Texas = Judiciary Online

IN THE SUPREME COURT OF TEXAS

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No. 07-0035

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Thao Chau and Ha Dien = Do,=20 Individually, and on Behalf of Their Minor Child, S.D.D.,=20 Petitioners,

Jefferson = Riddle, M.D.=20 and Greater Houston Anesthesiology, P.A.,=20 Respondents

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On Petition for Review from=20 the

Court of Appeals for the First = District=20 of Texas

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PER=20 CURIAM

&nbs= p;=20 Thao Chau = and her=20 family brought this healthcare liability suit against Dr. = Jefferson Riddle=20 and his professional association, Greater Houston Anesthesiology, = P.A.,=20 alleging that Riddle=92s negligence in intubating=20 Chau=92s son, S.D., deprived him of = oxygen and=20 caused brain damage. The trial court granted the defendants=92 = motion for=20 summary judgment and a divided court of appeals affirmed, = reasoning that=20 Riddle conclusively established the Good Samaritan defense. 212 S.W.3d 699, 711. We hold, however, that = Riddle=20 did not conclusively establish that he = is=20 entitled to the Good Samaritan defense, and, accordingly, we = reverse the=20 court of appeals=92 judgment.

&nbs= p;=20 Riddle was the on-call anesthesiologist for the labor and delivery = suites=20 at Memorial=20 Hermann Southwest Hospital on the night of = October=20 29=9630, 2001. While on his shift, Riddle was called upon to = administer=20 anesthesia to Chau during her = emergency cesarean=20 section. When S.D., one of Chau=92s = twins, was=20 delivered, he was not breathing. After the = nurses and=20 residents present were unable to resuscitate S.D., Dr. Duc Le, Chau=92s = obstetrician=20 and her attending physician, asked Riddle to intubate S.D. It is undisputed that = Riddle did=20 so, then, allegedly without performing all the immediate follow-up = checks=20 typically required by the standard of care and leaving the nurses = and=20 residents to secure the tube, returned to Chau.=20 The nurses and residents continued to attempt to resuscitate S.D., = but=20 they were unsuccessful. Twelve minutes after Riddle=92s = intubation, the=20 neonatologist arrived and discovered that the tube was in S.D.=92s esophagus instead of his trachea. = As soon as=20 she moved the tube to S.D.=92s = trachea, he began=20 to breathe, but had suffered permanent brain damage in the = interim.

&nbs= p;=20 In the trial court, Riddle and Greater Houston Anesthesiology=20 (collectively =93Riddle=94) argued that because Riddle had = responded to the=20 emergency of S.D. not being able to breathe, Texas=92s Good=20 Samaritan statute precluded any liability for negligence.[1] Riddle moved for summary = judgment,=20 arguing both that he had conclusively proved he was entitled to = the=20 affirmative Good Samaritan defense and that Chau=20 had presented no evidence of duty or causation. The trial court = granted=20 Riddle=92s motion without specifying the grounds, and the court of = appeals=20 affirmed, reasoning that Riddle had established the Good Samaritan = defense=20 as a matter of law. Id.

&nbs= p;=20 In this Court, Chau challenges the = court of=20 appeals=92 holding that the trial court did not abuse its = discretion in=20 enforcing a docket control order or in striking part of Chau=92s expert testimony. We agree with the = court of=20 appeals=92 resolution of those issues. However, we agree with = Chau that the court of appeals erred in = concluding=20 that Riddle conclusively established the Good Samaritan = defense.

&nbs= p;=20 To prevail on his summary-judgment motion on the Good Samaritan=20 affirmative defense, Riddle had the burden to conclusively = establish each=20 of its elements. McIntyre v. Ramirez, = 109 S.W.3d=20 741, 742, 748 (Tex. 2003). Under the = Good=20 Samaritan statute, a medical professional assisting in an = emergency in a=20 hospital may be exempted from liability for medical negligence = under=20 certain circumstances. See Tex. Civ. Prac. &=20 Rem. Code =A7 74.001(c); = McIntyre,=20 109 S.W.3d at 744. However, that exemption = from=20 liability is subject to a number of exceptions, three of which are = at=20 issue here. In pertinent part, the statute provides:

(b)=20 This section does not apply to care administered:

(1)=20 for or in expectation of remuneration; =

. . .

(c)=20 If the scene of an emergency is in a hospital or other health care = facility or means of medical transport, a person who in good faith = administers emergency care is not liable in civil damages for an = act=20 performed during the emergency unless the act is wilfully or wantonly negligent, provided = that this=20 subsection does not apply to care administered:

(1)=20 by a person who regularly administers care in a hospital emergency = room=20 unless such person is at the scene of the emergency for reasons = wholly=20 unrelated to the person=92s work in administering health care; = or

(2)=20 by an admitting or attending physician = of the=20 patient or a treating physician associated by the admitting or = attending=20 physician of the patient in question.

