Wyatt v. Longoria

• Decision Date: 31 August 2000
• Docket Number: No. 08-99-00174-CV,08-99-00174-CV
• Citation: 33 S.W.3d 26
• Parties: (Tex.App.-El Paso 2000) ELVIRA HORREL WYATT, Appellant, v. ROLANDO LONGORIA, M.D., Appellee.
• Court: Texas Court of Appeals

Page 26

33 S.W.3d 26 (Tex.App.-El Paso 2000)

ELVIRA HORREL WYATT, Appellant, v. ROLANDO LONGORIA, M.D., Appellee.

No. 08-99-00174-CV

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS, EL PASO.

August 31, 2000

Appeal from County Court at Law No. 7 of El Paso County, Texas (TC# 96-4352) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

This is a medical malpractice case in which Elvira Horrel Wyatt sued Dr. Rolando Longoria for negligent misdiagnosis. Dr. Longoria moved for summary judgment, contending first that Wyatt's claims were barred because Texas does not recognize a cause of action for wrongful life, and second, that her economic injuries were not proximately caused by his purported negligence. The trial court granted the motion without specifying the grounds upon which it relied. We affirm in part and reverse in part.

SUMMARY OF THE EVIDENCE

In November 1994, Wyatt traveled to El Paso to visit her granddaughter. At the time, she was 78 years old and a resident of Austin. During the visit, Wyatt became ill and complained of abdominal pains. She consulted Dr. Longoria, a gastroenterologist, and was scheduled for an x-ray, CT scans of the abdomen and pelvis, and a mammogram. Following the x-ray and CT scans, Dr. Longoria told Wyatt that she had cancer of the liver and peritoneum. He advised her that the cancers found in her abdomen were the result of metastatic breast cancer, and that she had only three to six months to live. Dr. Longoria then canceled the mammogram, believing the diagnosis to be academic.

Relying on Dr. Longoria's bleak prognosis, Wyatt began preparing for her death. She decided to sell her Austin townhome and move in with her granddaughter so that she could pursue treatment with Dr. Longoria. She gifted her personal possessions to relatives and friends, including several valuable oil paintings, a valuable porcelain collection, and her home furnishings. Finally, Wyatt made funeral arrangements and had her dog put to sleep.

The course of treatment pursued by Dr. Longoria involved paracentesis, a process designed to relieve the build-up of fluids in Wyatt's abdomen. The procedure is performed by puncturing the abdomen wall with a needle, and drawing out the excess fluid. On a number of occasions, Wyatt had multiple liters withdrawn from her abdomen. She began to lose weight and became very weak. This course of treatment continued until August 1995 when Dr. Longoria ordered a biopsy which revealed that Wyatt had lymphoma, not breast cancer. She discontinued treatment with Dr. Longoria, and went to the University of Arizona Cancer Center, where she received chemotherapy and occasional paracentesis. In December 1995, she returned to El Paso for a continuation of treatments.

In November 1996, Wyatt brought suit against Dr. Longoria for medical malpractice, complaining that Dr. Longoria negligently misdiagnosed her cancer as terminal. She alleged that he breached the standard of care owed to her by failing to fully evaluate her, to provide her with the proper course of treatment, and to refer her to a competent specialist. She claimed that this breach of duty caused her to suffer severe emotional anguish, physical pain, and medical expenses. Pursuant to the Texas Medical Liability and Insurance Act, Wyatt timely filed an expert medical report. See Tex.Rev.Civ.Stat.Ann. art. 4590i, § 13.01 (Vernon Supp. 2000). She tendered the opinion of Dr. Ira Klein that Longoria had breached the standard of care of a practicing gastroenterologist by continuing to treat Wyatt without obtaining "a definitive pathological diagnosis." Dr. Klein concluded that Dr. Longoria was negligent in failing to obtain tissue biopsies and in failing to refer Wyatt to an oncologist. In addition to her damages for physical pain, emotional anguish, and medical expenses, Wyatt also complained that the misdiagnosis caused her to incur certain economic losses arising from property dispositions she had made while believing that her death was imminent.

WRONGFUL LIFE?

