Opinion

COURT OF

APPEALS

EIGHTH DISTRICT OF

TEXAS

EL

PASO, TEXAS

HELEN ESTRADA, INDIVIDUALLY

AND ON BEHALF OF ALL

WRONGFUL DEATH BENEFICIARIES

AND AS REPRESENTATIVE OF THE

ESTATE OF RICHARD ESTRADA,

DECEASED,

Appellant,

v.

ENCARNACION MIJARES, N.P. AND

JEANETTE TAN, M.D.,

Appellees.

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No. 08-10-00290-CV

Appeal from

346th District

Court

of El Paso County,

Texas

(TC #2010-3305)

O P I N I O N

This appeal arises from a medical malpractice suit against a nurse

practitioner, Encarnacion Mijares, and her employer, Jeanette Tan, M.D., on a

theory of vicarious liability. The trial

court granted summary judgment in favor of Mijares on the ground that she did

not have a nurse-patient relationship with Richard Estrada. For the reasons that follow, we affirm.

FACTUAL SUMMARY

On July 21, 2007, Richard Estrada was admitted to Del Sol Medical Center

by his primary physician, James Gibson, M.D. due to complaints of a cough and

shortness of breath. The following day,

Dr. Gibson requested a pulmonary evaluation from the on-call

pulmonologist. Ahmad M. Hajj, M.D was

covering for Dr. Tan, meaning that he was seeing all of Dr. Tan’s ICU patients at

Del Sol in addition to the new consults.

Encarnacion Mijares is a nurse practitioner. The summary judgment evidence related to

Mijares’ motion for summary judgment shows that Mijares worked for Dr. Tan as a

nurse practitioner in 2007 and did not work for Dr. Hajj. [1] On July 22, 2007, Mijares was at the hospital

seeing some of Dr. Tan’s existing patients when one of the nurses told her

about the consult for Dr. Tan. Mijares

told the nurse that Dr. Tan was not taking calls and Dr. Hajj was on-call. The nurse subsequently told Mijares that a

call had been made to Dr. Hajj’s answering service. Mijares telephoned Dr. Hajj “out of courtesy”

to let him know about the pulmonary consult.

Mijares relayed to Dr. Hajj the information in Estrada’s chart,

including the lab results and the results of the CT scan of the lungs. Mijares then transcribed Dr. Hajj’s verbal orders

onto Estrada’s chart. The record does

not include a copy of the order itself but Mijares stated during her deposition

that Dr. Hajj ordered Rocephin, one gram IV piggyback every 24 hours; “Neb”

treatments with Xopenex, 0.63, and Atrovent unit dose via E-Z pack four times a

day, as needed, and sputum for gram stain and CNS. He also ordered the hospital to document the

O2 saturation in the progress notes. Both

Mijares and Dr. Hajj signed the orders.

Mijares explained in her deposition that she could not write orders at

the hospital and hospital policy required that the consulting doctor

“countersign” the verbal orders. Dr.

Hajj never asked Mijares to evaluate Estrada.

Dr. Gibson discharged Estrada from the hospital on July 23, 2007. The following nursing note is found in

Estrada’s chart for July 23, 2007: “M.D.

Gibson has seen PT down in x-ray. He has

given the OK to DC PT home today.

[Mijares] has been notified. She

has spoken with M.D. Hajj. He has given

the OK to DC PT.” Mijares specifically denied

having any conversation with the nurse or Dr. Hajj regarding the discharge of

Estrada, explaining that she would not have given the order because Estrada was

not her patient. Dr. Hajj recalled

speaking to the nurse at the hospital about the discharge but he did not recall

speaking to Mijares.

Estrada followed up with Dr. Gibson following his discharge, but he had a

heart attack on September 2, 2007 and died.

Helen Estrada, individually and on behalf of the wrongful death

beneficiaries, and as the representative of the estate of her husband, filed

suit against Dr. Gibson, Dr. Hajj, Dr. Tan, and Mijares, alleging that the

defendants knew or should have known that Estrada was at risk of coronary heart

disease and were negligent in failing to properly diagnose and treat him for

heart disease. Mijares filed a motion

for summary judgment on the sole ground that she did not have a nurse-patient

relationship with Estrada. The trial

court granted the motion and severed the claims against Mijares and Dr. Tan

from the remaining claims.

NURSE-PATIENT

RELATIONSHIP

In

her sole issue on appeal, Appellant contends that the trial court erred by

granting summary judgment because Mijares failed to conclusively prove that she

did not have a nurse-patient relationship with Estrada. Alternatively, Appellant argues that a fact

issue precludes the granting of summary judgment.

