William C. Triplett, M.D. v. Camp Wood Convalescent Center, Premiere Care, Don Pearson, and David Holmberg--Appeal from 38th Judicial District Court of Real County

No. 04-99-00766-CV
William C. TRIPLETT, M.D.,
Appellant
v.
CAMP WOOD CONVALESCENT CENTER, Premier Care,
Don Pearson, and David Holmberg,
Appellees
From the 38th Judicial District Court, Real County, Texas
Trial Court No. 99-09-2248-CV
Honorable Charles Sherrill, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: May 10, 2000

DISMISSED FOR WANT OF JURISDICTION IN PART AND AFFIRMED IN PART

This is an interlocutory appeal from the trial court's denial of William C. Triplett, M.D.'s motion for a temporary injunction. Because Triplett did not establish he will be irreparably injured in the absence of a temporary injunction, the trial court did not abuse its discretion in denying the motion and we affirm.

Factual and Procedural Background

Camp Wood Convalescent Center (CWCC) is a long-term care nursing facility in Real County. From 1989 until 1998, CWCC was owned and operated by the City of Camp Wood, and William C. Triplett, M.D. was its medical director and attending physician for most, if not all, of its residents. In 1998, operation of the facility was taken over by Premier Care and, on August 10, 1999, David Holmberg, director of operations for Premier Care, and Donald Pearson, CWCC administrator, notified Triplett his services as medical director and attending physician would not be needed after August 31, 1999. CWCC does not have a peer review process, and Pearson, who is not a physician, decides who may treat patients there, based on his own opinions as to what is best for the facility.

Dr. Triplett obtained from at least eight CWCC residents or their responsible parties written statements authorizing him to continue as their treating physician. However, Pearson told Triplett he would not be allowed on CWCC premises to treat his patients and notified CWCC residents in writing that Triplett was no longer associated with CWCC and a new attending physician would be available to treat residents. Pearson also told a number of residents and their representatives that, although they were free to choose Triplett as their attending physician, he would not be allowed on the premises to treat them. Pearson's position was that a resident choosing Triplett as his treating physician would have to move to another nursing home. There is no contention Triplett has been the subject of any complaint or grievance, has failed to adequately treat patients, or has failed to comply with any of CWCC's policies or procedures.

Triplett sued CWCC, Premier Care, Holmberg, and Pearson, alleging (1) solicitation of patients in violation of section 161.092 of the Texas Health and Safety Code, (2) denial of privileges in violation of article 4495b, Texas Revised Civil Statutes (now section 151.001, et seq. of the Texas Occupation Code), section 242.501(a)(8) of the Texas Health and Safety Code, and section 102.003(1) of the Texas Human Resources Code, (3) monopolization, attempt to monopolize, and conspiracy to monopolize patient care at CWCC in violation of section 15.05 of the Texas Business and Commerce Code, (4) negligence, (5) gross negligence, (6) intentional infliction of emotional distress, (7) defamation, (8) tortious interference with the doctor/patient relationship, (9) violation of the commercial bribery statute, Tex. Pen. Code Ann. 32.43 (1994), and (10) civil conspiracy. In addition to damages, Dr. Triplett sought temporary and permanent injunctive relief as follows:

To order Defendants to cease and desist from contacting Plaintiff's patients or the patient representatives and telling the patients Dr. Triplett cannot treat them;
To order Defendants to cease and desist from denying Dr. Triplett access to the premises to treat and see his patients;
To order Defendants to cease and desist from informing Plaintiff's patients that Dr. Triplett cannot come onto the CWCC premises to treat them, because such information has no purpose other than to intimidate and frighten the patients and their representatives that the patients will not receive treatment.
Restrain Defendants from having any other physician see and treat Dr. Triplett's patients, who have given authorization for Dr. Triplett to be their primary care physician.
Restrain Defendants from publishing information or communications in through media, written memorandum, letters, or other communications, oral, written, or otherwise, that Dr. Triplett is retired or has no privileges at CWCC facility.
Order Defendants to immediately give Dr. Triplett privileges at CWCC and the right to enter the premises at CWCC to provide treat and care to his patients. ... to allow Dr. Triplett full use and benefit of the medical records for his patients, and full services to provide complete treatment to his patients.

The trial court issued a temporary restraining order requiring appellees to allow Triplett to enter the facilities to treat his patients; however, after a hearing, the court denied a temporary injunction. Triplett filed this interlocutory appeal pursuant to section 51.014(a)(4) of the Texas Civil Practice and Remedies Code. He complains of the trial court's order denying the temporary injunction and its order quashing a subpoena for documents to be produced at the temporary injunction hearing.

