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      OPINION

      No. 04-06-00099-CV

      Tammy L. HAYNES and Robert Haynes,
      Appellants

      v.

      Anna B. BECEIRO, M.D.,
      Appellee

      From the 224th Judicial District Court, Bexar County, Texas
      Trial Court No. 2003-CI-08103
      Honorable Karen H. Pozza, Judge Presiding


      Opinion by: Sandee Bryan Marion, Justice
      Sitting: Sandee Bryan Marion, Justice
      Phylis J. Speedlin, Justice
      Rebecca Simmons, Justice


      Delivered and Filed: November 1, 2006


      AFFIRMED
      This is an appeal from the denial of appellants' motion for summary 
      judgment and the granting of appellee's motion for summary judgment.
      BACKGROUND
      When Tammy Haynes became pregnant with her second child, she sought 
      prenatal care from Peter Kuhl, M.D. Kuhl delivered Tammy's second child at 
      Methodist Hospital. Following the birth, Tammy experienced periodic 
      episodes of heavy vaginal bleeding. Kuhl diagnosed her as suffering from 
      endometriosis, and recommended elective surgery consisting of a total 
      abdominal hysterectomy and a bilateral salpingo-oophorectomy. After 
      discussing the recommendation with her husband, Robert Haynes, Tammy 
      agreed to the procedures and specifically requested that Kuhl be her 
      surgeon. Kuhl agreed to be Tammy's surgeon, but he informed her that he 
      would probably be assisted during surgery by another doctor in his group, 
      Dr. Anna Beceiro. Surgery was scheduled for March 7, 2002.
      On March 4, 2002, Tammy spoke with someone in Kuhl's office regarding her 
      insurance benefits. She was told that Kuhl was not a designated physician 
      in her insurance network; therefore, her insurance company would probably 
      not pay his surgery fee. Tammy was advised that one of the other surgeons 
      in Kuhl's group, who was a designated physician in the network, could 
      perform the surgery and Kuhl would be present and assist. Tammy declined 
      this option and stated she did not want another doctor to perform the 
      surgery. In Progress Notes, taken by Kuhl's office, there is the following 
      notation: "She does not want to see anyone else - or have anyone else do 
      surgery." This sentence is underlined in the Notes. 
      On the morning of March 7, when Tammy arrived at the hospital, she signed 
      a Disclosure and Consent form. The form stated, "I (we) voluntarily 
      request Dr. Peter Kuhl as my physician, and such associates, technical 
      assistants and other health care providers as they may deem necessary to 
      treat my condition...." Tammy contends she never met Beceiro at any time 
      before her surgery. Beceiro, on the other hand, contends she met Tammy 
      briefly in the holding area before the surgery began, and she told Tammy 
      she would be assisting Kuhl with the surgery. Both Kuhl and Beceiro 
      performed the surgery, during which both of Tammy's ureters were tied off, 
      her bladder was lacerated with a three to four centimeter hole, and a 
      kidney was obstructed. A subsequent surgery was required to correct these 
      injuries.
      In 2003, Tammy and Robert (collectively, "appellants") sued Kuhl, Beceiro, 
      and Methodist Hospital. In their Sixth Amended Petition, only Beceiro 
      remained as a defendant, with appellants asserting negligence in the 
      performance of the surgery, as well as allegations that Beceiro (1) failed 
      to obtain Tammy's consent to perform surgery; (2) intentionally or 
      negligently withheld from appellants the fact that Beceiro would actually 
      be performing surgery, as opposed to merely assisting Kuhl; (3) 
      intentionally or negligently misinformed appellants that Beceiro would 
      only "assist" Kuhl, although Beceiro knew she would actually be performing 
      surgery; and (4) intentionally or negligently committed a medical battery 
      on Tammy by performing surgery without Tammy's consent and in the absence 
      of a medical or surgical emergency. 
      Both appellants and Beceiro filed motions for summary judgment that were 
      denied. Appellants later filed a second motion for both a traditional 
      summary judgment and a no-evidence summary judgment, incorporating by 
      reference their first motion for summary judgment. In this motion, 
      appellants moved for a partial summary judgment on the grounds that 
      Beceiro committed medical battery because Beceiro did not have Tammy's 
      consent to perform the surgery. Beceiro filed a response and her own 
