Opinion
CIVIL ACTION CAUSE NUMBER 2:01-CV-068-J
October 3, 2001
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This is a diversity action arising from alleged negligence resulting in the death of Bonnie Jean Paine, a resident patient of the Farwell Convalescent Center. Defendant Evangelical Lutheran Good Samaritan Society (Society), the Center's administrator, has moved for summary judgment on two grounds, stating that Plaintiff has pled no factual allegations that its employee was negligent in any manner and, second, that as a matter of Texas law it cannot be held liable in the capacity in which it has been sued.
Defendant's summary judgment motion is granted because Plaintiffs have alleged no facts and come forward with no evidence that the Society's employee was personally negligent.
Facts
Plaintiffs are New Mexico citizens. They allege that on February 1, 1999 Bonnie Paine, while a resident patient at the Farwell Convalescent Center in Farwell, Palmer County, Texas, was either dropped by Center staff or was allowed to roll over and fall out of bed because her bed's guard rails were down. The Center lies within the Amarillo Division of the Northern District of Texas.Plaintiffs allege that Center employees knew that Mrs. Paine suffered from a combination of medical conditions resulting in significantly impaired mobility, which may have contributed to her fall. Plaintiffs allege that from the fall Mrs. Paine sustained a broken hip and other injuries, directly resulting in her death at the age of 76. Plaintiffs seek to hold the Evangelical Lutheran Good Samaritan Society, a South Dakota corporation, vicariously liable under the theories of respondeat superior and ostensible agency for the wrongful acts and/or omissions of employees of the Farwell Convalescent Center.
In its original answer Defendant admits that on February 1, 1999, while a patient in residence at the Center, a nursing home, Mrs. Paine was involved in an injury-causing incident. Defendant admits that Mrs. Paine required assistance with her activities of daily living and required mechanical assistance for transfers out of her bed. Defendant admits that in treatment for her injuries from the fall Mrs. Paine received care from physicians at the local hospital district's hospital.
Defendant admits that Plaintiffs have given it written notice of their claim as required by article 4590i, Section 4.01(a) of the Medical Liability and Insurance Improvement Act. However, the Society denies that it owns the Farwell Convalescent Center and has tendered unrebutted evidence that the Center is owned by the Farwell Hospital District. It asserts that as a Section 501(c)(3) non-profit entity it only manages the Center pursuant to a contract with the Hospital District. Defendant states that pursuant to the terms of its contract and under Texas law all of the personnel at the Center who were allegedly negligent are employees of the Center, not the Society. Defendant argues that not it but the District is the only proper party defendant to this lawsuit. Defendant alleges that the only Society employee at the Center was Jerry Adams, an administrator, and that Plaintiffs have pled no factual allegations that Adams was personally negligent in any manner.
Defendant has filed a copy of the Farwell Hospital District's management contract with the Society.
Summary Judgment Standards
The Court may terminate litigation by rendering a summary judgement where no genuine issue of material fact exists and the moving party is entitled to judgement as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (initial burden is on movant to show entitlement to summary judgment with competent evidence). A material fact issue is one that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The substantive law governing the case will identify which facts are material. Id., 477 U.S. at 249, 106 S.Ct. at 2510. The party opposing judgment must point the Court to "specific facts with sufficient particularity to meet all the elements necessary to lay a foundation for recovery, including those necessary to negate the defense" offered by movant. Brown v. Texas AM University, 804 F.2d 327, 333 (5th Cir. 1986).
Accord Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Celotex Corp.. 477 U.S. at 323-25, 106 S.Ct. at 2553; Liberty Lobby. Inc., 477 U.S. at 247-48, 106 S.Ct. at 2510. The nonmoving party must designate specific facts showing there exists a genuine issue of material fact on those elements sought to be negated by the movant. Ibid.
Discussion and Analysis
Plaintiffs' claims center on their contention that unnamed employees of the Farwell Convalescent Center negligently dropped Bonnie Paine or negligently permitted her to fall out of her bed, sustaining a hip fracture resulting in death. Plaintiffs do not allege that Jerry Adams was one of those employees. Plaintiff's expert witness designation and report, which was untimely filed before this summary judgment motion, sets forth no evidence, reviews no evidence, and offers no opinion that Adams himself was personally negligent. No other evidence as to the actions or inaction of any Center employee has been tendered in response to Defendant's summary judgment motion.Defendant alleges that all of the Center's employees except Adams are by Texas statute not Society employees but are employees of the Farwell Hospital District. Defendant further alleges that because the Farwell Hospital District is a county hospital district, by operation of Texas law the District is the exclusive entity which must be sued for the alleged medical negligence by Center employees. Plaintiffs do not dispute Defendant's contention that Jerry Adams was the only Society employee at the Center.
Defendant cites Section 285.072 of the Texas Health and Safety Code. Section 285.072 states:
A hospital district management contractor and any employee of the contractor are, while performing services under the contract for the benefit of the hospital, employees of the hospital district for the purposes of Chapters 101 and 102, Civil Practices and Remedies Code, (emphasis added).
This language has been interpreted by one published Texas appellate court opinion. In Brown v. Montgomery County Hosp. Dist., 905 S.W.2d 481, 483-84 (Tex.App.-Beaumont 1995, no writ) the court held that a county hospital (not a nursing home) was a political subdivision of the State of Texas, was protected by sovereign immunity, and could only be sued as permitted under the Texas Tort Claims Act. The court also ruled that the hospital could not be held liable based on alleged failure to supervise, because such a claim did not come within the three exceptions to sovereign immunity set forth within the Act.
