Opinion By Justice MOSELEY.
For some health care liability claims arising from the provision of "emergency medical care," the claimant must show by a preponderance of the evidence that the defendant deviated from the applicable standard(s) of care "with wilful and wanton negligence." See TEX. CIV. PRAC. & REM. CODE ANN. § 74.153 (Vernon 2005).
This lawsuit arises out of the medical care that K.M.T., the fourteen-year-old son of appellants Ricky and Janice Turner, received in the emergency department of Presbyterian Hospital in Allen. Even though the summary judgment evidence indicates K.M.T.'s condition was diagnosed and treated as a non-emergency, we conclude the Turners' claims arise from the provision of "emergency medical care" within the meaning of section 74.153.
Shortly after midnight on April 3, 2003, K.M.T. awoke with sudden and severe pain in his lower left abdominal region and swelling in his left testicle. His parents took him to the emergency department of Presbyterian Hospital in Allen. The nurse's notes indicate K.M.T. described his symptoms as nausea and a pain level of "10" on a scale of one to ten. K.M.T. was examined by Franklin, an emergency department physician, who suspected K.M.T. had either testicular torsion or epididymitis. Testicular torsion is a condition whereby the testicle becomes twisted on its own spermatic cord and, if not treated within four to six hours, the testicle will die. Epididymitis is inflammation of the epididymis; it has many of the same symptoms as torsion but is not considered an emergency condition and is treated with antibiotics.
Franklin ordered pain medication for K.M.T. and a scrotal ultrasound in an effort to rule out torsion. A technician performed the ultrasound and called Cohn, the radiologist on call that night, at home to review the images. She told Cohn she observed arterial blood flow in both testicles and she did not see evidence of torsion. After reviewing the ultrasound images from his home, Cohn faxed a report to the emergency department; the report
K.M.T. sought medical treatment for the same complaint over the next several days. He saw his pediatrician twice and also returned to the same emergency department. Each time, the diagnosis of epididymitis was confirmed, and K.M.T. was released. When the symptoms did not improve, K.M.T. returned to his pediatrician on April 9, 2003. The pediatrician ordered a new ultrasound. The radiologist who reviewed the new ultrasound noted a "left testicular tumor." Based on the results of this new ultrasound, K.M.T.'s pediatrician referred him to a urologist, Dr. William Strand.
Strand saw K.M.T. the same day. Strand's impression was that K.M.T. did not have a testicular tumor, but, instead, had testicular torsion. Strand performed left scrotal exploratory surgery that same day and found and removed a torsed, nonviable left testicle.
The Turners filed suit asserting health care liability claims against Franklin and Cohn. They alleged: (1) Cohn incorrectly interpreted the scrotal ultrasound as being consistent with epididymitis with no evidence of torsion; and (2) Franklin failed to consult a urologist and incorrectly diagnosed epididymitis instead of testicular torsion.
Franklin and Cohn moved for traditional summary judgment, see TEX.R. CIV. P. 166a(c), arguing the evidence proved as a matter of law that their conduct did not rise to the level of willful and wanton negligence, as required by section 74.153. Cohn also filed a no-evidence motion for summary judgment, see TEX.R. CIV. P. 166a(i), arguing the Turners could not present sufficient evidence to raise a genuine issue of fact that he acted with willful and wanton negligence.
In response, the Turners argued that section 74.153 did not apply because appellees did not render "emergency medical care" to K.M.T. as defined by the statute. They also argued that whether a physician was willfully and wantonly negligent is a matter that can only be determined by the jury and is never an appropriate issue for summary judgment. Further, they argued the summary judgment evidence did not disprove willful and wanton negligence as a matter of law and that they raised a genuine issue of material fact on the element of willful and wanton negligence.
The trial court granted appellees' motions and rendered final judgments in favor of each appellee.
We review a summary judgment de novo. Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex.2007). When we review a traditional summary judgment in favor of a defendant, we determine whether the defendant conclusively disproved an element of the plaintiff's claim or conclusively proved every element of an affirmative defense. Am. Tobacco Co. v. Grinnell,
When we review a no-evidence summary judgment, we inquire whether the non-movant adduced sufficient evidence to raise a genuine issue of fact on the challenged elements. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.); see also TEX.R. CIV. P. 166a(i). All conflicts in the evidence are disregarded, and the evidence that tends to support the non-movant is accepted as true. Connor v. Waltrip, 791 S.W.2d 537, 539 (Tex.App.-Dallas 1990, no writ). A no-evidence motion for summary judgment should be denied if the evidence is sufficient for reasonable and fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam). On the other hand, if the evidence is so weak as to create only a mere surmise or suspicion of a fact's existence, the evidence is in legal effect "no evidence," and summary judgment is proper. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004); Smith, 285 S.W.3d at 909.
