Ramona Alvarez, Luis Alvarez, Roxanne Alvarez, Individually and as Representative of the Estate of Michael Harwood v. Driscoll Foundation Children's Hospital, et al.--Appeal from 117th District Court of Nueces County

COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI

___________________________________________________________________

NUMBER 13-98-152-CV

RAMONA ALVAREZ,

LUIS ALVAREZ, ROXANNE

ALVAREZ, INDIVIDUALLY AND

AS REPRESENTATIVE OF THE

ESTATE OF MICHAEL HARWOOD, Appellants,

v.

DRISCOLL FOUNDATION

CHILDREN'S HOSPITAL, ET AL., Appellees.

___________________________________________________________________

AND

___________________________________________________________________

NUMBER 13-99-088-CV

RAMONA ALVAREZ,

LUIS ALVAREZ, ROXANNE

ALVAREZ, INDIVIDUALLY AND

AS REPRESENTATIVE OF THE

ESTATE OF MICHAEL HARWOOD, Appellants,

v.

TOM MCNEIL, M.D.,

EDGAR CORTES, M.D., F.A.A.P.,

AND WILLIAM DIRKSEN, M.D., Appellees.

___________________________________________________________________

On appeal from the 117th District Court
of Nueces County, Texas.

___________________________________________________________________

O P I N I O N
Before Justices Dorsey, Chavez, and Rodriguez
Opinion by Justice Dorsey

This is a consolidated appeal of two causes stemming from the same set of facts.(1) This controversy arose from the circumstances surrounding the death of an infant, Michael Harwood. Roxanne, Ramona and Ruiz Alvarez,(2) the infant's mother, grandmother and grandfather, sued Driscoll Children's Hospital and various doctors and hospital care groups for negligent conduct they contend caused the infant's death. Roxanne also contends that, in an effort to cover up their own negligence, some or all of the defendants made false accusations that she intentionally caused Michael's death by suffocating him. On those grounds, she also brought causes of action for malicious prosecution, intentional infliction of emotional distress and civil conspiracy.

Prior to trial, the court granted summary judgment that Alvarez take nothing on all intentional tort causes of action, and on the negligence claims against two of the doctors. That portion of the lawsuit was severed, and the summary judgment was appealed. While that summary judgment was on appeal, the remaining defendants and causes of action went to trial. The jury found no liability on the part of any defendant. Accordingly, the trial court entered judgment that the plaintiff take nothing.

The summary judgment appeal remained pending with this Court during the trial of the other issues. After the trial ended, this Court, in part, reversed the summary judgment and remanded certain causes of action to the trial court. Alvarez v. Anesthesiology Associates, 967 S.W.2d 871 (Tex. App.--Corpus Christi 1998, no pet.) On remand, the trial court granted a successive summary judgment on the remanded portion of the case. In this consolidated appeal, Alvarez challenges both the final judgment entered upon the jury's verdict, and the final summary judgment entered on the remanded portion of the case.

Part One: Challenge to the Jury's Verdict

By their first point of error, Alvarez contends that the evidence was factually and legally insufficient to support the jury's findings. If there is some evidence to support the finding, it is sufficient as a matter of law; any further challenges go to the weight to be accorded the evidence. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). The evidence will only be held to be legally insufficient when the record shows either: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. Juliette Fowler Homes, Inc. v. Welch Assocs., 793 S.W.2d 660, 666 n.9 (Tex. 1990). To be legally sufficient, the evidence must supply a reasonable basis on which reasonable minds may reach different conclusions about the existence of the vital fact. Orozco v. Sander, 824 S.W.2d 555, 556 (Tex. 1992).

In reviewing the factual sufficiency of the evidence, we examine all the evidence, and will set aside a verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The evidence is "insufficient" if it is so weak, or the evidence to the contrary is so overwhelming, that the answer should be set aside and a new trial ordered. Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 29 (Tex. 1993).

Alvarez challenges the following findings of the jury:

(1) that no defendant proximately caused Michael's injury;

(2) that Ramona Alvarez caused Michael's injury;

(3) that Michael suffered no damages;

(4) that Ramona suffered no damages; and

(5) that no defendant committed gross negligence.

