ALEJANDRO SANTOS AND MARTHA MONICA SANTOS v. MADELYN HOLZMAN, M. D.--Appeal from 103rd District Court of Cameron County

NUMBER 13-02-662-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI EDINBURG

ALEJANDRO SANTOS AND MARTHA

MONICA SANTOS, Appellants,

v.

MADELYN HOLZMAN, M. D., Appellee.

On appeal from the 103rd District Court

of Cameron County, Texas.

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

Before Chief Justice Valdez and Justices Rodriguez and Garza

Opinion by Chief Justice Valdez

Appellants, Alejandro and Martha Santos, appeal the decision of the Hidalgo County trial court granting the motion of appellee, Madelyn Holzman, M.D., to sever the claims against Dr. Holzman and to transfer venue to Cameron County. The Santoses also appeal the subsequent decision of the Cameron County trial court to dismiss the Santoses s claim. Because the motion to transfer was improperly granted, we reverse and remand.

I. FACTS

The underlying suit in this dispute involves a claim of medical malpractice resulting from an ineffective vasectomy and subsequent faulty medical advice, which resulted in two wrongful pregnancies.

In March 1998, Alejandro Santos underwent a vasectomy in a clinic located in Hidalgo County, Texas. Alejandro claims that his urologist, Dr. Roger Vitco, failed to advise him to refrain from sexual relations immediately following the procedure. Alejandro, believing that the procedure was immediately effective, resumed sexual relations with his wife, Monica, who then became pregnant after the vasectomy and gave birth in December 1998. Following the birth of this child, Alejandro underwent a fertility test in order to determine whether the vasectomy had eventually become effective. The test showed that Alejandro was still fertile. Due to his dissatisfaction with the doctor s past performance, Alejandro then decided to seek a second opinion before undergoing a second vasectomy and was referred to Dr. Madelyn Holzman. Dr. Holzman, who practices and lives in Cameron County, Texas, examined Alejandro. The Santoses allege that Dr. Holzman told Alejandro that he was infertile and could resume sexual relations with his wife. She then had him submit to a sperm count, which, when conducted a few days later, tested positive for fertility. However, according to the Santoses, these results were never reported to Alejandro. Because he had been assured of his infertility by Dr. Holzman, Alejandro resumed sexual relations with his wife. About a year after Dr. Holzman s examination and diagnosis, Monica again became pregnant and, in August 2001, gave birth to another child.

During this second post-vasectomy pregnancy, Alejandro was examined by a third urologist, who found that Alejandro was still fertile and recommended a second vasectomy, which was conducted successfully.

Alejandro and Monica then sued Dr. Vitco and the clinic from the first vasectomy for medical malpractice and wrongful pregnancies. The couple later added Dr. Holzman and several other parties to the suit. Dr. Holzman was added to the medical malpractice and wrongful pregnancy claims for advising Alejandro that he could resume unprotected sexual relations with his wife at a time when he was still fertile and for failing to communicate the results of the sperm count to the Santoses.

Dr. Holzman filed a motion to sever the claims against her and to transfer venue to Cameron County. The motion was granted and the claims against her were severed and transferred to a Cameron County district court, whereupon Dr. Holzman filed a motion to dismiss. The Cameron County district court judge granted the motion and dismissed the suit.

On appeal, the Santoses complain of three issues: (1) the motion to sever and transfer the claims against Dr. Holzman should not have been granted by the Hidalgo County district court; (2) the Cameron County court erred in granting Dr. Holzman s motion to dismiss; and (3) the Cameron County court erred in denying the Santoses s motion for a new trial.

II. SEVERANCE AND VENUE

We first address the issues of severance and transfer of venue. Trial courts may sever claims that are improperly joined to the primary case and proceed with the severed case separately. See Tex. R. Civ. P. 41. We review orders of severance for an abuse of discretion. See Nicor Exploration Co. v. Florida Gas Transmission Co., 911 S.W.2d 479, 481 (Tex. App. Corpus Christi 1995, writ denied). Severance of a claim is proper if (1) the controversy involves more than one cause of action; (2) the severed claim is properly the subject of a lawsuit; and (3) the severed claim is not so interwoven that it involves the same facts and issues. Guar. Fed. Savs. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990). The controlling reasons to grant a severance are to do justice, avoid prejudice and to further convenience the parties. Nicor Exploration Co., 911 S.W.2d at 482. Further, if a claim against multiple parties involves the same facts and issues, the trial court may not simply sever a party from the cause of action. Id. It should sever only complete and discrete claims from one another. See id.

When considering the severance of medical malpractice claims, we focus not on the number of defendants involved, but rather on whether there has been a continuous course of treatment producing an indivisible injury. See Jones v. Ray, 886 S.W.2d 817, 821 (Tex. App. Houston [1st Dist.] 1994, orig. proceeding). If a claim involving an indivisible injury is severed, the facts and issues relating to each particular entity s liability for their part in the injuries is the same, and each defendant in each severed suit would be able to present evidence that the defendants on trial in the other suit were responsible, thereby increasing the risk of inconsistent judgments and inadequate compensation of the injured plaintiff. See id. at 822.

