Opinion

Opinion issued September 28, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00551-CV

__________

THAO CHAU AND HA DIEN DO, INDIVIDUALLY AND AS NEXT

FRIEND OF THEIR MINOR CHILDREN, S.D. AND H.D. , Appellants

V.

JEFFERSON RIDDLE, M.D. AND GREATER HOUSTON

ANESTHESIOLOGY, P.A. , Appellees

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 2002-36481-A

DISSENTING OPINION

The majority opinion breathtakingly expands the scope of the Good Samaritan

affirmative defense. Because the majority’s construction of the statute is important

to the jurisprudence of this State and is, I believe, contrary to controlling law, I

respectfully dissent. I would reverse and remand this case for trial on the merits.

Background Facts

This is an appeal from a summary judgment entered in favor of appellees

Jefferson Riddle, M.D. and Greater Houston Anesthesiology, P.A. (collectively,

GHA) and against appellants Thao Chau and Ha Dien Do, individually and as next

friend of their minor children, S.D. and H.D. (collectively, the Dos). Dr. Riddle,

whose actions are the subject of appellants’ underlying malpractice suit, was on call

for emergency anesthesiology services at Memorial Hermann Southwest Hospital

when appellant Thao Chau was admitted for an emergency caesarian section. Dr.

Riddle responded to the emergency and was associated with the delivery team

assembled by the obstetrician, Dr. Le, to provide anesthesiology services for the

delivery and immediate post-delivery care. S.D., one of Thao Chau’s twins delivered

by Dr. Le, was born floppy and did not begin breathing. Dr. Le asked Dr. Riddle to

intubate him. Having determined that he could safely leave the mother, Dr. Riddle

consented and intubated S.D. Dr. Riddle testified by affidavit that he used a

stethoscope to listen to S.D.’s chest and determined that air was traveling to the

baby’s lungs before returning to the mother. He did not secure the breathing tube and

then listen again to be sure it was in the right place, actions which the Dos’ expert,

Dr. Katz, testified are standard practice and would have taken a few seconds. Nor did

Dr. Riddle check S.D.’s end-tidal carbon dioxide to be sure that S.D. was properly

intubated. Instead, he handed S.D. off to the neo-natal team of residents and nurses,

who listened for breathing sounds, performed CPR, and administered epinephrine.

Twelve minutes later, the on-call neonatologist, Dr. Ruiz-Puyana, arrived in the

delivery room, received S.D., and determined that he had been intubated into the

esophagus. She reintubated S.D., and he began to breathe. S.D. suffered severe

permanent brain damage due to lack of oxygen.

Months after the deadline in the trial court’s docket control order for

designating experts, filing new pleadings, and filing dispositive motions, GHA filed

new pleadings asserting the Good Samaritan affirmative defense, together with a

motion for summary judgment on that defense. The Good Samaritan defense invoked

by GHA, which has since been superseded, was then set out at section 74.001 of the

Texas Civil Practice and Remedies Code.

At GHA’s request, the trial court enforced

its docket control order and a prior order limiting the Dos’ experts. The court

prohibited the Dos from designating an additional expert on the Good Samaritan

defense and struck summary judgment evidence critical to that defense on the

grounds that it was untimely filed and conclusory. The court did not enforce the

docket control order against GHA. It sustained GHA’s objections to the Dos’

summary judgdment proofs and overruled the Dos’ objections to GHA’s summary

judgment proofs. Following a hearing, the trial court granted summary judgment to

GHA and dismissed the Dos’ claims with prejudice. The majority affirms. I dissent.

Standard of Proof of Summary Judgment

GHA filed a no-evidence and traditional summary judgment motion on the

Dos’ negligence claims and a traditional summary judgment on its Good Samaritan

affirmative defense. See Tex. R. Civ. P. 166a(b), (i).

Because a no-evidence motion for summary judgment places the burden on the

non-movant to present enough evidence to be entitled to a trial, a party moving for

summary judgment on an affirmative defense cannot bring a no-evidence motion for

summary judgment on that defense. Quanaim v. Frasco Rest. & Catering , 17 S.W.3d

30, 43 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Rather, a defendant

moving for summary judgment on an affirmative defense must conclusively prove all

elements of that defense as a matter of law. American Tobacco Co. v. Grinnell , 951

S.W.2d 420, 425 (Tex. 1997); Montgomery v. Kennedy , 669 S.W.2d 309 , 310–11

(Tex. 1984); Quanaim , 17 S.W.3d at 43 . In reviewing a traditional motion for

summary judgment, the reviewing court must take all evidence favorable to the non-movant as true and make all reasonable inferences in favor of the non-movant.

KPMG Peat Marwick v. Harrison County Housing Fin. Corp. , 988 S.W.2d 746, 748

(Tex. 1999); Montgomery , 669 S.W.2d at 311 ; Quanaim , 17 S.W.3d at 41 . If the

movant’s motion and summary judgment proof establish its right to summary

judgment as a matter of law, the burden shifts to the non-movant to establish a

genuine issue of material fact. Quanaim , 17 S.W.3d at 41–42. The existence of a

legal duty is a question of law for the court to decide based on the surrounding facts.

See id . at 43.

GHA’s Motion for Summary Judgment

In their fifth issue, the Dos contend the trial court erred in entering summary

judgment in favor of GHA on its Good Samaritan defense and dismissing their

claims. I agree.

Former Section 74.001 of the Civil Practice and Remedies Code

Former section 74.001 of the Texas Civil Practice and Remedies Code, under

which GHA brought its motion for summary judgment, provided, in relevant part:

(a) A person who in good faith administers emergency care

. . . at the scene of an emergency but not in a hospital . . . is

not liable in civil damages for an act performed during the

emergency unless the act is wilfully or wantonly negligent.

