COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-17-00122-CV
HERIBERTO MARTINEZ- APPELLANT GONZALEZ
V.
EC LEWISVILLE, LLC, D/B/A ELITE APPELLEES CARE EMERGENCY CENTER; GREATER HOUSTON EMERGENCY PHYSICIANS, PLLC, D/B/A ELITE CARE EMERGENCY CENTER; AND DR. HARVEY CASTRO
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 15-04212-158
MEMORANDUM OPINION1
1 See Tex. R. App. P. 47.4. I. INTRODUCTION
Appellant Heriberto Martinez-Gonzalez sought emergency medical care
from Appellees EC Lewisville, LLC, d/b/a Elite Care Emergency Center; Greater
Houston Emergency Physicians, PLLC, d/b/a Elite Care Emergency Center;
(Elite Care) and Dr. Harvey Castro for right-side abdominal and flank pain, which
was later diagnosed by a physician at Parkland Hospital to be a torsed testicle.
Martinez-Gonzalez filed a health care-liability claim (HCLC) against Appellees;
Appellees filed a no-evidence motion for summary judgment on the willful2-and-
wanton element of Martinez-Gonzalez’s claim for Appellees’ actions occurring
prior to March 13, 2014, and a traditional motion for partial summary judgment
based on Martinez-Gonzalez’s alleged no-causation judicial admission in his
second amended original petition concerning Appellees’ actions on March 13,
2014, or later. The trial court granted both motions and signed a final judgment
for Appellees.
Martinez-Gonzalez perfected this appeal and raises six issues. Because
Martinez-Gonzalez brought forward more than a scintilla of summary-judgment
evidence showing that Dr. Castro deviated from the applicable standard of care
in a willful and wantonly negligent manner and because Appellees’ traditional
motion for partial summary judgment improperly fractures Martinez-Gonzalez’s
2 Unless directly quoting from the civil practice and remedies code, which uses the spelling of “wilful” as opposed to the more common spelling “willful,” we will use the more common spelling. See Tex. Civ. Prac. & Rem. Code Ann. § 74.153 (West 2017).
2 HCLC into two distinct parts, and alternatively because the statement in
Martinez-Gonzalez’s live pleading is not a judicial admission, we will sustain
Martinez-Gonzalez’s second and fourth issues and reverse and remand this case
to the trial court.
II. PERTINENT FACTUAL AND PROCEDURAL BACKGROUND
A. Onset of Symptoms and Martinez-Gonzalez’s First Visit to Elite Care
On March 12, 2014, Martinez-Gonzalez experienced abdominal pain,
causing him to seek emergency medical care. Martinez-Gonzalez was admitted
to Elite Care and evaluated by a registered nurse at 11:41 a.m. The nurse’s
impressions are recorded on Elite Care’s form entitled “Emergency Nursing
Record” and subtitled “Abdominal Pain / NVD.” The nurse wrote that Martinez-
Gonzalez complained of waxing and waning flank and gas pain, which had
begun about six hours prior and involved nausea and vomiting. Martinez-
Gonzalez claims that he also told the nurse that he was having inner thigh and
groin pain, but this complaint was not recorded by the nurse.
Dr. Castro’s subsequent evaluation is recorded on Elite Care’s form
entitled “Emergency Physician Record” and subtitled “Abdominal Pain / Flank
Pain.” The form contains numerous boxes to check, apparently to record various
impressions and the patient’s complaints and to guide the physician to other
related examinations and tests. Many of the boxes were checked, but Dr. Castro
did not check the box labeled “Male Genital Exam.” Although Dr. Castro averred
in his summary-judgment affidavit that during the evaluation Martinez-Gonzalez
3 described his pain as an eight out of ten, Dr. Castro also claimed that “Mr.
[Martinez-]Gonzalez denied any testicular pain.”
Martinez-Gonzalez was provided with intravenous fluids and Zofran for his
nausea and vomiting. Dr. Castro ordered a CT scan of Martinez-Gonzalez’s
abdomen, a urinalysis, and blood work, but Dr. Castro did not order an
ultrasound. It is undisputed that Dr. Castro did not perform a genital exam or any
other exam related to testicular torsion.
After analyzing the CT scan and test results, Dr. Castro diagnosed
Martinez-Gonzalez with an umbilical hernia. Dr. Castro instructed Martinez-
Gonzalez to follow up with a gastroenterologist in two days and to return to Elite
Care if his conditions did not improve.
B. Martinez-Gonzalez’s Symptoms Persist
1. Martinez-Gonzalez returns to Elite Care the next day
Martinez-Gonzalez’s symptoms did not improve, so he returned to Elite
Care the next day—March 13, 2014.3 Elite Care did not admit or check in
Martinez-Gonzalez for another examination; instead, Dr. Castro met with him in
the waiting area. Martinez-Gonzalez informed Dr. Castro of his severe groin and
testicular pain, as well as abdominal and right flank pain. In his summary-
judgment affidavit, Dr. Castro states that Martinez-Gonzalez’s complaints
3 Dr. Castro contends that Martinez-Gonzalez arrived at Elite Care at approximately 4:00 p.m. on March 13, 2014. Martinez-Gonzalez disputes that he arrived at 4:00 p.m., but he does not provide a time of arrival.