Motion to Quash

In his second issue, Triplett argues the trial court abused its discretion in granting appellees' motion to quash his subpoena duces tecum. "[A]n appeal of a temporary injunction is not a vehicle which imbues the court with jurisdiction to address interlocutory matters outside the scope of section 51.014 ..." Letson v. Barnes, 979 S.W.2d 414, 417 (Tex. App.--Amarillo 1998, pet. denied). Thus, we do not have jurisdiction to review interlocutory orders except as specifically authorized by statute,(1) and an interlocutory order on a motion to quash is not appealable. See Pelt v. State Bd. of Ins., 802 S.W.2d 822, 827 (Tex. App.--Austin 1990, no writ). We therefore have no jurisdiction to review the order granting appellees' motion to quash, and we dismiss this aspect of Triplett's appeal.

Temporary Injunction
Standard of Review

We review a trial court's decision to grant or deny a temporary injunction for abuse of discretion. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). A trial court abuses its discretion if it clearly fails to analyze or apply the law correctly or, with respect to questions of fact, if no reasonable view of the record supports the court's decision. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Where, as here, the trial court makes no findings of fact or conclusions of law and none were requested, we will uphold the order on any legal theory supported by the record. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978).

Discussion

Appellees contend Triplett failed to show irreparable harm because the only harm he has shown is lost fees for identified existing patients, and this loss could be compensated by a damage award. We agree. A party may obtain a temporary injunction to preserve the status quo pending a trial on the merits if he shows a probable right to recover and clearly establishes he is threatened with irreparable harm for which he has no adequate remedy at law. Swate v. Medina Community Hosp., 966 S.W.2d 693, 700 (Tex. App.--San Antonio 1998, pet. denied); Haq v. America's Favorite Chicken Co., 921 S.W.2d 728, 730 (Tex. App.--Corpus Christi 1996, writ dism'd w.o.j.); see McGlothlin v. Kliebert, 672 S.W.2d 231, 232-33 (Tex. 1984) (no adequate remedy at law); Brooks v. Expo Chem. Co., 576 S.W.2d 369, 371 (Tex. 1979) (clearly establish irreparable harm); Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968) (probable right to recover).

Triplett first contends he conclusively established irreparable harm by proving CWCC residents are being denied their right to choose their physician and to have their physician granted access to the facility. See Tex. Health & Safety Code Ann. 242.501(a)(8) (Vernon Supp. 1999); Tex. Hum. Res. Code Ann. 102.003 (Vernon Supp. 1999); 40 Tex. Admin. Code 19.406(a)(1), 19.413(a)(2) (1999). He also argues the evidence establishes the residents are not receiving adequate medical attention, and there is a high risk of harm to their health. Although this evidence may establish a threat of irreparable injury to the residents, it does not establish a threat of irreparable injury to Triplett, and none of the statutes or common law causes of action under which he sues gives a physician standing to assert the rights of his patients.

Triplett also argues he is irreparably harmed by the loss of future potential patients who would choose him as their treating physician, and the resulting damages are not capable of being calculated. However, in his amended petition, Triplett requests only that he be granted access and privileges to treat "his patients" and that the Center be restrained from telling "his patients" that he may not come on the premises to treat them and from allowing other doctors to treat "his patients." Similarly, in his testimony at the injunction hearing, Triplett repeatedly stated he was only asking to be allowed to enter and treat the patients who had previously requested he be their treating physician. Thus, the temporary injunction Triplett sought would not have precluded CWCC from denying him access to treat persons not his patients at the time of the hearing and would not have prevented the harm he now argues.(2)

Finally, Triplett argues he will suffer irreparable harm because a damage award will come too late to save his business. See TCA Bldg. Co. v. Northwestern Resources Co., 890 S.W.2d 175, 179 (Tex. App.--Waco 1994, no writ) (citing Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984)). However, the only evidence concerning Triplett's business is his testimony that he has opened a private practice in Real County and intends to continue practicing as one of only two doctors in the county; and, although it would be difficult for him to travel forty miles to Uvalde, there are two or three nursing homes there and he has not applied for privileges at any of them. This evidence does not establish that Triplett's inability to treat patients at CWCC will cause him to lose his business. Accordingly, the trial court could reasonably have concluded that Triplett did not clearly establish he will be irreparably harmed in the absence of a temporary injunction. We therefore affirm the trial court's order.

Sarah B. Duncan, Justice

Do not publish

1. Henderson v. Shell Oil Co., 143 Tex. 142, 182 S.W.2d 994, 995 (Tex. 1944); Markel v. World Flight, Inc., 938 S.W.2d 74, 78 (Tex. App.--San Antonio 1996, no writ); see Tex. Civ. Prac. & Rem. Code 51.014 (Vernon Supp. 1999).

2. We express no opinion as to whether Dr. Triplett has or could allege a viable cause of action for the loss of potential future patients or for which he would be entitled to an order generally granting him privileges to practice at CWCC.