(b) This section does not apply to care administered:

(1) for or in expectation of remuneration; or

. . . .

(c) If the scene of an emergency is in a hospital . . . a person

who in good faith administers emergency care is not liable

in civil damages for an act performed during the

emergency unless the act is willfully or wantonly negligent,

provided that this subsection does not apply to care

administered:

(1) by a person who regularly administers care in a

hospital emergency room unless such person is at

the scene of the emergency for reasons wholly

unrelated to the person’s work in administering

health care; or

(2) by an admitting or attending physician of the patient

or a treating physician associated by the admitting or

attending physician of the patient in question.

(d) For purposes of subsections (b)(1) and (c)(1), a person who

would ordinarily receive or be entitled to receive a salary,

fee, or other remuneration for administering care under

such circumstances to the patient in question shall be

deemed to be acting for or in expectation of remuneration

even if the person waives or elects not to charge or to

receive remuneration on the occasion in question.

Former Tex. Civ. Prac. & Rem. Code A nn . § 74.001.

Because it is undisputed that the scene of S.D.’s emergency intubation was a

hospital, former section 74.001(c) governs this case. To prove its Good Samaritan

defense under section 74.001(c), GHA had to establish as a matter of law that Dr.

Riddle administered care to S.D. in good faith in an emergency and was not wantonly

or wilfully negligent and that he was not excluded from the protection of the Good

Samaritan statute by former subsection 74.001(c)(1) or (c)(2).

The parties do not dispute that Dr. Riddle’s actions with respect to S.D. were

undertaken in an emergency and that they were not wantonly or wilfully negligent.

However, in order to prove that Dr. Riddle was not excluded from the protection of

the Good Samaritan statute by former subsection 74.001(c)(1) or (2), GHA also had

to establish as a matter of law (1) that Dr. Riddle was not a person who regularly

administers care in an emergency room, or, if he was such a person, that he was at the

scene of S.D.’s intubation for reasons “wholly unrelated to [his] work in

administering health care,” and thus was not excluded from the protection of the

Good Samaritan statute by former subsection 74.001(c)(1) and (2) that Dr. Riddle was

not “a treating physician associated by the admitting or attending physician” for S.D.

and thus was not excluded from the protection of the Good Samaritan statute by

former subsection 74.001(c)(2). If GHA established as a matter of law that Dr.

Riddle was entitled to the protection of section 74.001(c) because he was at the scene

for reasons wholly unrelated to his work in administering emergency anesthesiology

services, satisfying subsection 74.001(c)(1), GHA would also have to prove (3) that

Dr. Riddle was not legally entitled to payment for his emergency services to S.D., i.e. ,

he would not “ordinarily receive or be entitled to receive a salary, fee, or other

remuneration for administering care under such circumstances,” so that he was not

excluded from the protection of the Good Samaritan statute by former subsection

74.001(d), which applied when a physician contended he was not excluded by former

subsection 74.001(c)(1). See Former Tex. Civ. Prac. & Rem. Code A nn . §

74.001(c)(1) and (d).

I would hold that GHA failed to prove as a matter of law that Dr. Riddle was

not excluded from the protection of the former Good Samaritan statute. Rather, the

summary judgment evidence raises substantial fact issues as to whether he was

excluded by former section 74.001(c)’s exclusionary provisions.

Therefore, GHA

did not prove its entitlement to summary judgment.

(1) Dr. Riddle’s exclusion from protection by former subsection 74.001(c)(1)

Dr. Katz, the Dos’ expert, testified by affidavit:

7. When an anesthesiologist is “on call,” in our field of

anesthesiology the custom and practice is that the anesthesiologist “on

call” expects and anticipates that there will be emergencies. This is

something he is trained for when he is a resident in anesthesia. He (or

she) knows he is there to respond to emergencies requiring his skill and

expertise, and this a part of his routine and the reason he is needed in a

hospital. By virtue of being “on call,” an anesthesiologist is agreeing

and expecting to be responding to emergencies and procedures which

are performed without much advance notice. Indeed, being “on call,”

the anesthesiologist assumes the duty to provide anesthesia services on

an emergency basis to patients of the hospital. This duty arises out of

hospital protocols, his hospital privileges to practice anesthesiology and

provide coverage, his group’s agreement with the hospital, his

agreement to be “on call,” and professional standards of care.

Anesthesiologists who are hospital-based such as Dr. Riddle, who

work in the operating rooms and Labor and Delivery Rooms, and who

are “on call,” essentially specialize in responding to emergencies. An

anesthesiologist who is “on call” may be expected by the hospital to

perform services as complex and long as those for general anesthesia

during an operation, a cesarean section, or as simple and short as the

intubation of a patient, including newborns.

Anesthesiologists routinely respond to emergencies in a hospital

because of our extensive experience and training in resuscitation. This

is part of our job and one of the reasons why we are needed at the

hospital to care for its patients. We have more training and experience

in intubating patients and can usually do so more quickly than other

physicians or health care providers during an emergency. A patient who

is not getting oxygen, or is getting little oxygen, is always an

emergency.

(Emphasis added.)

Since Dr. Riddle was on call for emergency anesthesiology services and was

associated with the labor and delivery team to render anesthesiology services to Thao

Chau and her twins during the labor and delivery, it is logically impossible for GHA

to prove as a matter of law that Dr. Riddle was in the hospital for reasons “wholly

unrelated to [his] work” as an on-call anesthesiologist when he intubated S.D. and,

thus, that he was not excluded from the protection of the Good Samaritan statute by

former subsection 74.001(c)(1). Rather, all the evidence was to the contrary, i.e. , that

he was excluded from protection as a Good Samaritan by subsection 74.001(c)(1).

