Michael Kimbrell v. Memorial Hermann Hospital System, Memorial Hermann Healthcare System, Memorial Hermann Medical Group , 2013 Tex. App. LEXIS 9591 ( 2013 )

Affirmed and Opinion filed August 1, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00108-CV
MICHAEL KIMBRELL, Appellant
V.
MEMORIAL HERMANN HOSPITAL SYSTEM, MEMORIAL HERMANN
HEALTHCARE SYSTEM, MEMORIAL HERMANN MEDICAL GROUP,
Appellees
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2010-27437A
OPINION
Michael Kimbrell sued Memorial Hermann Hospital System, Memorial
Hermann Healthcare System, and Memorial Hermann Medical Group (the
Hospital) for claims based on medical negligence, negligent misrepresentation,
fraud, negligence per se, and joint venture.1 The Hospital filed a traditional and
no-evidence motion for summary judgment on all of Kimbrell’s claims; that is,
those arising under the ostensible agency doctrine for the acts of medical
negligence by a physician, as well as the acts of direct negligence alleged against
the Hospital. The trial court granted summary judgment, and Kimbrell contends
the trial court erred by granting the Hospital’s motion. We affirm.
I. BACKGROUND
Kimbrell has had gastroesophageal reflux disease (GERD) for most of his
life.2 He was taking over-the-counter and prescription medications to manage the
symptoms, but in March 2008 he learned about a surgery that could cure GERD
when he watched an infomercial that aired during a local news program. The
infomercial was produced in part by the Hospital and featured Dr. John Zerwas, the
Hospital’s chief medical officer. Zerwas introduced a surgeon, Dr. James Field,
who discussed GERD and the surgery. According to Kimbrell’s deposition
testimony, Zerwas said during the infomercial that Field was “a surgeon at
Memorial Hermann,” and the infomercial had an emblem or logo on the screen that
read “Memorial Hermann.” Zerwas’s jacket also had a Memorial Hermann
emblem, but Field’s did not. Kimbrell testified that there was writing on the
screen: “Find out more about acid reflux and laparoscopic surgery WWW, dot,
Memorial Hermann, dot, org.” 3
1
Kimbrell also sued several doctors involved in treating him. They are not parties to this
appeal.
2
GERD causes acid reflux and regurgitation of food.
3
In his brief on appeal, Kimbrell provides a hyperlink to a video posted on the website,
www.youtube.com. The Hospital suggests that we should not consider the YouTube video
because it is not part of the court’s record. Kimbrell contends the video was played for the trial
court, and Kimbrell’s response to the motion for summary judgment indicates a video was
attached as evidence. In his appellate reply brief, Kimbrell “request[s] that the Court allow
2
Kimbrell contacted Field directly for an appointment to discuss the surgery.
At the first appointment, Field gave Kimbrell documents indicating that “Surgical
Group of the Woodlands operates out of Memorial Hermann Hospital and the
Woodlands St. Luke’s Community Medical Center and the Memorial Hermann
Surgery Center.” Field referred Kimbrell to a gastroenterologist, Dr. Ali Turkan
Dural. Kimbrell was cleared for surgery. He explained, “I proceeded [with the
plan for surgery] because basically from the video. . . . I mean, Memorial
Hermann is Memorial Hermann. I mean, I went because of what they said on the
video.” Kimbrell analogized to Tiger Woods advertising golf clubs:
[I]f Tiger Woods told me to buy a pair of golf clubs, I wouldn’t
question when or why or why he — you know, I mean, he’s supposed
to be the best and he recommended something. I’m going to go with
the recommendation. It’s supposed to be the best hospital, one of the
best hospitals in Houston. It’s one of the biggest hospitals in Houston.
I wasn’t fixing to question somebody like that on something I knew
nothing about.
Kimbrell testified that he thought Field was “representative of Memorial
Hermann.”
supplementation or correction” of the record. Although Kimbrell did not ask the trial court clerk
to supplement the record as outlined in Rule 34.5 of the Texas Rules of Appellate Procedure, see
TEX. R. APP. P. 34.5(c)(1), we nonetheless ordered the District Clerk to supplement the record
with this video. See El Paso Cnty. v. Ontiveros, 36 S.W.3d 711, 714 (Tex. App.—El Paso 2001,
no pet.) (“[A] court of appeals must construe the rules governing supplementation of the
appellate record liberally, so our decision turns on substance rather than procedural technicality.”
