Hinote, James Fred v. Rio Grande Surgery Center Associates, L.P., and Craig Katshen

• Court: Court of Appeals of Texas
• Decided: August 31, 2000
• Docket: 13-99-00489-CV
• Status: Published

Opinion

NUMBER 13-99-489-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________________

JAMES FRED HINOTE, Appellant,

v.

RIO GRANDE SURGERY CENTER ASSOCIATES, L.L.P.

AND CRAIG KATSHEN, Appellees.

____________________________________________________________________

On appeal from the 275th District Court of Hidalgo County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Hinojosa

Appellant, James Hinote, appeals from a summary judgment granted in favor of appellees, Rio Grande Surgery Center Associates, L.L.P. ("Surgery Center") and its employee Craig Katshen ("Katshen"), whom he had sued for medical malpractice. By a single issue (with five sub-issues), appellant contends the trial court erred in granting appellees' motion for summary judgment because: (A) the motion for summary judgment addressed only appellant's recovery of damages for mental anguish caused by fear of disease, whereas his fifth amended petition raised other damages and another cause of action; (B) appellant's summary judgment evidence creates a question of fact as to whether he was exposed to a substance or condition capable of causing disease; (C) appellant "should prevail even when using the standard for recovery set forth in the Drury case;"⁽¹⁾ (D) there is no case law regarding the elements a plaintiff must prove to recover damages for mental anguish due to fear of disease; and (E) appellant can recover such damages because they arose as a result of a breach of a duty arising out of a special relationship between appellant and appellees. We affirm in part and reverse and remand in part.

A. Jurisdiction

In sub-issue A, appellant contends the trial court's order granting summary judgment is interlocutory because it does not dispose of all his claims. Under Texas procedure, appeals are allowed only from final orders or judgments. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992); North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). However, the supreme court has held that:

If a summary judgment order appears to be final, as evidenced by the inclusion of language purporting to dispose of all claims or parties, the judgment should be treated as final for purposes of appeal. If the judgment grants more relief than requested, it should be reversed and remanded, but not dismissed.

Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex. 1993).

The trial court's order in this case states:

The Court, after reviewing the Motion, any response thereto, and the evidence presented, believes the Motion to be well-taken and should be in all things GRANTED.

It is, therefore, ORDERED, ADJUDGED, and DECREED that the Plaintiff take nothing against these Defendants; that all claims and causes of action asserted against these Defendants be dismissed with prejudice to refiling same; and that Plaintiff be prohibited from bringing further actions against these Defendants as a result of the occurrence made the basis of this lawsuit

The trial court's order clearly evidences the court's intent to dispose of all parties and claims. We hold the trial court's order is final for purposes of appeal and that we have jurisdiction to review this matter.

B. Standard of Review

When we review a traditional summary judgment brought under Texas Rule of Civil Procedure 166a, we must follow these well-established rules:

(1) the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;

(2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and

(3) every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the nonmovant.

See American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see also Tex. R. Civ. P. 166a. A defendant's motion for summary judgment should be granted if he disproves at least one essential element of each of the plaintiff's causes of action, or if he establishes all the elements of an affirmative defense as a matter of law. Grinnell, 951 S.W.2d at 425; Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). We review the evidence in the light most favorable to the respondent against whom the summary judgment was rendered, disregarding all contrary evidence and inferences. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Zapata, 997 S.W.2d at 747; Connell v. Connell, 889 S.W.2d 534, 537 (Tex. App.--San Antonio 1994, writ denied). Evidence favoring the movant's position will not be considered unless it is uncontradicted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). If a summary judgment is granted generally, without specifying the reason, it will be upheld if any ground in the motion for summary judgment can be sustained. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Weakly v. East, 900 S.W.2d 755, 758 (Tex. App.--Corpus Christi 1995, writ denied); Benavides v. Moore, 848 S.W.2d 190, 192 (Tex. App.--Corpus Christi 1992, writ denied).

