McDole v. San Jacinto Methodist Hospital

886 S.W.2d 357, 1994 Tex. App. LEXIS 2167, 1994 WL 468290
CourtCourt of Appeals of Texas
DecidedAugust 31, 1994
Docket01-93-00457-CV
StatusPublished
Cited by9 cases

This text of 886 S.W.2d 357 (McDole v. San Jacinto Methodist Hospital) 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
McDole v. San Jacinto Methodist Hospital, 886 S.W.2d 357, 1994 Tex. App. LEXIS 2167, 1994 WL 468290 (Tex. Ct. App. 1994).

Opinions

OPINION

DUGGAN, Justice.

This is the appeal of a take-nothing judgment. Appellants, Frank McDole and Sally McDole, individually and as next friend of Frank Burch McDole, a minor, and Sally Haney, a minor, by and through her father and next friend, Michael R. Haney, sued a number of physicians1 and the appellees, San Jacinto Methodist Hospital and the Methodist Hospital System, for negligent acts and omissions leading to the death of Cheryl Ann Burgess. In four points of error, appellants claim the trial court erred in granting a summary judgment because (1) appellees failed to establish their right to a summary judgment as a matter of law, and (2) genuine issues of material fact existed precluding summary judgment. In four identical points of error, appellants claim that the trial court erred in denying their motion for new trial. We affirm.

On September 4, 1988, Cheryl Burgess was admitted by Dr. James Bemick to San Jacinto Methodist Hospital for acute abdominal pain. Dr. Bernick transferred her to intensive care on September 6th. On the morning of September 6, Dr. Bernick determined that Ms. Burgess had a very complex medical problem, and needed to be transferred to a tertiary center because neither he nor the San Jacinto Methodist Hospital were [359]*359capable of treating her problems. After several failed attempts to transfer Ms. Burgess to Ben Taub Hospital, the Methodist Hospital, and Hermann Hospital, physicians at John Sealy Hospital in Galveston agreed to accept her. She was life-flighted on September 8, 1988, and taken to surgery at about midnight. The surgeon found that she had blockages of the hepatic vein, the mesenteric vein, and the splenic vein. The surgeon decided that surgery would not be useful and closed the incision. Ms. Burgess died on September 10, 1988.

Appellants contend that appellees caused Ms. Burgess’ death by failing to:

1. obtain a timely transfer from San Ja-cinto Methodist Hospital to a tertiary care facility;
2. establish rules or procedures for the transfer of patients within the Methodist Hospital System capable of providing tertiary care for patients such as Ms. Burgess;
3. recommend procedures, protocols or rules for the transfer of patients within the Methodist Hospital System capable of providing tertiary care for patients such as Ms. Burgess; and
4. seek assistance from the administrators, chiefs of staff or other management officials of the Methodist Hospital or the Methodist Hospital System for the transfer of patients within the Methodist Hospital System capable of providing tertiary care for patients such as Ms. Burgess.

The standard for appellate review of a summary judgment in favor of a defendant is whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact about one or more of the essential elements of the plaintiffs cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). The movant has the burden to show that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Once the defendant has negated, as a matter of law, such elements of plaintiffs cause of action, the plaintiff has the burden of introducing evidence that raises issues of fact with respect to the elements negated by the defendant’s summary judgment evidence. “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936-37 (Tex.1972); Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 215 (Tex.App.—Houston [1st Dist.] 1986, no writ). Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).

A summary judgment cannot be affirmed on any ground not presented in the motion for summary judgment. Hall v. Harris County Water Control & Improvement Dist. No 50, 683 S.W.2d 863, 867 (Tex.App.—Houston [14th Dist.] 1984, no writ). When a trial court’s order does not specify the grounds relied on for its ruling, the summary judgment will be affirmed if any of the theories advanced are meritorious. Insurance Co. of North America v. Security Ins. Co., 790 S.W.2d 407, 410 (Tex.App.—Houston [1st Dist.] 1990, no writ).

To recover on each of their claims against appellees, appellants must establish: (1) a duty requiring appellees to conform to a certain standard of conduct, (2) the applicable standard of care and its breach, (3) injury, and (4) causation, i.e., a reasonably close causal connection between the breach of that standard of care and the injury. Garza v. Levin, 769 S.W.2d 644, 645 (Tex.App.—Corpus Christi 1989, writ denied); Wheeler, 707 S.W.2d at 217.

Appellees’ motion for summary judgment asserted two grounds: (1) that there was no duty on a hospital or a corporation to seek or secure another hospital to receive a transferring patient; and (2) that there was no causation between any acts of appellees and the death of Ms. Burgess. In support of their motion, appellees offered the affidavit of John Stroehlein, M.D., an independent expert, stating, in pertinent part:

I have reviewed the medical records of Cheryl Ann Burgess and the transfer policies of San Jacinto Methodist Hospital and The Methodist Hospital System. I was and am personally familiar with the stan[360]*360dard of care for a reasonably prudent hospital as it regards the transfer of a patient such as Cheryl Ann Burgess under the circumstances in this case. The standard of care for the transfer of a patient such as Ms. Burgess under those circumstances is that a physician determines if a patient needs to be transferred to the care of another physician at another hospital or medical facility. Based on the medical needs of the patient, the physician contacts another physician at the receiving hospital who is willing to accept the patient in transfer and who has the expertise related thereto. When a physician determines to try to transfer a patient like Ms. Burgess, the standard of care requires the hospital personnel and administrators to assist the physician in the transfer process. The hospital is not responsible for transferring a patient to another hospital because it is the physician(s), not the hospital(s), who is/are ultimately involved in the transfer process. This involves many medical considerations which include, but are not limited to, the type and severity of the disease process in question, the stability of the patient to tolerate transfer, and whether there is any reasonable expectation that intervention and treatment by the receiving physician will affect the outcome of a case being considered for transfer.

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McDole v. San Jacinto Methodist Hospital
886 S.W.2d 357 (Court of Appeals of Texas, 1994)

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Bluebook (online)
886 S.W.2d 357, 1994 Tex. App. LEXIS 2167, 1994 WL 468290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdole-v-san-jacinto-methodist-hospital-texapp-1994.