(citing Gallagher v. Fire Ins. Exch., 950 S.W.2d 370, 371 (Tex. 1997))). The District Clerk
informed this court, however, that the video was not located within the court’s file.
We will not consider matters not formally made part of the appellate record, including
this YouTube video. See, e.g., In re K.M., No. 14-12-00871-CV, — S.W.3d —, 2013 WL
2106087, at *2 (Tex. App.—Houston [14th Dist.] May 16, 2013, no pet. h.) (“With limited
exceptions not relevant to this appeal, an appellate court may not consider matters outside of the
appellate record.”). However, we have reviewed Kimbrell’s deposition testimony, and he
testified considerably about the contents of the video. The appellate briefing does not suggest
the video would add to Kimbrell’s testimony, so our ultimate decision today turns on substance
rather than procedural technicality.
3
Kimbrell also testified that before the surgery he signed two separate forms
stating, “All physicians furnishing services to the patient, including the radiologist,
pathologist, anesthesiologist, and emergency center physicians, or other
physicians, are independent contractors for the patient and are not employees or
agents of the hospital and may bill directly for their services.” He acknowledged
having read the forms.
The surgery did not cure Kimbrell’s GERD—his condition worsened after
the surgery. He sued Field and Dural for medical negligence and claimed
vicarious liability against the Hospital based on the doctrine of “apparent agency,
ostensible agency, or agency by estoppel.”4 He also asserted a claim directly
against the Hospital for “negligence and negligent misrepresentation” concerning
the infomercial. The Hospital filed a traditional motion for summary judgment on
the apparent agency issue for the medical negligence claim, combined with a no-
evidence motion for summary judgment on Kimbrell’s negligence and negligent
misrepresentation claim. In particular, the Hospital alleged there was no evidence
of causation on the latter claim. Before the trial court ruled on the motion,
Kimbrell filed an amended petition alleging additional claims of fraud and
negligence per se, and a joint enterprise theory of vicarious liability.
The trial court granted summary judgment for the Hospital “as to plaintiff’s
claims for negligent misrepresentation [and] medical negligence.” The Hospital
then filed special exceptions on Kimbrell’s fraud and negligence per se claims.
The court granted the special exceptions and struck these claims from Kimbrell’s
live pleading. The court severed the action against the Hospital and signed a final
judgment. Kimbrell filed a timely notice of appeal.
4
These terms are used interchangeably; there is no distinction among them. Baptist
Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 n.2 (Tex. 1998).
4
II. ANALYSIS
In two issues, Kimbrell contends that the trial court erred by granting
summary judgment for the Hospital because there is a genuine issue of material
fact on each of his claims and vicarious liability theories.5
A. Standard of Review
We review summary judgments de novo. Joe v. Two Thirty Nine Joint
Venture, 145 S.W.3d 150, 156 (Tex. 2004). We take as true all evidence favorable
to the nonmovant, indulging reasonable inferences and resolving doubts in the
nonmovant’s favor. Raynor v. Moores Mach. Shop, LLC, 359 S.W.3d 905, 907
(Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Joe, 145 S.W.3d at 157;
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)).
For a traditional summary judgment, the movant has the burden of showing
that there is no genuine issue of material fact and that the movant is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); Joe, 145 S.W.3d at 157. A
defendant may satisfy this burden by conclusively negating at least one essential
element of each of the plaintiff’s causes of action. Raynor, 359 S.W.3d at 907
(citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)).
“We sustain a no-evidence summary judgment when (a) there is a complete
absence of evidence of a vital fact, (b) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact, (c)
the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the
evidence conclusively establishes the opposite of the vital fact.” Id. at 907–08
(citing King Ranch, 118 S.W.3d at 751).
5
His issues are: (1) the trial court erred in granting summary judgment against Kimbrell;
and (2) the evidence presented in the trial court is sufficient to raise material fact issues on
ostensible agency, medical negligence, negligent representation, joint enterprise, and fraud.