4 regarding abdominal pain were the same but that Martinez-Gonzalez’s
complaints of groin pain were “new.” The parties dispute what happened next.
Dr. Castro states in his summary-judgment affidavit that he advised
Martinez-Gonzalez to check in to Elite Care for further evaluation and possible
transport to another facility but that Martinez-Gonzalez refused because he only
wanted pain medication. Martinez-Gonzalez denies this account and in his
summary-judgment affidavit, he contends that Dr. Castro suggested that he
should go to Parkland Memorial Hospital in Dallas because there was nothing
else that Dr. Castro could do for him. Martinez-Gonzalez’s affidavit states that he
did not go to Elite Care simply to ask for pain medicine without treatment and that
he did not refuse care or transfer. Martinez-Gonzalez claims that Dr. Castro did
not attempt to check him in or examine him but was trying to “rush me out.”
2. Martinez-Gonzalez leaves Elite Care and is admitted at Parkland
Martinez-Gonzalez left Elite Care and sought treatment at Parkland.
Parkland’s records indicate that Martinez-Gonzalez complained of groin pain
lasting for one and one-half days. Parkland’s medical personnel performed a
genital examination and an ultrasound and diagnosed Martinez-Gonzalez with
testicular torsion.4 Martinez-Gonzalez underwent exploratory surgery during
which his right testicle was found to be nonviable and was removed.
4 “Testicular torsion occurs when a testicle rotates, twisting the spermatic cord that brings blood to the scrotum.” Sison v. Andrew M., No. 02-16-00129- CV, 2017 WL 3974356, at *2 (Tex. App.—Fort Worth Sept. 7, 2017, pet. filed) (mem. op.).
5 C. Martinez-Gonzalez Contacts Dr. Castro After Surgery
While he was recovering on March 14, 2014, Martinez-Gonzalez called
Elite Care and asked why he had not been diagnosed with testicular torsion in
either of his two prior visits. Martinez-Gonzalez spoke to a nurse who recorded
Martinez-Gonzalez’s complaint and notified Dr. Castro. The following day,
Martinez-Gonzalez received a telephone call from Dr. Castro. Martinez-
Gonzalez’s summary-judgment affidavit states that he informed Dr. Castro of his
extreme disappointment about Dr. Castro’s medical care and failure to examine
him or to call an ambulance to transfer Martinez-Gonzalez to Parkland. Dr.
Castro apologized and said that he was trying to save Martinez-Gonzalez money
on ambulance fees and that the removal of Martinez-Gonzalez’s testicle should
not be a “big deal” because Martinez-Gonzalez was thirty-nine and would not be
having any more children at his age. Appellees point to nothing in the record to
show that Dr. Castro disputes or denies the telephone call or Martinez-
Gonzalez’s recollection of the conversation.
D. Martinez-Gonzalez Files Suit
In May of 2015, Martinez-Gonzalez filed the instant HCLC against
Appellees. Thereafter, Martinez-Gonzalez timely filed a notice and certificate of
service of the report and CV of his expert, Dr. William Gibson. Appellees did not
file an objection to Dr. Gibson’s report or a motion to dismiss. Martinez-Gonzalez
eventually filed a second amended petition.
6 E. Appellees’ Summary-Judgment Motions
Appellees filed a no-evidence motion for summary judgment, asserting that
no evidence existed to support the willful-and-wanton-deviation-from-the-
standard-of-care element of Martinez-Gonzalez’s HCLC against an emergency
room physician—Dr. Castro.
Appellees also filed a traditional motion for partial summary judgment
“based on insufficient causation evidence.” In this motion, Appellees asserted
that multiple statements in Martinez-Gonzalez’s second amended petition when
taken together, constituted a judicial admission conclusively establishing lack of
causation for Appellees’ alleged negligence on or after March 13, 2014. Based
on this alleged judicial admission, Appellees asserted that they were entitled to
summary judgment as to any acts or omissions occurring on or after March 13,
2014.
F. Martinez-Gonzalez’s Responses to Appellees’ Summary-Judgment Motions
Martinez-Gonzalez filed responses to Appellees’ summary judgment
motions.5 Martinez-Gonzalez’s response to Appellees’ no-evidence motion for
summary judgment attached the following summary-judgment evidence: Dr.
Gibson’s affidavit6; Martinez-Gonzalez’s medical records from Elite Care;
Martinez-Gonzalez also filed a motion to strike Dr. Castro’s affidavit, but 5
the trial court denied it. 6 Appellees filed a motion to strike Dr. Gibson as an expert, but the trial court denied it.
