Everett and Julie Hicks, Individually and as Next Friends of Katie Hicks, a Minor v. Dr. Bettina A. Vaello

HICKS V. VAELLO IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-93-281-CV EVERETT AND JULIE HICKS, INDIVIDUALLY AND AS NEXT FRIENDS OF KATIE HICKS, A MINOR, APPELLANTS vs. DR. BETTINA A. VAELLO, APPELLEE FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT NO. 91-16091-A, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING This is an appeal from a summary judgment rendered in a medical malpractice case. Appellants Everett and Julie Hicks, individually and as next friends of Katie Hicks (collectively, "the Hickses"), appeal a summary judgment granted in favor of appellee Dr. Bettina A. Vaello on a claim of negligent medical referral. We will reverse the trial court judgment and remand the cause. BACKGROUND The following facts are undisputed. Katie Hicks became ill over Memorial Day weekend, 1991. She was two and one-half months old. Dr. Vaello, the child's pediatrician, was out of town for the weekend. When Julie, Katie's mother, called Dr. Vaello's office, she received instructions to call Dr. Paula Holland Price. Julie called Dr. Price and discussed with her Katie's condition. Julie and Dr. Price spoke two more times that weekend about Katie's condition. On Monday morning, Dr. Price saw Katie in her office. Dr. Price then took the child to the Round Rock Hospital emergency room, where she was diagnosed with bacterial meningitis. Katie was transferred to Brackenridge Children's Hospital. The Hickses sued Dr. Vaello and Dr. Price, alleging that as a result of the doctors' alleged negligence, Katie has suffered injuries including severe brain damage, blindness, deafness, muscle atrophy and gastrointestinal problems. The Hickses' claim against Dr. Vaello was based on Dr. Vaello's alleged negligence in referring them to Dr. Price while Dr. Vaello was out of town. Dr. Vaello moved for summary judgment on the basis that she did not fail to exercise reasonable care in selecting Dr. Price to cover her calls. The trial court granted Vaello's motion, and the Hickses appeal from a final judgment. STANDARD OF REVIEW In an appeal from a summary judgment, we must determine whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). In deciding whether there is a disputed material fact issue precluding summary judgment, we must take as true all evidence favoring the non-movant and indulge every reasonable inference and resolve every doubt in favor of the non-movant. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Once the party moving for summary judgment proves there is no genuine issue of material fact regarding an essential element of the non-movant's cause of action, the burden shifts to the non-movant to rebut this evidence with evidence of its own. See Tex. R. Civ. P. 166a(c); Coan v. Winters, 646 S.W.2d 655, 658 (Tex. App.--Fort Worth 1983, writ ref'd n.r.e.). DISCUSSION AND HOLDING The parties agree that a doctor has a duty to exercise reasonable care in referring her patients to another doctor. Moore v. Lee, 211 S.W. 214, 215 (Tex. 1919); see Ross v. Sher, 483 S.W.2d 297, 301 (Tex. Civ. App.--Houston [14th Dist.] 1972, writ ref'd n.r.e); Floyd v. Michie, 11 S.W.2d 657, 658 (Tex. Civ. App.--Austin 1928, no writ). The Hickses alleged that Dr. Vaello breached this duty in referring Katie to Dr. Price. Dr. Vaello contended in her motion for summary judgment that she could not be liable for negligent referral because "[a]s a matter of law, she acted with reasonable care in selecting Dr. Price." Thus, the issue for our review is whether Dr. Vaello conclusively negated any negligence on her part and proved as a matter of law that she did not fail to exercise reasonable care in selecting Dr. Price and referring Katie to her for medical care. In determining whether Dr. Vaello met this burden, we look first at her summary judgment proof alone. If she did not meet this initial burden, the summary judgment was improper and we need not look any further. Coan, 646 S.W.2d at 658; see Gibbs, 450 S.W.2d at 829. Dr. Vaello offered her own affidavit in support of her motion. (1) In her affidavit, Dr. Vaello stated that she and Dr. Price had an informal call-covering arrangement whereby each doctor would cover calls for the other when one was unavailable. Dr. Vaello stated she first discussed such an arrangement with Dr. Price in the fall of 1990, before Dr. Price moved to Georgetown and opened her practice. At that time, she and Dr. Price discussed Dr. Price's background, education, and training; her residence training at Scott & White Memorial Hospital in Temple, Texas; how various medical situations were handled at Scott & White; and the treatment of meningitis, among other medical practices. Dr. Vaello further stated that Dr. Price has always provided "superior medical