C. Background and Procedural History

Viewed in the light most favorable to appellant, the party against whom the summary judgment was granted, the underlying facts are as follows. On March 22, 1996, appellant went to the Surgery Center to undergo a cataract operation. While being prepared for the operation, he was placed in a room with one other patient, known to appellant only as "Mr. Garcia;" they were separated by a curtain. Appellant overheard Garcia say that he was positive for Hepatitis C. Nurse Katshen rolled the cart containing appellant's anesthesia kit out of the room; appellant's wife saw him take it over to where Garcia was located. An anesthesia kit contains two syringes: a 3 cc syringe (which holds 2 cc's of medication) and a 5 cc syringe. A 5 cc syringe is used to draw 1 cc of Verced, then 4 cc of saline; this mixture is put into the patient's IV. Dr. Bharat N. Vadher, the anesthesiologist, used a syringe from the kit to inject a relaxant into appellant's IV. Dr. Gillett then performed an "eye block" on appellant, using two syringes injected into or near appellant's eye prior to performing the cataract operation.

While appellant was resting in a post-operative room after the surgery, either Janet West, the administrator of the Surgery Center, or Dr. Gillett told him, "We have some bad news for you." Appellant immediately felt very upset, thinking he had lost sight in the eye that had just been operated on. Dr. Gillett told him, "No, it's not that. Calm down. . . you were injected with infected needles." Appellant was then informed that the anesthesia kit used during his surgery might have been used on another patient before being used on appellant. Appellant asked if the other patient was the man who said he was positive for hepatitis C, and Dr. Vadher replied that it was. Dr. Vadher told him the needle used to inject the tranquilizer into appellant's IV and the two needles used in the eye block were all previously used on the other patient. Ms. West told him she would give appellant "a report of what happened," and that appellant would have to take an AIDS test. Appellant never obtained such a report from the Surgery Center.

Dr. Michael T. Jelinek, an infectious disease specialist, was then called. Appellant had previously seen Dr. Jelinek for an infection. Dr. Jelinek told appellant that his chances of getting hepatitis C through an IV were minimal "because of the flow. But through my eye, he couldn't say." Appellant was reassured by this. Dr. Jelinek did not say anything about his chances of contracting AIDS.

The Surgery Center tested appellant's blood for hepatitis C, hepatitis B, and HIV. Thirty days later, appellant was told by the Surgery Center that the results were negative. In the meantime, appellant retained an attorney, who referred him to a Dr. Samaniego for further testing. Appellant concedes he has been tested repeatedly for hepatitis C, hepatitis B and HIV, and the results have been negative for all three diseases. He alleges serious and permanent mental anguish injuries sustained due to the fear of disease caused by appellees' negligent use of unsterile syringes, injuries sustained due to the negligent manner in which he was informed of the mistake, and past and future medical expenses.

Appellant filed his original petition on June 13, 1997.⁽²⁾ Appellees filed their first amended motion for summary judgment on October 1, 1998, and it was submitted to the trial court on December 10, 1998. Appellant timely filed his fifth amended petition on December 1, 1998, and his response to appellees' motion for summary judgment, with attached exhibits, on December 3, 1998. The trial court signed an order granting the motion for summary judgment on May 4, 1999.

D. Appellant's Third Amended Petition 1. Causes of Action Pleaded

In his third amended petition, appellant alleged the Surgery Center was negligent in the following ways:

a. In failing to properly train or supervise its employees in the preparation and identification and proper use of patients' pre-operative trays;

b. In failing to properly train or supervise its employees in the proper method of disposing of used syringes so as to prevent the syringes from being used on other patients; and

c. In failing to have a procedures and policies guide in effect which instructs employees on how to properly handle and dispose of syringes and/or other hazardous or contaminated waste products.

Appellant further alleged that nurse Katshen was negligent:

a. In failing to exercise the accepted standard of care regarding the use and re-use of syringes which had been previously used on another patient;

b. In transporting the supply tray containing already previously used syringes of another patient to appellant's bedside; and

c. In failing to apprise the physicians who were treating appellant of the fact that the syringe kit which contained the previously used syringes belonged to another patient.