7 Martinez-Gonzalez’s affidavit; Martinez-Gonzalez’s medical-records excerpts
from Parkland Hospital; e-mail correspondence from Appellees’ insurance
provider’s representative, Amy Evans; a description of Elite Care as a free-
standing emergency department; excerpts from the Texas Administrative Code;
and Appellees’ responses to Martinez-Gonzalez’s requests for production.
Noting that Martinez-Gonzalez complained of waxing and waning pain on
March 12, 2014, Dr. Gibson’s summary-judgment affidavit provided, in part, as
follows:
The standard of medical care indicates that any male of Mr. Martinez-Gonzalez’s age presenting with unexplained abdominal pain should have a complete abdominal and testicular examination. Without prompt medical treatment, the testicle can die within hours to days. However, waxing and waning is correlated with a condition called intermittent torsion. The literature indicates that there is a condition known as intermittent torsion, whereby the torsion is only partial, and can spontaneously detorse, or retorse, causing intermittent pain. With waxing and waning, or intermittent torsion with blood flow running through [the] testicle, the testicle could last more than 24 hours, or even possibly a few days. As such, it is possible for [the] testicle to be viable for more than 24 hours, or more. There are cases with patients having intermittent torsion for several days and still having viable testes. (emphasis in original)
Dr. Gibson’s affidavit further provides the applicable standard of care for
Dr. Castro and Elite Care for March 12 and March 13, 2014, and lists several
specific actions that constituted Dr. Castro’s and Elite Care’s breaches of the
standard of care: (1) failure of the nursing staff to denote groin pain on the
Emergency Nurse Record, (2) failure to timely diagnose Martinez-Gonzalez, (3)
failure to perform a testicular/genital examination, (4) failure to order an
8 ultrasound, (5) failure to re-examine Martinez-Gonzalez after the CT scan, (6)
failure to properly document Martinez-Gonzalez’s symptoms, and (7) failure to
provide Martinez-Gonzalez with appropriate follow-up instructions. Also relevant
to the March 12, 2014 visit was Dr. Gibson’s opinion that “[a]n ultrasound is the
appropriate test to rule out testicular torsion for any male that presents to an
emergency room with abdominal pain, flank pain, nausea, and vomiting to rule
out testicular torsion.”
Dr. Gibson’s affidavit states that Dr. Castro also failed to comply with the
standard of care, which called for “a complete physical exam of the genitals of a
male patient presenting with sudden onset of pain radiating to the groin, right
flank pain, vomiting, and nausea.” According to Dr. Gibson, “[h]ad this been
done, the patient would not have lost his right testicle due to torsion.”7
G. The Trial Court’s Rulings
After a hearing, the trial court granted both of Appellees’ motions for
summary judgment and entered a final judgment in their favor. Martinez-
Gonzalez raises three issues challenging the no-evidence summary judgment
and three issues challenging the traditional, partial summary judgment based on
his alleged judicial admission.
7 Dr. Gibson’s summary judgment affidavit is attached hereto as Appendix A.
9 III. SUMMARY JUDGMENT STANDARDS OF REVIEW
When a party moves for summary judgment under both rules 166a(c) and
166a(i), we will first review the trial court’s judgment under the standards of rule
166a(i). Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 680
(Tex. 2017). If the nonmovant met his burden under rule 166a(i), then we
analyze whether the movant satisfied his rule 166a(c) burden. See id. at 680–81.
A. No-evidence Summary Judgment
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground
that there is no evidence to support an essential element of the nonmovant’s
claim. Tex. R. Civ. P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310
(Tex. 2009). The trial court must grant the motion unless the nonmovant
produces summary-judgment evidence that raises a genuine issue of material
fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 425,
426 (Tex. 2008).
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for
evidence that would enable reasonable and fair-minded jurors to differ in their
conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168
S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if
10 reasonable jurors could, and we disregard evidence contrary to the nonmovant
unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the
nonmovant brings forward more than a scintilla of probative evidence that raises
a genuine issue of material fact, then a no-evidence summary judgment is not
proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030
(2004).
B. Traditional Summary Judgment
Following a traditional summary judgment, the issue on appeal is whether
the movant met his summary-judgment burden by establishing that no genuine
issue of material fact exists and that he is entitled to judgment as a matter of law.
Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009). We review a traditional summary judgment
de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
We take as true all evidence favorable to the nonmovant, and we indulge
every reasonable inference and resolve any doubts in the nonmovant’s favor.
20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We consider the
evidence presented in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could and disregarding
evidence contrary to the nonmovant unless reasonable jurors could not. Mann
11 Frankfort, 289 S.W.3d at 848. We must consider whether reasonable and fair-
minded jurors could differ in their conclusions in light of all of the evidence
presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.
2006); City of Keller, 168 S.W.3d at 822–24.