Notably, the panel does not even address this issue , even though GHA had to prove

all elements of the Good Samaritan statute to establish its entitlement to summary

judgment.

(2) Dr. Riddle’s exclusion from protection by former subsection 74.001(c)(2)

Likewise, it would seem to be impossible for GHA to prove as a matter of law

that Dr. Riddle was not excluded from the protection of the Good Samaritan statute

by former subsection 74.001(c)(2). That is, it would seem to be impossible for GHA

to prove, under the circumstances of this case, (1) that Dr. Riddle was not a treating

physician when he intubated S.D. and (2) that Dr. Riddle was not associated with the

labor and delivery team charged with S.D.’s delivery and immediate post-delivery

care assembled by Dr. Le. The majority, however, disagrees.

The majority ignores the pertinent parts of the affidavit of Dr. Katz—the non-movants’ expert—in which Dr. Katz testifies exactly how, when, and why Dr. Riddle

was associated with S.D.’s care, established a physician/patient relationship with S.D.

as S.D.’s treating physician, and committed malpractice. Dr. Katz testified by

affidavit:

8. It is foreseeable that an anesthesiologist may have to intubate

a newborn when called to assist in a cesarian section such as the one in

this case. This is because it happens on an anesthesiologist’s watch

from time to time where there is no neonatologist , where he/she has not

yet arrived, or even where the neonatologist is present but requests

assistance. By virtue of the fact that a child is about to be delivered,

when a neonatologist is not present, the anesthesiologist knows that as

a part of the labor and delivery team, he may be sharing the care and

responsibility of the mother and child (or children) being delivered.

. . . . Generally, the decision for an emergency cesarean involves

the OB-GYN’s concern that the baby is in distress and not receiving

enough oxygen. By training and experience, an anesthesiologist has

more expertise in ventilating and intubating. He routinely performs

intubations for general anesthesia and is often called to perform

intubation or assist in difficult intubations, in an operating room or

otherwise, because he is usually the most qualified to do so. Where a

neonatologist is not present in the Labor and Delivery Room or the

neonatologist is having difficulty with intubation, from time to time an

anesthesiologist is needed to intubate the newborn if he can do so

because the mother is stable . In fact, he can expect that on occasion, he

will be needed to do this.

. . . .

10. In my opinion, Jefferson Riddle, M.D. failed to follow the

above standards of reasonable, prudent and accepted care for an

anesthesiologist in performing medical services for Thao Chau and

[S.D.] , in at least the following acts or omissions:

1. Dr. Riddle was [S.D.]’s treating physician while intubating

[S.D.]. He could have refused to intubate him if the

anesthetized mother was in crisis or medically unstable and

he had to choose her. However, once he agreed to intubate

[S.D.], laid hands on him, and undertook to intubate [S.D.],

Dr. Riddle became one of [S.D.]’s physicians. It was Dr.

Riddle’s responsibility to perform that intubation within

the standard of reasonably prudent anesthesia care.

2. Specifically, the standard of care required him to intubate

properly—into the trachea —check for breath sounds with

a stethoscope to determine that he was properly intubated

into the trachea and not the esophagus, secure the

endotracheal tube, check end-tidal CO2 to ensure that the

tube was in the trachea and check again for breath sounds.

These tasks only require a few seconds of an

anesthesiologist, who is already skilled and experienced at

this procedure and must do this before leaving the patient.

11. In this case, Dr. Riddle breached the standards of reasonably

prudent and acceptable anesthesia care and did not properly perform

the above which was below the standard of care. Specifically, he did

not secure the tube after intubation, then ensure that [S.D.] was properly

intubated by listening for breath sound again , after he had secured the

tube, to make sure it was still in the right place. He also did not check

the end-tidal CO2 to ensure the infant was properly intubated.

In fact, Dr. Riddle intubating [S.D.] without securing the tube and

ensuring it was in the right place likely caused more serious risk to

[S.D.] than if he had declined to do so at all, claiming he could not

leave the mother. As an anesthesiologist, he is considered to be more

skilled at intubation. It is highly likely that those who weren’t

anesthesiologists, especially the residents with limited experience,

assumed that if he did it, it must have been done correctly, and were

much less likely to question whether the baby’s difficulties were

whether they had a good airway. As a result, [S.D.] wasn’t reintubated

until the neonatologist arrived several minutes later and did so. This

contributed to the baby’s hypoxia and brain damage.

(Emphasis added.) The majority ignores this expert testimony directly on point, even

though we are required to review the non-movant’s evidence—not the movant’s—in

the most favorable light and to draw all reasonable conclusions in the non-movant’s

favor. KPMG Peat Marwick , 988 S.W.2d at 748 .

The majority also errs by affirming the trial court’s order striking paragraph 9

of Dr. Katz’s affidavit on the irrelevant ground that one subsection of the paragraph

is “not . . . probative on the issue of whether Dr. Riddle was entitled to remuneration

for the intubation of S.D.” The expert testimony in this paragraph is highly probative

on the issue of whether Dr. Riddle was “a treating physician associated by the

admitting or attending physician” for S.D. and was thus excluded from the protection

of the Good Samaritan affirmative defense by former subsection 74.001(c)(2). Dr.

Katz testified in the relevant part of paragraph 9:

9. From the time that Dr. Riddle began providing the anesthesia

for the cesarean section in this case, he became “associated with” the

attending physician, Dr. Le. He became Dr. Le’s partner, associate or

colleague of the Labor and Delivery team, and they had to work together

for all the patients involved in the birth—the mother and the children.