Tex. Civ. Prac. &=20 Rem. Code =A7=20 74.001(b)=96(c). Thus, a doctor performing = his or her=20 work in an emergency room, a doctor associated by the admitting or = attending physician, and a doctor who charges for his or her = services are=20 all precluded from the statute=92s protection. Chau contends Riddle falls under each of = these=20 exceptions. Because we agree that there is at least an issue of = material=20 fact as to whether Riddle was =93associated by the admitting or = attending=20 physician,=94 we need not consider whether Riddle regularly = administers care=20 in an emergency room or charged for his services. Id. =A7=20 74.001(c)(2).

&nbs= p;=20 Assuming, as the parties do, that Riddle administered = emergency care=20 to S.D., Riddle did so as part of the labor and delivery team. As = such,=20 there is at least a question of fact as to whether he was = =93associated by=20 the admitting or attending physician.=94 See id. Le, the = leader of=20 the labor and delivery team and the only attending physician = present,=20 directed Riddle to intubate S.D., and = Riddle did=20 so. In distinguishing between which medical personnel were = attending to=20 Chau and which were attending to S.D., = the court=20 of appeals ignored Chau=92s expert=92s = testimony=20 that the labor and delivery team is expected to share in the care = of both=20 the mother and the newborn. Furthermore, another witness testified = that=20 the role of the anesthesiologist in labor and delivery suites at = Memorial=20 Hermann includes intubating = non-breathing=20 newborns if a neonatologist is not present. There is some evidence = that=20 Riddle was a part of the team administering care to Chau and S.D. In sum, there is evidence that = intubating newborns in this situation is = part of=20 Riddle=92s job as the on-call anesthesiologist in the labor and = delivery=20 suites. Thus, the court of appeals erred in affirming summary = judgment for=20 Riddle on his affirmative defense.

&nbs= p;=20 Our application of the statute in this case is consistent with the = legislative purpose behind extending the Good Samaritan defense to = medical=20 professionals in hospital settings. The statute is intended to = increase=20 the incentives for physicians to respond voluntarily to medical=20 emergencies, even if they occur in a hospital. McIntyre, = 109 S.W.3d at 745. The exclusions built into = the=20 statute ensure that medical professionals are only entitled to the = defense=20 if their actions are truly voluntary, not simply part of = the=20 professional=92s ordinary duties. See Tex. Civ. Prac. &=20 Rem. Code =A7 74.001(b)=20 =96(c). As such, this case can be = distinguished from=20 McIntyre, where we upheld the doctor=92s assertion of the = Good=20 Samaritan defense. There, Douglas McIntyre, an obstetrician, was = in the=20 hospital visiting one of his patients when he responded to a page = over the=20 intercom requesting that a doctor immediately assist with Debra = Ramirez=92s=20 delivery. Unlike in this case, McIntyre was not part of = Ramirez=92s labor=20 and delivery team, was not on-call, and was not expected to = respond to=20 such an emergency. Instead, he was going about his scheduled = appointments=20 when he voluntarily came to another patient=92s aid. McIntyre, 109 S.W.3d at 743, = 749.[2] In contrast, there is = evidence here=20 that it was part of Riddle=92s job as the anesthesiologist in the = delivery=20 room to intubate a newborn if the = circumstances=20 required.

&nbs= p;=20 Given the legislative purpose behind the Good Samaritan defense = and the=20 fact that Riddle was part of the labor and delivery team, we = cannot agree=20 with the court of appeals=92 conclusion that Riddle established = his=20 entitlement to the defense as a matter of law. Accordingly, = without=20 hearing oral argument, we grant the petition for review, reverse = the court=20 of appeals=92 judgment, and remand to the court of appeals to = consider=20 whether the summary judgment should be affirmed on alternative = grounds.=20 See Tex. R. App. = P.=20 59.1.

Opinion = Delivered:=20 February 15, 2008

^[1] At the time of these events, = the Good=20 Samaritan statute was codified at Texas Civil Practice and = Remedies Code=20 section 74.001. It has since been heavily amended and is now found = at=20 Texas Civil Practice and Remedies Code section 74.151. All = references to=20 the Good Samaritan statute in this opinion will be to section = 74.001 as it=20 stood in 2001. See Act of June 16, 1985, 69th Leg., R.S., = ch. 962, 1985 Tex. Gen. Laws 3325, = amended by=20 Act of June 19, 1993, 73d Leg., R.S., ch. 960,=20 1993 Tex. Gen. Laws 4193=9694, amended by Act of June 18, = 1999, 76th=20 Leg., R.S., ch. 679, 1999 Tex. Gen. = Laws=20 3251.

^[2] In McIntyre, we = addressed only=20 the remuneration exception to the Good Samaritan defense; we did = not=20 discuss whether McIntyre fit into the =93associated by=94 = exception.=20 McIntyre, 109 S.W.3d=20 = 741.