Other than a general contractual duty to control Hospital District employees, Plaintiffs do not identify what specific legal duty the Society owed to Mrs. Paine that Adams personally and negligently performed. Plaintiffs allege that Center employees were negligent, but do not tie that allegation to anything specific that Adams did or did not do, or should have done. Absent such specific factual allegations Plaintiffs do not plead a negligence cause of action against the sole Defendant Plaintiffs have elected to sue in this suit.Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).
Plaintiffs rely on Baptist Memorial Hospital Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998) for the proposition that the Society through its administrator may be found liable because it had the contractual authority to control the work performed by medical staff at the Center even though the Society did not issue pay checks to the staff as employees. However, again, Plaintiffs do not tie that general allegation to anything specific that Adams allegedly did or did not do, or should have done.
Furthermore and in the alternative, even if Plaintiffs' original complaint could somehow be construed as pleading a medical negligence cause of action against the Society based upon the actions or inactions of Adams, they have come forward with no evidence raising a genuine issue of material fact regarding such a claim against the Society. Plaintiffs basic legal premiss is that something wrong happened to Mrs. Paine, therefore the Society may be found liable. However, the occurrence of an accident, standing alone, does not mean anyone's negligence caused the accident.
Further, Plaintiffs have not come forward with evidence rebutting the Society' s contention that it only had one employee at the Center, an administrator, who Plaintiffs have not even alleged personally had any part in moving Mrs. Paine or setting her bed rails. Plaintiff have tendered no evidence showing Adams had any duty to supervise transfers of patients or to supervise those who had the duty of setting bed rails. Plaintiffs do not allege that Adams personally or the Society contractually had such duties.
Plaintiffs have provided no evidence to support their legal theory that an alleged breach of the Society's contractual duties to the Hospital District, or the Society's contractual right to control the actions of staff employees, gives rise to a tort cause of action which may be brought by Plaintiffs against the Society. Assuming under Texas law that they could, Plaintiffs have directed the court to no contractual provisions setting forth any legal duty owed by the Society to Mrs. Paine the breach of which may be a tort.
"It is fundamental that the existence of a legally cognizable duty is a prerequisite to all tort liability." Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993). The common-law duty of negligence therefore consists of three essential elements: 1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately resulting from the breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987).
Instead, Plaintiffs' response to Defendant's summary judgment motion relies on the legal theories of respondeat superior and ostensible authority to hold the Society liable. Under the doctrine of respondeat superior, an employer is vicariously liable for the negligence of an agent or employee acting within the scope of his or her agency or employment, although the principal or employer has not personally committed a wrong. Baptist Memorial HOSP. System v. Sampson, 969 S.W.2d 945, 948 (Tex. 1998) (citing DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995); Restatement (Second) of Agency § 219 (1958)). "The justification for imposing such liability is that the principal or employer has the right to control the means and methods of the agent or employee's work." Sampson, 969 S.W.2d at 948 (citingNewspapers, Inc. v. Love, 380 S.W.2d 582, 585-86 (Tex. 1964); Restatement (Second) of Agency § 220, Comment d)). Plaintiffs have tendered no evidence of any nursing home staff member was an employee or an agent of the Society. The unrebutted evidence is to the contrary.
Further, "an individual or entity may act in a manner that makes it liable for the conduct of one who is not its agent at all or who, although an agent, has acted outside the scope of his or her authority."Sampson, 969 S.W.2d at 948. "Liability may be imposed in this manner under the doctrine of ostensible agency in circumstances when the principal's conduct should equitably prevent it from denying the existence of an agency." Id. (citing Marble Falls Hous. Auth. v. McKinley, 474 S.W.2d 292, 294 (Tex.Civ.App.-Austin 1971, writ ref'd n.r.e.). "Ostensible agency in Texas is based on the notion of estoppel, that is, a representation by the principal causing justifiable reliance and resulting harm." Id. (citing Ames v. Great S. Bank, 672 S.W.2d 447, 450 (Tex. 1984); Restatement (Second) of Agency § 267; Keeton et al., Prosser and Keeton on the Law of Torts § 105, at 733-34 (5th ed. 1984)).
"Many courts use the terms ostensible agency, apparent agency, apparent authority, and agency by estoppel interchangeably. As a practical matter, there is no distinction among them. Regardless of the term used, the purpose of the doctrine is to prevent injustice and protect those who have been misled." Sampson, 969 S.W.2d at 948 (cites omitted).
To establish the Society's liability for medical malpractice based on ostensible agency, each Plaintiff must show that (1) he or she had a reasonable belief that the Center staff member in question was the agent or employee of the Society, (2) such belief was generated by the Society affirmatively holding out the staff member as its agent or employee or knowingly permitting the staff member to hold himself or herself out as the Society's agent or employee, and (3) that he or she justifiably relied on the representation of authority. Baptist Memorial Hosp. System v. Sampson, 969 S.W.2d 945, 949 (Tex. 1998) (citing Drennan v. Community Health Inv. Corp., 905 S.W.2d 811, 820 (Tex.App.-Amarillo 1995, writ denied)). Plaintiffs have come forward with no evidence on any of these three elements.
The result of Plaintiffs' failure to come forward with competent summary judgment evidence on either of their two theories of liability is that summary judgment will be entered against the only Defendant they have chosen to sue. Brown, supra, 804 F.2d at 333.
For these reasons, the court need not further address and does not rule upon the Defendant's legal argument that pursuant to Texas statues and the Texas doctrine of sovereign immunity a Texas Tort Claims Act lawsuit brought directly against the Farwell Hospital District is Plaintiff's only recourse for civil damages.
Conclusion
Defendant's motion for summary judgment is granted.
Judgment will be entered in accordance with this opinion and order.
It is SO ORDERED.