Both obstetrician and anesthesiologist in a C-section are treating both

the mother and the child because whatever they do to the mother is also

being done to and affects the child who is in that mother’s body,

whether by administering drugs, providing oxygen, and the like. It is

their job to care for both the mother and the child/children. So it is

disingenuous for an anesthesiologist during a C-section to say he had

no responsibility for the child , especially under the circumstances where

there was no neonatologist present, the baby was in distress, he had

undertaken to intubate the child, and his adult patient (the mother) was

not in crisis. It is below the standard of care for an anesthesiologist

providing anesthesia during a C-section to care for only the mother and

not the child as well where the mother is medically stable. Caring for

both is a juggling act the anesthesiologist must manage within the

standards of care.

[S.D.] was and would have been Dr. Riddle’s responsibility in

any event, as the “on call” anesthesiologist. If the mother had delivered

without C-section, and the baby was not breathing, in the absence of a

neonatologist, as the “on call” anesthesiologist, Dr. Riddle would likely

have been called in specifically for the baby who didn’t have an

established airway as the “on call” anesthesiologist.

(Emphasis added).

Dr. Katz’s affidavit—with or without paragraph 9—is more than sufficient to

raise a fact issue as to whether Dr. Riddle was excluded from the protection of the

Good Samaritan statute as the anesthesiologist associated with the labor and delivery

team by the attending physician for the mother and children during the labor and

delivery, Dr. Le, and as S.D.’s treating physician for the delivery of emergency

anesthesiology services, including intubation.

Nor can the majority find support for its legal conclusion in the law. It cites

no law in support of its conclusion that Dr. Riddle was not S.D.’s treating physician

for the intubation, and it ignores well-established Texas law to the contrary. Under

that law, a physician cannot be liable for malpractice unless he breaches a duty

flowing from the physician-patient relationship. St. John v. Pope , 901 S.W.2d 420,

423 (Tex. 1995); Majzoub v. Appling , 95 S.W.3d 432, 436 (Tex. App.—Houston [1st

Dist.] 2002, pet. denied). The question of duty is a question of law that must be

decided in a medical malpractice case before the issue of the standard of care arises.

St. John , 901 S.W.2d at 424 ; Gross v. Burt , 149 S.W.3d 213, 221 (Tex. App.—Fort

Worth 2004, pet. denied); Majzoub , 95 S.W.3d at 436 . The duty to treat a patient

with proper professional skill arises from the consensual relationship between the

physician and the patient. St. John , 901 S.W.2d at 423 ; Majzoub , 95 S.W.3d at 436 .

No formalities of contract are required. St. John , 901 S.W.2d at 424 . While consent

to the physician-patient relationship may be implied, the “on-call” status of a

physician does not automatically impose a duty. Majzoub , 95 S.W.3d at 436 . Rather,

if there has been no prior relationship between the physician and the patient, the

physician must take some affirmative action to treat the patient to create such a

relationship. Id. ; Lection v. Dyll , 65 S.W.3d 696, 705 (Tex. App.—Dallas 2001, pet.

denied) (“[O]n-call physician may assume a duty to the patient if he takes some

affirmative action to treat the patient.”). Similarly, a physician’s mere presence in the

labor and delivery unit of a hospital is inadequate to establish a physician-patient

relationship unless the physician takes some affirmative step towards advancing the

relationship. Reynosa v. Huff , 21 S.W.3d 510, 513 (Tex. App.—San Antonio 2000,

no pet.).

A physician may decline treatment and thereby decline to create a physician-patient relationship, but once the physician agrees to examine or treat the patient, the

relationship arises. St. John , 901 S.W.2d at 424 ; Gross , 149 S.W.3d at 221–22;

Majzoub , 95 S.W.3d at 436 . “Treatment” is defined as “the action or manner of

treating a patient medically or surgically.” Lection , 65 S.W.3d at 705 n.5. Once the

physician-patient relationship is established, the physician owes the patient a duty to

treat him with the skills of a trained, competent professional, and a breach of that duty

may give rise to a malpractice action. Gross , 149 S.W.3d at 222 .

Dr. Riddle was asked by Dr. Le, the head of the labor and delivery team, to

intubate S.D. He could have refused to do so had he determined that it was unsafe

to leave his primary patient, the mother, Thao Chau. St. John , 901 S.W.2d at 424 ;

Gross , 149 S.W.3d at 221–22; Majzoub , 95 S.W.3d at 436 . However, having

determined that he could safely leave the mother, Dr. Riddle consented to treat S.D.

and became S.D.’s treating physician for the intubation, contrary to the majority’s

conclusion. See St. John , 901 S.W.2d at 424 ; Gross , 149 S.W.3d at 221–22;

Majzoub , 95 S.W.3d at 436 .

The majority, likewise, cites no law in support of its conclusion that Dr. Riddle

was not associated with the labor and delivery team, and therefore with S.D.’s care,

by the admitting or attending physician, Dr. Le, for his delivery and immediate post-delivery care. Rather, the majority states that

Dr. Le testified that he was the attending physician for Ms. Chau, but

Dr. Ruiz-Puyana, the neonatologist, was the attending physician for S.D.

Dr. Katz’s affidavit makes no contention that Dr. Riddle was, in any

way, associated with Dr. Ruiz-Puyana. As such, we hold that Dr. Riddle

was not associated with S.D.’s attending physician within the meaning

of the Good Samaritan statute.