      motion for summary judgment, all in the same pleading, incorporating by 
      reference her first motion for summary judgment and her response to 
      appellants' first motion for summary judgment. The parties disagree on 
      whether Beceiro moved for summary judgment on appellants' medical battery 
      claim; however, our review of the pleadings reveal that Beceiro's pleading 
      sufficiently stated her argument that Tammy's consent entitled Beceiro to 
      summary judgment on appellants' battery claim.
      The trial court denied appellants' motion, granted Beceiro's motion as to 
      the battery and fraud claims, and denied Beceiro's motion as to the 
      negligence claims. About a month before the summary judgment was signed, 
      appellants filed their Seventh Amended Petition in which they dropped 
      allegations regarding any negligence in the performance of the surgery. 
      Accordingly, Beceiro filed a motion for entry of final judgment, arguing 
      that a final judgment could now be entered because the Seventh Amended 
      Petition contained no allegations of negligence. The trial court signed a 
      final judgment, dismissing appellants' case with prejudice. 
      On appeal, appellants assert the trial court erred in rendering summary 
      judgment on their battery and fraud claims.
      BATTERY
      "Medical treatment will not constitute a battery unless it is provided 
      without the patient's consent." Murphy v. Russell, 167 S.W.3d 835, 838 
      (Tex. 2005) (per curiam); see also Miller v. HCA, Inc., 118 S.W.3d 758, 
      767 (Tex. 2003); Baribeau v. Gustafson, 107 S.W.3d 52, 61 (Tex. App.--San 
      Antonio 2003, pet. denied) (holding that "[b]attery in the health care 
      context generally involves claims that a doctor performed acts on the 
      patient without consent."). Beceiro asserts she had Tammy's consent to 
      perform surgery based upon the Disclosure and Consent form signed by 
      Tammy, which stated in part: "I (we) voluntarily request Dr. Peter Kuhl as 
      my physician, and such associates, technical assistants and other health 
      care providers as they may deem necessary, to treat my condition which has 
      been explained to me as: Endometriosis."
      Appellants do not dispute they knew Beceiro was scheduled to assist Kuhl. 
      In her affidavit, Tammy admitted Kuhl "informed [her] he would probably be 
      assisted during the surgery by another doctor in the group, who he thought 
      would probably be Dr. Anna Beceiro." Nor do appellants complain about any 
      part of the surgery on which Beceiro merely assisted Kuhl. Instead, 
      appellants argue that Beceiro did more than merely assist Kuhl when she 
      performed "the left side of the hysterectomy and oophorectomy..." The 
      premise of appellants' argument is that the Disclosure and Consent form 
      named only Kuhl as Tammy's surgeon, and Tammy at no time gave her consent 
      for Beceiro to be her surgeon. Appellants argue that because Beceiro 
      actually performed one-half of the surgery, she had a duty to obtain 
      Tammy's written consent; and because Beceiro did not obtain Tammy's 
      consent to perform surgery, the surgery constituted medical battery. 
      Appellants' argument relies on their contention that the word "associate" 
      in the Disclosure and Consent form does not include physicians, surgeons, 
      or assistant surgeons. We disagree with this argument.
      The word "associate" is not among the defined terms in the Medical 
      Liability and Insurance Improvement Act; therefore, we give the word its 
      common meaning. See Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 
      118, 121 (Tex. 1996) (words and phrases in agreements should be given 
      their ordinary, plain, and common meaning); see also Tex. Gov't Code Ann. 
      § 311.011(a) (Vernon 2005) (words not defined in a statute are given their 
      plain meaning, read in context, and construed according to the rules of 
      grammar and common usage.). Webster's Dictionary defines "associate" to 
      mean "one associated with another: as a partner, [or] colleague." 
      Webster's Ninth New Collegiate Dictionary 110 (1983). Because the terms 
      used in the Disclosure and Consent form in this case are not ambiguous, we 
      may construe the form as a matter of law. Coker v. Coker, 650 S.W.2d 391, 
      393 (Tex. 1983) ("If the written instrument is so worded that it can be 
      given a certain or definite legal meaning or interpretation, then it is 
      not ambiguous and the court will construe the contract as a matter of 