Appellant also alleged that Katshen was acting within the course and scope of his employment with the Surgery Center, and that the Surgery Center was responsible for Katshen's actions under the doctrine of respondeat superior.

(2) Damages Pleaded

In his third amended petition, appellant claimed the following damages:

As a result of the negligent conduct of [appellees], JAMES FRED HINOTE hereby makes a claim for damages that he suffered as a result of injections he was administered with the used syringes of a Hepatitis C patient. As a result of this negligence, [appellant] suffered and continues to suffer severe mental injuries, physical injuries and reasonable fear of contracting the diseases and conditions he may have been exposed to as a result of the contaminated syringes which were used to administer him injections. The injuries are of a permanent nature and have had a serious effect on the physical and emotional well-being of [appellant, who] has endured physical injuries including nausea, headaches and dizziness and resulting mental anguish. In addition, [appellant] will not truly know the full extent of his damages and injuries he may have sustained until such time that discovery in this case is concluded. . . . [appellant] incurred reasonable and necessary medical expenses for treatment of the injuries he sustained and in all likelihood will continue to incur such expenses in the future. [Appellant] now sues for his past and future medical expenses, past and future pain and suffering and severe mental anguish in the amount of Five Hundred Thousand ($500,000) Dollars.

E. Appellees' First Amended Motion for Summary Judgment

In their first amended motion for summary judgment, appellees attacked the damages element of appellant's negligence claim. They asserted that appellant's claims for serious and permanent injuries and damages must fail as a matter of law because Texas courts have found that actual exposure to a disease is necessary in order to recover for mental anguish due to fear of contracting a disease. As summary judgment evidence, appellees attached:

(1) A copy of appellant's "Third Amended Original Petition,"⁽³⁾

(2) An affidavit of Dr. Michael T. Jelinek, and

(3) A portion of appellant's deposition.

In his affidavit, Dr. Jelinek stated:

On March 22, 1996, I was consulted regarding James Hinote. I was asked to consult on Mr. Hinote's case because there was concern he had possibly been injected with a syringe which had possibly been used on another patient. That patient, patient "B", allegedly had reported a history of having been exposed to Hepatitis C. I spoke with Mr. Hinote and then ordered Mr. Hinote's blood to be drawn and tested for a HIV-1/HIV-2 AB screen, Hepatitis B Surf AG and Hepatitis C AB screen. I received the results of those test which were all negative.

On March 22, 1996, I additionally recommended that these same tests should be run on the other patient, patient "B", to ensure Mr. Hinote was not exposed to HIV or Hepatitis. I have also reviewed the results of those tests which indicate the other patient's HIV and Hepatitis screens were all negative.

Further, it is my understanding from reviewing Mr. Hinote's deposition that he has had two (2) additional Hepatitis screens since March, 1996, which were also negative.

Accordingly, it is my opinion that it is medically certain, Mr. Hinote was not exposed to either HIV, Hepatitis B or Hepatitis C. In other words, it is medically certain Mr. Hinote did not sustain any injury if indeed he was injected with syringes that had been used on the other patient.

In his deposition, appellant testified Dr. Samaniego told him that he could likely receive hepatitis "from the injections in the eye, the needles, the two shots they gave me in the eye." The results of the hepatitis testing performed by Dr. Samaniego were negative. The doctor gave him some "pills to take for calmness, you know, so I wouldn't be too excited. To calm me down . . . a tranquilizer." Appellant took the pills for two or three months. Appellant further testified:

Q: Were you having any anxiety when you went to see [Dr. Samaniego]?

A: I was nervous over the whole deal, from the very beginning.

Q: What kind of symptoms were you having?

A: Just nerves. Felt like I was burning inside. Can't sleep.

Q: Anything else?

A: No.

Q: How were those symptoms by your second visit in May of 1996, when you went to see Dr. Samaniego?