The majority overlooks the material fact that Dr. Le was the head of the labor and

delivery team and that he associated Dr. Riddle with the team as anesthesiologist

before the delivery. It also overlooks the material facts that Dr. Ruiz-Puyana was an

on-call physician, exactly like Dr. Riddle, and that she did not arrive to take over

S.D.’s care until twelve minutes after Dr. Riddle intubated S.D. Thus, it is Dr. Ruiz-Puyana—not Dr. Riddle—who, under Texas law, might be able to argue that she had

no physician/patient relationship with S.D. at the time of the intubation. See

Majzoub , 95 S.W.3d at 436 ; Lection , 65 S.W.3d at 705 .

Under any reasonable interpretation of the law and the facts, GHA failed to

establish as a matter of law that Dr. Riddle was not excluded from the protection of

the Good Samaritan statute by either former subsection 74.001(c)(1) or former

subsection 74.001(c)(2). Rather, there is substantial evidence that he was excluded

from the statute’s protection. Because there is a material fact issue as to whether Dr.

Riddle was excluded from the protection of the Good Samaritan Statute, I would hold

that GHA’s motion for summary judgment fails. See Quanaim , 17 S.W.3d at 41–42.

Consequently, unlike the majority, I would not find it necessary to determine whether

GHA satisfied former section 74.001(d) of the Code by establishing as a matter of law

that Dr. Riddle “would ordinarily receive or be entitled to receive . . . remuneration”

for the professional services he rendered to S.D.” when offering his services to S.D.

“for reasons wholly unrelated to [his] work in administering health care” in

accordance with subsections 74.001(c)(1) and (d). See Former Tex. Civ. Prac. &

Rem. C ode Ann . § 74.001(c)(1), (d).

I would sustain the Dos’ sixth issue.

The Trial Court’s Order Striking Dr. Reeves and his Expert Affidavits The majority also errs in its holding, in response to the Dos’ first issue, that the

trial court did not err in striking the Dos’ expert on the Good Samaritan defense, Dr.

Reeves, and his affidavits, under a docket control order whose deadline for

designating experts expired on April 21, 2003,

four months before GHA asserted its

Good Samaritan defense and simultaneously moved for summary judgment—in

pleadings untimely filed two months after the June 20, 2003 deadline in the same

docket control order for filing new pleadings, filing dispositive motions, and

challenging experts. Thus, GHA invoked the docket control order against the Dos at

the same time it was blatantly violating the same order.

The Dos timely filed a response to GHA’s surprise August 29 motion for

summary judgment on its simultaneously asserted affirmative defense, attaching the

two affidavits from Dr. Reeves, one responding to the Good Samaritan defense and

one supporting the Dos’ malpractice allegations. On the afternoon of October 2, the

day before the summary judgment hearing , GHA filed its objections to the Dos’

summary judgment evidence and a motion to strike that evidence—18 days after the

evidence had been filed and a half-day before the scheduled hearing. GHA objected

to both of Dr. Reeves’ affidavits on the ground that Dr. Reeves was not properly

designated as an expert and, therefore, his affidavits could not be used in a summary

judgment context. It also argued that neither of Dr. Reeves’ affidavits showed

causation because neither “provides any explanation of how Dr. Riddle’s conduct

resulted in harm to S.D. or Plaintiffs.” GHA made similar objections to Dr. Katz’s

affidavits.

The trial court began the hearing as scheduled the next day, October 3. At the

hearing, the Dos moved for a continuance on the ground that GHA had interjected a

great deal of new material into its reply to their summary judgment response and that

it had also objected to their summary judgment evidence only the day before. The

Dos sought additional time to respond to GHA’s pleadings, which they contended

were more in the nature of a new summary judgment motion than a reply, citing

surprise and their inability to respond to lengthy pleadings filed on the afternoon

before the hearing, including their inability even to contact their experts in the time

available to respond to GHA’s new pleadings. The Dos cited Texas Rule of Civil

Procedure 166a(c), which they contended entitled them to 21 days notice of new

summary judgment pleadings, and Rule 1, which provides that “[t]he proper objective

of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication

of the rights of litigants under established principles of substantive law.” See Tex.

R. Civ. P. 1, 166a(c); see also State v. Lowry , 802 S.W.2d 669, 671 (Tex. 1991)

(discouraging gamesmanship).

The trial court continued the hearing until October 17 and ordered the Dos to

supplement their pleadings on or before October 10. On that date, the Dos filed their

second supplemental response and second supplemental designation of experts,

redesignating Dr. Reeves to testify on reasonable and necessary medical treatment

and the duties of physicians in response to GHA’s complaint that Dr. Reeves had

been improperly designated as a summary judgment witness. On October 14, three

days before the continued hearing resumed, GHA filed a motion to strike the Dos’

second supplemental designation of experts. GHA’s sole argument this time was that

the Dos’ designation of Dr. Reeves was untimely under the docket control order

setting April 21, 2003 as the final date for the plaintiffs’ designation of experts and

its order setting July 11, 2003 as the final date for choosing one physician to testify

on malpractice. In other words, GHA simply untimely recast its prior objections that

Dr. Reeves was not properly designated as an expert witness under the trial court’s

docket control order and under its order limiting the Dos’ experts. GHA again

requested that Dr. Reeves and his affidavits be struck.

The hearing went forward as scheduled three days later, on October 17. By

order entered October 22, the trial court granted GHA’s motion for summary

judgment and its motions to strike Dr. Reeves as an expert witness and Dr. Reeves’

affidavits and portions of Dr. Katz’s affidavit as summary judgment evidence. The

court dismissed the Dos’ claims with prejudice.

The majority erroneously states that the Dos did not respond to GHA’s motion

to strike Dr. Reeves’ affidavits and to strike the Dos’ second supplemental

designation of expert witnesses and thus the trial court did not err in striking Dr.

Reeves and his affidavits. Not only are the majority’s statements incompatible with

the record, but the Dos’ counsel expressly informed the panel at oral argument, upon

questioning by the panel, that the Dos’ responses to GHA’s motions to strike Dr.

