Ramirez v. Carreras

Because a cause for breach of the duty not to injure is not a claim that the physician departed from an "accepted standard" within the the health care industry, the Texas Medical Liability Insurance Improvement Act is inapplicable. Moreover, the Texas Supreme Court has noted that the act does not apply to claims where no physician-patient relationship exists.

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Click here for the full text of this decision FACTS:Simon and Cynthia Ramirez appeal an adverse jury verdict and judgment claiming the evidence proves as a matter of law, or the great weight and preponderance of the evidence proves, that the conduct of Dr. Jose Carreras, appellee, injured Simon and proximately caused damages to appellants. Simon injured his lower back while working for K-Mart on May 9, 1993. He first received conservative treatment for a herniated disc. On April 4, 1995, Dr. Ruben Pechero performed a successful lumbar laminectomy and spinal fusion operation on Simon’s lower back. To obtain Simon’s disability rating or impairment level, K-Mart’s worker’s compensation carrier hired appellee to perform a range-of-motion examination on his back. During the examination, appellee instructed Simon to remove his back brace and bend forward. Appellants testified that after Simon told appellee he could only slightly bend, appellee placed his right hand on Simon’s back and, by applying pressure, made him bend over further than he could on his own, thereby injuring Simon. The appellee denied that he pushed Simon or injured him during the range-of-motion examination. Prior to the trial, appellants appealed a summary judgment granted on their medical negligence and common law claims. This court affirmed the trial court’s summary judgment as it related to appellants’ medical negligence cause of action, and reversed and remanded the summary judgment as it related to appellants’ common law negligence cause of action. HOLDING:Affirmed. The appellants claim that the trial court erred in overruling their motion for judgment notwithstanding the verdict and that the jury’s verdict is wrong because 1. the evidence proves conclusively as a matter of law that appellee injured Simon, which proximately caused appellants’ damages; or 2. the jury’s verdict is against the great weight and preponderence of the evidence. The trial court granted appellee’s motion for directed verdict as to appellants’ assault and battery cause of action. Appellants do not appeal such directed verdict. It was appellants’ burden to prove an affirmative act of appellee which proximately caused injury to Simon. Appellants cite evidence that, at the range-of-motion examination, appellee asked Simon to bend forward, and when Simon told him he could not bend, appellee pushed him forward with his right hand further than he could go on his own. As the appellee testified he did not push Simon and that Simon was not injured during the examination, the court must ignore evidence favoring appellants and holds there was evidence supporting the jury’s answer to question number 1, that is, a finding of “no” negligence and proximate cause of appellee. Even without ignoring appellants’ testimony supporting negligence, when weighing such evidence against appellee’s evidence to the contrary, the court finds that the jury’s finding was not against the great weight and preponderance of the evidence. Appellee urges a cross point that the trial court erred in denying appellee’s motion for sanctions and dismissal, filed pursuant to 13.01 of Article 4590i of the Medical Liability and Insurance Improvement Act. The appellee’s main complaint as to the “Plaintiffs’ Filing of Expert Reports” is that it did not address any standard of care issues relating to appellee. Since there was no relationship of doctor and patient between appellee and Simon, appellee had no duty to conduct the examination according to the accepted standards of medical care, and was only liable for any injury he may have caused during the procedure. It is well established that the Texas Medical Liability and Insurance Improvement Act does not apply to claims where no physician-patient relationship exists. Appellee argues that the opinion in Weathersby v. MacGregor Med. Assoc., 983 S.W.2d 82 (Tex. App. � Houston [14th Dist.] 1998, no pet.), applies to bring this case under the act, but in the court’s prior opinion in this particular case, the court expressly disagreed with the Weathersby opinion insofar as it held that an ordinary negligence claim against a health care provider falls “squarely” within the act. The trial court did not err in denying appellee’s motion for sanctions. OPINION:Amidei, J.; Valdez, C.J., Rodriguez and Amidei, JJ.

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