Opinion
EP-00-CA-48-DB
February 22, 2001
MEMORANDUM OPINION AND ORDER
On this day, the Court considered "Defendants Vivian Barsky, M.D., and Susan Karr-Peterson, M.D.'s Motion for Summary Judgment and No Evidence Motion for Summary Judgment," filed in the above-captioned cause on August 25, 2000. Plaintiffs filed a Response to the motion on September 28, 2000. Thereafter, Defendants Vivian Barsky, M.D. and Susan Karr-Peterson, M.D. filed a Reply to Plaintiffs' Response on October 5, 2000.
After due consideration, the Court is of the opinion that the instant motion for summary judgment should be granted for the reasons that follow.
BACKGROUND
Elmer F. Oblack ("Mr. Oblack") went to the emergency room at William Beaumont Army Medical Center ("Beaumont") on October 24, 1997, complaining of abdominal pain. He arrived at approximately 4:34 p.m. and died of a ruptured abdominal aortic aneurysm at approximately 10:02 p.m. Defendants Vivian Barsky, M.D. ("Barsky") and Susan Karr-Peterson, M.D. ("Karr-Peterson")are physicians who were working at Beaumont that day pursuant to a contract with NES Government Services, Inc. ("NES"). Each treated patients that day, but each swears by way of affidavit and deposition testimony that she never saw, talked to or provided treatment to Mr. Oblack or gave any advice to anyone regarding Mr. Oblack's care and treatment on that day at Beaumont.
Plaintiffs, Mr. Oblack's survivors, brought the instant action in the 346th Judicial District Court of El Paso County, Texas, on October 22, 1999, against various doctors and medical personnel present at Beaumont the day Mr. Oblack died, as well as against NES. Through their Original Petition, Plaintiffs allege negligence against all Defendants.
One defendant-doctor, Alfred A. Rossum, M.D. ("Rossum") and NES filed a third-party suit against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346, 2671 et seq. On that basis, the United States removed the entire cause to this Court by Notice of Removal filed here February 25, 2000. On July 12, 2000, and December 11, 2000, Plaintiffs amended their complaint without adding any claim against Barsky and/or Karr-Peterson.
The instant motion followed.
SUMMARY JUDGMENT STANDARD
Summary judgment should be granted only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The party that moves for summary judgment bears an initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavit, which it believes demonstrate the absence of a genuine issue of material fact. See, e.g., Celoter Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). If the movant does meet this burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See, e.g., Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. "If the non-movant fails to meet this burden, then summary judgment is appropriate." Tubacex, 45 F.3d at 954.
When making a determination under Rule 56, factual questions and inferences are viewed in a light most favorable to the nonmovant. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994). The party opposing a motion supported by evidence cannot discharge his burden by alleging mere legal conclusions. See Anderson v. Liberty Lobby, 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Instead, the party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. See id.
DISCUSSION
Barsky and Karr-Peterson move for summary judgment based on Plaintiffs' inability to prove an element of their negligence case, namely that they owed any duty to Mr. Oblack. Barsky and Karr-Peterson contend that they owed no duty to Mr. Oblack because there is no proof that the two ever treated him and, hence, there was no doctor-patient relationship.
Under Texas law, one required element of a medical negligence claim is that the physician had a duty to act according to a certain standard. See Ortiz v. Shah, 905 S.W.2d 609, 610 (Tex.App. 1995). "A physician may be held liable for negligence only when a doctor-patient relationship exists." Id. at 611. Although Plaintiffs press a more broad description of a physician-patient relationship, the Texas Supreme Court delineated the nature of that relationship and consequent liability as follows:
Though not relevant here because Barsky and Karr-Peterson only move for summary judgment as to the duty element, a medical malpractice plaintiff must also prove that the physician breached the applicable standard of care; that there was an injury; and that there was a causal connection between the breach and the injury. See Ortiz, 905 S.W.2d at 610.
It is only with a physician's consent, whether express or implied, that the doctor-patient relationship comes into being. . . . [T]he duty to treat the patient with proper professional skill flows from the consensual relationship between the patient and physician, and only when that relationship exists can there be a breach of a duty resulting in medical malpractice.St. John v. Pope, 901 S.W.2d 420, 423 (Tex. 1995).
Here, Barsky and Karr-Peterson each present uncontroverted summary judgment evidence that there was never any doctor-patient relationship. Plaintiffs respond with sheer speculation that because Barsky and Karr-Peterson were on duty at Beaumont that day, they either did treat Mr. Oblack or should have treated him. Plaintiffs also object to Barsky and Karr-Peterson's affidavits because they are "vague and confusing by the qualification `As it relates to these claims of medical negligence. . . .'" Plaintiffs further object that Barsky and Karr-Peterson's affidavits "fail to state that [they] had no duty to provide care to Mr. Oblack."
