Gonzales v. Methodist Retirement Communities

33 S.W.3d 882, 2000 Tex. App. LEXIS 7998, 2000 WL 1752561
CourtCourt of Appeals of Texas
DecidedNovember 30, 2000
DocketNo. 14-99-01212-CV
StatusPublished
Cited by9 cases

This text of 33 S.W.3d 882 (Gonzales v. Methodist Retirement Communities) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gonzales v. Methodist Retirement Communities, 33 S.W.3d 882, 2000 Tex. App. LEXIS 7998, 2000 WL 1752561 (Tex. Ct. App. 2000).

Opinion

OPINION

FOWLER, Justice.

Alice Gonzales brought this action against her former employer, Methodist Retirement Communities, d/b/a Edgewater Retirement Community, alleging that Edgewater discharged her in retaliation for reporting the abuse or neglect of a nursing home resident. The trial court found that there was no genuine issue of material fact concerning Gonzales’s claim of reporting abuse under section 242.133 of the Texas Health & Safety Code, and “no basis in fact for a finding of reporting of abuse sufficient to sustain a cause of action under the section,’’and granted summary judgment in favor of Edgewater. In one point of error, Ms. Gonzales challenges the granting of the summary judgment. Finding that Gonzales did not report abuse or neglect or other complaint as required by section 242.133, we affirm the judgment of the trial court.

FACTUAL BACKGROUND

Edgewater is a retirement center for senior citizens. Gonzales is a nurse practitioner employed by Edgewater. On the evening of June 25, 1998, Gonzales came on duty to find that an 83 year old resident of Edgewater had fallen from a geriatric chair. After taking the resident’s vital signs, Gonzales phoned Edgewater’s medical director, Dr. Jones. Dr. Jones wanted to know if Gonzales had performed an assessment of the resident’s condition. Gonzales replied that she did not feel capable of judging the extent of the resident’s injuries and wanted to transport the patient by ambulance for an evaluation. Dr. Jones became upset with Gonzales, noting that an ambulance would cost $400, but told her that if she did not feel qualified to do an assessment, she could call Emergency Medical Services. (EMS) Insulted by the reference to her qualifications, Gonzales told Dr. Jones at the end of the phone conversation that he was not a good doctor, and said she was glad he was not taking care of her mother. Gonzales then called EMS.

That evening, Gonzales told the director of nurses, Dorothy Young, what had happened. Gonzales admitted that Dr. Jones seemed to be unhappy, and expressed her belief that the doctor would be upset with her for what she had said. Mrs. Young agreed.

The next day Edgewater fired Gonzales. She was informed that her termination was because of the statements she made to Dr. Jones which Edgewater considered insubordinate.

PROCEDURAL BACKGROUND

After her termination, Gonzales filed suit against Edgewater. She claimed that Edgewater wrongfully terminated her in violation of Texas Health & Safety Code, which provides a cause of action against an institution that terminates employment of a person for reporting abuse or neglect. See Tex. Health & Safety Code Ann . § 242.133(a) (Vernon 1997). As it existed during the relevant time, the statute stated the following:

A person has a cause of action against an institution, or the owner or employee of the institution, that suspends or terminates the employment of the person or otherwise disciplines or discriminates [884]*884or retaliates against the person for making a report or complaint under this chapter to the department or a law enforcement agency, for reporting the abuse or neglect or other complaint to the person’s supervisors, or for initiating or cooperating in any investigation or proceeding of a governmental entity relating to care, services, or conditions at the institution.1

In her petition, Gonzales alleged that she had advised her supervisors “of [the resident’s] fall, which could only have taken place as the result of neglect ...” During discovery, Gonzales conceded that she had not “reported” anything other than the fact that the resident had fallen.

Q: In other words, you didn’t report there was any abuse of [the resident]?
A: No.
Q: And you didn’t think that [the resident] was abused, did you?
A: No.

The director of nursing also testified that, in their conversation the evening before termination, Gonzales had never used the words “abuse” or “neglect”.

After Gonzales’s deposition had been taken, Edgewater moved for summary judgment, claiming that there was no evidence that Gonzales had reported a claim of abuse or neglect within the meaning of Texas Health & Safety Code. In opposition to Edgewater’s summary judgment motion, Gonzales submitted an affidavit, stating that the resident’s fall from the chair “clearly indicated neglect by some facility staff.” Gonzales felt this neglect was so obvious that she did not need to use the word “neglect” when reporting the incident to her supervisors.

After considering Gonzales’s response, the trial court granted summary judgment to Edgewater, finding that “there is no basis in fact for a finding of reporting abuse sufficient to sustain a cause of action under section 242.133(a) of the Texas Health & Safety Code.” Id. at (a).

STANDARD OF REVIEW

The proper inquiry on appeal is whether the defendant, in seeking summary judgment, fulfilled its initial burden (1) to establish as a matter of law that there remained no genuine issue of material fact as to one or more essential elements of the plaintiffs cause of action or (2) to establish its affirmative defense to the plaintiffs cause of action as a matter of law. See 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). In deciding whether a disputed material fact issue exists precluding summary judgment, evidence favorable to the non-movant must be taken as true. See Nixon, 690 S.W.2d at 549. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in her favor. See id.

DISCUSSION

According to Edgewater, the evidence produced at the summary judgment proceeding proved that Gonzales neither made a “report” (because she did not file a written complaint), nor told Dr. Jones about an incident of abuse or neglect. Gonzales responds that her conversation was a report,2 and -she claims that her affidavit did raise a fact issue about whether she reported neglect. She pointed out that it was unusual for the resident to be in a geriatric chair because there was no doctor’s order for one. Furthermore, she contends the fall “clearly indicated neglect by some facility staff ... ”; “[t]his was so obvious that I did not feel it necessary to use the word [sic] ‘neglect.’ ” Consequently, the issues before us are whether Ms. Gonzales made a report and whether she [885]*885reported neglect. As we explain below, we do not need to address whether Ms. Gonzales made a report because, like the trial court, we conclude as a matter of law that Ms. Gonzales did not report an incident of neglect.

The legislature chose not to define “neglect” in the Texas Health and Safety Code. See Tex. Gov’t Code Ann. § 812.002(a) (Vernon 1998); Geters v. Eagle Ins. Co., 834 S.W.2d 49, 50 (Tex.1992). The Oxford Encyclopedic English Dictionary defines “neglect” as, “fail[ing] to care for or to do; be[ing] remiss about (neglected their duty; neglected his children

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33 S.W.3d 882, 2000 Tex. App. LEXIS 7998, 2000 WL 1752561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzales-v-methodist-retirement-communities-texapp-2000.