Reeves and his affidavits were in the Dos’ response to GHA’s reply to the Dos’

response to GHA’s motion for summary judgment. This statement is borne out by a

review of the record. Thus, the majority’s affirmance of the trial court’s sanctions

order is based on an incorrect reading of the record. The factual support the majority

finds for the trial court’s actions is simply not there. Nor can the trial court’s

sanctions motion be justified on the basis of law.

Texas Rule of Civil Procedure 63 provides that “[p]arties may amend their

pleadings, respond to pleadings on file of other parties, . . . and file such other pleas

as they may desire by filing such pleas with the clerk at such time as not to operate

as a surprise to the opposite party .” Tex. R. Civ. P. 63 (emphasis added). The rule

further provides that pleadings, pleas, and responses filed within seven days of trial

“shall be filed only after leave of the judge is obtained, which leave shall be granted

by the judge unless there is a showing that such filing will operate as a surprise to the

opposite party.” Id. A summary judgment proceeding is a “trial” within the meaning

of this rule. Fletcher v. Edwards , 26 S.W.3d 66, 74 (Tex. App.—Waco 2000, pet.

denied); see also Sosa v. Cent. Power & Light , 909 S.W.2d 893, 895 (Tex. 1995) (per

curiam) (holding that Rule 63 applies to pleadings filed within seven days of

summary judgment proceedings). Here there was no showing that the Dos were not

surprised by GHA’s untimely objection to their expert and expert affidavits or that

they failed to bring their concerns to the attention of the trial court. The record

reveals quite the contrary.

Notably, GHA did not couch its motion to strike Dr. Reeves and his affidavits

as a motion for the exclusion of testimony from an untimely designated expert under

Texas Rule of Civil Procedure 193.6. See Tex. R. Civ. P. 193.6. Had it done so, the

Dos would have had the opportunity to establish good cause for their late designation

of Dr. Reeves. See Alvarado v. Farah Mfg. Co. , 830 S.W.2d 911 , 914–15 (Tex.

1992) (discussing good cause to admit testimony not timely identified when Rule 215

discovery sanctions are sought and opining, “The good cause exception permits a trial

court to excuse a failure to comply with discovery in difficult or impossible

circumstances”); Cunningham v. Columbia/St. David’s Healthcare Sys., L.P. , 185

S.W.3d 7, 11 (Tex. App.—Austin 2005, no pet.) (testimony from untimely designated

expert will be excluded “unless the trial court determines that the party seeking to

introduce the evidence established either (1) the existence of good cause for its failure

or (2) that it would not unfairly surprise or prejudice the other parties to admit the

evidence”).

GHA merely sought enforcement of the docket control order against the Dos.

Enforcement of a docket control order is reviewed under an abuse of discretion

standard. Clanton v. Clark , 639 S.W.2d 929, 931 (Tex. 1982); G.R.A.V.I.T.Y. Enters.,

Inc. v. Reece Supply Co. , 177 S.W.3d 537, 544 (Tex. App.—Dallas 2005, no pet.).

Exclusion of expert testimony is, likewise, reviewed under an abuse of discretion

standard. McIntyre v. Ramirez , 109 S.W.3d 741, 749 (Tex. 2003). A trial court

abuses its discretion if it acts arbitrarily, unreasonably, or without reference to

guiding rules or principles. Powers v. Mem’l Hermann Hosp. Sys. , 81 S.W.3d 463,

465 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).

The trial court plainly was not following any rule of civil procedure,

specifically including Rule 193.6, its own docket control order, or any other

guidelines when it arbitrarily and capriciously accepted GHA’s invitation to enforce

its April 21 deadline for the Dos’ designation of experts and its June 20 order limiting

them to one expert physician while not enforcing the provisions in the same order

forbidding GHA from supplementing its pleadings after June 20, filing a motion for

summary judgment after June 20, and challenging expert witnesses after June 20.

Rather, without any justification at all, the court deprived the Dos of any opportunity

to conduct discovery, name experts, or obtain summary judgment evidence on GHA’s

untimely asserted Good Samaritan affirmative defense. This is the very definition of

arbitrary and capricious enforcement of the rules to the prejudice of one of the parties.

See Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238 , 241–42 (Tex. 1986)

(“The test for abuse of discretion is . . . whether the court acted without reference to

any guiding rules and principles.”).

GHA and the majority rely on Ersek v. Davis & Davis, P.C. , 69 S.W.3d 268

(Tex. App.—Austin 2002, pet. denied), as authority for sustaining the trial court’s

ruling striking Dr. Reeves as an expert. Ersek is inapplicable here. In that case, the

plaintiff knew that his cause of action required expert testimony, yet he waited for

over a year after filing his claim to designate his expert. Id. at 270 . Indeed, the

plaintiff contended that he had complied with the discovery rules by filing disclosures

“designating no expert witness before the deadline and then supplementing his

response identifying [the expert] after the deadline” in response to a motion for

summary judgment filed by the defendants. Id. at 270–71. In other words, in Ersek ,

the plaintiff tried to sandbag the defendants and got caught. Here, exactly the

opposite is the case, and the defendants’ behavior here should be rewarded no more

than the plaintiff was rewarded in Ersek . Rather, I agree with Texas Rule of Civil

Procedure 1 that the “[t]he proper objective of rules of civil procedure is to obtain a

just, fair, equitable and impartial adjudication of the rights of litigants under

established principles of substantive law.” Tex. R. Civ. P. 1. I also agree with the

Supreme Court of Texas that we should not reward gamesmanship and secrecy. See

Alvarado , 830 S.W.2d at 915 ; Lowry , 802 S.W.2d at 671 .

