Leonard Carter v. William Lagomarsino, M.D., Individually and as Agent of Medical Arts Clinic--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-93-239-CV

LEONARD CARTER,

Appellant

v.

WILLIAM LAGOMARSINO, M.D.,

INDIVIDUALLY AND AS

AGENT OF MEDICAL ARTS CLINIC,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 92-00-03014-CV

O P I N I O N

Leonard Carter attempts to appeal from a summary judgment entered in favor of Dr. William Lagomarsino. // He argues that the court erred when it entered the summary judgment on his cause of action alleging a negligent failure to disclose the risks or hazards associated with two medical procedures because that ground was never included in the motion. We hold that the summary judgment is interlocutory, and thus non-appealable, because it did not dispose of all claims against the defendants, Dr. Lagomarsino and Medical Arts Clinic, and there is no severance of the unadjudicated claims. Therefore, we will dismiss for want of jurisdiction.

Dr. Lagomarsino, an ophthalmologist, treated Leonard Carter for glaucoma over a period of many years. On November 23, 1990, he performed Argon Laser Trabeculoplasty on Carter's left eye in an attempt to ease rising intraocular pressure. He attempted the same procedure again on his left eye on December 14 but was unable to complete it. Carter subsequently lost the vision in his left eye.

Carter sued Dr. Lagomarsino and Medical Arts Clinic Association of Corsicana, a corporation, alleging medical malpractice. He sued Dr. Lagomarsino individually and in his representative capacity as agent of the corporation. Both defendants answered the suit and participated in discovery.

Carter alleged in an amended pleading that Dr. Lagomarsino was guilty of these acts of negligence: (1) failing to consult with a qualified expert prior to performing the medical procedure on November 23, 1990; (2) failing to properly and competently treat him; (3) failing to provide proper medical care; and (4) failing to inform and advise him of the risks and hazards associated with the medical procedures performed in November and December of 1990. He alleged that Medical Arts Clinic, acting by and through Dr. Lagomarsino, was negligent in (1) failing to employ necessary quality control standards to ensure that patients in the Clinic's care would receive competent and qualified medical treatment from its staff; and (2) failing to obtain a second evaluation of his condition before the two medical procedures were performed.

Dr. Lagomarsino moved for a summary judgment based on his affidavit and the affidavit of Dr. Schumann, and the court granted it. Carter argues that the court erred in doing so because Dr. Lagomarsino failed to negate the cause of action based on the failure to disclose the risks and hazards associated with the medical procedures performed on his left eye.

To be final and appealable, a summary judgment must dispose of all parties and issues. Chase Manhattan Bank, N.A. V. Lindsay, 787 S.W.2d 51, 53 (Tex. 1990). Furthermore, a summary judgment must dispose of all issues within a single cause of action or it is interlocutory. Id.

The summary judgment in favor of Dr. Lagomarsino did not dispose of the cause of action against the Clinic, and the record does not reflect a severance of the claims against the Clinic from those against Dr. Lagomarsino. Furthermore, Dr. Lagomarsino never moved for a summary judgment on Carter's cause of action based on the negligent failure to disclose and, without a severance, this unadjudicated claim remains pending before the court. See id.

The summary judgment is interlocutory. Accordingly, we dismiss the cause for want of jurisdiction.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed April 13, 1994

Do not publish