First, with respect to Plaintiffs' objections to Barsky and Karr-Peterson's affidavits, such objections are not the affirmative evidence that a nonmoving party must bring forward. See Liberty Lobby, 477 U.S. at 248-49, 106 S.Ct. at 2509-10. Moreover, the Court finds the affidavits are neither vague or confusing. Furthermore, the Court finds Barsky and Karr-Peterson's affidavits wholly appropriate as far as averments go because they set forth pointed facts, not legal conclusions. See Orthopedic Sports Injury Clinic v. Wang, 922 F.2d 220, 225 (5th Cir. 1991) (holding affidavits setting forth ultimate or conclusory facts and conclusions of law are insufficient to support summary judgment). Whether the doctors owed a professional duty to Mr. Oblack is a question of law. See St. John, 901 S.W.2d at 422. Hence, Barsky and Karr-Peterson could not aver that they had no such a duty.
Next, as to whether Barsky and Karr-Peterson actually did treat Mr. Oblack, Plaintiffs cannot point to any affirmative evidence that Barsky or Karr-Peterson did see, talk to or provide treatment to Mr. Oblack or did give advice to anyone regarding Mr. Oblack's care and treatment on that day at Beaumont. Plaintiffs suggest that they have been unable to rule out that Barsky and Karr-Peterson participated in treating Mr. Oblack because discovery thus far completed has not been fruitful and additional time for discovery is needed because there has not been sufficient time to complete such discovery to date. In that respect. "[t]he nonmoving party `may not simply rely on vague assertions that additional discovery will produce needed, but unspecified facts.'" Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 28 F.3d 1388, 1395 (5th Cir. 1994) (quoting Krim v. Banc Texas Group, Inc., 989 F.2d 1435, 1442 (5th Cir. 1993)). Moreover, the Court finds that there has been sufficient time to conduct discovery in this case, which was filed nearly a year before Plaintiffs were required to respond to the instant motion. Hence, Plaintiffs' plea for additional time to complete discovery is inapposite. Moreover, Plaintiffs' own evidence supports at least Barsky's averment that she did not treat Mr. Oblack. Rossum, who did treat Mr. Oblack, stated in deposition testimony that once he realized Mr. Oblack needed a surgeon, he "[didn't] know where Vivian [Barsky] was." Plaintiffs also point out that Rossum never found Barsky. Hence, the Court finds that there simply is no evidence that Barsky or Karr-Peterson did treat Mr. Oblack or evidence sufficient to create a genuine issue of material fact on that contention.
Finally, Plaintiffs claim that because Barsky and Karr-Peterson were present at Beaumont during the time Mr. Oblack died and had a contractual relationship with NES to provide medical care to patients at Beaumont, the Court should find that they had a sufficient doctor-patient relationship to survive summary judgment. In that vein, Plaintiffs highlight Hand v. Tavera, 864 S.W.2d 678 (Tex.App. 1993) as "[t]he most applicable case" under these facts. There, the court found that a health care plan physician who was the plan's designated doctor for emergency treatment had a doctor-patient relationship where the patient showed up at the emergency room and the doctor refused to admit the patient. See Hand, 864 S.W.2d at 680. The court agreed "that the entire health-care plan arrangement establishe[d] that [the doctor] had a physician-patient relationship with him and therefore owed him a duty of care." Id.
Plaintiffs stretch Hand too far by inferring that a bare contract between NES and Barsky and Karr-Peterson creates a doctor patient relationship. Rather, Hand does not apply a standard for determining the existence of a doctor-patient relationship different from that set forth in St. John, requiring some active participation from the doctor. See St. John, 901 S.W.2d at 423. Indeed, the doctor in Hand had some contact with the patient, refusing to admit him. See Wax v. Johnson, No. 01-98-01202-CV, 2001 WL 83530, at *4 n. 5 (Tex.App. Feb. 1, 2001) ("The physician in Hand had also taken some action in relation to the patient. He had discussed the patient's condition with the emergency room physician and had recommended a pain reliever."); Ortiz, 905 S.W.2d at 612 ("Hand did not involve a doctor who never saw or even consulted with anyone regarding the patient. . . ."). Hence, the Hand doctor voluntarily undertook to evaluate the patient's need to be admitted and made a professional choice not to admit that patient.
Here, Plaintiffs can make no similar factual allegation. According to the uncontroverted summary judgment evidence, Barsky and Karr-Peterson had absolutely no contact with Mr. Oblack. Their contracts with NES notwithstanding, the Court finds that Barsky and Karr-Peterson never established a physician-patient relationship with Mr. Oblack. Hence, the Court is of the opinion that Barsky and Karr-Peterson are entitled to judgment as a matter of law.
After due consideration, the Court is of the opinion that the instant motion for summary judgment should be granted and Defendants Vivian Barsky, M.D. and Susan Karr-Peterson, M.D. should be dismissed from this cause.
Accordingly, IT IS HEREBY ORDERED that "Defendants Vivian Barsky, M.D., and Susan Karr-Peterson, M.D.'s Motion for Summary Judgment and No Evidence Motion for Summary Judgment" is GRANTED.
IT IS FURTHER ORDERED that Defendants Vivian Barsky, M.D. and Susan Karr-Peterson, M.D. are hereby DISMISSED as a parties to this cause.