Section 74.153 governs health care liability claims for injuries or death arising from the provision of "emergency medical care" in a hospital emergency department, or in an obstetrical unit or surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department. It provides that, for such claims, the claimant
TEX. CIV. PRAC. & Rem.Code Ann. § 74.153 (emphasis added).
In their first issue, the Turners assert section 74.153 does not apply to their claims because appellees did not provide "emergency medical care." As stated in the Turners' brief: "Because Dr. Franklin diagnosed a non-emergency condition and treated [K.M.T.'s] condition in a non-emergent manner, Franklin cannot now take advantage of the protections in section 74.153 concerning the provision of emergency care which he did not provide."
The statutory definition of "emergency medical care" as used in section 74.153
TEX. CIV. PRAC. & REM.CODE ANN. § 74.001(7) (Vernon 2005) (emphasis added).
Section 74.001(7) requires that the "bona fide emergency services" must be provided after the sudden onset of a medical or traumatic condition manifested with acute symptoms so severe that "the absence of immediate medical attention could reasonably be expected" to result in serious jeopardy to the patient's health, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. See id. (emphasis added). The section goes on to exclude "medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or that is unrelated to the original medical emergency." Id. Therefore, it is the severity of the patient's condition, its rapid or unforeseen origination, and the urgent need for immediate medical attention—including diagnosis, treatment, or both—in order to minimize the risk of serious and negative consequences to the patient's health that comprise the second element of the definition of "emergency medical care." The use of the phrase "could reasonably be expected," italicized above, also makes clear that whether the circumstances meet the second element of "emergency medical care" must be viewed prospectively and objectively, not retrospectively or subjectively.
Neither the phrase "bona fide emergency services" nor its constituent
"Bona fide" is a Latin phrase meaning "in good faith." See BLACK'S LAW DICTIONARY 168 (7th ed. 1999). It is commonly used to convey that meaning,
Thus, we conclude "bona fide emergency services" means any actions or efforts undertaken in a good faith effort to diagnose or treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions. And if such services are provided during the time period and under the circumstances specified in section 74.001(7), they constitute "emergency medical care" within the meaning of section 74.153.
The Turners argue that because appellees misdiagnosed K.M.T. with a non-emergency medical condition (epididymitis) and treated it accordingly (i.e., with antibiotics), their claims against appellees do not arise out of the provision of "emergency medical care." The essence of their argument is that section 74.153 applies only when a physician diagnoses a condition
First, the Turners' argument ignores the fact that "emergency medical care" includes both "diagnosis" as well as "treatment." As discussed above, the very act of diagnosing the patient under the circumstances and during the time period outlined in section 74.001(7) is itself included within the meaning of "emergency medical care." And that holds true regardless of whether the health care provider reached a diagnostic conclusion that the patient was suffering from a true emergency condition.
Second, the Turners' argument would restrict the additional protections afforded to health care providers by the statute to those instances in which they reached the diagnostic conclusion that the patient was suffering from a true emergency condition. This restriction would create an incentive for health care providers to assume the most dire of possibilities—and treat the patient accordingly—in order to be assured of the protections afforded by the statute. In contrast, the legislature did not define "emergency medical care" according to whether a particular diagnosis was made. Rather, it defined "emergency medical care" according to the type of services provided—including both diagnosis and treatment—and the circumstances under which those services were provided—i.e., after the sudden onset of a serious medical condition where failure to provide immediate medical attention could reasonably be expected to result in dire consequences to the patient.
Third, the Turners' argument necessarily entails a retrospective determination of whether a particular set of circumstances constitutes an emergency. This ignores the statutory language clearly calling for a prospective determination of that issue and undercuts the legislature's purpose in enacting the statute to provide physicians or health care providers a prospective incentive to provide emergency medical care in uncertain circumstances.
Because "medical care" includes the diagnosis of any disease or injury, we reject the contention that "bona fide emergency services" does not include the diagnosis of a non-emergency condition. As long as the diagnosis is made under the circumstances and within the time period provided, the diagnosis constitutes the provision of emergency medical care, regardless of the diagnostic determination made. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.001(7).
Here, K.M.T. went to the emergency department after experiencing "sudden" and "severe" pain. One of the possible diagnoses of his condition—testicular torsion—would, if correct, result in the loss of the testicle if not treated promptly. (In fact, it turned out K.M.T. was suffering from testicular torsion.) The Turners do not dispute that conducting an ultrasound examination constituted a good faith course of action under the circumstances. Indeed, the Turners assert appellees deviated from the standard of care—not by conducting the ultrasound examination— but by improperly interpreting its results.