5
“Evidence is conclusive only if reasonable people could not differ in their
conclusions.” Id. at 907 (citing City of Keller v. Wilson, 168 S.W.3d 802, 816
(Tex. 2005)). There is more than a mere scintilla of evidence if reasonable and
fair-minded people could differ in their conclusions. Id. at 908 (citing King Ranch,
118 S.W.3d at 751).
B. Ostensible Agency
Kimbrell claims that the Hospital is liable for the malpractice alleged against
Field under the doctrine of ostensible agency. The Hospital contends Kimbrell
failed to raise a genuine issue of material fact on ostensible agency because
Kimbrell signed the Hospital’s consent form declaring that all physicians “are
independent contractors for the patient and are not employees or agents of the
hospital.” Thus, we must first resolve whether, notwithstanding any other Hospital
conduct, Kimbrell’s ostensible agency claim is negated as a matter of law by the
consent form.
To place ostensible agency in context, we begin with fundamental agency
principles. First, a principal is vicariously liable for the negligence of an agent
acting within the scope of his or her agency even though the principal has not
personally committed a wrong. Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d
945, 947 (Tex. 1998). As a corollary, a principal is not usually liable for the
negligence of an independent contractor. Id.
However, as an equitable exception to the bright-line principles, the doctrine
of ostensible agency may render a principal liable for the conduct of a person who
is not in fact the principal’s agent. See id. at 947–48. This ostensible-agency
exception applies “when the principal’s conduct should equitably prevent it from
denying the existence of an agency.” Id. at 947.
In accordance with these agency principles, hospitals are “ordinarily not
6
liable for the negligence of a physician who is an independent contractor.” Id. at
948. However, “a hospital may be vicariously liable for the medical malpractice of
independent-contractor physicians when plaintiffs can establish the elements of
ostensible agency.” Id. To establish a hospital’s liability for an independent
contractor’s medical malpractice under this doctrine, the plaintiff must show:
(1) he or she had a reasonable belief that the physician was the agent
or employee of the hospital,
(2) such belief was generated by the hospital affirmatively holding out
the physician as its agent or employee or knowingly permitting the
physician to hold herself out as the hospital’s agent or employee, and
(3) he or she justifiably relied on the representation of authority.
Id. at 949.
In Sampson, Dr. Zakula was an emergency room physician at Baptist
Memorial. Id. at 946. Sampson, bitten by a brown recluse spider, went to the
Baptist Memorial emergency room via ambulance and was treated by Dr. Zakula.
Id. Sampson sought to hold Baptist Memorial responsible for Dr. Zakula’s alleged
malpractice. Id. at 947. Baptist Memorial relied upon Sampson’s signed consent
form acknowledging that “each physician is an independent contractor.” Id. at
950. The court of appeals determined that Baptist Memorial had a nondelegable
duty for the malpractice of emergency room physicians. Id. at 948–49.
The Texas Supreme Court reversed and focused its ultimate analysis on the
second ostensible-agency element: holding out. See id. at 950. The court
determined that the plaintiff’s belief (element one) must be either based on or
generated by some conduct on the part of the Hospital. Id. The summary
judgment evidence established that, although Dr. Zakula was an emergency room
physician at the Hospital and was the physician that treated Sampson when she
7
presented to the Hospital, there were signs in the Hospital notifying patients that
the emergency room physicians were independent contractors, and Sampson
signed consent forms acknowledging that the physicians were independent
contractors. Id. Thus, on the record before the court, it concluded that Baptist
Memorial “took no affirmative act to make actual or prospective patients think the
emergency room physicians were its agents or employees, and did not fail to take
reasonable efforts to disabuse them of such a notion.” Id. Stated differently,
Sampson’s “belief” that a physician practicing medicine in the Hospital was a
Hospital employee, even if reasonable, was not generated by affirmative conduct
of the hospital, and the hospital took affirmative steps to inform patients to the
contrary. See id. Sampson is dispositive of this case.
