Robert Herse, Individually and as the Representative of the Estate of Althea Harris, Deceased v. Robert L. Jimenez, M.D.; Christus Santa Rosa Health Care d/b/a Covenant Behavioral Health; and Covenant Behavioral Health L.L.P. d/b/a Covenant Behavioral Health--Appeal from 408th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00222-CV
Robert HERSE, Individually and as the
Representative of the Estate of Althea Harris, Deceased,
Appellant
v.
Robert L. JIMENEZ, M.D.;
Covenant Behavioral Health, L.L.P. d/b/a Covenant Behavioral Health;
and Christus Santa Rosa Health Care d/b/a Covenant Behavioral Health,
Appellees
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CI-12530
Honorable Janet Littlejohn, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 12, 2003

MODIFIED AND AFFIRMED

Robert Herse filed a health care liability suit against Robert L. Jimenez, M.D., Covenant Behavioral Health, L.L.P. d/b/a Covenant Behavioral Health; and Christus Santa Rosa Health Care d/b/a Covenant Behavioral Health, alleging their negligence caused the death of his wife Althea Harris. When Herse failed to file the expert reports required by the Medical Liability and Insurance Improvement Act, the trial court granted the defendants' motions to dismiss the claims with prejudice. See Tex. Rev. Civ. Stat. Ann. art 4590i 13.01(e)(3) (Vernon Supp. 2002). However, before the trial court signed the order of dismissal, Herse filed an amended petition omitting the medical negligence claims and adding premises liability and fraud claims. Defendants each filed a motion pleading alternatively for dismissal or for a no-evidence summary judgment on all Herse's claims. The trial court granted the motions and dismissed Herse's claims. We hold the trial court did not err in granting the defendants' motions. However, we modify the judgment to render a take-nothing judgment against Herse and affirm the judgment as modified. See Tex. R. App. P. 43.2(b).

1. As grounds for his premises liability claim, Herse alleged defendants "fail[ed] to provide a safe environment or to warn of a known danger[,] ... to recognize the lack of a safe environment for its invitees[,] ... [or] to institute appropriate measures to prevent the death[.]" In his responses to the defendants' no evidence motions for summary judgment, Herse failed to present any evidence of any unreasonably dangerous condition on the premises or that any act or omission of the defendants proximately caused Althea Harris's injury or death. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). In fact, Herse concedes he does not know what precipitated Harris's death. Moreover, Herse failed to present any evidence that Dr. Jimenez "possessed--that is, owned, occupied, or controlled--the premises." Wilson v. Texas Parks and Wildlife Dept., 8 S.W.3d 634, 635 (Tex. 1999) (per curiam denial of petition for review); see Gunn v. Harrison Methodist Affiliated Hosp., 887 S.W.2d 248, 251-52 (Tex. App.-Fort Worth 1994, writ denied). A take-nothing summary judgment on the premises liability claims should therefore have been granted.

2. Herse alleged defendants committed fraud by "creating false records as a basis for lengthening patient's stays to increase census and revenue" and by "misrepresenting the nature, extent, [and] content of the treatment [Harris] would receive." Specifically, Herse complains that Dr. Jimenez falsely represented that Harris needed to remain hospitalized another day and falsely stated that he was stopping all Harris's medications. Defendants moved for summary judgment on the ground that there was no evidence any false representations were made. Additionally, Dr. Jimenez moved for summary judgment on the ground that there was no evidence that the statements proximately caused Harris's death.

Herse's affidavit and the portions of the hospital records he filed in response to the motions for summary judgment evidence establish that Harris was voluntarily admitted to Covenant Behavioral Health on July 5, 1999, with major depression and a chronic pain disorder. She was placed on a medication regimen and showed substantial progress after several days. Dr. Jimenez was considering discharging Harris on July 8; however, that morning Harris was excessively drowsy and disoriented and appeared to be over sedated. Dr. Jimenez found no record of Harris receiving any medication other than what she had previously been taking. Dr. Jimenez told Herse he was withholding Harris's medications and recommended she remain at the facility until the issue of her medications could be cleared up. Harris's medications were held and later in the day she became more alert and oriented. However, Dr. Jimenez's progress notes state that Harris became "supersentitive, ... agitated, paranoid, suspicious, [and] literally falling apart." He ordered Harris's medications resumed and noted that "we are going to have to try to see what we can do in terms of containing it." At about 11:15 that night, Harris was happy and alert. She went to bed at about 12:30 a.m. and was asleep by 1:00 a.m. She was checked routinely throughout the night. The nurse's notes state that at 8:55 a.m. Harris was asleep and warm to the touch, had a pulse of 74 and a respiratory rate of 14, and showed no signs of distress. However, about five minutes later, a nurse found Harris face down in her bed and unresponsive to verbal stimuli, with a weak pulse and shallow respiration. CPR was started and Harris was transferred to a hospital emergency room, where she died.

Herse filed no summary judgment evidence of any "false record" or any false entry in a record. Likewise, there is no evidence Dr. Jimenez's statement that Harris needed to stay another night was false. And the summary judgment record establishes that Dr. Jimenez did stop Harris's medications as he stated he would. Herse submitted no evidence that Dr. Jimenez did not intend to withhold Harris's medications when he made the statement. See Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 47-48 (Tex. 1998). Because Herse failed to present more than a scintilla of evidence that defendants made any fraudulent representations, the trial court should have granted the no-evidence motions for summary judgment. See Tex. R. Civ. P. 166a(I); King Ranch, Inc. v. Chapman, No. 01-0430, 2003 WL 22025017, *5-*6 (Tex. Aug. 28, 2003).

3. Finally, Herse complains the trial court abused its discretion by denying his motions for continuance and for further discovery. Herse's original petition was filed in August 2000. The agreed discovery order set February 16, 2002 as the deadline for completion of discovery and stated: "Parties seeking discovery must serve requests sufficiently far in advance of this date that the deadline for responding will be on or before the discovery cut-off." The defendants' motions for summary judgment were filed in December 2001 and set to be heard January 16, 2002. Herse filed his motions for continuance and to modify discovery on January 3, 2002. The motions and attached affidavit stated that Herse needed to depose Dr. Jimenez, obtain affidavits or depositions of Harris's other treating physicians and Covenant staff, and obtain documents from Covenant and the Texas Department of Health. Although the affidavit states the holidays made it difficult to obtain affidavits during December, it also acknowledges that Herse's attorney had not even located some of the witnesses from whom he wanted statements. Further, the motions and affidavit do not state what diligence Herse had used in the fifteen months before the motions were filed to investigate the case and obtain the desired discovery or why he had been unable to obtain it. All that is reflected in the record are the statements of counsel that requests for disclosure and interrogatories had been sent and responded to. Under these circumstances, the trial court did not abuse its discretion in denying Herse's motions. See Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); Restaurant Teams Int'l, Inc. v. MG Securities Corp., 95 S.W.3d 336, 342 (Tex. App.-Dallas 2002, no pet.); Risner v. McDonald's Corp., 18 S.W.3d 903, 909 (Tex. App.-Beaumont 2000, pet. denied); McClure v. Atteburry, 20 S.W.3d 722, 729 (Tex. App.-Amarillo 1999, no pet.).

The trial court did not err in granting the motions to dismiss or for summary judgment. However, rather than dismissing Herse's claims, the trial court should have rendered a take-nothing judgment. We therefore modify the judgment to render a take-nothing judgment against Herse and affirm the judgment as modified.

Sarah B. Duncan, Justice