Thus, Franklin's and Cohn's actions were in response to the sudden onset of acute and severe symptoms where the lack of immediate medical attention "could reasonably be expected" to result in serious consequences to K.M.T.'s health and physical condition. See id. We conclude that appellees' actions constitute "bona fide emergency services" within the meaning of section 74.001(7).
In their second issue, the Turners argue the element of willful and wanton negligence is not appropriate for determination by summary judgment and should always be submitted to a jury. They also argue willful and wanton negligence, as used in section 74.153, is not the standard of care, but, instead, is the standard of proof required at trial. See id. § 74.153 (entitled "Standard of Proof in Cases Involving Emergency Medical Care").
To resolve the Turners' argument, we must first assess the meaning of "wilful and wanton negligence." The statute does not define this phrase. The parties agree it is equivalent to gross negligence. However, the meaning of "wilful and wanton negligence" for purposes of section 74.153 is an issue of first impression in this Court.
The legislative history of House Bill 4 indicates the legislature did not intend to change the standard of liability for emergency care. During the senate hearings adopting the conference committee report on House Bill 4, one senator, in response to a question about the language in section 74.153, stated "No, the standard is the same. Both wilful and wanton negligence are covered, but this is basically a gross negligence standard. You don't have to prove intent." S.J. of Tex., 78th Leg., R.S. 5004 (2003). Further, courts addressing the former Good Samaritan statute, which is similar to section 74.153, have equated willful and wanton negligence with gross negligence.
We conclude the legislature intended "wilful and wanton negligence," as used in section 74.153 of the civil practice and
Gross negligence, in turn, is comprised of two elements-one objective and one subjective.
First, viewed objectively from the actor's standpoint, the act or omission must depart from the ordinary standard of care to such an extent that it creates an extreme degree of risk of harming others, considering the probability and magnitude of the potential harm to others. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex.2008); Moriel, 879 S.W.2d at 23. Under the objective element, the defendant's conduct must create "an extreme degree of risk," which is a "threshold significantly higher than the objective `reasonable person' test for negligence." Moriel, 879 S.W.2d at 22 (quoting Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex.1993)); Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998). Extreme risk is more than a remote possibility of injury or even a high probability of slight injury; the defendant's conduct must involve "the likelihood of serious injury" to the plaintiff. Moriel, 879 S.W.2d at 22 (quoting Alexander, 868 S.W.2d at 327).
To meet the subjective element, the actor must "have actual, subjective awareness of the risk involved and choose to proceed in conscious indifference to the rights, safety, or welfare of others." Hogue, 271 S.W.3d at 248;
2. Deciding Willful and Wanton (i.e., Gross) Negligence by Summary Judgment
Having concluded the "wilful and wanton negligence" standard under section 74.153 is equivalent to a gross negligence standard, we consider the Turners' argument that the standard can never be decided by summary judgment.
The Turners have not cited authority expressly holding that willful and wanton negligence or gross negligence must always be decided by a jury or trier of fact. Several cases have reversed summary judgments where the defendant argued he had disproved gross negligence or willful and wanton negligence as a matter of law.
Because willful and wanton negligence (i.e., gross negligence) has a subjective element inquiring into the defendant's state of mind,
We resolve the Turners' second issue against them.
In their third issue, the Turners argue Franklin did not conclusively disprove that he acted with willful and wanton negligence. They also argue that they raised genuine issues of material fact regarding whether Franklin and Cohn acted with willful and wanton negligence.
Because Franklin moved for summary judgment only on traditional grounds, it was his burden to conclusively disprove the subjective element required to prove gross negligence. See Grinnell, 951 S.W.2d at 425; Deneve, 285 S.W.3d at 909. In other words, he had to negate as a matter of law that he had "actual, subjective awareness of the risk involved and [chose] to proceed in conscious indifference to the rights, safety, or welfare of others." Hogue, 271 S.W.3d at 248; see also Lee Lewis Constr. v. Harrison, 70 S.W.3d 778, 785 (Tex.2001); Burk Royalty, 616 S.W.2d at 922. We take the evidence favorable to the Turners, the non-movants, as true and indulge every reasonable inference and resolve every doubt in their favor. Trapnell, 890 S.W.2d at 800.
Franklin relies on the deposition testimony of the Turners' expert, Dr. Craig Kennedy, who testified that although he believed that Franklin made the wrong "call" and that his actions constituted negligence, he did not believe Franklin tried to harm K.M.T. or that Franklin's actions constituted a "complete want of care" for K.M.T.