Standard of Review

The standard of review for traditional summary judgment under Tex.R.Civ.P. 166a(c) is well

established. Nixon v. Mr. Property Management Company, Inc. , 690 S.W.2d 546, 548

(Tex. 1985). The moving party carries

the burden of showing there is no genuine issue of material fact and it is

entitled to judgment as a matter of law. Diversicare

General Partner, Inc. v. Rubio , 185 S.W.3d 842, 846 (Tex. 2005); Browning v. Prostok , 165 S.W.3d 336, 344

(Tex. 2005). Evidence favorable to the

non-movant will be taken as true in deciding whether there is a disputed issue

of material fact. Fort Worth Osteopathic Hospital, Inc. v. Reese , 148 S.W.3d 94, 99

(Tex. 2004); Tranter v. Duemling , 129

S.W.3d 257, 260 (Tex.App.--El Paso 2004, no pet.). All reasonable inferences, including any

doubts, must be resolved in favor of the non-movant. Fort

Worth Osteopathic Hospital , 148 S.W.3d at 99 . A defendant is entitled to summary judgment if

the evidence disproves as a matter of law at least one element of each of the

plaintiff’s causes of action or if it conclusively establishes all elements of

an affirmative defense. D. Houston, Inc. v. Love , 92 S.W.3d 450,

454 (Tex. 2002); Randall’s Food Markets,

Inc. v. Johnson , 891 S.W.2d 640, 644 (Tex. 1995). Once the defendant establishes a right to

summary judgment as a matter of law, the burden shifts to the plaintiff to

present evidence raising a genuine issue of material fact. City of

Houston v. Clear Creek Basin Authority , 589 S.W.2d 671, 678-79 (Tex. 1979);

Scown v. Neie , 225 S.W.3d 303, 307

(Tex.App.--El Paso 2006, pet. denied).

We review the grant or denial of a traditional motion for summary

judgment de novo . Valence

Operating Company v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005); Texas Integrated Conveyor Systems, Inc. v.

Innovative Conveyor Concepts, Inc. , 300 S.W.3d 348, 365 (Tex.App.--Dallas

2009, pet. denied).

Existence of a Duty

In a medical malpractice claim, the plaintiff must prove four elements: (1) a duty by the physician/nurse/hospital to

act according to applicable standards of care; (2) a breach of the applicable

standard of care; (3) an injury; and (4) a causal connection between the breach

of care and the injury. Morrell v. Finke , 184 S.W.3d 257, 271

(Tex.App.--Fort Worth 2005, pet. denied); Cruz

v. Paso Del Norte Health Foundation , 44 S.W.3d 622, 629-30 (Tex.App.--El

Paso 2001, pet. denied). The existence

of a duty is a threshold question of law which must be decided before the issue

of standard of care arises. Lection v. Dyll , 65 S.W.3d 696, 704

(Tex.App.--Dallas 2001, pet. denied), citing

St. John v. Pope , 901 S.W.2d 420, 424 (Tex. 1995).

In St. John v Pope , the Supreme

Court explained that medical malpractice developed as a theory of liability

discrete from common-law negligence and is imbued with both contract and tort

principles. St. John , 901 S.W.2d at 423 .

Medical malpractice also differs from ordinary negligence in the

circumstances under which a duty arises.

St. John , 901 S.W.2d at

423 . In an ordinary negligence case, the

duty to refrain from negligently injuring others requires no prior

relationship. Id. Professionals, on other

hand, do not owe a duty to exercise their particular talents, knowledge, and

skill on behalf of every person they encounter.

Id. “As is true of all callings, physicians are

not obligated to practice their profession or render services to everyone who

asks.” Id. It is only with the

physician’s express or implied consent that the physician-patient relationship

is created. Id. The court held in St. John that the duty to treat the

patient with proper professional skill flows from the consensual relationship

between the patient and physician, and only when that relationship exists can

there be a breach of a duty resulting in medical malpractice. Id. Creation of the physician-patient

relationship does not require the formalities of a contract. Id.

at 424 . The fact that a physician does

not deal directly with a patient does not preclude the existence of a

physician-patient relationship. Id.

If there is no prior relationship between the physician and the patient,

there must be some affirmative action on the part of the physician to treat the

patient to create such a relationship. Gross v. Burt , 149 S.W.3d 213, 221

(Tex.App.--Fort Worth 2004, pet. denied); Majzoub

v. Appling , 95 S.W.3d 432, 436 (Tex.App.--Houston [1st Dist.] 2002, pet.

denied); Lection , 65 S.W.3d at 705 .