A: The medications that he gave me helped me.

Q: Okay.

A: But what worried me when they gave me the HIV test, I didn't know what, whether the guy had HIV or not, the patient. In the back of my mind I was always thinking about that.

Appellees asserted they were "entitled to summary judgment as a matter of law on all claims and causes of action of the Plaintiff."

F. Appellant's Fifth Amended Petition 1. Causes of Action Pleaded

In his fifth amended petition, appellant alleged two additional ways in which the Surgery Center was negligent:

d. In failing to exercise standard [of] care in regard to the way and method it responded to and informed Plaintiff of the mistake that had occurred regarding the syringes in that such method created shock, panic and hysteria; and

e. By using unsterile syringes to treat Plaintiff without his consent to do so.

Appellant deleted one of the ways in which he previously alleged nurse Katshen was negligent:

b. In transporting the supply tray containing already previously used syringes of another patient to appellant's bedside.

2. Damages Pleaded

In his fifth amended petition, appellant pleaded the following damages:

[Appellant]. . . suffered and continues to suffer severe physical injuries as a proximate cause of the negligent acts described above. In addition to those injuries, he has had and continues to have a reasonable fear of contracting the diseases and conditions he may have been exposed to as a result of the contaminated syringes which were used to administer his injections. The injuries are of a permanent nature and have had a serious effect on the physical and emotional well-being of [appellant, who] has sustained physical injuries including nausea, headaches and dizziness, anxiety, pain and suffering and resulting mental anguish. . . . [Appellant] incurred reasonable and necessary medical expenses for treatment of the injuries he sustained and in all likelihood will continue to incur such expenses in the future. [Appellant] now sues for his past and future medical expenses, past and future pain and suffering and severe mental anguish.

G. Appellant's Response to the Motion for Summary Judgment

In his response, appellant objected to the use of Dr. Jelinek's affidavit as summary judgment evidence, arguing that the doctor's comments regarding test results on appellant and "patient B" were hearsay not subject to any known hearsay exceptions. He noted that Dr. Jelinek did not personally perform the testing, but was merely repeating the out-of-court statements of others; that Dr. Jelinek never even examined appellant; and that the actual test results were not offered as evidence. However, because appellant failed to obtain a ruling on his objection, he has not preserved this issue for our review. Tex. R. App. P. 33.1.

Appellant further argued that the motion was based on a prior pleading, and that he had amended his pleadings by filing his Fifth Amended Original Petition. Appellant further argued that his cause of action was not only for appellees' negligent act of using unsterile syringes on appellant, but also for the "improperly and negligently provided treatment after the mistake was discovered which fell below an appropriate standard of care and caused shock, panic, apprehension and additional stress to a patient who had just come out of an operating room." Appellant noted that appellees' motion for summary judgment was incorrectly premised on the assumption that his only claim was for fear of exposure to disease, while in fact appellant had also alleged damages for "physical injuries and symptoms," pain and suffering, medical expenses and for "improperly and negligently provid[ing] treatment after the mistake." Appellees did not amend their motion for summary judgment, or otherwise reply to appellant's response.

H. Appellant's Summary Judgment Evidence

Appellant attached the following evidence to his response:

1. A portion of Dr. Bharat N. Vadher's deposition;

2. A portion of the deposition of Craig Katshen;

3. A portion of the deposition of Janet West; and

4. The entire deposition of appellant.

In his deposition, Dr. Vadher acknowledged that the following notation in appellant's medical record was made by him:

Anesthesia record in outpatient area. Patient was given one cc of Versed, and one point five cc of Fentyl from a kit assigned (7158) to him. And the syringes . . . were filled up as it usually does. Upon asking the attending nurse whether the kit (narcotic kit) belongs to this particular patient, he said yes. The medicine was given from the syringes to this patient. It was found later on that the same kit (7158) was assigned to another patient who is positive for hepatitis C. Patient is informed about the incidence. Dr. Jelinek was contacted on phone by me and according to him the chances of transmittal of hepatitis C is minimal. And According to him there is no proven value of gamma globulin prophylaxis. He said that there is no emergency to see the patient and he will see him on Monday for reassurance. Dr. Gillett was informed about this incidence and he will follow up this case. Dr. Jelinek also spoke to patient in step down and reassured the patient. Janet was informed about the incidence. Blood work has been sent to lab. Patient was also reassured and told about small chances of transmitting of the disease.