The affirmative act of holding out upon which Kimbrell relies is confined to
the GERD infomercial. In it, Zerwas said that Field was “a surgeon at Memorial
Hermann.” Zerwas did not explicitly state that Field was an agent or employee or
a physician employed by the hospital. Although Zerwas wore a lab coat with the
Hospital’s emblem, Field did not. Cf. Moren v. Columbia Med. Ctr.–E., No. 08-
00-00040-CV, 2001 WL 522432, at *4 (Tex. App.—El Paso May 17, 2001, pet.
denied) (not designated for publication) (finding some evidence of ostensible
agency based on conflicting affidavits about whether the apparent agent wore a lab
coat with the hospital’s insignia on it). Stating that a physician is “a surgeon at” a
hospital, by itself, is akin to a hospital staffing the emergency room with
independent contractor physicians and opening the doors for business. See
Sampson, 969 S.W.2d at 948–50.
We turn next to evidence of the Hospital’s conduct affirmatively disclaiming
the agency relationship. Twice, the Hospital had Kimbrell sign a consent form
containing the explicit notice that physicians at the hospital were independent
8
contractors and not agents or employees of the Hospital. The language was clear
and unambiguous: “All physicians furnishing services to the patient, including the
radiologist, pathologist, anesthesiologist, and emergency center physicians, or
other physicians, are independent contractors for the patient and are not employees
or agents of the hospital and may bill directly for their services.” Further, the
summary judgment evidence does not suggest any Hospital conduct designed to
conceal or obscure this language or withhold its request for signature until
Kimbrell was in physical distress.
We conclude, as did the Sampson court, that the Hospital took no affirmative
act to make actual or prospective patients think that Field was its agent or
employee, and did not fail to take reasonable efforts to disabuse them of such a
notion. As such, the trial court correctly concluded that, as a matter of law under
the facts of this case, Kimbrell’s claim for ostensible agency fails.6
Kimbrell’s issues concerning ostensible agency are overruled.
C. Joint Enterprise
Kimbrell contends that he raised a genuine issue of material fact on the joint
enterprise theory of liability. A finding of joint enterprise requires proof of the
following:
(1) an agreement, express or implied, among the members of the
group; (2) a common purpose to be carried out by the group; (3) a
community of pecuniary interest in that purpose, among the members;
and (4) an equal right to a voice in the direction of the enterprise,
which gives an equal right of control.
St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex. 2003) (quotation omitted).
6
We do not hold today, as the Hospital urges, that a patient’s signing of a consent form
disclaiming an agency relationship will conclusively negate as a matter of law a hospital’s prior
holding out of a physician as its agent.
9
Regarding the third element, the “monetary interest must be common among the
members of the group—it must be one ‘shared without special or distinguishing
characteristics.’” Id. at 531 (citing Ely v. Gen. Motors Corp., 927 S.W.2d 774, 779
(Tex. App.—Texarkana 1996, writ denied)).
Kimbrell contends that the Hospital and Field “had a community of
pecuniary interest in the common purpose of the members of the joint enterprise
group, i.e., promoting the use of surgery for GERD patients, as opposed to medical
management that would not involve surgical or hospital services.” Kimbrell
contends there is evidence of a common pecuniary interest because “both hoped to
get business through the infomercial.”
Even if Kimbrell had supported these assertions with references to record
evidence—which he did not do—there would still be no evidence of a joint venture
as a matter of law. “[T]he existence of monetary benefits flowing from [a]
program does not by itself satisfy the third element of a joint venture. There must
still be evidence that the monetary benefits were shared among the members
without special or distinguishing characteristics.” Id. at 532. For example, the
Texas Supreme Court found no evidence of a community of pecuniary interest
between two institutions involved in a surgical residency program in part because
one institution retained the right to bill patients directly for services rendered, and
the income belonged solely to that institution and was not shared with the other
institution. See id.
Similarly, the consent form discussed above indicated that the Hospital and
independent contractor physicians maintained the right to bill separately, and there
is no evidence in this record that the Hospital and Field shared any income.
Kimbrell has not alleged facts—much less pointed to any evidence—of a
community of pecuniary interest between the Hospital and Field.
10
Kimbrell’s issues concerning joint enterprise are overruled.
D. Causation for Direct Negligence
Kimbrell contends there is some evidence that “the infomercial caused the
Appellant’s injury,” and “[b]ut for this infomercial, Appellant would not be here
today.” The Hospital contends that the trial court’s no-evidence summary
judgment was proper on the issue of causation because Kimbrell failed to expressly
and specifically identify the supporting evidence on file that amounted to evidence
of causation, and further, Kimbrell failed to adduce any expert testimony. We
agree with the Hospital.