Texas courts have recognized the existence of the nurse-patient

relationship but have not written extensively about how it is created in the

context of a medical malpractice claim. See Lunsford

v. Board of Nurse Examiners for the State of Texas , 648 S.W.2d 391, 395

(Tex.App.--Austin 1983, no writ); Childs

v. Greenville Hospital Authority , 479 S.W.2d 399, 401-02 (Tex.Civ.App.--Texarkana

1972, writ ref’d n.r.e.). Citing Lunsford , Appellant suggests that Mijares’

duty to act according to the applicable standards of care arises from the mere

fact that she possesses a nursing license.

In Lunsford , a nurse appealed

an order of the Board of Nurse Examiners finding she had violated a board rule

which requires a registered nurse to evaluate the status of a patient and to

institute appropriate nursing care to stabilize a patient’s condition and

prevent complications. Lunsford , 648 S.W.2d at 394 . Lunsford was employed by the Willacy County

Hospital in Raymondville. Donald Wayne

Floyd was traveling to Houston with Frances Farrell when he began experiencing

chest pain so Farrell took Floyd to the Willacy County Hospital for medical

assistance. Farrell left Floyd in the

waiting area and tried to find a doctor to attend to Floyd who was experiencing

significant pain and pressure in his chest as well as pain and numbness in his

left arm. Farrell found a physician and

explained that Floyd was suffering from chest pains, but he instructed her to

seek help from the nurse on duty because he was busy. When Farrell persisted, he told her that the

hospital’s only cardiac care equipment was in use on another patient. The physician then instructed Lunsford to

send Floyd to Valley Baptist Hospital in Harlingen. Lunsford approached Floyd who was continuing

to complain of chest pain. Lunsford

questioned Floyd about what he had eaten and whether he had engaged in heavy

exercise that day. Lunsford did not take

Floyd’s vital signs even though she suspected “cardiac involvement” and she

instructed Farrell to drive Floyd twenty-four miles to Valley Baptist Hospital

in Harlingen. Lunsford told Farrell to

use the emergency flashers and to “speed.”

She also asked Farrell if she knew C.P.R. since there was a chance that

she might have to use it while in route to Harlingen. Floyd died less than five miles from the

Willacy County Hospital.

The Board of Nurse Examiners suspended Lunsford’s nursing license for one

year based on its finding that her conduct had been “unprofessional and dishonorable

conduct likely to injure the public.” Lunsford , 648 S.W.2d at 393 . The Board determined that Appellant had

violated a board rule which requires a registered nurse to evaluate the status

of a patient and to institute appropriate nursing care to stabilize a patient’s

condition and prevent complications by failing to assess Floyd’s condition,

inform the attending physician of the “life-death” nature of Floyd’s

instability, and take appropriate measures to stabilize Floyd’s condition and

prevent his demise. Id. at 394 .

Lunsford argued on appeal that she had no legal duty to care for Floyd because

he was not the patient of the hospital or the on-duty physician. Lunsford ,

648 S.W.2d at 394 . In making this argument, Lunsford relied on a

hospital policy which required that Floyd be sent to Valley Baptist unless he

had a physician on the staff of Willacy County Hospital or unless it was a

“life-death” situation. Lunsford also claimed

on appeal that taking Floyd’s vital signs and informing the on-duty physician

of her findings would have been futile since he had already ordered her to send

Floyd to Valley Baptist. In rejecting

these arguments, the Austin Court of Appeals held that Lunsford’s duty is not

derivative of the relationship between Floyd and the hospital or the on-duty

physician. Lunsford , 648 S.W.2d at 394 .

Her duty instead arises from the privilege granted Lunsford by the state

in licensing her as a nurse. Id. Consequently,

her duty could not be relieved by a hospital policy or a physician’s order. Id. The Court of Appeals concluded that a nurse in

Lunsford’s situation has a duty to evaluate the medical status of the ailing

person seeking his or her professional care, and to institute appropriate

nursing care to stabilize a patient’s condition and prevent further

complications of physical and mental harm.

Id. at 395 .

Lunsford is distinguishable

because we are concerned here with whether a nurse had a duty to act according

to the applicable standard of care in a medical malpractice action. The Austin Court of Appeals was careful to

note that the suit against Lunsford was not brought in contract or in tort by an

individual who feels he or she has been wronged by Lunsford’s action or

inaction. Lunsford , 648 S.W.2d at 395 . It instead was brought by the State for Lunsford’s

violation of her contractual duties to always act in a professional and

honorable manner. Id. Even if Lunsford could be construed as holding

that a nurse’s duty to act according to the applicable standard of care arises

from the mere fact that she has a nursing license, such a holding would be

contrary to St. John v. Pope because

it would impose a duty on nurses to practice their profession or render

services to everyone who asks. We

therefore decline to apply Lunsford

to this case.