Here, the injury to the Santoses was derived from a series of allegedly mishandled medical procedures, which ultimately culminated in a second unexpected post-vasectomy pregnancy. This constitutes a continuous course of treatment, the individual portions of which worked together to jointly produce an indivisible injury. See id. To divide the Santoses s suit into two suits would produce two trials focused on the same facts and same injury, and could potentially lead to undue repetition, confusion and prejudice to the interests of both the plaintiffs (who could be either over or under compensated) and the defendants (who could face unduly low or high fractional shares of the total liability for damages). Thus, in this instance, the third prong of the Guaranty Federal test is not met, and the severance order constituted an abuse of discretion. See State Dep t of Highways v. Cotner, 845 S.W.2d 818, 819 (Tex. 1993) (per curiam); Guar. Federal, 793 S.W.2d at 658.

Given that the order severing the suit and allowing transfer of the claims against Dr. Holzman was improper on the grounds of severance, we now turn to consideration of the remainder of the motion and consider the question of venue.

The trial court must consider all venue facts pled by the plaintiff true unless they are specifically denied by an adverse party. See Tex. R. Civ. P. 87(3)(a). Once venue facts are specifically denied, the plaintiff must then respond with prima facie proof of that venue fact. Id. Venue is generally proper (1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred; or (2) in the county of defendant s residence at the time of the accrual of the course of action. See Tex. Civ. Prac. & Rem. Code Ann. 15.002 (a) (Vernon 2002). When there are multiple defendants involved, the plaintiff must first establish proper venue against at least one defendant; venue is then proper as to all defendants in all claims arising out of the same transaction, occurrence, or series of transactions or occurrences. See id. 15.005. To determine if a claim arises out of the same transaction or occurrence, this Court employs the logical relationship test. See Blalock Prescription Ctr. v. Lopez-Guerra, 986 S.W.2d 658, 663 (Tex. App. Corpus Christi 1998, no pet.). Under this test, a transaction is flexible, comprehending a series of many occurrences logically related to one another. Id. To arise from the same transaction, at least some of the facts must be relevant to both claims. Id.

When venue is contested, the appellate court must consider the entire record in order to determine whether the plaintiff provided prima facie proof of the disputed venue facts. Tex. Civ. Prac. & Rem. Code Ann. 15.064 (Vernon 2002). If venue is improper, it shall be considered reversible error. Id. If a plaintiff files suit in a county of proper venue, it is also reversible error to transfer venue under section 15.063(1), even if the county of transfer would have been proper if originally chosen by the plaintiff. Wilson v. Tex. Parks & Wildlife Dep t, 886 S.W.2d 259, 261 (Tex. 1994); N. Nat l Gas Co. v. Chisos Joint Venture I, 142 S.W.3d 447, 452 (Tex. App. El Paso 2004, no pet.). Although we view the record in the light most favorable to the trial court s decision, we do not defer to the trial court s application of the law to the facts of the case. N. Nat l Gas, 142 S.W.3d at 452.

In the present case, the Santoses filed suit in Hidalgo County against doctors and clinics located in both Hidalgo County and Cameron County. Their petition claims that this is a suit for medical malpractice arising from the defendants failure to properly test and advise Alejandro regarding his sexual fertility following his first vasectomy. It is undisputed that the majority of the defendants and the Santoses all reside in Hidalgo County; therefore, the Santoses have properly established venue in Hidalgo County with regard to these defendants. The facts alleged by the Santoses in constructing the scope of their claim involve a series of occurrences related to one another in that each subsequent event would not have occurred without the occurrence of the preceding event, and each alleged wrongful action contributed to the overall injury produced. Specifically, the alleged conduct of Dr. Holzman would not have occurred without the improper performance of the original urologist, as Alejandro would not have needed a second opinion and further fertility testing from Dr. Holzman. The purportedly inadequate advice of Dr. Holzman, in turn, immediately led to the second wrongful pregnancy. We discern a logical relationship between this series of events, which satisfies the test adopted by this Court in Blalock to determine if a claim arises out of the same transaction or occurrence. See Blalock, 986 S.W.2d at 663. Thus, venue, if proper in Hidalgo County for at least one defendant, is also proper for all other defendants whose actions relate to the same transaction or occurrence, including Dr. Holzman. See Tex. Civ. Prac. & Rem. Code Ann. 15.005.

Because we have already established that the claims should not have been severed, it follows that the claims must be heard in Hidalgo County, as this was a proper county as to at least one defendant. As the county originally chosen by the Santoses was proper, it was reversible error to transfer the claim to Cameron County. See Wilson, 886 S.W.2d at 262.

Accordingly, we sustain the Santoses s first issue on appeal and hold that the granting of the motion to sever and to transfer venue was improperly granted. Given our disposition of this issue, we need not address the remaining issues. Tex. R. App. P. 47.1.

III. CONCLUSION

If a venue determination is improper, a litigant is entitled to a reversal of the judgment. See Tex. Civ. Prac. & Rem. Code Ann. 15.064 (b); Hendricks Med. Ctr. v. Howell, 690 S.W.2d 42, 45 (Tex. App. Dallas 1985, no writ). Therefore, the judgment of the trial court is reversed and remanded, and the trial court is ordered to transfer the claim against Dr. Holzman back to the Hidalgo County Court for rejoinder with the original claim.

Rogelio Valdez

Chief Justice

Memorandum Opinion delivered and filed

this 27th day of January, 2005.