Dr. Vadher testified he did not recall whether he got the information that the other patient was positive for hepatitis C from the patient himself, the patient's chart or the nursing staff. A copy of this portion of appellant's medical records was attached as an exhibit to Dr. Vadher's deposition.

Katshen testified that he heard the other patient say he was positive for hepatitis C. He also heard the other patient tell Dr. Vadher he was positive for hepatitis C. He specifically remembers this because "it kind of stands out . . . it's not a disease you want to get."

Janet West testified that "because of the medications [appellant] was receiving," only the syringe used to inject the relaxant into appellant's IV port could have previously been used on the other patient, not the two needles used by Dr. Gillett to perform the eye block.

Appellant testified to the facts as set forth above.

I. Recovery for Fear of Disease

The sole theory relied on by appellees in their motion for summary judgment is that as a matter of law appellant cannot recover the damages he has asked for in his pleadings because he was not exposed to any infectious disease through appellees' use of contaminated needles. Appellees contend there must be actual exposure to a disease-causing agent in order to recover for mental anguish caused by fear of disease. We hold the summary judgment proof establishes that appellant has not contracted hepatitis C, hepatitis B or HIV. In fact, appellant conceded during oral argument that he has not contracted hepatitis C, hepatitis B or HIV. The issue before us is whether this fact is dispositive of appellant's claim for mental anguish damages.

1. What Standards Apply to this Case?

In sub-issue D, appellant asserts that no standards regarding recovery of mental anguish for fear of disease have been promulgated by the Texas Supreme Court or by this Court. In sub-issue C, appellant contends that the granting of the motion for summary judgment was improper, even under the standards set forth in Drury v. Baptist Mem. Hosp. Sys., 933 S.W.2d 668, 673-75 (Tex. App.--San Antonio 1996, writ denied). In Drury, the San Antonio court of appeals held that:

fear of contracting HIV and AIDS, such as will support an award for mental anguish, should be reasonably based upon circumstances showing actual exposure to the disease causing agent.

Id. at 674. The Drury court further held that the plaintiff's fear of contracting HIV from banked blood was not reasonable where summary judgment evidence established that the blood had been tested and shown to be free of HIV. Because the plaintiff had not been exposed to HIV, her fear of contracting HIV was, therefore, not reasonable.

Appellant interprets Drury to mean that if his fear of contracting a disease under these circumstances is reasonable, he should be allowed to recover damages for mental anguish for being exposed to disease. However, a recent Texas Supreme Court case addressed a similar problem and rejected this theory.

Appellees in this case relied heavily on Temple-Inland Products Corp. v. Carter, 993 S.W.2d 88 (Tex. 1999), in their brief and at oral argument. We note that Carter was handed down by the supreme court after appellees' motion for summary judgment was granted. In Carter, the plaintiffs, Carter and Wilson, were employees of an independent contractor hired by Temple-Inland to drill holes in laboratory countertops to install electrical outlets. Carter, 993 S.W.2d at 89. The plaintiffs did not know, and were not initially told by Temple-Inland, that the countertops and the dust produced by the drilling contained asbestos fibers. Id. Carter and Wilson did not wear any kind of protective gear during their work. Id. Carter worked from four to six weeks and Wilson worked two weeks before the laboratory manager warned them of the asbestos. Id. Carter and Wilson then stopped work on the project. Id.