IV. TRIAL COURT ERRED BY GRANTING NO-EVIDENCE SUMMARY JUDGMENT MOTION
The trial court’s order granting Appellees’ no-evidence summary judgment
states, “The Court is of the opinion Plaintiff failed to put forth more than a scintilla
of admissible evidence regarding the subjective element of the willful and wanton
standard of proof required under Texas Civil Practice and Remedies Code § []
74.351.” In his second issue, Martinez-Gonzalez contends that the trial court
erred by granting Appellees’ no-evidence motion for summary judgment because
he brought forward more than a scintilla of competent summary-judgment
evidence through Dr. Gibson’s summary-judgment affidavit showing that Dr.
Castro had deviated from the standard of care in a willful and wanton manner.8
A. Deviation from Standard of Care With Willful and Wanton Negligence is Required in Health Care-Liability Claim Arising from Provision of Emergency Medical Care
“Section 74.153 governs health care liability claims for injuries . . . arising
from the provision of ‘emergency medical care’ in a hospital emergency
department . . . .” Turner v. Franklin, 325 S.W.3d 771, 776 (Tex. App.—Dallas
8 Martinez-Gonzalez and Appellees agree he received “emergency medical care,” as that term is defined by section 74.001(7) of the civil practice and remedies code, at Elite Care on March 12 and March 13, 2014. Tex. Civ. Prac. & Rem. Code § 74.001(7) (West 2017).
12 2010, pet. denied). Section 74.153 sets forth the following standard of proof in
HCLCs involving emergency medical care:
In a suit involving a health care liability claim against a physician or health care provider for injury to or death of a patient arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, the claimant bringing the suit may prove that the treatment or lack of treatment by the physician or health care provider departed from accepted standards of medical care or health care only if the claimant shows by a preponderance of the evidence that the physician or health care provider, with wilful and wanton negligence, deviated from the degree of care and skill that is reasonably expected of an ordinarily prudent physician or health care provider in the same or similar circumstances.
Tex. Civ. Prac. & Rem. Code Ann. § 74.153. Thus, in a HCLC arising from the
provision of emergency medical care, the claimant must show by a
preponderance of the evidence that the health-care provider deviated from the
applicable standard of care with willful and wanton negligence. Id.; Benish v.
Grottie, 281 S.W.3d 184, 192 (Tex. App.—Fort Worth 2009, pet. denied).
“Section 74.153’s statutorily[-]created standard of proof and the applicable
medical standards of care are not the same thing.” Benish, 281 S.W.3d at 191.
Instead,
[t]he medical standard of care is an element of a plaintiff’s medical negligence cause of action . . . [while] . . . the standard of proof imposed by section 74.153 requires proof—that is, evidence at trial that will more than likely be circumstantial—that the physician or health care provider’s mental state or intent at the time of any deviation from the medical standard of care was wilful and wanton.
13 Id. Because Benish was an expert-report case, we resolved it without construing
“willful and wanton negligence”; instead, recognizing that “whatever definition of
wilful and wanton is utilized, section 74.153 requires proof at trial of a mental
state or state of mind beyond mere negligence of the physician or health care
provider at the time of the physician or health care provider’s deviation from the
medical standard of care.”9 Id. at 192. In accordance with our holding in Benish,
Martinez-Gonzalez was required to offer summary-judgment evidence that Dr.
Castro’s mental state at the time of his alleged deviation from the applicable
standard of care was willful and wanton. See id.
B. Willful and Wanton Negligence Means Gross Negligence
Although we did not construe section 74.153’s phrase willful and wanton in
Benish, we now construe this standard-of-proof requirement as meaning proof of
gross negligence. See Turner, 325 S.W.3d at 781–82. After reviewing the
legislative history of section 74.153, the Dallas Court of Appeals in Turner held
that “the legislature intended ‘wilful and wanton negligence,’ as used in section
74.153 of the civil practice and remedies code, to mean ‘gross negligence.’” Id.
Several courts of appeals have either expressly adopted Turner’s holding or used
its definition in their analyses. See, e.g., Miller v. Mullen, 531 S.W.3d 771, 779
(Tex. App.—Texarkana 2016, no pet.) (“For purposes of analyzing this summary
judgment, we assume the Turner definition of the willful and wanton standard, as
9 In Benish, we noted that “conflicting definitions [of willful and wanton negligence as used in section 74.153] may exist.” 281 S.W.3d at 192.
14 urged by both parties[.]”); Burleson v. Lawson, 487 S.W.3d 312, 322 (Tex.
App.—Eastland 2016, no pet.) (quoting with approval Turner’s conclusion “that
‘willful and wanton negligence’ is the equivalent of ‘gross negligence’”); Ho v.
Johnson, No. 09-15-00077-CV, 2016 WL 638046, at *11 (Tex. App.—Beaumont
Feb. 18, 2016, pet. denied) (mem. op.) (citing Turner to support the proposition
willful and wanton negligence “has been interpreted by Texas courts as being
equated with gross negligence”); Sage v. Howard, 465 S.W.3d 398, 407 (Tex.
App.—El Paso 2015, no pet.) (“We agree with Turner’s analysis and will follow
it.”).
Gross negligence has both an objective10 and a subjective component.