After carefully reviewing the record, we find a wealth of evidence to support the jury's findings that none of the defendants caused the injury, and sufficient evidence for its finding that Roxanne's negligent or intentional conduct, in fact, caused the injury. Because we find the evidence sufficient to support those findings, the question of the sufficiency of the evidence supporting damages becomes moot. Further, the jury's failure to find ordinary negligence on the part of any defendant necessarily means that it could not have found gross negligence. A finding of ordinary negligence is a prerequisite to a finding of gross negligence. Hall v. Stephenson, 919 S.W.2d 454, 467 (Tex. App.--Fort Worth 1996, writ denied); Shell Oil Co. v. Humphrey, 880 S.W.2d 170, 174 (Tex. App.--Houston [14th Dist.] 1994, writ denied); Trevino v. Lightning Laydown, Inc., 782 S.W.2d 946, 949 (Tex. App.--Austin 1990, writ denied). We overrule Alvarez's first point of error.

By her second, third and fourth issues, Alvarez contends that the trial court erroneously admitted expert testimony. Specifically, she argues that Dr. Reece and Dr. Norton should not have been allowed to give their opinion that Roxanne Alvarez murdered her son in an episode of "Munchausen syndrome by proxy" because they were not experts in the psychiatric disorder. We disagree.

We will not reverse a trial court's decision regarding whether to admit expert testimony absent an abuse of discretion. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30-31 (Tex. 1997). Texas Rule of Evidence 702 states that a witness qualified as an expert by knowledge, skill, experience, training, or education may give an opinion or otherwise testify regarding scientific, technical, or other specialized knowledge if it will assist the trier of fact to understand the evidence or to determine a fact in issue. Tex. R. Evid. 702. The trial court must determine if the proposed expert has "knowledge, skill, experience, training, or education" that would "assist the trier of fact." See id. "Expert testimony assists the trier-of-fact when the expert's knowledge and experience on a relevant issue are beyond that of the average juror and the testimony helps the trier-of-fact understand the evidence or determine a fact issue." K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000). We hold the trial court was within its discretion to allow the testimony regarding Munchausen syndrome by proxy.

Dr. Reece testified about the characteristics of Munchausen syndrome by proxy and gave his opinion that Michael Harwood's death was caused by his mother intentionally suffocating him in a case of Munchausen syndrome by proxy. The trial court allowed the testimony. Dr. Reece testified that he is a pediatrician employed by the Massachusetts Society for the Prevention of Cruelty to Children and that he routinely gives lectures and seminars about child abuse and neglect. He also testified that he has been called on to consult regarding suspected child abuse cases in the emergency room. The trial court was well within its discretion to allow his testimony. Additionally, we find no merit to Alvarez's contention that Dr. Reece's testimony should have been excluded because it was not adequately disclosed during discovery.

Likewise, the trial court did not abuse its discretion in allowing the testimony of Dr. Norton. Dr. Norton testified that she is a forensic pathologist who has been exposed to many autopsies of children, and that many of the autopsies were of children who died from child abuse. She stated she was very familiar with Munchausen syndrome by proxy, and gave a detailed description of the syndrome. We overrule Alvarez's second, third and fourth points of error.

By their fifth point of error, Alvarez argues that the trial court erred in allowing the jury to hear evidence regarding whether Roxanne took out life insurance on her son prior to his death. Counsel for defendants asked Roxanne, on the stand, whether she had ever taken out a life insurance policy on Michael. Her response was equivocal. Defense counsel gave her an authorization form and asked her to sign it so he could fax it to the insurance company and obtain a copy of any applications for insurance she made for life insurance on Michael. After strenuous debate over the issue, both attorneys read a stipulation to the jury. It said:

We attorneys for both the Plaintiffs and all of the Defendants stipulate and/or agree to the fact that if the evidence was pursued it would show that the application for insurance that Mr. Brin inquired of Roxanne Alvarez on the afternoon of 12/5/92 pertained to American National Insurance policy in the amount of $3,000 and was never issued because of Michael Harwood's preexisting condition.

