Agbor v. St. Luke's Episcopal Hospital

912 S.W.2d 354, 1995 WL 704762

• Court: Court of Appeals of Texas
• Decided: January 4, 1996
• Docket: 14-94-00410-CV
• Status: Published

Opinions

OPINION

LEE, Justice.

Comfort and Kingsley Agbor, individually and as next friend of their minor son, Dikeh Agbor (the Agbors), appeal a summary judgment granted to St. Luke’s Episcopal Hospital (St. Luke’s), asserting the trial court erroneously interpreted the Texas Medical Practice Act (the Texas Act)¹ as requiring a showing of malice in a claim for negligent credentialing, and, alternatively, the Texas Act violates the Open Courts Provision of the Texas Constitution.² We reverse and remand.

On November 19, 1990, Dikeh was delivered by Dr. Suzanne Rothchild at St. Luke’s. The Agbors allege that in dislodging Dikeh’s shoulder from the birth canal, Dr. Rothchild injured Dikeh’s brachial plexus, permanently disabling his arm. The Agbors also allege that St. Luke’s was negligent and grossly negligent in renewing Dr. Rothchild’s staff privileges because she was not a Texas resident, was not properly insured for medical malpractice and was a defendant in several malpractice actions.

The Agbors sued Dr. Rothchild for medical malpractice and St. Luke’s for “negligent credentialing.” In its motion for summary judgment, St. Luke’s urged that the Texas Act provides immunity for credentialing actions taken by health-care entities absent a showing of malice. See Tex.Rev.Civ.Stat. Ann. art. 4495b § 5.06(Z) & (m) (Vernon Supp.1995). The trial court granted the motion for summary judgment and severed the Agbors’ action against St. Luke’s from the action against Dr. Rothchild. The Agbors bring this appeal.

Because it is potentially dispositive of this appeal, we will initially address St. Luke’s first reply point that this court lacks jurisdiction to hear this appeal because the Agbors’ notice of appeal was not timely filed. St. Luke’s motion for summary judgment was orally granted on September 20, 1993, and the Agbors’ action against St. Luke’s was severed on December 10, 1993. A written take-nothing summary judgment was signed on December 17, 1993, but reflected the cause number of the original action, 92-19823, rather than that of the severed action, 92-19823-A. A second summary judgment reflecting the severed cause number was signed on January 26, 1994. The Agbors filed a motion for reconsideration and new trial on February 16, 1994, and an appeal bond on April 15, 1994.

St. Luke’s argues that since the second summary judgment granted no relief beyond that granted in the first, the second summary judgment is a nullity. It further maintains that the trial court’s use of the incorrect cause number was merely a clerical error, and should have been corrected by judgment nunc pro tunc. See Tex.R.Civ.P. 316. Thus, St. Luke’s contends that the trial court’s plenary power expired on January 16, 1994, thirty days after the first summary judgment order was signed. See Tex.R.Civ.P. 329b; Uvere v. Canales, 825 S.W.2d 741, 744 (Tex. App.—Dallas 1992, orig. proceeding). Accordingly, it contends that the trial court had no power to modify its judgment, except for correction of clerical errors by nunc pro tunc. See Id. St. Luke’s argues that since the trial court’s plenary power had expired, entry of the January 26, 1994, summary judgment did not extend the time for the Agbors to perfect an appeal. See Stephens v. Henry S. Miller Co., 667 S.W.2d 250, 252 (Tex.App.—Dallas 1984, writ dism’d by agr.). Thus, St. Luke’s contends the Agbors’ appeal bond was not timely filed. We disagree.

