David E. Welch v. AABTEL, Incorporated D/B/A Holiday Inn Express Francis Lesak And Amrat Lakha Patel ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00102-CV
David E. Welch, Appellant
v.
AABTEL, Incorporated d/b/a Holiday Inn Express; Francis Lesak;1
and Amrat Lakha Patel, Appellees
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 13-0270-C368, HONORABLE RICK J. KENNON, JUDGE PRESIDING
MEMORANDUM OPINION
This case concerns a personal injury claim asserted by an employee against his
employer and two co-workers. The trial court granted summary judgment in favor of the defendants.
We will affirm the judgment.
BACKGROUND
According to the summary judgment evidence, David E. Welch was employed by
AABTEL, Incorporated d/b/a Holiday Inn Express in Round Rock, Texas (hereafter “Holiday Inn”).
Francis Lesak was his co-worker and supervisor on the day in question, and Amrat Lakha Patel was
a co-worker who was not at work on that date but arrived as Welch left.
1
The record refers interchangeably to “Francis Lesak” and “Frances Lesak” but the captions
on the summary judgment order and the notice of appeal refer to “Francis Lesak.”
During his workday at the hotel front desk, Welch began to experience physical
symptoms with respect to his speech, motor skills, and walking gait. He continued to work and
perform his duties but continued to perceive gradual physical changes. Welch told Lesak that he was
experiencing physical symptoms, but she was unable to detect or observe any changes in him.
Around 10:30 a.m. or 11:00 a.m., Welch began to believe that he needed medical care, and Lesak
offered to drive him to the doctor when his shift ended at 3:00 pm. At all relevant times, Welch was
conscious, lucid, had his normal cognitive functions, and was physically able to work and to summon
emergency care. He never told Lesak that he required emergency medical treatment, and he was
never instructed not to seek medical assistance. Shortly before the shift ended, Welch concluded
that he should call Emergency Medical Services for assistance. He made the decision to call for an
ambulance, and he dialed 911. EMS responded, tended him at his office, and then transported him
to a hospital by ambulance. As Welch was being taken to the ambulance, Patel arrived at work, and
the two spoke for the first time that day. Welch was diagnosed with acute cerebrovascular accident,
commonly referred to as stroke.
Welch sued Holiday Inn, Lesak, and Patel, alleging that each was negligent and
breached the duty of ordinary care they owed him by failing to provide him medical attention,
and alleging that their breach was the proximate cause of his injuries. Welch acknowledged that his
work duties did not cause his stroke, but he alleged that the delay in providing him medical
assistance and his continuing to work without medical attention caused his resulting disabilities,
which could have been avoided or lessened had he received medical attention and medication sooner.
Defendants filed a no-evidence motion for summary judgment, asserting that Welch’s claims are
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barred by his exclusive remedy under Texas Labor Code section 408.001(a), that they owed him
no duty to discover or address his medical condition or to provide him medical care, and that
no evidence exists to support his claims of common law duty or breach of duty. See id.; see also
Tex. R. Civ. P. 166a(i). The trial court granted summary judgment in favor of all the defendants.
In one issue on appeal, Welch asserts that the defendants had a duty to provide him
emergency medical care to prevent his stroke when he exhibited symptoms. Welch acknowledges
that as a general rule an employer owes no duty to provide medical care to an employee who
becomes injured or ill, but he contends that his situation is governed by an exception that arises when
an employee becomes helplessly injured or ill, is incapable of aiding himself, and requires immediate
medical aid to preserve his life or prevent serious bodily harm. We will overrule this issue.2
DISCUSSION
Standard of review
We review the trial court’s decision to grant summary judgment de novo. Texas Mun.
Power Agency v. Public Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007); Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In a no-evidence motion for summary judgment,
the movant, without presenting evidence, seeks summary judgment on the ground that there is
no evidence of one or more essential elements of the nonmovant’s claim, and the burden shifts
to the nonmovant to produce evidence raising a fact issue. Tex. R. Civ. P. 166a(i). “A no-evidence
2
Because we conclude that summary judgment was appropriate on this ground, we need not
address Welch’s remaining issue as to whether Texas Labor Code section 408.001(a) applies and
provides his exclusive remedy.
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summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency
standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict.”
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). When the trial court’s order
granting summary judgment does not specify the basis for the ruling, we must affirm the trial court’s
judgment if any of the theories advanced are meritorious. Western Invs., Inc. v. Urena, 162 S.W.3d
547, 550 (Tex. 2005).