First, Alvarez contends that the trial court erred in allowing the defense to taint the jury by introducing testimony regarding insurance. Texas Rule of Evidence 411 prohibits evidence regarding whether a person had liability insurance to be admitted on the issue of whether the person acted negligently or wrongfully. Tex. R. Evid. 411. However, the "rule does not require the exclusion of evidence of insurance against liability when offered for another issue, such as proof of agency, ownership, or control, if disputed, or bias or prejudice of a witness." Id.

While we do not condone defense counsel's tactics of surprising Alvarez on the stand with a request that she sign an authorization for release of life insurance records, we do not believe that the interjection of insurance caused reversible error in this case. See Tex. R. App. P. 44.1. No judgment may be reversed on appeal on the ground that the trial court made an error of law unless this Court concludes that the error complained of either (1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals. Id. We believe that any harm that could have resulted from the interjection of insurance and the borderline conduct of defense counsel with regard to the authorization form was not serious enough to "probably cause the rendition of an improper judgment." Id. Accordingly, we overrule Alvarez's fifth point of error.

By her sixth issue, Alvarez contends that the jury should not have been asked to find intentional conduct in determining liability issues. The first question submitted to the jury asked whether the negligence or intentional conduct of a list of persons caused the death of Michael Harwood. The list included Roxanne Alvarez. Alvarez contends that the evidence did not support submission of the issue of intentional conduct. We disagree.

The trial court has broad discretion in submitting the jury charge. Error in the charge is reviewed under an abuse of discretion standard, and this Court will not reverse a case due to charge error unless the error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a); Kajima Intern., Inc. v. Formosa Plastics Corp., USA, 15 S.W.3d 289, 291 92 (Tex. App.--Corpus Christi 2000, no pet.). The trial court must submit the questions, instructions and definitions that are raised by the written pleadings and the evidence. Tex. R. Civ. P. 278; Gunn Infiniti, Inc. v. O'Byrne, 996 S.W.2d 854, 862 (Tex. 1999). In fact,

A trial court may refuse to submit a question only if no evidence exists to warrant its submission. If there is some evidence to support a jury question and the trial court does not submit the question, the trial court has committed reversible error. In determining whether a trial court should have submitted a question to the jury, the reviewing court must examine the record for evidence supporting submission of the question and ignore all evidence to the contrary. Conflicting evidence presents a fact question for the jury.

Id. (internal citations omitted).

We hold that the evidence was sufficient to substantiate the court's inclusion of the question. The defense produced numerous witnesses who opined that the circumstances surrounding Michael's death indicated that Alvarez intentionally suffocated him.

Next, Alvarez argues that the court should not have included the question on Roxanne's intention in the first question, which asked whether the "intentional or negligent conduct" of a list a people caused the death of Michael Harwood. However, Alvarez expressly waived that objection at trial. Alvarez's trial counsel specifically requested that the trial court submit the question in the form in which it was submitted. We overrule Alvarez's sixth point of error.

Finally, Alvarez argues that the trial court improperly severed certain defendants and causes of action from the instant proceeding before the trial. The trial court granted summary judgment that Alvarez take-nothing on all her intentional tort causes of action, and on her negligence actions against Dr. McNeil, Dr. Dirksen, and Dr. Cortes. The court then ordered the severance of those claims. We find that the severance was within the trial court's discretion.

"Severance of claims under the Texas Rules of Civil Procedure rests within the sound discretion of the trial court." Liberty Nat. Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996); see Guaranty Federal Savings Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990). Rule 41 states that "[a]ny claim against a party may be severed and proceeded with separately." Tex. R. Civ. P. 41. Accordingly, a trial court's decision regarding severance will not be disturbed absent an abuse of discretion. Guaranty Federal Savings Bank, 793 S.W.2d at 658. A trial court properly exercises its discretion in severing claims when: (1) the controversy involves more than one cause of action; (2) the severed claim is one that could be asserted independently in a separate lawsuit; and (3) the severed actions are not so interwoven with the other claims that they involve the same facts and issues. Id. Under that criteria, the trial court's severance was proper. We overrule Alvarez's seventh and final point of error complaining of suspected errors in the jury trial. We affirm the trial court's judgment in cause number 13-98-152-CV.