Reeder v. Wood Cty. Energy, LLC, 395 S.W.3d 789, 796 (Tex. 2012). In
examining proof of the subjective component, courts focus on the defendant’s
state of mind, examining whether the defendant knew about the peril caused by
his conduct and continued to act in a way that demonstrated he did not care
about the consequences to others. Diamond Shamrock Ref. Co. v. Hall, 168
S.W.3d 164, 173 (Tex. 2005) (“[T]he plaintiff must show that the defendant knew
Because the trial court expressly granted Appellees’ no-evidence motion 10
for summary judgment based on the “subjective element of willful and wanton negligence,” the objective component is not at issue here, so we do not discuss it. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625–26 (Tex. 1996) (“When reviewing a summary judgment granted on specific grounds, the summary judgment can only be affirmed if the ground on which the trial court granted relief is meritorious.”); see also Miller, 531 S.W.3d at 780 (addressing no-evidence summary judgment motion based solely on the subjective element of willful and wanton negligence under section 74.153).
15 about the peril, but his acts or omissions demonstrate that he did not care.”); Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 232 (Tex. 2004) (“[I]t is the
defendant’s state of mind[—]whether the defendant knew about a peril but
nevertheless acted in a way that demonstrated that he did not care about the
consequences[—]that separates ordinary negligence from gross negligence.”);
Turner, 325 S.W.3d at 784.
But “[g]ross negligence does not require proof that the defendant intended
or tried to harm the plaintiff[.]” Turner, 325 S.W.3d at 784. Moreover, “[e]vidence
of ‘some care’ will not disprove gross negligence as a matter of law.” Id.; see
also Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001)
(holding “some evidence of care does not defeat gross-negligence finding”).
Thus, we look for evidence of the defendant’s subjective mental state rather than
the defendant’s exercise of care. Turner, 325 S.W.3d at 784. “A plaintiff may
establish the defendant’s mental state by circumstantial evidence.” La. Pac.
Corp. v. Andrade, 19 S.W.3d 245, 247 (Tex. 1999); see also Benish, 281 S.W.3d
at 191 (recognizing that evidence of physician or health care provider’s mental
state or intent in emergency medical care negligence case will likely be
circumstantial).
C. Analysis
We examine the summary-judgment evidence, including Dr. Gibson’s
affidavit, to determine whether the trial court’s order granting Appellees’ no-
evidence summary judgment expressly on the “subjective element of the willful
16 and wanton standard of proof required under Texas Civil Practice and Remedies
Code §74.351[,]” can be affirmed on that ground. See Cincinnati Life Ins.
Co., 927 S.W.2d at 625–26. Dr. Gibson’s affidavit explains that when a male
patient of Martinez-Gonzalez’s age presents in an emergency-room setting with
right-side abdominal and flank pain, the applicable standard of care requires a
genital exam and an ultrasound in order to rule out testicular torsion. Dr.
Gibson’s points out that Elite Care’s own emergency-physician-evaluation form––
to be used specifically in assessing abdominal pain complaints––includes a place
to document a male genital exam for testicular swelling or tenderness, a blank to
check to order an ultrasound, and lists testicular torsion as one of the diagnoses
to be considered by an emergency-care physician when a male presents with
abdominal and flank pain.
Viewed in light most favorable to Martinez-Gonzalez, the summary
judgment evidence establishes that: on March 12, 2014, Martinez-Gonzalez
went to Elite Care for emergency medical care because he was experiencing
symptoms of right-side abdominal and flank pain; Dr. Castro used the
emergency-physician-evaluation form for assessing abdominal-pain complaints
in his evaluation of Martinez-Gonzalez; Dr. Castro failed to perform a genital
exam on Martinez-Gonzalez, failed to note or rule out any testicular swelling or
tenderness of Martinez-Gonzalez, and failed to order an ultrasound; the
emergency-physician-evaluation form listed “testicular torsion” as one of the
possible diagnoses for causing abdominal pain.
17 Dr. Castro’s conduct on March 12, 2014 constituted not only a breach of
the standard of care, but willful and wanton negligence in deviating from that
standard, as opined by Dr. Gibson in paragraphs 19, 20, 21, 22, and 26 of his
summary-judgment affidavit.
Examining the entire record, crediting evidence favorable to Martinez-
Gonzalez if a reasonable juror could, drawing every inference in his favor from
that evidence that a reasonable juror could, and resolving any doubts against
Appellees unless reasonable jurors could not, more than a scintilla of summary-
judgment evidence exists that would enable reasonable and fair-minded jurors to
differ in their conclusions as to whether Dr. Castro subjectively acted with willful
and wanton negligence on March 12, 2014, in his decisions to not perform a
genital exam or an ultrasound on Martinez-Gonzalez to rule out testicular torsion
despite the fact that Martinez-Gonzalez suffered from—according to Dr.
Gibson—classic testicular-torsion symptoms and despite the fact that Elite Care’s
assessment form for use on patients experiencing abdominal pain, which Dr.