The summary judgment entered on December 17, 1994, was in cause number 92-19823 rather than the severed cause number 92-19823-A. Thus, the summary judgment entered on December 17 ordered that the Agbors take nothing from St. Luke’s in cause number 92-19823 when St. Luke’s was no longer a party to that cause. Therefore, the December 17 summary judgment had no effect on the severed cause. See Philbrook v. Berry, 683 S.W.2d 378 (Tex.1985) (per cu-riam) (holding that filing of an answer and motion for new trial under original cause number rather than severed cause did not extend court’s plenary power in severed cause); see also City of San Antonio v. Rodriguez, 828 S.W.2d 417 (Tex.1992) (per curiam) (reversing the court of appeals dismissal of a cause where original notice of appeal was docketed under the wrong number); but see Texas Instruments, Inc. v. Teletron Energy Management, Inc., 877 S.W.2d 276 (Tex.1994) (questioning validity of Philbrook in light of Rodriguez and holding that court of appeals could extend time for filing of statement of facts). Thus, there is only one order granting summary judgment to St. Luke’s in the severed cause, 92-19823-A, which is on appeal to this court. Based upon this January 26, 1994 judgment, the motion for new trial and appeal bond were timely filed. See Tex.R.App.P. 31, 41. Moreover, we have been warned by the supreme court that “decisions] of the courts of appeals should turn on substance rather than procedural technicality.” Texas Instruments, 877 S.W.2d at 278; Rodriguez, 828 S.W.2d at 418; see also Silk v. Terrill, 898 S.W.2d 764, 766 (Tex.1995) (per curiam) (holding judicial economy is not served when a case ripe for decision is decided on a procedural technicality; cases should be decided on the merits when procedural deficiencies can be easily corrected). Therefore, we hold that the Ag-bors timely perfected their appeal and we overrule St. Luke’s reply point.

The Agbors’ sole point of error is that the trial court erred in granting St. Luke’s motion for summary judgment. Initially, the Agbors contend the summary judgment was improper because the trial court incorrectly interpreted the Texas Act to require a showing of malice in “negligent credentialing” actions brought by patients against hospitals.

The Texas Act is modeled after the Health Care Quality Improvement Act of 1986 (the Federal Act). See 42 U.S.C.A. §§ 11101-62 (West 1996). Congress issued the following findings in conjunction with the Federal Act:

1. The increasing occurrence of medical malpractice and the need to improve the quality of medical care had become national problems that warranted greater efforts than could be undertaken by individual states;

2. There was a national need to restrict the ability of incompetent physicians to move from state to state without disclosure or discovery of the physician’s previous damaging or incompetent performance;

8. This problem could be remedied through effective professional peer review;

4. The threat of damage liability, including treble damage liability under the federal antitrust law, unreasonably discourages physicians from participating in effective professional peer review; and

5. There is an overriding national need to provide incentive and protection for physicians engaging in effective professional peer review.

42 U.S.C.A. § 11101 (West 1995). Consistent with these findings, the Federal Act grants immunity from civil liability to professional review bodies and persons participating with these review bodies when the standards set forth in the Federal Act are met. Id. § 11111. The Federal Act does not, however, change liabilities or immunities under existing law, or override any state law which provides greater immunity for those engaged in professional review action than that provided by the Federal Act. Id. § 11115(a). Nor does the Federal Act affect any rights and remedies of patients to seek recovery under federal or state law for negligent treatment or care by any physician or health care entity. Id. § 11115(d).

The Texas Act provides immunity to a health-care entity for “any statement, determination or recommendation” made in the course of peer review and for participating in “medical peer review activity.” Tex.Rev.Civ. Stat.Ann. art. 4495b § 5.06(i) & (m) (Vernon Supp.1995).³ “Medical peer review” means:

the evaluation of medical and health-care services, including evaluation of the qualifications of professional health-care practitioners and of patient care rendered by those practitioners. The term includes evaluation of the merits of complaints relating to health-care practitioners and determinations or recommendations regarding those complaints.

Id. § 1.03(a)(9). St. Luke’s argues, however, that these provisions also extend immunity from liability to suits by patients for “negligent credentialing” unless the patient shows malice. We disagree.

