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Click here for the full text of this decision FACTS:When Tammy Haynes became pregnant with her second child, she sought prenatal care from Dr. Peter Kuhl. Kuhl delivered Tammy’s second child at Methodist Hospital. Following the birth, Tammy experienced periodic episodes of heavy vaginal bleeding. Kuhl diagnosed her as suffering from endometriosis and recommended elective surgery consisting of a total abdominal hysterectomy and a bilateral salpingo-oophorectomy. After discussing the recommendation with her husband, Robert Haynes, Tammy agreed to the procedures and specifically requested that Kuhl be her surgeon. Kuhl agreed to be Tammy’s surgeon but he informed her that he would probably be assisted during surgery by another doctor in his group, Dr. Anna Beceiro. Surgery was scheduled for March 7, 2002. On March 4, 2002, Tammy spoke with someone in Kuhl’s office regarding her insurance benefits. She was told that Kuhl was not a designated physician in her insurance network; therefore, her insurance company would probably not pay his surgery fee. Tammy was advised that one of the other surgeons in Kuhl’s group, who was a designated physician in the network, could perform the surgery and Kuhl would be present and assist. Tammy declined this option and stated she did not want another doctor to perform the surgery. In progress notes taken by Kuhl’s office, there is the following notation: “She does not want to see anyone else � or have anyone else do surgery.” On March 7, when Tammy arrived at the hospital, she signed a disclosure and consent form. The form stated, “I (we) voluntarily request Dr. Peter Kuhl as my physician, and such associates, technical assistants and other health care providers as they may deem necessary to treat my condition.” Tammy contends she never met Beceiro at any time before her surgery. Beceiro, on the other hand, contends she met Tammy briefly in the holding area before the surgery began and she told Tammy she would be assisting Kuhl with the surgery. Both Kuhl and Beceiro performed the surgery, during which both of Tammy’s ureters were tied off, her bladder was lacerated with a three to four centimeter hole, and a kidney was obstructed. A subsequent surgery was required to correct these injuries. In 2003, Tammy and Robert (appellants) sued Kuhl, Beceiro and Methodist Hospital. In their Sixth Amended Petition, only Beceiro remained as a defendant, with appellants asserting negligence in the performance of the surgery, as well as allegations that Beceiro 1. failed to obtain Tammy’s consent to perform surgery; 2. intentionally or negligently withheld from appellants the fact that Beceiro would actually be performing surgery, as opposed to merely assisting Kuhl; 3. intentionally or negligently misinformed appellants that Beceiro would only assist Kuhl, although Beceiro knew she would actually be performing surgery; and 4. intentionally or negligently committed a medical battery on Tammy by performing surgery without Tammy’s consent and in the absence of a medical or surgical emergency. Both appellants and Beceiro filed motions for summary judgment that were denied. Appellants later filed a second motion for both a traditional summary judgment and a no-evidence summary judgment, incorporating by reference their first motion for summary judgment. In this motion, appellants moved for a partial summary judgment on the grounds that Beceiro committed medical battery, because Beceiro did not have Tammy’s consent to perform the surgery. The trial court denied appellants’ motion, granted Beceiro’s motion as to the battery and fraud claims, and denied Beceiro’s motion as to the negligence claims. On appeal, appellants asserted that the trial court erred in rendering summary judgment on their battery and fraud claims. HOLDING:Affirmed. Weighing the battery claim, the court construed the phrase “such associates” as used in the disclosure and consent form to include other physicians and surgeons as deemed necessary by the surgeon named in the form. Therefore, the court held that when Tammy gave her written consent for Kuhl “and such associates” to perform the surgery specified in the disclosure and consent form, she consented to Beceiro performing any part of that surgery “they [Kuhl] may deem necessary, to treat [her] condition.” The court then weighed the fraud claim. Tammy’s statement, the court stated, that she never spoke to Beceiro before the surgery satisfied Beceiro’s burden of establishing no genuine issue of material fact existed as to the misrepresentation element of the appellants’ fraud cause of action. The burden, the court stated, then shifted to appellants to raise a genuine issue of material fact on whether Beceiro made or failed to make certain representations to them prior to surgery. Appellants point to no statements they allege Beceiro made prior to surgery, the court stated. Instead, the court stated, appellants asserted that because the jury might believe Beceiro’s statement that she spoke to Tammy prior to surgery, a fact issue exists. Speculation that the jury might disbelieve their adamant claim that Beceiro never spoke to them prior to surgery did not satisfy their burden to raise a genuine issue of material fact on the challenged element, the court stated. Therefore, the court held that Beceiro was entitled to summary judgment as a matter of law on appellants’ fraud claim. OPINION:Marion, J.; Marion, Speedlin and Simmons, J.J.

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