      law."). Accordingly, we construe the phrase "such associates" as used in 
      the Disclosure and Consent form to include other physicians and surgeons 
      as deemed necessary by the surgeon named in the form. Therefore, when 
      Tammy gave her written consent for Kuhl "and such associates" to perform 
      the surgery specified in the Disclosure and Consent form, she consented to 
      Beceiro performing any part of that surgery "they [Kuhl] may deem 
      necessary, to treat [her] condition...."
      FRAUD
      In Beceiro's motion for summary judgment on appellants' fraud claim, she 
      relied on Tammy's assertion that Beceiro never spoke to her prior to 
      surgery. Beceiro argued that because Tammy denied the existence of any 
      representation - or any conversation at all - there was no 
      misrepresentation, no reliance, and no intent to defraud on Beceiro's 
      part. Under traditional summary judgment standards, (1) a party moving for 
      summary judgment has the burden of establishing as a matter of law that no 
      genuine issue of material fact exists as to one or more essential elements 
      of the plaintiff's cause of action. Casso v. Brand, 776 S.W.2d 551, 556 
      (Tex. 1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 
      (Tex. 1985). Once the movant has established a right to summary judgment, 
      the burden shifts to the respondent to present evidence that would raise a 
      genuine issue of material fact. City of Houston v. Clear Creek Basin 
      Auth., 589 S.W.2d 671, 678 (Tex. 1979); Reyes v. Credit Based Asset 
      Servicing and Securitization, 190 S.W.3d 736, 738 (Tex. App.--San Antonio 
      2005, no pet.). Beceiro challenged the elements of misrepresentation, 
      reliance and intent. (2) 
      In appellants' motion for summary judgment, Tammy denied ever meeting 
      Beceiro prior to surgery. As grounds for her own motion for summary 
      judgment, Beceiro relied on appellants' contentions that they never spoke 
      to her prior to surgery as establishing her right to summary judgment as a 
      matter of law. In appellants' reply to Beceiro's motion for summary 
      judgment, appellants reiterated that Beceiro did not speak to either of 
      them prior to the surgery; however, they argued that if the jury finds 
      that Beceiro told Tammy, prior to surgery, that she would be assisting 
      Kuhl, then Beceiro committed a fraudulent act by concealing from Tammy 
      that Beceiro would actually perform some or all of the surgery. 
      Tammy's statement that she never spoke to Beceiro prior to the surgery 
      satisfied Beceiro's burden of establishing no genuine issue of material 
      fact existed as to the misrepresentation element of the appellants' fraud 
      cause of action. The burden then shifted to appellants to raise a genuine 
      issue of material fact on whether Beceiro made or failed to make certain 
      representations to them prior to surgery. Appellants point to no 
      statements they allege Beceiro made prior to surgery. Instead, they assert 
      that because the jury might believe Beceiro's statement that she spoke to 
      Tammy prior to surgery, a fact issue exists. Speculation that the jury 
      might disbelieve their adamant claim that Beceiro never spoke to them 
      prior to surgery did not satisfy their burden to raise a genuine issue of 
      material fact on the challenged element. Therefore, Beceiro was entitled 
      to summary judgment as a matter of law on appellants' fraud claim.


      CONCLUSION
      We affirm the trial court's judgment.
      Sandee Bryan Marion, Justice
      1. Beceiro's motion did not specify which type of summary judgment she 
      sought; however, she set forth the traditional summary judgment standard 
      claiming there were no issues of material fact and she was entitled to 
      judgment as a matter of law. Therefore, we do not construe her motion as 
      seeking a no-evidence summary judgment.
      2. The elements of fraud are: (1) a material misrepresentation or omission 
      when there is a duty to speak, (2) when the defendant knew the statement 
      was false or made the statement recklessly without any knowledge of its 
      truth, (3) the defendant intended the plaintiff to rely upon the 
      statement, and (4) that the plaintiff relies upon the statement (5) to his 
      detriment. See Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 185 
      (Tex. 1977); Harrison v. Bass Enter. Prod. Co., 888 S.W.2d 532, 536 (Tex. 
      App.--Corpus Christi 1994, no writ). Beceiro did not challenge the 
      existence of a "duty to speak."