Castro used, had blanks to note the performance of a genital exam, to note any
testicular swelling or tenderness, and to order an ultrasound and listed testicular
torsion as a possible diagnosis applicable to a male experiencing abdominal and
flank pain severe enough to seek emergency medical care. That is, reasonable
jurors could differ in their conclusions as to whether Dr. Castro possessed actual,
subjective awareness of the extreme risk that Martinez-Gonzalez suffered from
the time-sensitive condition of testicular torsion and yet consciously disregarded
18 that risk and its consequences by not conducting an applicable genital exam or
ultrasound. See Sage, 465 S.W.3d at 407 (holding more than a scintilla of
evidence existed regarding subjective element of willful and wanton negligence
under section 74.153); Timpte Indus., 286 S.W.3d at 310 (quoting Mack Trucks,
206 S.W.3d at 582); Hamilton, 249 S.W.3d at 426 (citing City of Keller, 168
S.W.3d at 822).
Further, the summary-judgment evidence that a reasonable juror could
credit favorably to Martinez-Gonzalez establishes that on March 13, 2014,
Martinez-Gonzalez returned to Elite Care complaining of excruciating right
testicular pain and asked for Dr. Castro. Dr. Castro spoke to Martinez-Gonzalez
in the waiting area instead of admitting him for a follow-up examination. Although
Dr. Castro claims that Martinez-Gonzalez only wanted pain medication and
refused to check into Elite Care, Martinez-Gonzalez claims that he did not ask
only for pain medication and did not decline to check in, but instead that Dr.
Castro “rushed me out” of Elite Care, said he could do nothing further for
Martinez-Gonzalez, and told him to go to Parkland Hospital. Martinez-Gonzalez
contends that because he did drive himself to Parkland and did attain admission
there, his actual conduct was inconsistent with Dr. Castro’s contention that
Martinez-Gonzalez wanted only pain medication and refused to be admitted to
Elite Care. Martinez-Gonzalez testified via his summary-judgment affidavit that
he spoke with Dr. Castro after his surgery at Parkland to remove his right torsed
testicle and that Dr. Castro stated he did not believe that the loss of Martinez-
19 Gonzalez’s testicle was a “big deal” because at Martinez-Gonzalez’s age, he
would not be having any more children.
Concerning Dr. Castro’s alleged willful and wanton negligence in deviating
from the standard of care applicable on Martinez-Gonzalez’s March 13, 2014,
visit to Elite Care, Dr. Gibson opines in paragraphs 19, 23, 24, 25, and 26 of his
summary-judgment affidavit that Dr. Castro’s conduct and actions on March 13,
2014, constituted not only a breach of the standard of care and a violation of
various provisions of the Texas Administrative Code, but also constituted willful
and wanton negligence in deviating from the standard care.
Again, examining the entire record, crediting evidence favorable to
Martinez-Gonzalez if a reasonable juror could, drawing every inference in his
favor from that evidence that a reasonable juror could, and resolving any doubts
against Appellees unless reasonable jurors could not, more than a scintilla of
summary-judgment evidence exists that would enable reasonable and fair-
minded jurors to differ in their conclusions as to whether Dr. Castro acted with
willful and wanton negligence on March 13, 2014—in his decisions to not admit
Martinez-Gonzalez for screening, examination, treatment, and transfer, despite
Martinez-Gonzalez’s time-sensitive emergency medical condition of a torsed right
testicle. Thus, more than a scintilla of evidence exists that that would enable
reasonable and fair-minded jurors to differ in their conclusions as to whether Dr.
Castro’s deviations from the standard of care on March 13, 2014, were done with
willful and wanton negligence. See Turner, 325 S.W.3d at 784–85 (holding
20 defendant’s expert testimony of no willful and wanton negligence in deviation
from standard of care applicable to testicular torsion did not conclusively negate
willful and wanton element); Timpte Indus., 286 S.W.3d at 310 (quoting Mack
Trucks, 206 S.W.3d at 582; Hamilton, 249 S.W.3d at 426 (citing City of Keller,
168 S.W.3d at 822).
We hold that the trial court erred by granting summary judgment on
Appellees’ no-evidence motion for summary judgment. We sustain Martinez-
Gonzalez’s second issue.11
V. TRIAL COURT ERRED BY GRANTING APPELLEES’ TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT
In his fourth issue, Martinez-Gonzalez contends that the trial court erred by
granting Appellees’ traditional motion for partial summary judgment because
statements in his live pleading did not constitute a judicial admission regarding
causation and because he set forth competent summary-judgment evidence to
create a genuine issue of material fact on causation.
A. Impermissible Fracturing of Martinez-Gonzalez’s HCLC
Appellees’ traditional motion for a partial summary judgment is improper. It
impermissibly fractures Martinez-Gonzalez’s single HCLC into two distinct parts
11 Martinez-Gonzalez’s first and third issues also challenge the propriety of the no-evidence summary judgment granted by the trial court, but because we reverse the no-evidence summary judgment in toto based on Martinez- Gonzalez’s second issue and because Appellees’ no-evidence motion for summary judgment was granted solely on the subjective element of the willful and wanton standard of proof, we need not address his other issues challenging the no-evidence summary judgment. See Tex. R. App. P. 47.1.