Carter and Wilson sued Temple-Inland for mental anguish damages because it negligently exposed them to asbestos fibers. Id. Their expert witness, Dr. Jenkins, testified that neither Carter nor Wilson had any asbestos-related disease. Carter, 993 S.W.2d at 89-90. Carter complained of shortness of breath upon exertion, but his lung x-rays were normal. Carter, 993 S.W.2d at 89. Wilson had some pleural thickening, and also complained of shortness of breath, but his symptoms could have been related to his obesity. Id. Dr. Jenkins did not attribute any of their reported symptoms to their exposure to asbestos, and agreed that the exposure was probably too recent, given the long latent period normally associated with asbestos-related disease, to have caused any symptoms. Carter, 993 S.W.2d at 89-90. Dr. Jenkins insisted, however, that Carter and Wilson had been injured by their exposure to asbestos and probable inhalation of asbestos fibers. Id. He estimated their risk of developing a disease had increased from one in 1,000,000 to about one in 500,000 for the next ten to fifteen years, and as much as one in 100 over twenty or thirty years. Carter, 993 S.W.2d at 90.

Temple-Inland moved for summary judgment on the ground that the plaintiffs had not suffered any injury for which they could recover mental anguish damages, arguing that their claims amounted to nothing more than negligent infliction of emotional distress, a cause of action that is not recognized in Texas. Id.; see Boyles v. Kerr, 855 S.W.2d 593, 597 (Tex. 1993). In reversing the decision of the Beaumont court of appeals and upholding the trial court's granting of summary judgment, the supreme court stated:

it has been established for over a century that a person who is placed in peril by the negligence of another, but who escapes without injury, may not recover damages simply because he has been placed in a perilous position. Nor is mere fright the subject of damages. Absent physical injury, the common law has not allowed recovery for negligent infliction of emotional distress except in certain specific, limited instances.

There are few situations in which a claimant who is not physically injured by the defendant's breach of a duty may recover mental anguish damages. See, e.g., Freeman v. City of Pasadena, 744 S.W.2d 923, 923-24 (Tex. 1988) (bystander recovery); Silcott v. Oglesby, 721 S.W.2d 290, 292 (Tex. 1986) (intentional tort of child abduction); Leyendecker & Assocs. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984) (defamation); Billings v. Atkinson, 489 S.W.2d 858, 860-61 (Tex. 1973) (invasion of privacy); Stuart v. Western Union Tel. Co., 66 Tex. 580, 18 S.W. 351, 353 (failure of telegraph company to timely deliver death message); Pat H. Foley & Co. v. Wyatt, 442 S.W.2d 904, 906-07 (Tex. App.--Houston [14th Dist.] 1969, writ ref'd) (negligent handling of corpse).

Whether a plaintiff can recover mental anguish damages without physical injury "depends on both the nature of the duty breached and the quality of proof offered by the plaintiff. For many breaches of legal duties, even tortious ones, the law affords no right to recover for resulting mental anguish."

Carter, 993 S.W.2d at 91 (quoting City of Tyler v. Likes, 962 S.W.2d 489, 494-500 (Tex. 1997)). The court held that because Carter's and Wilson's claims did not fall within any category in which such recovery had been allowed, they could not recover mental anguish damages absent physical injury. Carter, 993 S.W.2d at 91.

Carter and Wilson argued alternatively that they had been injured because there was uncontradicted summary judgment evidence they had inhaled and were injured by asbestos fibers in the laboratory. Id. The supreme court held it had to assume, based on the summary judgment evidence, that Carter and Wilson reasonably feared developing an asbestos-related disease at some point in the future. Carter, 993 S.W.2d at 92. However, the court framed the issue as whether, under these circumstances, the plaintiffs could recover mental anguish damages for their increased risk and reasonable fear of possibly developing asbestos-related diseases that they did not currently have and might never have. Id. Finding they could not, the court stated:

While the existence of physical injury is ordinarily necessary for recovery of mental anguish damages except in those instances already mentioned, such injury may not be sufficient for recovery of mental anguish damages when the injury has not produced disease, despite a reasonable fear that such disease will develop. As we recently observed in . . . Likes, "[w]ithout intent or malice on the defendant's part, serious bodily injury to the plaintiff, or a special relationship between the two parties, we permit recovery of mental anguish in only a few types of cases involving injuries of such a shocking and disturbing nature that mental anguish is a highly foreseeable result.