care and treatment to my patients" as well as to Dr. Price's own patients, which Dr. Vaello witnessed when covering calls for Dr. Price. Dr. Vaello stated she did not know of any lack of skill, competence, or qualification on the part of Dr. Price and that, in her opinion, Dr. Price is a competent, skillful, qualified, and caring physician. Dr. Vaello contends that the evidence conclusively proves as a matter of law that she did not breach her duty of reasonable care in selecting Dr. Price. "A summary judgment may rest solely on the testimonial evidence of an interested witness if that evidence is uncontroverted, clear, positive, credible, free from contradictions and inconsistencies, and could have been readily controverted." Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986); Tex. R. Civ. P. 166a(c). At the same time, there must be no circumstances in evidence tending to discredit or impeach such testimony. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965); Martin v. Cloth World of Tex., Inc., 692 S.W.2d 134, 136 (Tex. App.--Dallas 1985, writ ref'd n.r.e.). Thus, "[s]elf-serving statements of interested parties, testifying as to what they knew or intended, do not meet the standards of Texas courts for summary judgment." Allied Chem. Corp. v. DeHaven, 752 S.W.2d 155, 158 (Tex. App.--Houston [14th Dist.] 1988, writ denied); see Hayes v. E.T.S. Enters., Inc., 809 S.W.2d 652, 657 (Tex App.--Amarillo 1991, writ denied). Issues of a person's knowledge are not readily controvertible and thus are inappropriate for summary judgment. Hayes, 809 S.W.2d at 657; Allied Chem. Corp., 752 S.W.2d at 158. The same is true for testimony regarding facts peculiarly known to the witness testifying. Evans v. Fort Worth Star Telegram, 548 S.W.2d 819, 820 (Tex. Civ. App.--Fort Worth 1977, no writ). Finally, it is fundamental that "[n]egligence is a question for the jury when facts are such that the jury could draw an inference either way." Axelrod R & D, Inc. v. Ivy, 839 S.W.2d 126, 129 (Tex. App.--Austin 1992, writ denied); see Erwin v. Dunn, 201 S.W.2d 240, 243 (Tex. Civ. App.--Galveston 1947, writ ref'd n.r.e.). "Summary judgment should never be granted when the issues are inherently those for a jury or trial judge, as in cases involving intent, reliance, reasonable care, uncertainty and the like." Dominguez v. Kelly, 786 S.W.2d 749, 752 (Tex. App.--El Paso 1990, writ denied) (emphasis added) (citing Dan Lawson & Assocs. v. Miller, 742 S.W.2d 528 (Tex. App.--Fort Worth 1987, no writ)). The summary judgment proof recounts what Dr. Vaello did before entering into the call-covering arrangement and what she stated she knew at the time she referred Katie to Dr. Price. A jury might well decline to find any negligence under the circumstances but we cannot say that the record conclusively establishes the absence of negligence as a matter of law. (2) Even if the summary judgment evidence were sufficient to establish that Dr. Vaello acted reasonably in selecting Dr. Price, we would still conclude that summary judgment was improper. In their response to the motion for summary judgment, the Hickses offered two controverting affidavits. (3) Marsha Townsend, the office manager for Dr. Price from December 1990, to September 15, 1991, stated that she was aware of problems concerning the referral of patients from Dr. Vaello to Dr. Price. She also stated: I am personally familiar with numerous complaints from Dr. Vaello's patients who were referred to Dr. Price by Dr. Vaello when Dr. Vaello was out of town or not in her office. Dr. Vaello's patients complained about the quality of care they were receiving from Dr. Price. Many of them felt that they were not being called back or treated aggressively by Dr. Price. These problems would have occurred very shortly after Dr. Price started handling calls for Dr. Vaello. In dealing with the complaints from the patients of Dr. Vaello related to the quality of care from Dr. Price, Dr. Vaello would call and complain to Dr. Price who would then complain to me . . . about the way we were handling the calls and otherwise dealing with the patients. I am aware of many complaints raised by Dr. Vaello about the way that her patients were being treated. Dr. Vaello moved to strike Townsend's affidavit, arguing it was based on hearsay and lacked specificity. The trial court did not strike the affidavit but allowed Dr. Vaello to depose Townsend and supplement her motion for summary judgment. In the deposition, Townsend admits that Dr. Vaello's patients never complained directly to her concerning Dr. Price, but that her knowledge of such complaints came from Dr. Price. Furthermore, she agreed that none of the complaints involved poor medical care by Dr. Price but rather involved not returning telephone calls promptly and the handling of payment and insurance