When the trial court grants summary judgment without specifying its reasons, the judgment will be affirmed if any of the theories advanced in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Doe v. Franklin, 930 S.W.2d 921, 924 (Tex.App.--El Paso 1996, no writ). First, we review the theory that Wyatt's claim is barred because Texas does not recognize a cause of action for wrongful life. Wyatt contends that special exceptions, not summary judgment, are the proper vehicle for complaining that no cause of action has been alleged. Summary judgment should not be based on a pleading deficiency that might be cured by amendment. Saenz v. Southern Union Gas Co., 916 S.W.2d 703, 705 (Tex.App.--El Paso 1996, writ denied); Friesenhahn v. Ryan, 960 S.W.2d 656, 658-59 (Tex. 1998); In the Interest of B.I.V., 870 S.W.2d 12, 13 (Tex. 1994); Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983); Texas Department of Corrections v. Herring, 513 S.W.2d 6, 9 (Tex. 1974). Whether pleadings fail to state a cause of action may not be resolved by summary judgment. Massey, 652 S.W.2d at 934. Special exceptions are the appropriate method for claiming that plaintiff has failed to state a cause of action, because plaintiffs must have an opportunity to cure a deficient petition by amendment before their lawsuit is dismissed for failing to state an actionable claim. B.I.V., 870 S.W.2d at 13.

Dr. Longoria counters that it was not necessary to comply with special exception procedure because Wyatt's petition alleges facts which affirmatively negate her cause of action. Herring, 513 S.W.2d at 9; Cortez v. Liberty Mutual Fire Insurance Company, 885 S.W.2d 466 (Tex.App.--El Paso 1994, writ denied). In support of his argument, he directs us to Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984), in which the Supreme Court considered whether a plaintiff could bring a malpractice action when the crux of the complaint was that but for the defendant's negligence, the plaintiff would not have been born.¹ Nelson, 678 S.W.2d at 924. The Court refused to recognize a cause of action for wrongful life because of the "high value which the law and mankind has placed on human life, rather than its absence" and because the calculation of damages involves a rationally impossible task of weighing life against non-life. Id. The Court noted that it had no objective standard by which to review the plaintiff's assertion that it would be better to not have been born. "Man, who knows nothing of death or nothingness, cannot possibly know whether this is so." Id.

Wyatt's petition does not allege that she has been injured because she has continued to live beyond the short "three to six month" period which Dr. Longoria predicted. Instead, she claims that Dr. Longoria was negligent and that his negligence caused her to suffer emotional anguish and physical pain, and to incur medical expenses. If she can establish that these injuries were caused by Dr. Longoria's negligence, then she is entitled to recover under a malpractice theory. See Tex.Rev.Civ.Stat.Ann. art. 4590i, § 1.03(4); Sullivan v. Methodist Hospitals of Dallas, 699 S.W.2d 265, 274 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.). We conclude that the petition states a cause of action for medical malpractice, not wrongful life. Wyatt's first and second issues are sustained.

PROXIMATE CAUSE

We now consider the theory that Wyatt's economic injuries were not proximately caused by Dr. Longoria's misdiagnosis. Wyatt contends that the misdiagnosis caused her to make ill-advised property dispositions and that Dr. Longoria should be liable for her resulting economic losses. Dr. Longoria moved for both a traditional and a no-evidence summary judgment. See Tex.R.Civ.P. 166a(c) and (i). We turn now to the applicable standards of review.

Standards of Review

In a traditional summary judgment proceeding, the standard of review on appeal is whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985); Duran v. Furr's Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.--El Paso 1996, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant's cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant's cause or claim. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Duran, 921 S.W.2d at 784. In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant's favor. Nixon, 690 S.W.2d at 548-49; Duran, 921 S.W.2d at 784; Borrego v. City of El Paso, 964 S.W.2d 954, 956-57 (Tex.App.--El Paso 1998, pet. denied). When the defendant is the movant and submits summary evidence disproving at least one essential element of each of the plaintiff's causes of action, then summary judgment should be granted. Perez, 819 S.W.2d at 471; Duran, 921 S.W.2d at 784; Borrego, 964 S.W.2d at 956-57.

A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.--San Antonio 1998, no pet.); Robinson v. Warner-Lambert & Old Corner Drug, 998 S.W.2d 407, 410 (Tex.App.--Waco 1999, no pet. h.); see also S.V. v. R.V., 933 S.W.2d 1, 8 (Tex. 1996). We...