Evidence of "some care" will not disprove gross negligence as a matter of law. See Ellender, 968 S.W.2d at 923-24 (evidence of "some care" will not insulate defendant from gross negligence liability); Frias v. Atl. Richfield Co., 999 S.W.2d 97, 105-06 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (evidence of precautions taken by employer to protect employees from exposure to benzene did not conclusively negate subjective element of gross negligence). Courts must look for "evidence of the defendant's subjective mental state rather than the defendant's exercise of care." Moriel, 879 S.W.2d at 20. Gross negligence does not require proof the defendant intended or tried to harm the plaintiff; it requires proof the defendant was subjectively aware of the risk involved and chose to proceed in conscious indifference of the rights, welfare, and safety of others. Hogue, 271 S.W.3d at 248.
The quoted testimony indicates Kennedy believed Franklin tried to care for K.M.T. and did not intend to harm him. It does not, however, address Franklin's subjective awareness of a risk or whether he acted with conscious indifference to the rights, safety, or welfare of others. This evidence is insufficient to disprove gross negligence, i.e., willful and wanton negligence, on Franklin's part as a matter of law.
Nor do we believe that classifying a defendant's acts or omissions as a "judgment call" conclusively negates the subjective element of gross negligence. The subjective awareness and conscious indifference necessary for a finding of gross negligence will almost always require evidence of "all of the surrounding facts, circumstances, and conditions, not just individual elements or facts." City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex.2005) (quoting Burk Royalty, 616 S.W.2d at 922); Moriel, 879 S.W.2d at 23 (defendant's subjective mental state may be proven by direct or circumstantial evidence). While we recognize that such subjective elements may sometimes be resolved on summary judgment,
The Turners alleged Cohn misinterpreted K.M.T.'s ultrasound images and wrongly concluded K.M.T. had epididymitis with no evidence of torsion. Cohn filed a combined no-evidence and traditional summary judgment motion asserting that the Turners had no evidence, or could not raise a fact issue about whether, he acted with willful and wanton negligence in reviewing K.M.T.'s ultrasound. We consider Cohn's no-evidence motion first. See Kalyanaram v. Univ. of Tex. Sys., 230 S.W.3d 921, 925 (Tex.App.-Dallas 2007, pet. denied). In response to that motion, the burden was on the Turners as non-movants to present sufficient evidence to raise a genuine issue of fact on the challenged element. Gen. Mills Rests., 12 S.W.3d at 832.
To meet that burden, the Turners relied on a report from their expert radiologist, Dr. E. Richard Graviss, who opined Cohn was negligent in concluding the ultrasound showed K.M.T. had normal testicular flow in the left testicle.
While Graviss's report may well have raised a fact issue as to Cohn's negligence, it does not raise a fact issue about whether Cohn's alleged error in judgment was more than mere negligence. See Wheeler, 866 S.W.2d at 50-51 (discussing summary judgment evidence that raised fact issue about whether conduct was willfully and wantonly negligent). Specifically, it did not address whether Cohn was subjectively aware of an extreme risk or acted with conscious indifference to the rights, safety,
Because Graviss's report does not raise a genuine issue of material fact concerning the element of willful and wanton negligence, the no-evidence summary judgment in favor of Cohn was proper. Accordingly, we do not need to consider the issues the Turners raised in response to Cohn's traditional motion for summary judgment.
We resolve the Turners' third issue against them as to Cohn.
We affirm the trial court's summary judgment in favor of Cohn. We reverse the trial court's summary judgment in favor of Franklin and remand that portion of the case for further proceedings.
See also RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 2 cmt. a, b (2010) (noting terms such as gross negligence, willful or wanton misconduct, and reckless disregard for risk have been used to convey the idea of aggravated wrongdoing that still falls short of intentional torts and equating such terms with recklessness).
TEX. CIV. PRAC. & REM.CODE ANN. § 41.001(11) (Vernon 2008).
Summary judgments have also been affirmed in other cases under a willful or wanton negligence or gross negligence standard. See Moncada, 202 S.W.3d at 802-03 (summary judgment evidence conclusively established affirmative defense of immunity from liability under government code section 497.096 and that defendant was not "intentionally, wilfully, or wantonly negligent"); Warren, 521 S.W.2d at 139 (premises owner successfully discharged "onerous burden of showing that he was not guilty of any willful or wanton conduct or gross negligence" when his guest was injured after another guest placed her on top of a glass table, which broke).
Graviss also noted he did not review certain information about the ultrasound and that he "could reach a different opinion" if he had access to additional information.