Once a defendant asserts a no-evidence motion for summary judgment, the plaintiff
must produce some evidence of the essential elements of the claim. In the absence of competent
summary judgment evidence raising a genuine issue of material fact as to each element of the claim,
the court must grant summary judgment. We hold that Welch failed to present such evidence and,
thus, the judgment was proper.
No duty to provide medical care
Welch does not complain of any error on the part of the trial court that would
require reversal of the judgment. We assume that he complains that the trial court erred by granting
summary judgment, but he does not specify how the ruling was error.
Welch acknowledges that neither an employer nor a co-worker has any duty to
provide a worker medical care. Welch does not cite any authority to support his argument that Lesak
and Patel individually owed him a duty of care to provide him medical attention, the elements of that
duty, or the manner in which they breached any such duty. We note that the record reflects that Patel
did not arrive at the hotel until Welch was already being transferred to the ambulance. Welch fails
to assert any basis, evidence, or legal theory on which either Patel or Lesak could be liable for his
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injuries. He asserts no issue, argument, legal authority, or proof in the record that demonstrates their
duty to him or any way in which his co-workers breached any such duty.
Further, Welch does not cite any authority to support his proposition that his employer
owed him a duty to provide him medical care. Welch agrees that there is no general duty resting
upon the employer to provide surgical or medical attendance to an employee who becomes ill or is
injured in the course of his employment. However, courts have held that the employer has a duty
to provide emergency medical or surgical aid when the employee sustains serious injury in the course
of employment that renders him helpless and incapable of aiding himself and there is an immediate
and urgent need for medical and surgical attention to save his life. Atchison, T. & S.F. Ry. Co.
v. Hix, 291 S.W. 281, 284 (Tex. Civ. App.—El Paso 1926, no writ) (railroad worker died after he
fell from moving train and train wheels amputated both his legs). Welch relies upon this exception
as the basis for his claim.
To the extent that a limited exception exists in a situation where an employee is
rendered helpless and incapable of assisting himself and requires emergency medical care to avoid
death or serious injury, Welch did not provide any evidence to demonstrate that he came within the
exception. Welch in effect contends that Texas law should be expanded to hold that an employer
or co-employee/supervisor should be required to provide an employee medical care for an ordinary
disease of life, even when the employee is not rendered helpless or incapable of helping himself.
We decline this invitation.
Welch’s position also assumes that his stroke worsened and he suffered greater
damage due to his remaining at work and delaying medical treatment, but the record contains
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no evidence of that fact. He contends without any support that his employer owed him a duty to
provide him emergency medical care to prevent his stroke, and that had he received medical care
he could have avoided the stroke or lessened the severity of the stroke. The only medical evidence
in the record is a letter from a physician stating that Welch was diagnosed as suffering an
acute cerebrovascular accident. Welch asserts without any support in the record that receiving “clot
busting drugs” within three to four hours of the first symptoms can alleviate damage, and the public
needs to know the symptoms of stroke and what actions are immediately required. He suggests that,
had his employer recognized his symptoms and need for urgent treatment, he would have received
these “clot busting drugs” and treatment sooner, thereby minimizing or preventing his physical
damage. The record contains no medical evidence of the type of stroke Welch experienced, the
treatment recommended for his type of stroke compared to the actual treatment he did receive,
whether the drugs he suggests were appropriate for his condition, whether his stroke damage
occurred while at work or after, whether earlier detection and treatment would have alleviated the
resulting damage, or whether his failure to receive treatment sooner had any impact or effect on his
resulting condition.
CONCLUSION
We hold that Welch offered no evidence that Holiday Inn and the individual
defendants had any duty to provide him medical care or that they breached any such duty if
one exists. The record contains no evidence that Welch required immediate and urgent emergency
medical care, or that he was helpless and incapable of helping himself. We decline to expand the
limited facts under which such an exception might apply.
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Welch asserts no issue, argument, record citation, or legal authority demonstrating
that the trial court erred by granting summary judgment. We overrule Welch’s issue on appeal and
affirm the judgment.
__________________________________________
Marilyn Aboussie, Justice
Before Justices Pemberton, Field, and Aboussie*
Affirmed
Filed: July 8, 2015
* Before Marilyn Aboussie, Chief Justice (retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code § 74.003(b).
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