The majority also relies on Cunningham , 185 S.W.3d 7 , cited above. Its

reliance on that case is also misplaced. As stated above, Cunningham holds that if

a party fails to timely designate an expert witness “then testimony from that expert

will be excluded unless the trial court determines that the party seeking to introduce

the evidence established either (1) the existence of good cause for its failure or (2)

that it would not unfairly surprise or prejudice the other parties to admit the evidence

despite the inadequate discovery.” 185 S.W.3d at 11 . Cunningham lends no support

to the trial court’s rulings in this case. Indeed, as the Cunningham court aptly opined,

“A primary purpose of the discovery rules is to prevent trial by ambush.” Id. at 14 ;

see also Alvarado , 830 S.W.2d at 915 . That purpose was entirely ignored by both the

trial court and the majority, and it does apply here—to GHA, not to the Dos.

I would hold that the trial court’s orders striking the Dos’ expert, Dr. Reeves,

and his affidavits were clearly arbitrary and capricious, and I would sustain the Dos’

first issue.

The Trial Court’s Order Striking Portions of Dr. Katz’s Affidavit and

Overruling the Dos’ Objections to GHA’s Evidence

In their second issue, the Dos contend the trial court erred in striking

paragraphs 6 and 9 of Dr. Katz’s affidavit. Paragraph 9 is set out in part above, and

both paragraphs are set out in the majority opinion.

Paragraphs 6 and 9 of Dr. Katz’s affidavit constitute the Dos’ summary

judgment proofs regarding Dr. Riddle’s status as an on-call anesthesiologist and as

the anesthesiologist charged with administering anesthesiology during the C-section

and delivery in this case, the standard of care Dr. Riddle owed S.D. in those

circumstances, and his right to charge for his services in administering anesthesiology

to the mother and the infants in her body and in intubating S.D. after his birth. In

agreeing with the trial court’s order striking these paragraphs, the majority cursorily

addresses only Dr. Katz’s opinion regarding Dr. Riddle’s right to charge for his

services, misconstrues the import of Dr. Riddle’s testimony on that point, determines

Dr. Katz’s testimony is conclusory, and then affirms the order striking all of the

critical summary judgment proof contained in these paragraphs with no further

argument or citation to authority. It states that “[w]hile Dr. Katz purported to have

personal knowledge of the facts recited in his affidavit, his statement regarding Dr.

Riddle’s entitlement to compensation is a legal conclusion with no supporting facts

or rationale,” and, therefore, it was properly struck as “conclusory.” I would hold that

it was error for the trial court to strike any of this vital testimony.

The majority relies on a statement in McIntyre v. Ramirez , in which the

Supreme Court of Texas held, shortly before GHA filed its motion for summary

judgment, that a Maryland doctor was not qualified to testify about “what’s ordinarily

billed or what the law ordinarily allows people to recover for their medical services

in the State of Texas.” McIntyre , 109 S.W.3d at 750 . In McIntyre , the defendant

obstetrician, Dr. McIntyre, was not on call , but happened to be in a hospital labor and

delivery area visiting one of his own patients when he responded to an emergency

page for Ramirez, whom he had never seen, but who was in the process of delivering

an infant with no doctor present; there were indications that the infant’s shoulder had

become lodged against the mother’s pelvic bone, a condition called shoulder dystocia;

and the infant, whom Dr. McIntyre delivered after several unsuccessful attempts,

suffered neurological impairment as a result of the shoulder dystocia. See id. at 743 .

The Ramirezes’ expert, a Maryland obstetrician, opined conclusorily that Dr.

McIntyre “was entitled to bill and receive a fee for the delivery of baby Colby

Ramirez.” Id. at 749 .

The Supreme Court of Texas first addressed Ramirez’s claim that Dr.

McIntyre’s inability to avail himself of the Good Samaritan statute was established

by Dr. McIntyre’s testimony that he practiced obstetrical medicine, he routinely

delivered babies at the hospital, and he was in the hospital for the purpose of treating

his own obstetrical patient, from whom he expected to be compensated, on the day

he delivered Colby Ramirez. Id. at 749 . The court opined, “The testimony cited by

Ramirez is not probative of the circumstances of this case, which involved a medical

emergency and an absence of any pre-existing relationship or duty to respond to that

emergency.” Id. In other words, the fact that Dr. McIntyre was an obstetrician who

was visiting his own patient in the hospital, where he was not on call, did not

establish either that he had a pre-existing relationship with Ramirez or that he had a

duty to deliver her baby. The unpredicated legal conclusion of Ramirez’s expert, an

obstetrician practicing in Maryland, “with no supporting facts or rationale” did not

raise a fact question sufficient to defeat summary judgment. Id. at 749–50.

I have no disagreement with the supreme court’s rationale or holding in

McIntyre , but I disagree with the majority in this case that the rationale of McIntyre

applies here. The issue under former subsections 74.001(c)(1) and (d) in this case,

if it were to be reached, is whether Dr. Riddle had a legal right to bill for his services

assuming (as I do not) that he intubated S.D. “for reasons wholly unrelated to [his]

work in administering health care” and thus was not excluded as a Good Samaritan

by former subsection 74.001(c)(1). If he did have a legal right to bill for the post-delivery intubation, he would still be excluded as a Good Samaritan by former

subsection 74.001(d), even if his services were entirely voluntary and not part of his

job as the on-call anesthesiologist and even if he did not bill for them. Specifically,

former subsection 74.001(d) provided that, for purposes of former subsection

74.001(c)(1), “a person who would ordinarily receive or be entitled to receive a

salary, fee, or other remuneration for administering care under such circumstances to

the patient in question shall be deemed to be acting for or in expectation of

remuneration even if the person waives or elects not to charge or to receive

remuneration on the occasion in question.” Former Tex. Civ. Prac. & Rem. Code

A nn . § 74.001(d). Thus, under former subsections 74.001(c)(1) and (d), if GHA had

established that Dr. Riddle was not at the hospital for the purpose of rendering

emergency anesthesiology services, such as intubation, when he intubated

S.D.—which it did not prove, in contrast to the McIntyre defendant—it would still

have had to prove, for purposes of satisfying former subsection 74.001(d), that an on-call staff anesthesiologist, called to deliver emergency anesthesiology services to a

patient in Texas, is not legally entitled to charge for those services.