* * * * *

The difficulty in predicting whether exposure [to asbestos] will cause any disease and if so, what disease, and the long latency period characteristic of asbestos-related diseases, make it very difficult for judges and juries to evaluate which exposure claims are serious and which are not. . . . If recovery were allowed in the absence of present disease, individuals might feel obliged to bring suit for such recovery prophylactically, against the possibility of future consequences from what is now an inchoate risk. This would exacerbate not only the multiplicity of suits but the unpredictability of results.

The question is not, of course, whether Carter and Wilson have themselves suffered genuine distress over their own exposure. We assume they have, and that their anxiety is reasonable. The question, rather, is whether this type of claim -- for fear of an increased risk of developing an asbestos-related disease when no disease is presently manifest -- should be permitted, regardless of any individual plaintiff's circumstances, when the effort in determining the genuineness of each claim and assuring appropriate recovery is beset with the difficulties we have described. We conclude that no such action should be recognized.

* * * * *

We add this cautionary note. The principles we have used to deny recovery of mental anguish damages for fear of the possibility of developing a disease as a result of an exposure to asbestos may not yield the same result when the exposure is to some other dangerous or toxic element. Exposure to asbestos, a known carcinogen, is never healthy but fortunately does not always result in disease . . . The substantial uncertainty that exposure to asbestos will ultimately result in disease, even though the risk of disease is significantly increased, and the ordinarily long latency period before disease develops counsel strongly against compensating these types of fears. The consequences of exposure to other toxic materials vary, and while the analysis in other circumstances should by the same as that which we have employed here, the outcomes may be different.

Carter, 993 S.W.2d at 92-95 (emphasis in original).

After performing the analysis mandated by the supreme court in Carter, we hold that appellant's mental anguish damages are not compensable. Appellant has repeatedly tested negative for hepatitis C, hepatitis B and HIV. Some four years after his possible exposure to the tainted syringes, appellant concedes that he is free of these diseases. To allow appellant to recover mental anguish damages for fear of contracting diseases it is proven he has not contracted would be against the practical and policy reasons set forth in Carter. We overrule appellant's sub-issues C and D.

Because we have held that appellant cannot recover mental anguish damages for fear of a disease he has not, in fact, contracted, it is unnecessary to address appellant's sub-issue B. See Tex. R. App. P. 47.1.

J. Existence of a "Special Relationship" Between Appellant and Appellees

In sub-issue E, appellant asserts he is entitled to recover mental anguish damages under the circumstances of this case because a special relationship exists between him and the Surgery Center and its employee Katshen.

We note that the notion of recovery of mental anguish damages as a result of the breach of a duty arising out of a special relationship predates both this summary judgment and the Carter opinion. See, e.g., Likes, 962 S.W.2d at 496 (acknowledging that mental anguish may be compensable as the foreseeable result of a breach of duty arising out of certain special relationships); Boyles, 855 S.W.2d at 600 (same). However, appellant did not plead such a relationship in his Fifth Amended Original Petition, nor did he raise this issue in his response to appellees' motion for summary judgment or submit any summary judgment evidence on this issue. Once the movant establishes his right to summary judgment as a matter of law, the burden shifts to the nonmovant to offer any issue or evidence that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. Tex. R. Civ. P. 166a(c); see also Tex. R. App. P. 33.1. We overrule appellant's sub-issue E.