The first question to be decided is whether the summary judgment evidence

conclusively shows that Mijares did not consent or agree, either expressly or

impliedly, to accept Estrada as a patient.

Mijares stated the following in paragraphs four through six of her

affidavit:

4. I never

evaluated or treated Richard Estrada. I

never examined Mr. Estrada or gave orders for his treatment, either personally

or through an intermediary. I never

exercised any medical judgment with regard to Mr. Estrada’s care. I was never instructed or assigned to

evaluate or treat Mr. Estrada.

5. On July 22,

2007, when asked to do so by a floor nurse at Del Sol Medical Center I, as a

courtesy, communicated to Dr. Hajj that a pulmonary consult had been requested

for Mr. Estrada. Also on July 22, 2007,

Dr. Hajj gave orders via a telephone call for Mr. Estrada. I transcribed these orders onto Mr. Estrada’s

chart per Dr. Hajj’s request.

6. I did not

participate in the decisions to treat or not treat, or to discharge Mr.

Estrada, nor did I have any other involvement in Mr. Estrada’s care or

treatment.

Dr. Hajj also

testified that he never asked Mijares to evaluate Estrada. This evidence is sufficient to conclusively

prove that Mijares did not have a nurse-patient relationship with Estrada, and

therefore, she did not owe a duty to act according to the applicable standards

of care. The burden shifted to Appellant

to present evidence raising a genuine issue of material fact.

Appellant asserts that a fact issue exists because Mijares telephoned Dr.

Hajj to inform him of the consultation with Estrada but Mijares insisted that

she made the call as a courtesy to the doctor.

Mijares did not by merely advising Dr. Hajj that he has been requested

to provide a pulmonary consultation, consent or agree to accept Estrada as her

patient.

Appellant next claims that a fact issue exists because Mijares provided

Dr. Hajj with information from Estrada’s chart regarding his condition. Mijares did not evaluate Estrada or take it

upon herself to review his chart. The

evidence instead shows that Dr. Hajj requested that Dr. Mijares provide him

with information from Estrada’s chart.

There is no evidence that Mijares’ reviewed the chart with the purpose

of diagnosing Estrada or providing him with treatment. See St.

John , 901 S.W.2d at 424 (even though doctor listened to another doctor’s

description of a patient’s symptoms and came to a conclusion about the basis of

the patient’s condition, he did so for the purpose of evaluating whether he

should take the case, not as a diagnosis for a course of treatment).

Appellant also claims that a fact issue exists with respect to the

nurse-patient relationship because Mijares wrote orders on Estrada’s

chart. The evidence showed that Mijares transcribed

Dr. Hajj’s verbal orders onto the chart and he countersigned the orders in

accordance with hospital policy. She

explained that she was not authorized to write orders in the hospital setting

and she was simply transcribing the orders dictated to her by Dr. Hajj. Dr. Gibson, however, made the following

statement in his discharge summary: “Apparently,

[Estrada] was seen by Dr. Hajj’s, I suspect, PA, who simply added Rocephin

and as there is nothing to find clinically, I think we will send this man

home.” There is no evidence that Dr.

Gibson was necessarily referring to Mijares when he made this statement. While we are required to take the evidence in

the light most favorable to the non-movant, the summary judgment standard does

not require the Court to assume facts not shown in the record.

Finally, Appellant claims, without citing any of the summary judgment evidence,

that Dr. Hajj relied on Mijares’ skill, education, and training as a nurse

and nurse practitioner. We have reviewed

all of the summary judgment evidence, including the excerpts of Dr. Hajj’s

deposition testimony and we have found no evidence supporting this

statement. Having found no fact issues

precluding summary judgment, we overrule the sole issue presented on appeal and

affirm the judgment of the trial court.

February 20, 2013 _______________________________________________

ANN CRAWFORD

McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

Antcliff, J., not participating

[1] Appellant’s claims against Dr. Tan are based

on a theory of vicarious liability. Dr.

Tan filed a motion for summary judgment in which she denied being Mijares’

employer or supervising physician. The

trial court did not rule on Dr. Tan’s motion for summary judgment and the court

instead concluded that the summary judgment in favor of Mijares rendered moot

all of Estrada’s claims against Dr. Tan. Evidence that may be considered in determining

a summary judgment motion includes deposition transcripts, interrogatory

answers, and other discovery responses referenced or set forth in the motion or

response as well as affidavits on file at the time of the hearing. Tex.R.Civ.P. 166a(c). The summary judgment order does not indicate

that the trial court, in addressing Mijares’ motion for summary judgment,

considered any of the evidence attached to Dr. Tan’s motion for summary

judgment or to Appellant’s response to that motion. Consequently, we will not consider that evidence

in reviewing the trial court’s ruling.