Part Two: Challenge to the Summary Judgment
On the Remanded Causes of Action

Alvarez also appeals the trial court's grant of summary judgment on the remanded claims. This Court affirmed the trial court's original grant of summary judgment that Alvarez take nothing on her negligence claims against Dr. Dirksen and Dr. McNeil. Alvarez, 967 S.W.2d at 883. However, the Court remanded Alvarez's claims of malicious prosecution, civil conspiracy, intentional infliction of emotional distress and negligence against Dr. Cortes, and also remanded her causes of action for conspiracy and intentional infliction of emotional distress against Dr. McNeil and Dr. Dirksen. Id. On remand, the trial court granted summary judgment on those remaining claims.

A. Negligence Claims Against Dr. Cortes

This Court reversed the summary judgment with regard to Dr. Cortes on the negligence and gross negligence claims. Cortes moved for summary judgment on grounds that he is entitled to judgment as a matter of law on the basis of the doctrines of collateral estoppel and res judicata.

We review a summary judgment de novo. Whalen v. Condominium Consulting and Management Services, Inc., 13 S.W.3d 444, 446 (Tex. App.--Corpus Christi 2000, pet. denied). To warrant summary judgment, the movant must show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law on the issues expressly set out in the motion. Tex. R. Civ. P. 166a(c). We review the evidence in the light most favorable to the non-movant and disregard all contrary evidence and inferences. Ramirez v. Carreras, 10 S.W.3d 757, 760 (Tex. App.--Corpus Christi 2000, pet. denied). When a defendant moves for summary judgment on an affirmative defense, she must conclusively establish all elements of her affirmative defense. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

1. Negligence in Dr. Cortes' Capacity as Director of Emergency Services

Dr. Cortes has shown entitlement to judgment on any claims of negligence he is alleged to have committed in his capacity as director of emergency services at Driscoll. If Driscoll has been found to be non-negligent in its care of Michael, that finding would apply to all actions taken by its agents in their capacity as agents of the Hospital. The jury was correctly charged that hospitals act by and through their officers, employees, managers, and agents, and that those acts are the acts of the hospital. A hospital may be vicariously liable for the negligence of its employees or agents under theories of respondeat superior and ostensible agency if the employee or agent is negligent and proximately causes the injury. Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947-48 (Tex. 1998).

All the negligent acts that Dr. Cortes was accused of committing in his capacity as Director of Emergency Services involved hospital policy and procedures and were included in Alvarez's suit directly against the Hospital. The jury found that the Hospital in no way caused the death of Michael Harwood. Thus, Alvarez's claims that Dr. Cortes caused Michael Harwood's death, in his capacity as Director of Emergency Services, have already been litigated and are barred from being re-litigated.

2. Negligence in Dr. Cortes' Capacity as an Individual Physician

Dr. Cortes also argued that the summary judgment evidence established that no physician-patient relationship existed between himself and Michael Harwood that could impose negligence liability for the actions made the basis of this lawsuit. Dr. Cortes' affidavit states that while he did treat Michael in the past, he had no involvement in Michael's treatment with regard to his admission to Driscoll on April 10th, preceding the April 12th episode. Dr. Cortes stated that he did not even see Michael from January 27th until April 12th, when Michael was already in a coma. The law in Texas is clear that a physician cannot be held liable for medical negligence to a non-patient. St. John v. Pope, 901 S.W.2d 420, 424 (Tex. 1995); Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994); Ramirez v. Carreras, 10 S.W.3d at 761. The existence of a professional relationship adequate to trigger a duty to use a professional standard of care is a preliminary question of law. St. John v. Pope, 901 S.W.2d at 424; Ramirez, 10 S.W.3d at 761.

We hold that because there was no physician-patient relationship, summary judgment was properly granted with regard to the negligence claims against Dr. Cortes relating to any negligence in his capacity as an individual physician (and not as Director of Emergency Services for the hospital). Alvarez did not challenge Cortes' affidavit stating that he did not treat Michael in the days preceding his cardio-pulmonary failure and coma. We hold that a physician-patient relationship was not created that would allow Dr. Cortes to be held negligent for the treatment Michael received in his April hospital stay that led up to his coma.

