.2d 94, 96 (Tex.1985); Easterly v. HSP of Texas, Inc., 772 S.W.2d 211, 214-15 (Tex.App.--Dallas 1989, no writ); accord Willis v. Maverick 760 S.W.2d 642, 647-48 (Tex.1988). When the relationship with the health care provider fundamentally involves the rendition and procurement of services, no implied warranties exist, and the DTPA does not apply. Easterly, 772 S.W.2d at 214.

Article 4590i, section 12.01(a) of the Medical Liability and Insurance Improvement Act provides that, notwithstanding any other law, no provisions of the DTPA shall apply to physicians or health care providers with respect to claims for damages for personal injury or death resulting, or alleged to have resulted, from negligence on the part of any physician or health care provider. Tex.Rev.Civ.Stat.Ann. art. 4590i § 12.01(a) (Vernon Supp.1990). ¹ Pursuant to this statute, a hospital may not be held liable under the DTPA for the negligent actions of its employees acting in the course and scope of their employment; summary judgment is appropriate in such a case. See Quinn v. Memorial Medical Center, 764 S.W.2d 915, 918 (Tex.App.--Corpus Christi 1989, no writ). Similarly, if the cause of action is phrased in terms of a breach of implied warranty but depends on an alleged duty imposed by operation of law, it will be precluded by this statute. Easterly, 772 S.W.2d at 215.

Since appellant's alleged claim under his DTPA cause of action asserted as its basis a breach of implied warranty and this breach of implied warranty was focused on the negligence of the services provided, a DTPA cause of action was not available to appellant. Similarly, since the DTPA cause of action was based on the improper treatment or negligent treatment of Warm Springs' employees, article 4590i § 12.01(a) precluded a recovery under the DTPA. The trial court properly granted Warm Springs' motion for summary judgment. Wisenbarger's sixth point of error is overruled.

UNAVOIDABLE ACCIDENT

Wisenbarger's first five points of error challenge the propriety of the unavoidable accident instruction. By his first point of error, he claims that the instruction was improper because the definition of unavoidable accident was included in both the negligence and proximate cause definitions. By his second and third points of error, he complains that the instruction was a comment on the weight of the evidence and that it raised an inferential rebuttal defense that is inapplicable in a medical malpractice suit. Wisenbarger's fourth and fifth points of error challenge the legal and factual sufficiency of the evidence to warrant the submission of the instruction. Unavoidable accident was presented to the jury in the charge by way of the following instruction: "An occurrence may be an unavoidable accident, that is, an event not proximately caused by the negligence of any party to it."

By his first point of error, Wisenbarger complains that the instruction on unavoidable accident was included in the definitions of negligence and proximate cause. A review of the charge shows that the instruction regarding unavoidable accident was not specifically included in either the definition of negligence or the definition of proximate cause; the instruction was placed immediately after the proximate cause definition. In a medical negligence case, when expert testimony establishes that another physical condition or circumstance was the probable cause of the injury, the definition of unavoidable accident must immediately follow the jury instruction defining proximate cause. See 1 State Bar of Texas, Texas Pattern Jury Charges PJC 3.04 (1987); Cf. Hersh v. Hendley, 626 S.W.2d 151, 157 (Tex.App.--Fort Worth 1981, no writ). Accordingly, we overrule Wisenbarger's first point of error.

A trial court has considerable discretion in submitting explanatory instructions and definitions. Wakefield v. Bevly, 704 S.W.2d 339, 350 (Tex.App.--Corpus Christi 1985, no writ); Home Ins. Co. v. Gillum, 680 S.W.2d 844, 849 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.); see also Tex.R.Civ.P. 277. An instruction is proper if it finds support in any evidence and the inferences to be drawn therefrom, and if it might be of some aid or assistance to the jury in answering the issues submitted. Nat'l Fire Ins. v. Valero Energy Corp., 777 S.W.2d 501, 507 (Tex.App.--Corpus Christi 1989, writ pending); Sappington v. Younger Transp., Inc., 758 S.W.2d 866, 867 (Tex.App.--Corpus Christi 1988, writ denied). An instruction on unavoidable...