K. Did the Summary Judgment Dispose Of All Causes of Action and Damages Pleaded?

In sub-issue A, appellant contends the summary judgment did not dispose of all his claims. In his timely-filed Fifth Amended Original Petition, appellant asserted an additional cause of action for damages he received as a result of appellees' failure "to exercise the standard [of] care in regard to the way and method it responded to and informed Plaintiff of the mistake that had occurred regarding the syringes in that such method created shock, panic and hysteria." We hold this claim was not addressed in appellees' motion for summary judgment and, therefore, was not encompassed by the order granting summary judgment. See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997) (trial court cannot grant a summary judgment for more relief than was requested in the motion); Golden Triangle Energy v. Wickes Lumber, 725 S.W.2d 439, 441 (Tex. App.--Beaumont 1987, no writ) (if a ground that may support summary judgment is not stated in the motion, the ground cannot be supplied by a prayer for general relief); Stiles v. RTC, 867 S.W.2d 24, 26 (Tex. 1993) (on appeal, summary judgment cannot be affirmed on a ground not presented to the trial court in the motion).

We sustain sub-issue A as it relates to appellant's claim for damages he received as a result of appellees' failure "to exercise the standard [of] care in regard to the way and method it responded to and informed Plaintiff of the mistake that had occurred regarding the syringes in that such method created shock, panic and hysteria."

Furthermore, the record reflects appellant pleaded damages other than mental anguish damages caused by fear of disease. Appellant claimed past and future medical expenses and past and future pain and suffering.

1. Future Pain and Suffering

In light of appellant's concession that he has not contracted any disease from appellee's possible use of infected needles on him, we hold that appellant cannot logically recover damages for any future pain and suffering.

2. Past Pain and Suffering

Appellant pleaded physical injuries of "nausea, headaches, dizziness, anxiety, pain and suffering." In his summary judgment evidence, the only physical "pain and suffering" reported by appellant was "just nerves. Felt like I was burning inside. Can't sleep." We hold appellant has not presented evidence of any pain or suffering apart from the mental anguish damages he pleaded. In light of our holding that appellant cannot recover mental anguish damages for fear of a disease he has not contracted, we hold that appellant cannot otherwise recover damages for these symptoms by calling them "pain and suffering". Because appellant has not pleaded any physical symptoms apart from those consistent with mental anguish, we hold he is not entitled to recover damages for past pain and suffering.

3. Future Medical Expenses

In light of appellant's concession that he has not contracted any disease from appellee's possible use of infected needles on him, and our holding that he cannot recover mental anguish damages for fear of a disease he has not contracted, we hold that appellant cannot logically recover damages for any future medical expenses.

4. Past Medical Expenses

Appellees' motion for summary judgment did not address appellant's claims for past medical expenses. Appellant pleaded these damages and submitted summary judgment evidence that he underwent additional medical testing with Dr. Samaniego to determine whether he had contracted hepatitis C, hepatitis B, or HIV.

We sustain sub-issue A as it relates to appellant's claim for past medical expenses. The rest of sub-issue A is overruled.

L. Conclusion

In Mafrige, the supreme court stated: "If the judgment grants more relief than requested, it should be reversed and remanded, but not dismissed." Mafrige, 866 S.W.2d at 592. Because the trial court's order granted more relief than appellees requested, we reverse and remand to the trial court: (1) appellant's claim for damages he allegedly received as a result of appellees' failure "to exercise the standard [of] care in regard to the way and method it responded to and informed Plaintiff of the mistake that had occurred regarding the syringes in that such method created shock, panic and hysteria," and (2) appellant's claim for damages he allegedly incurred for past medical expenses due to appellees' negligence. The remainder of the summary judgment is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

31st day of August, 2000.

1. Drury v. Baptist Mem. Hosp. Sys., 933 S.W.2d 668, 674-75 (Tex. App.--San Antonio 1996, writ denied).

2. Appellant also sued Dr. Vadher, Rio Grande Regional Investments, Inc., and Rio Grande Surgery Partners, Inc., but eventually dismissed his claims against these defendants.

3. There is an apparent mistake in the numbering of appellant's amended petitions. His "Third Amended Original Petition" was the live pleading at the time appellees filed their first amended motion for summary judgment. The next pleading filed by appellant is entitled "Fifth Amended Original Petition."