In construing a statute, our primary objective is to determine the legislature’s intent. Southwestern Bell Tel. Co. v. Public Util. Comm’n of Texas, 888 S.W.2d 921, 926 (Tex.App.—Austin 1994, n.w.h.). Generally, when a statute is unambiguous, we give effect to the statute according to its terms. Bridgestone/Firestone, Inc. v. Glyn Jones, 878 S.W.2d 132, 133 (Tex.1994); Maley v. 7111 Southwest Freeway, Inc., 843 S.W.2d 229, 231 (Tex.App.—Houston [14th Dist.] 1992, writ denied). We are not limited, however, to reading the unambiguous language of a statute. City of Fort Worth v. Harty, 862 S.W.2d 776, 778 (Tex.App.—Fort Worth 1993, writ denied). We should:

1. read the provision in context with the remainder of the statute; Bridge-stone/Firestone, 878 S.W.2d at 133;

2. not adopt a construction that would render a law or provision absurd or meaningless; Southwestern Bell, 888 S.W.2d at 927; Maley, 843 S.W.2d at 231; and

3. not “attribute to the Legislature an intention to work an injustice.” Meno v. Kitchens, 873 S.W.2d 789, 792 (Tex. App.— Austin 1994, writ denied).

In addition, the legislature has expressly stated that when construing a statute we may consider: the object sought to be attained; the circumstances under which the statute was enacted; the legislative history; common law or former statutory provisions, including other laws on the same or similar matters; and the consequences of a particular construction. Tex.Gov’t Code Ann. § 311.023 (Vernon 1988); Dallas Mkt. Ctr. Dev. Co. v. Beran & Shelmire, 824 S.W.2d 218, 221 (Tex.App. — Dallas 1991, writ denied); see also Bridgestone/Firestone, 878 S.W.2d at 135 (Hecht, J., concurring) (“in some circumstances, words, no matter how plain, will not be construed to cause a result the Legislature almost certainly could not have intended.”). When these principals are applied to section 5.06, we conclude that the hospital is not immune from liability as it asserts.

First, we are not convinced that the Texas Act unambiguously states that a hospital is immune from liability for “negligent credentialing,” absent malice. Subsections (l) and (m) can be read to provide immunity for peer review activities only, such as providing information and records. This immunity would allow a health-care entity, peer review committee and members to make peer review determinations without “retaliatory” suits from disgruntled physicians, but would not extend to separate negligent acts by the health-care entity.

Second, when read in context, subsections (l) and (m) do not provide the immunity urged by the hospital. Because subsections (l) and (m) provide immunity if the activities are “without malice,” the hospital admits that the Agbors would have a valid claim if they proved that the hospital acted with malice in “negligently credentialing” Dr. Rothchild. See Tex.Rev.Civ.Stat.Ann. art. 4495b § 5.06(Z) & (m) (Vernon Supp.1995). However, this is an impossible burden because of the confidentially provisions of the Texas Act. Subsection (j) provides that all records, determinations and communications of a medical peer review committee are not discoverable or admissible in a civil suit. Id. § 5.06(j). Thus, if the hospital’s interpretation of the act is adopted, an injured patient is placed in the impossible position of proving malice in the credentialing process without discovery. We cannot say that the legislature intended such an absurd result.⁴ See Bridgestone/Firestone, 878 S.W.2d at 185 (Hecht, J., concurring).

Third, the Texas Act incorporates the Federal Act. See Tex.Rev.Civ.Stat.Ann. art. 4495b § 5.06(a) (Vernon Supp.1995). The Federal Act states that only the liabilities and immunities specifically provided for in the subchapter are changed. All other liabilities and immunities are not changed. See 42 U.S.C.A. § 11115(a) (West 1995). The Federal Act also provides that it does not affect the rights and remedies available to a patient for the negligence of a physician, health-care provider or health-care entity. Id. § 11115(d). The Federal Act does not include “immunity” provisions similar to section 5.06(l) and (m). Therefore, if the Texas Act were construed as urged by St. Luke’s, one portion of the act would provide immunity from suits by patients while another portion of the act states that the rights and remedies available to a patient are not affected. Thus, to construe the act as urged by St. Luke’s would make the Texas Act internally contradictory.