When faced with a no-evidence motion for summary judgment, a nonmovant
cannot avoid judgment by simply filing voluminous evidence and stating generally
that a genuine fact issue has been raised. See, e.g., San Saba Energy, L.P. v.
Crawford, 171 S.W.3d 323, 331 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
A contrary holding “would place an unreasonable burden on the trial court and
would violate the requirement of Rule 166a(i) that the response must point out
evidence that raises a genuine issue of fact as to each challenged element.” Id.
(affirming a no-evidence summary judgment when the nonmovant responded with
a general statement that fact issues existed and referenced 650 pages of evidence,
although the nonmovant made more specific arguments on appeal); see also Eaton
Metal Prods., L.L.C. v. U.S. Denro Steels, Inc., No. 14-09-00757-CV, 2010 WL
3795192, at *6 (Tex. App.—Houston [14th Dist.] Sept. 30, 2010, no pet.) (mem.
op.) (affirming because “[b]lanket citation to voluminous records is not a proper
response to a no-evidence motion for summary judgment”).
Kimbrell filed a response and supplemental response to the Hospital’s
motion. Excluding the standard of review, Kimbrell’s entire argument regarding
causation in the response was: “The deposition testimony of plaintiff Michael and
11
that of his mother repeatedly explain that plaintiff only found out about the
treatment he later received from defendant Field through the conduct of the
[Hospital’s] marketing, or what they call, somewhat disingenuously, ‘awareness
building.’” He did not refer to any particular statements in the deposition or pages
of the transcript. His supplemental response included several additional sentences
but again only referred generally to “the deposition testimony” of six witnesses
without any specific references to the evidence. Accordingly, Kimbrell did not
point out evidence that raised a genuine issue of material fact on the element of
causation, and the trial court correctly granted the motion. See San Saba Energy,
171 S.W.3d at 331.
Further, Kimbrell did not adduce any evidence from an expert witness on the
cause of his injuries. “In medical malpractice cases, expert testimony regarding
causation is the norm: ‘The general rule has long been that expert testimony is
necessary to establish causation as to medical conditions outside the common
knowledge and experience of jurors.’” Jelinek v. Casas, 328 S.W.3d 526, 533
(Tex. 2010) (quoting Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex. 2007)). An
expert witness must “explain how and why the negligence caused the injury.” Id.
at 536.
This is not the type of case that can be proven by lay testimony; for example,
where certain types of pain and bone fractures result from an automobile accident,
or where “an otherwise healthy person . . . suddenly experience[s] health
difficulties following the defendant’s negligent conduct [and] the plaintiff’s
symptoms were reasonably attributable to the negligence and nothing else.” Id. at
534. Kimbrell contends that but for the Hospital’s conduct, he “would not have
had the contraindicated (because of lack of proper motility testing prior to surgery)
GERD surgery, subsequent repair surgery and future surgery to fix the resultant
12
problems.” Kimbrell was not an otherwise healthy person before the surgery—he
had GERD, and the surgery was meant to correct a preexisting problem. See id. at
534–35 (expert testimony required to prove whether the defendant’s failure to
provide a colon cancer patient with antibiotics after abdominal surgery was a
proximate cause of the patient’s abdominal pain and suffering resulting from an
infection).
Accordingly, Kimbrell’s testimony that he would not have had the surgery
but for the Hospital’s statements in the infomercial does not satisfy his burden to
produce evidence on the issue of causation. No expert testified by affidavit or
otherwise concerning “how and why” any negligence by the Hospital caused injury
to Kimbrell. His direct negligence claim fails for this reason.
Kimbrell’s issues concerning the no-evidence summary judgment are
overruled.7
CONCLUSION
Having overruled all of Kimbrell’s issues, we affirm the trial court’s
judgment.
/s/ Sharon McCally
Justice
Panel consists of Justices Christopher, Jamison, and McCally.
7
Kimbrell does not challenge on appeal the trial court’s granting of the special
exceptions; accordingly, we do not address the fraud and negligence per se claims struck from
his petition.
13