Dr. Katz , having testified to Dr. Riddle’s duties as the on-call anesthesiologist

for the hospital where S.D. was born and his duties as the member of the delivery

team charged with providing anesthesiology and related services during and after the

delivery, testified regarding Dr. Riddle’s legal right to charge for those services in

paragraph 5 of his affidavit, which was not struck, and paragraph 6, which was

improperly struck:

5. I have knowledge and experience in the practice of medicine

and the specialty of anesthesiology. Thus, I am familiar with the

standards of reasonably prudent, ordinary and accepted care for an

anesthesiologist. This includes the standards of an anesthesiologist who

is “on call,” who is on the medical team for an emergency C-section for

the birth of a child, and who is providing anesthesia, intubation, and

related services in cases like or similar to the C-Section for Thao Chau

and the birth of [S.D.]. These standards of care are national standards,

which apply throughout the country to anesthesiologists who provide

medical services like or similar to those which should have been

provided for Thao Chau and her child, [S.D.], under the same or similar

circumstances.

6. Anesthesiologists are hospital-based doctors, meaning we

rarely have offices where we see patients, and usually our medical

practice is at a hospital. When we render anesthesia services, we expect

to be compensated, whether we perform those services “on call” or

during the regular workday; it is our practice to charge (or for the

hospital to charge if we are salaried and at a teaching facility) for those

services .

(Emphasis added.)

In the earlier paragraphs of his affidavit and in his curriculum vitae attached

to his affidavit, Dr. Katz fully established his credentials for opining as to national

standards of care and conditions of service and billing for an on-call anesthesiologist

on the staff of a hospital, and opined as to the substance of those national standards,

which he explained in detail. He also opined as to his extensive review of the records

and materials in the case. Dr. Katz’s improperly struck testimony in paragraph 6 is

thus entirely unlike the affidavit of the plaintiffs’ expert in McIntyre , a physician

board-certified in Maryland, who opined, without substantiation or credentials, about

local billing practices in Texas under the unusual circumstances in which the

defendant physician who delivered emergency care was in the hospital fortuitously,

was not on call, and was not associated with the delivery team by the attending

physician, but merely responded to an emergency call. McIntyre , 109 S.W.3d at 749 .

It is this kind of testimony—not the testimony of an expert on national anesthesiology

standards opining on those standards—that the supreme court properly characterized

as presenting “a legal conclusion with no supporting facts or rationale” and, therefore,

incompetent to defeat summary judgment. See id . at 749–50; see also Ryland Group,

Inc. v. Hood , 924 S.W.2d 120, 122 (Tex. 1996) (per curiam).

Even without paragraph 6, I would hold that Dr. Katz’s testimony raised a

material fact issue as to whether Dr. Riddle was legally entitled to charge for the

emergency intubation he performed in the course of his work as the on-call

anesthesiologist and as the anesthesiologist associated with the labor and delivery

team by Dr. Le. However, I would also consider the evidence in paragraph 6, which

is, in my view, clearly competent expert testimony by the non-movant’s expert on a

material fact issue.

Moreover, because I believe the trial court improperly struck Dr. Reeves’

affidavit, I would include it also in my analysis. See Trusty v. Strayhorn , 87 S.W.3d

756, 764 (Tex. App.—Texarkana 2002, no pet.) (“assuming the failure to timely

designate a testifying expert [under docket control order] would bar consideration of

that expert’s affidavit as summary judgment proof, such a failure is a defect of form

to which a party must object and obtain a ruling to preserve error”; it does “not make

[the] affidavit incompetent, but inadmissible on proper objection.”); Lection , 65

S.W.3d at 703 (failure to timely file summary judgment proof is defect of form, not

substance). Dr. Reeves reviewed the billing records and testified, in the affidavit

struck by the trial court, that Dr. Riddle did, in fact, charge for his professional

services for the entire time he spent in the delivery room, including the time spent

intubating S.D.—testimony that contradicted Dr. Riddle’s testimony in his own

affidavit. The majority, having held that Dr. Reeves’s testimony was properly struck,

does not mention this testimony. I would hold, by contrast, that Dr. Reeves’

testimony, too, was more than sufficient to raise a fact issue as to Dr. Riddle’s self-serving and conclusory contention—as movant for summary judgment—that he was

not entitled to bill for those services.

I would sustain the Dos’ second issue. I would hold that the trial court acted

arbitrarily and capriciously in striking paragraphs 6 and 9 of Dr. Katz’s affidavit. In

addition, if I were to reach the issue of whether GHA bore its burden of proving as

a matter of law that Dr. Riddle was not excluded from the protection of the Good

Samaritan statute by subsections 74.001(c)(1) and (d), I would hold that it did not

carry its burden.

Conclusion

Because GHA did not establish its Good Samaritan affirmative defense as a

matter of law, I would reverse and remand this case for trial on the merits.

Evelyn V. Keyes

Justice

Panel consists of Justices Nuchia, Keyes, and Hanks.

Justice Keyes, dissenting.