Fourth, the legislative history does not support the conclusion that the “immunity” provisions should extend to actions by patients. The legislative history clearly indicates that the purpose of the act was to keep physicians from suing for peer review activities. For example, Dr. James Winn, a past member of the Board of the Texas Medical Association testified to the Senate:

We particularly ask that enhanced protection against civil lawsuits be extended to those courageous physicians who do come forward and who testify regarding unskillful and negligent care that another physician has bestowed upon a patient. When such physicians act out of a sense of both professional and civic responsibility in providing information to the State Board of Medical Examiners and then are subsequently sued by the defendant physician with its attendant cost and mental anguish and financial loss, the message to the doctors of Texas is loud and clear: do not get involved. We must have this type of legislation which will mandate that any action taken against a physician by a group of his peers, be it a hospital staff or a county medical society, or any type of peer review organization, if that action is taken on the basis of incompetency, that it be immediately reported to the Board of Medical Examiners for appropriate investigation and action.

Similarly, Senator Brooks stated that “a liability shield” was necessary to be “even handed” if physicians and health-care entities were required to report improper actions to the Board of Medical Examiners and peer review committees. Representative McKinney, a physician, stated that the act required peer review reporting and provided immunity from retaliatory suits. He said that a survey of physicians indicated that more doctors would participate in the process if retaliatory suits were barred. On the other hand, there is no indication in the history that the legislature was being asked to make healthcare entities immune from suit by patients because of its peer review activities. Thus, the clearly announced purpose of the provisions was to protect from retaliatory suits by disgruntled physicians. There is no indication that the legislature intended to protect hospitals from suits by patients for “negligent credentialing.” Our ultimate goal as a court is to construe and apply the law as intended by the legislature. The interpretation urged by the hospital fails to meet this goal.

Finally, if we adopt the hospital’s interpretation, a grave injustice may result. Dikeh Agbor was allegedly injured by the negligence of Dr. Rothchild. The Agbors presented summary judgment evidence that Dr. Rothchild had been sued several times for malpractice in deliveries at the hospital. The Agbors also presented summary judgment evidence that Dr. Rothchild did not have malpractice insurance, in violation of the hospital’s by-laws and credentialing requirements. If the section 5.06 immunity extends to “negligent credentialing,” the Agbors may be without a meaningful or effective remedy. The purpose of both the Texas and the Federal Acts is to improve the quality of care. Immunity from “negligent credentialing,” without proof of malice, circumvents this objective. Hospitals would not be discouraged from granting staff privileges to physicians who do not have malpractice insurance or any number of other unreasonable shortcomings. Unless hospitals are held accountable for failing to follow reasonable credentialing requirements, the purpose of the act will be thwarted.

For the forgoing reasons, we do not believe a health-care entity is immune from suits by patients for allegations of “negligent credentialing,” absent malice. The Agbors’ point of error is sustained. The summary judgment is reversed and remanded for proceedings consistent with this opinion.⁵

1 . Tex.Rev.Civ.Stat.Ann. art. 4495b §§ 1.01-6.13 (Vernon Supp.1995).

2 . Tex. Const. art. I, § 13.

3 . In their entirety, subsections (l) and (m) provide:

(/ ) [a] cause of action does not accrue against the members, agents, or employees of a medical peer review committee or against the health-care entity from any act, statement, determination or recommendation made, or act reported, without malice, in the course of peer review as defined by this Act.

(m) [a] person, health-care entity; or medical peer review committee, that, without malice, participates in medical peer review activity or furnishes records, information, or assistance to a medical peer review committee or the board is immune from any civil liability arising from such an act.

4 . This interpretation is also consistent with section 5.06(f) which provides that the following persons are immune from civil liability:

(1) a person reporting to or furnishing information to a medical peer review committee or the board in good faith;

(2) a member, employee, or agent of the board, a member, employee, or agent of a medical peer review committee, a member, employee, or agent of a medical organization committee, or a medical organization district or local intervenor who takes any action or makes any recommendation within the scope of the functions of the board, committee, or intervenor program, if such member, employee, or agent acts without malice in the reasonable belief that such action or recommendation is warranted by the facts known to him or her; and

(3)any member or employee of the board or any person who assists the board in carrying out its duties or functions provided by law.

5 . Because of our disposition of the Agbors’ initial contention, we do not reach their second contention that immunity from "negligent credentialing,” absent malice, violates the open court provision. Reaching this constitutional question is not "absolutely necessary." See Texas State Bd. of Barber Examiners v. Beaumont Barber College, Inc., 454 S.W.2d 729, 732 (Tex. 1970).