Marie Johnson, Individually and a/n/f of Shaza L. Madison, Deceased v. Transplantation Research Foundation--Appeal from 80th District Court of Harris County

Affirmed and Memorandum Opinion filed December 2, 2004

Affirmed and Memorandum Opinion filed December 2, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00968-CV

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MARIE JOHNSON, Individually and a/n/f of SHAZA L. MADISON, Deceased, Appellant

V.

TRANSPLANTATION RESEARCH FOUNDATION, Appellee

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 02-58329

M E M O R A N D U M O P I N I O N

Marie Johnson appeals the summary judgment granted in favor of Transplantation Research Foundation (ATRF@). Johnson brought suit against TRF for negligence alleging that TRF had harvested dura mater tissue from her deceased daughter=s corpse without Johnson=s consent. TRF filed a traditional and no-evidence motion for summary judgment contending (1) it committed no medical malpractice and breached no duty of a health care provider because it is not a health care provider, (2) it committed no common law negligence because there is no evidence it harvested tissue from Johnson=s daughter, (3) Johnson sustained no damages, and (4) the negligence claims are barred by limitations. We affirm.

The summary judgment record shows that Johnson=s daughter, Shaza Madison, died on August 30, 2000, after sustaining injuries in an automobile accident. TRF is a non-profit organization that provides donated dura mater tissue as graft tissue for surgical repair of patients with severe neurological diseases. Johnson claims she learned that her daughter=s dura mater tissue had been harvested when she received a phone call from an unidentified TRF employee thanking her for the tissue donation. Johnson contends she never gave consent for TRF to take her daughter=s tissue.

Where, as here, the order granting summary judgment does not specify the particular grounds on which the trial court relied, appellant must defeat each of the possible grounds for summary judgment presented in the motion. Tate v. Goins, Underkofler, Crawford & Langdon, 24 S.W.3d 627, 632 (Tex. App.CDallas 2000, pet. denied). Thus, we must affirm the court=s judgment if any of the summary judgment grounds is meritorious. Evans v. First Nat. Bank of Bellville, 946 S.W.2d 367, 377 (Tex. App.CHouston [14th Dist.] 1997, writ denied).

The standard of review for a traditional summary judgment is well established: (i) the movant for summary judgment has the burden of showing there is no genuine issue of material fact and is entitled to summary judgment as a matter of law; (ii) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non movant will be taken as true; and (iii) every reasonable inference must be indulged in favor of the non movant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 49 (Tex.1985).

On review of a no-evidence summary judgment, we consider the evidence in the light most favorable to the non-movant and disregard all evidence and inferences to the contrary. Blan v. Ali, 7 S.W.3d 741, 747 (Tex. App.CHouston [14th Dist.] 1999, no pet.). A no-evidence summary judgment is properly granted if the respondent fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the respondent=s case. Tex. R. Civ. P. 166(a)(i); Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 146 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Isbell v. Ryan, 983 S.W.2d 335, 338 (Tex. App.CHouston [14th Dist.] 1998, no pet.). Although the nonmoving party is not required to marshal its proof, it must present evidence that raises a genuine fact issue on the challenged elements. Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 847 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).

To prevail on a cause of action for medical malpractice, the cause must be brought against a physician or Ahealth care provider.@ Tex. Civ. Prac. & Rem. Code Ann. ' 74.004(a) (Vernon Supp 2004). A Ahealth care provider@ under the Medical Liability Act means:

. . . any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including:

(i) a registered nurse;

(ii) a dentist;

(iii) a podiatrist;

(iv) a pharmacist;

(v) a chiropractor;

(vi) an optometrist; or

(vii) a health care institution.

(B) The term includes:

(i) an officer, director, shareholder, member, partner, manager, owner, or affiliate of a health care provider or physician; and

(ii) an employee, independent contractor, or agent of a health care provider or physician acting in the course and scope of the employment or contractual relationship.