matters. Townsend further stated she had never heard about any of Dr. Vaello's patients complaining that Dr. Price was professionally incompetent, and that she did not know of any facts made known to Dr. Vaello that would indicate Dr. Price was incompetent. Dr. Vaello re-urges her argument that Townsend's affidavit should not be considered because her testimony regarding the alleged complaints was hearsay. We disagree. The statements Dr. Vaello allegedly made to Dr. Price concerning her patients' complaints are not being offered "to prove the truth of the matter asserted." Tex. R. Civ. Evid. 801(d). The same is true for the statements Dr. Price made to Townsend regarding the alleged complaints. The issue is not whether the patients truly believed their calls were not being promptly returned or that they were not being treated aggressively. The proof shows that Dr. Vaello was aware her patients had complained about Dr. Price. Furthermore, Dr. Vaello's statements to Dr. Price constitute admissions by a party opponent. Tex. R. Civ. Evid. 801(e)(2). Townsend's affidavit is competent summary judgment proof which the Court can consider in determining whether summary judgment was proper. "Conflicting statements of any one witness as well as in the testimony of different witnesses ordinarily present fact questions to be resolved by the trier of fact issues." Durham v. I.C.T. Ins. Co., 283 S.W.2d 413, 415 (Tex. Civ. App.--Dallas 1955, writ dism'd). We conclude that Townsend's testimony that Dr. Vaello complained to Dr. Price on several occasions regarding her handling of Dr. Vaello's patients (4) conflicts with Dr. Vaello's affidavit, in which she states that Dr. Price has always provided "superior medical care and treatment to my patients" and that she had no knowledge of any lack of skill, competence or qualification on the part of Dr. Price. Thus, viewing the evidence in the light most favorable to the Hickses, a genuine issue of material fact remains as to whether Dr. Vaello exercised reasonable care when she referred the Hickses to Dr. Price. Because Dr. Vaello did not conclusively negate the allegation that she acted unreasonably in referring her patient to Dr. Price, summary judgment was improper. We sustain the Hickses' point of error. Accordingly, we reverse the trial court's summary judgment and remand the cause for a trial on the merits. Marilyn Aboussie, Justice Before Chief Justice Carroll, Justices Aboussie and B. A. Smith Reversed and Remanded Filed: June 15, 1994 Do Not Publish 1. Although we note the affidavits from Dr. Price and Dr. Bess Gold filed in support of the summary judgment motion, we do not discuss them here. Dr. Gold, the residency director at Scott & White during Dr. Price's residency training, testified in her affidavit as to the skill and competence Dr. Price portrayed during her training. Dr. Price testified that she presented a one-hour training program to the residents on the diagnosis and treatment of meningitis and had observed more than ten patients being diagnosed with bacterial meningitis during her training. The issue on appeal is Dr. Vaello's alleged negligence in referring the Hickses to Dr. Price during her unavailability. The only relevant evidence is that offered to show what Dr. Vaello actually knew or had reason to know regarding Dr. Price's competence at the time she made the referral. 2. Furthermore, we are unable to find any case that holds otherwise. Although Dr. Vaello cites Sendjar v. Gonzalez, 520 S.W.2d 478 (Tex. Civ. App.--San Antonio 1975, no writ) in support of her position, the case is clearly distinguishable. Sendjar was not a negligent referral case. Unlike this cause, the plaintiff in Sendjar based his action on his doctor's alleged failure to arrange for the referral of his patients when he was unavailable. He then sought to impose liability on his doctor for the negligence of the treating physician on the basis of an agency relationship. These issues were not raised in the instant cause. Furthermore, we note that in Sendjar, the opinion reflects that, in fact, there was no doctor-patient relationship between the parties. For these reasons, we conclude that Sendjar does not control. 3. We do not discuss the affidavit of Dr. Peter Benjamin, as it discusses only the alleged negligence of Dr. Price, which is not determinative of the issue at hand. 4. Although Dr. Vaello complains there is no proof that she was aware of the alleged complaints before the incident in question, in Townsend's affidavit, Townsend states that the problems "would have occurred very shortly after Dr. Price started handling calls for Dr. Vaello." Resolving every doubt in favor of the Hickses, we conclude this evidence was sufficient at least to raise a fact issue as to whether Dr. Vaello was aware of the complaints at the time of the referral.