21 for purposes of attaining a judgment: a HCLC for Appellees’ conduct on or
before March 12, 2014, and a HCLC for Appellees’ conduct on or after March 13,
2014. Appellees’ traditional motion for partial summary judgment asserted that
no causation exists for Appellees’ acts on or after March 13, 2014, and sought a
“partial” summary judgment on the portion of Martinez-Gonzalez’s HCLC that
encompassed Appellees’ alleged negligent acts on or after March 13, 2014.12 A
trial court is not authorized to adjudicate fragmentary issues of fact or law which
are not dispositive of any claim or contention or to render summary judgments
splitting a cause of action. See Timothy Patton, Summary Judgments in Texas:
Practice, Procedure and Review § 3.03[1] (3d ed. 2017) (citing Pecorino v.
Raymark Indus., Inc., 763 S.W.2d 561, 570, 576 (Tex. App.––Beaumont 1988,
no writ)). Thus, because Appellees’ traditional motion for partial summary
judgment attempts to negate causation in Martinez-Gonzalez’s HCLC only from
March 13, 2014, forward, it impermissibly fractures Martinez-Gonzalez’s HCLC
and is improper. Id. The trial court erred by granting a traditional, partial
summary judgment on causation on the portion of Martinez-Gonzalez’s HCLC
alleging negligent acts by Appellees on or after March 13, 2014.
12 Appellees argued that on March 13, 2014, based on the alleged judicial admission in Martinez-Gonzalez’s live petition, too much time had passed to save Martinez-Gonzalez’s testicle, regardless of Dr. Castro’s alleged acts and omissions on that date, thereby defeating causation as a matter of law as to Appellees’ negligence on March 13, 2014.
22 The sole basis for Appellees’ traditional motion for partial summary
judgment is the alleged judicial admission by Martinez-Gonzalez. Because the
statement pleaded by Martinez-Gonzalez does not meet the requisites of a
judicial admission, as we discuss below, we alternatively hold that the trial court
erred by granting Appellee’s traditional motion for partial summary judgment for
this reason.
B. No Judicial Admission
A judicial admission must be a clear, deliberate, and unequivocal
statement, and occurs when an assertion of fact is conclusively established in
live pleadings, making the introduction of other pleadings or evidence
unnecessary. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex.
2000) (quoting Regency Advantage Ltd. P’ship v. Bingo Idea–Watauga, Inc., 936
S.W.2d 275, 278 (Tex. 1996) and Chilton Ins. Co. v. Pate & Pate Enters.,
Inc., 930 S.W.2d 877, 884 (Tex. App.—San Antonio 1996, writ denied)). As long
as the statement stands unretracted, it must be taken as true by the court and
the jury. See Lee v. Lee, 43 S.W.3d 636, 641 (Tex. App.—Fort Worth 2001, no
pet.). Assertions of fact, not pleaded in the alternative, in the live pleadings of a
party are regarded as formal judicial admissions. Holy Cross Church of God in
Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001). A statement of opinion,
however, is not susceptible to being characterized as a judicial admission. See
Hedge v. Bryan, 425 S.W.2d 866, 868 (Tex. Civ. App.—Tyler 1968, writ ref’d
n.r.e.) (“[I]n order for a statement to constitute a judicial admission, it must . . . be
23 a statement of fact, rather than opinion.”); Roberts v. Burkett, 802 S.W.2d 42, 45
(Tex. App.—Corpus Christi 1990, no writ) (“Statements of opinion are not judicial
admissions.”).
In paragraph 15 of the “Background Facts” section of Martinez-Gonzalez’s
second amended petition, he pleads that on March 12, 2014, he was evaluated
by a registered nurse at Elite Care at 11:41 a.m.; that he reported his pain level
to be an eight out of ten; that he complained of pain radiating to his inner
thigh/groin but the nurse did not note this; that his abdominal pain and back pain
began at about 6:00 a.m. and had increased by 10:00 a.m.; that he took Tums
around 10:30 a.m.; and that when his pain did not improve, he went to Elite Care.
Paragraph 21 of the “Background Facts” section of Martinez-Gonzalez’s second
amended petition alleged:
A testicular examination should be performed on any male presenting with a chief complaint of lower abdominal pain, back/ flank pain, or any pain that radiates to the groin. It is well established that testicular torsion may cause referred pain to the abdomen thereby requiring a genital exam. Early diagnosis and treatment are vital to saving the testicle and preserving future fertility. The testis salvage rate approaches 100% in patients who undergo detorsion within 6 hours of the start of pain. However there is only a 50% viability rate if detorsion occurs >12 hours; and virtually no viability if detorsion is delayed >24 hours.4 [citing Wampler SM, Llanes M (September 2010). ‘Common scrotal and testicular problems’. Prim. Care 37 (3): 613–26.”] Gonzalez exhibited fairly textbook presentation of acute testicular torsion that mandated prompt diagnosis and treatment. However, the diagnosis apparently was not even entertained, nor was proper treatment initiated. Elite care failed to have in place a procedure or protocol
24 that would implement timely emergency medical care for an individual complaining of testicular pain.
