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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."