Tex. Civ. Prac. & Rem. Code Ann. ' 74.001(a)(12) (Vernon Supp. 2004). A Ahealth care institution@ includes:

(A) an ambulatory surgical center;

(B) an assisted living facility licensed under Chapter 247, Health and Safety Code;

(C) an emergency medical services provider;

(D) a health services district created under Chapter 287, Health and Safety Code;

(E) a home and community support services agency;

(F) a hospice;

(G) a hospital;

(H) a hospital system;

(I) an intermediate care facility for the mentally retarded or a home and community based services waiver program for persons with mental retardation adopted in accordance with Section 1915(c) of the federal Social Security Act (42 U.S.C. Section 1396n), as amended;

(J) a nursing home; or

(K) an end stage renal disease facility licensed under Section 251.011, Health and Safety Code.

Tex. Civ. Prac. & Rem. Code Ann. ' 74.001(a)(11) (Vernon Supp. 2004). Thus, by definition, TRF is neither a Ahealth care provider@ nor a Ahealth care institution.@ The summary judgment record reflects TRF is a non-profit organization that accepts donated tissue from medical examiners and other persons for the benefit of persons suffering from severe neurological disease. TRF has no patients, performs no medical procedures, and provides no health care. As such, it is analogous to a blood bank. See J.K. and Susie L. Wadley Research Institute and Blood Bank v. Beeson, 835 S.W.2d 689, 696 (Tex. App.CDallas 1992, writ denied) (holding a blood bank does not provide medical or health care to the blood transfusion recipient). Because TRF is not a health care provider, it is not amenable to suit for medical malpractice. Thus, a common law negligence claim against TRF is governed by the normal two-year statute of limitations set forth in Tex. Civ. Prac. & Rem. Code Ann. ' 16.003 (Vernon 2002). See Longoria v. United Blood Services, 907 S.W.2d 605, 613 (Tex. App.CCorpus Christi 1995), rev=d on other grounds, 938 S.W.2d 29 (Tex. 1997) (holding suit against blood bank governed by normal two-year statute of limitations). Here, appellant=s cause of action was filed more than two years after she claims to have received a phone call allegedly thanking her for the donation of tissue.

Further, to prevail on a cause of action for negligence, the plaintiff must satisfy three elements: (1) a legal duty owed by the defendant to the plaintiff; (2) breach of that duty; and (3) damages proximately caused by such a breach. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998). Johnson alleges in her pleadings that she suffered physical and mental pain as result of TRF=s actions.

Mental anguish damages require Aa high degree of mental pain and distress@ that is Amore than mere worry, anxiety, vexation, embarrassment, or anger.@ Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) (citation omitted). A plaintiff is required to introduce direct evidence of the nature, duration, and severity of his mental anguish, which works to establish a substantial disruption in the plaintiffs= daily routine. Id. However, a plaintiff=s statement that she has Asuffered mental anguish does not constitute evidence of the nature, duration, and severity of any mental anguish that is sufficient to show a substantial disruption of one=s daily routine.@ Gunn Infiniti, Inc. v. O=Byrne, 996 S.W.2d 854, 861 (Tex. 1999).

In support of her damages for mental anguish, Johnson stated in an affidavit that she was Aextremely emotionally upset by this unexpected phone call@ in which she learned that her daughter=s dura mater tissue had been harvested. Her statement contains no details of the nature, duration, and severity of her alleged mental anguish. Accordingly, Johnson=s statement is not evidence of mental anguish. Moreover, Johnson=s affidavit makes no mention of her alleged physical pain and she has not otherwise produced any evidence of physical pain.

The trial court had multiple valid grounds for granting summary judgment C the appellant could not sue under the Medical Liability Act; common law negligence was barred by limitations; and appellant produced no evidence of damages. Thus, we need not address the other possible grounds raised in TRF=s motion for summary judgment.[1] The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed December 2, 2004.

Panel consists of Justices Anderson, Hudson, and Frost.

[1] TRF also moved for traditional summary judgment on the grounds that (1) it could not have acted negligently because it did not remove tissue from Johnson=s daughter=s corpse; and (2) Johnson=s negligence claim was an impermissible attempt to recover damages through the generally unrecognized tort of negligent infliction of emotional distress.