Appellees intertwine paragraph 15’s estimation––that Martinez-Gonzalez’s
“abdominal pain and back pain began at about 6 a.m.”—with paragraph 21’s
statement that: “[t]he testis salvage rate approaches 100% in patients who
undergo detorsion within 6 hours of the start of pain. However there is only a
50% viability rate if detorsion occurs >12 hours; and virtually no viability if
detorsion is delayed >24 hours[.]” Then Appellees perform the math.13 Then
Appellees argue that putting the statements in paragraphs 15 and 21 together
and superimposing the computed math on Martinez-Gonzalez’s petition,
Martinez-Gonzalez has therefore judicially admitted that no causation exists in
his HCLC against them concerning any willful and wanton deviation from the
standard of care on March 13, 2014, because Martinez-Gonzalez arrived at Elite
Care on March 13, 2014, more than twenty-four hours after the onset of his
symptoms.
We cannot agree that this required combination of juxtaposing different
pleaded background statements, intertwining them, and computing math based
13 The math is as follows. Computing 12 hours after paragraph 15’s “around 6:00 a.m.” on March 12, 2014 equals approximately 6 p.m. on March 12, 2014; so, juxtaposing that with paragraph 21’s viability rates, a 50% right-testicle viability rate exists for Martinez-Gonzalez only through 6 p.m. on March 12, 2014. Then, adding another 12 hours to 6 p.m. on March 12, 2014 (to reach 24 hours) equals 6:00 a.m. on March 13, 2014. And juxtaposing that with paragraph 21’s viability rates, a 0% viability rate for Martinez-Gonzalez’s right testicle existed by 6:00 a.m. on March 13, 2014.
25 solely on a medical article’s stated testicle-salvage rates cited in a footnote of a
live pleading, is a statement of fact that is clear, deliberate, and unequivocal as
required to constitute a judicial admission. See Horizon/CMS Healthcare Corp.,
34 S.W.3d at 905 (holding plaintiff’s pleadings constituted judicial admission that
defendant was a health care entity). It is not clear; multiple statements must be
intertwined and math computed to reach the statement purportedly “judicially
admitted.” It is neither deliberate nor unequivocal for the same reason. Nor is it
a statement of fact. At most, it is a statement of medical opinion in a medical
article cited in a footnote of Martinez-Gonzalez’s second amended original
petition. See, e.g., Hedge, 425 S.W.2d at 868 (explaining statement of opinion is
not judicial admission). Moreover, it was controverted by Dr. Gibson’s summary-
judgment affidavit.14 And finally, pleadings are generally not competent evidence
in a summary judgment proceeding in any event. See, e.g., Laidlaw Waste Sys.
(Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (“Generally,
pleadings are not competent evidence, even if sworn or verified.”); see also In re
B.I.V., 870 S.W.2d 12, 13–14 (Tex. 1994) (holding that summary judgment
should not be based on a pleading deficiency that could be cured by
14 Dr. Gibson’s affidavit set forth expert testimony explaining that because Martinez-Gonzalez articulated that his abdominal pain symptoms were “waxing and waning,” as noted in Appellees’ medical records, Martinez-Gonzalez could have been experiencing intermittent testicular torsion, where the testis twists and untwists on the spermatic cord. According to Dr. Gibson, under this diagnosis, “it is possible for [a] testicle to be viable up to 24 hours or more. There are cases of patients that have had intermittent torsion for several days and still have viable testicles.”
26 amendment); Womack v. Allstate Ins. Co., 296 S.W.2d 233, 237 (Tex. 1956)
(“[W]hen the affidavits or other summary judgment ‘evidence’ disclose facts
which render the position of the moving party untenable, summary judgment
should be denied regardless of defects which may exist in the pleadings of the
[nonmovant].”).
We therefore hold that the trial court erred by granting Appellees’
traditional motion for partial summary judgment. We sustain Martinez-
Gonzalez’s fourth issue.
VI. CONCLUSION
Having sustained Martinez-Gonzalez’s second issue resulting in reversal
of the trial court’s no-evidence summary judgment and having sustained
Martinez-Gonzalez’s fourth issue resulting in the reversal of the trial court’s
traditional, partial summary judgment, we need not address Martinez-Gonzalez’s
first, third, fifth, or sixth issues. See Tex. R. App. P. 47.1. We reverse the
summary judgments granted by the trial court and remand this case for further
proceedings. See Tex. R. App. P. 43.2(d), 43.3.
/s/ Sue Walker SUE WALKER JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ
DELIVERED: March 8, 2018
27 APPENDIX A