3. Negligence for Dr. Cortes' Treatment of Michael before this Episode Began

The only other potential basis for finding Dr. Cortes negligent is for actions he took while treating Michael prior to Michael's April admission. Even considering Dr. Wendt's affidavit as competent summary judgment evidence, the plaintiff has presented no evidence that Dr. Cortes' treatment of Michael Harwood prior to his admission in April of 1993 fell below the standard of care. Accordingly, we sustain the trial court's grant of summary judgment that Alvarez take nothing on her claims of negligence and gross negligence against Dr. Cortes.(3)

B. Intentional Tort Claims

1. Civil Conspiracy Claims

Next, the trial court granted summary judgment that Alvarez take nothing on her tort claims against Dr. Cortes, Dr. McNeil and Dr. Dirksen. Alvarez alleged that they conspired with one another to have her charged with Michael's injuries and to conceal their own negligent acts. The defendants argue that because the jury found that Dr. McNeil, Dr. Dirksen and the hospital did not negligently cause Michael's death, Alvarez is barred by collateral estoppel from claiming that they conspired to cover up their negligence. We hold that the doctors have conclusively established that the doctrine of collateral estoppel bars Alvarez from further prosecuting her civil conspiracy causes of action against them.

A civil conspiracy is a combination of two or more persons formed to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983). The essential elements are (1) two or more persons; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result. Id. We agree that the jury's findings that Dr. McNeil and Dr. Dirksen were not guilty of negligence that proximately caused Michael Harwood's death precludes her from re-litigating the issue of whether they conspired to conceal their own negligence. Additionally, because Dr. Dirksen and Dr. McNeil were not found to be negligent, only one person is left who could have been found negligent by the jury--Dr. Cortes. Because a conspiracy requires more than one person, Alvarez's claim against Dr. Cortes would likewise have to fall. We affirm the trial court's grant of summary judgment on the conspiracy causes of action.

2. Intentional Infliction of Emotional Distress Claims

We also hold the trial court correctly granted summary judgment that Alvarez take nothing on her claims of intentional infliction of emotional distress claims. Defendants argued that Alvarez had no evidence on an essential element of her cause of action. We agree.

The elements of a cause of action for intentional infliction of emotional distress are: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the defendant's conduct caused the plaintiff emotional distress; and (4) the emotional distress was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Alvarez contends that the doctors' behavior in colluding to report her and, in fact, reporting her to CPS in an effort to avert attention from their own negligence in causing the death of Michael amounted to intentional infliction of emotional distress. We agree that there is no evidence to show that the doctors' actions were extreme and outrageous because there is no evidence to show they did not believe the claims they were making against Alvarez. We affirm the trial court's decision that Alvarez take nothing on her intentional infliction of emotional distress claims.

3. Malicious Prosecution Claims

Finally, we hold that the trial court correctly granted summary judgment that Alvarez take nothing on her claims of malicious prosecution. A cause of action for malicious prosecution requires the plaintiff to show: (1) the commencement of a criminal prosecution against the plaintiff; (2) causation of the action by the defendant; (3) termination of the prosecution in the plaintiff's favor; (4) the plaintiff's innocence; (5) the absence of probable cause for the proceedings; (6) malice in fling the charge; and (7) damage to the plaintiff. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). The defendants moved for summary judgment on no-evidence grounds. We hold that Alvarez failed to produce any evidence to raise a fact issue regarding either the absence of probable cause for the proceedings or malice in the filing of the charge. Accordingly, we affirm the trial court's ruling that Alvarez take nothing on her malicious prosecution claims.

We hold the summary judgment in cause number 13-99-088-CV was properly granted, and affirm that judgment.

______________________________

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 7th day of December, 2000.

1. While the causes were separated into two cause numbers after the summary judgment was granted, for the sake of clarity, in describing facts common to both, we treat them as if they were one cause.

2. Collectively referred to as "Alvarez" except where otherwise indicated.

3. Cortes also moved for summary judgment on the negligence and gross negligence claims on no-evidence grounds. We do not reach these potential bases for the summary judgment for Dr. Cortes because we have held the judgment was properly granted him on other grounds.