1996 WL 337108

No Publication

(Cite as: 1996 WL 337108 (Tex.App.-Hous. (14 Dist.)))

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NOTICE: NOT DESIGNATED FOR PUBLICATION. UNDER TEX.R.APP.P. 47.7 UNPUBLISHED OPINIONS MAY NOT BE CITED AS AUTHORITY.

Court of Appeals of Texas, Houston (14th Dist.).

Grace D. ADAMS, individually, Jerry Adams, individually, Paula Adams,

individually and on behalf of Rebecca Adams Richards and David Adams,

Appellants

v.

Dr. Felipe RIOS, Dr. Richard Moser and University of Texas M.D. Anderson Cancer

Center, Appellees.

No. 14-95-00239-CV.

June 20, 1996.

Before YATES, O'NEILL and SEARS, [FN*] JJ.

FN* Justice Sears sitting by assignment.

OPINION

SEARS, Justice.

*1 Appellants, Grace Adams and Paula Adams (the Adams), appeal from summary judgments in favor of appellees, Felipe Rios, M.D. (Dr. Rios), Richard Moser, M.D. (Dr. Moser), and University of Texas M.D. Anderson Cancer Center, (Cancer Center). In eight points of error, the Adamses allege the trial court erred in granting the motions for summary judgment. We reverse and remand.

FACTS AND PRIOR POSTURE+

On August 7, 1991, Grace Adams shot and killed her ex-husband, Silas Adams. The Adamses allege that Grace shot Silas due to the adverse side effects caused by a drug known as Halcion. Grace alleges that because of Halcion she suffered from: disinhibition, elicitation of interpersonal aggression, psychosis, depersonalization, loss of sense of reality, bazaar and profoundly disturbing behavior, aggressive assaultive behavior, homicidal compulsion, and amnesia. Before this case was filed, the Adamses and several other plaintiffs had previously filed a case in state court against Upjohn, the manufacturer of Halcion. Upjohn had the lawsuit removed to federal court. The other plaintiffs in that suit included Jerry Adams, Patricia Adams Schiro, and Paula Adams Munday, individually, and on behalf of Rebecca Adams, Richard Adams and David Adams.

In the federal lawsuit, the plaintiffs alleged that: (1) Upjohn was strictly liable because it failed to provide warnings regarding the dangers of Halcion; (2) Upjohn knew of the potential hazards of Halcion and concealed its dangers; and (3) Upjohn failed to warn hospitals and physicians of the hazards and risks associated with the drug's use. The plaintiffs attached the affidavit of their expert C. Lee Parmley M.D. to their fourth amended complaint. Dr. Parmley swore Upjohn failed to warn doctors and health providers of the dangers of Halcion, and because of this failure to warn, Halcion was being dispensed and prescribed without full knowledge of its potential danger.

On June 23, 1993, the federal lawsuit against Upjohn was voluntarily dismissed by the plaintiffs. The Adamses then filed this suit in state court against the physicians who prescribed Halcion to Grace and the hospital. [FN1] All the defendants filed motions for summary judgment which the trial court granted.

FN1. We note that Jerry Adams was named as a party to this appeal, but he did not perfect his appeal by filing a cost bond or affidavit. Therefore, we have no jurisdiction to accept a notice of appeal when the appeal is not properly perfected. See Tex.R.App. P. 41; Downs v. Trevathan, 783 S.W.2d 689, 690 (Tex.App.--Houston [1st Dist.1989, no writ).

STANDARD OF REVIEW

The movant for summary judgment must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). We will take all evidence favorable to the non-movant as true, and we will indulge every reasonable inference in the non-movant's favor. Id.

Summary judgment for the defendant is proper when the proof shows that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff's causes of action. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990); White v. Wah, 789 S.W.2d 312, 315 (Tex.App.--Houston [1st Dist.] 1990, no writ). In other words, a defendant must disprove, as a matter of law, at least one of the essential elements of a plaintiff's cause of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991).

*2 When a defendant is a movant for summary judgment, and bases the motion for summary judgment on affirmative defenses, he must prove all the elements of such defenses as a matter of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). Once the movants have established a rebuttable right to summary judgment, the non-movants' response must expressly present any reasons seeking to avoid the movant's entitlement, and must support the reasons with summary judgment proof sufficient to establish a fact issue. Westland Oil Development Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907 (Tex.1982); Cummings v. HCA Health Servs. of Texas, 799 S.W.2d 403, 405 (Tex.App.-- Houston [14th Dist.] 1990, no writ).

This summary judgment order does not specify the ground or grounds relied on for the ruling; therefore, we will affirm the judgment if any one of the theories advanced in the motion for summary judgment is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380-81 (Tex.1993).

DISCUSSION

In the Adamses' points of error two and three, they assert the trial court erred in granting summary judgment on Dr. Rios's, Dr. Moser's, and the Cancer Center's affirmative defense of judicial estoppel.

The elements required to trigger judicial estoppel are: (1) the prior inconsistent statement must have been made in a judicial proceeding, (2) the party now sought to be estopped must have successfully maintained the prior position, and (3) the prior inconsistent statement must not have been made inadvertently or by mistake, fraud, or duress. Long v. Knox, 155 Tex. 581, 291 S.W.2d 292, 295 (1956).

Judicial estoppel is based on inconsistency in judicial proceedings. Balaban v. Balaban, 712 S.W.2d 775, 777 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.). Under this doctrine, a party is estopped from taking a position which is contrary to an admission or allegation which was made under oath in a prior proceeding. Long v. Knox, 291 S.W.2d at 295; Moore v. Neff, 629 S.W.2d 827, 829 (Tex.App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.).

The doctrine of judicial estoppel bars a party who has successfully maintained a position in a prior judicial proceeding from later adopting an inconsistent position, unless that party can show the prior statement was made inadvertently due to mistake, fraud, or duress. Long, 291 S.W.2d at 295; Welder v. Welder, 794 S.W.2d 420, 431 (Tex.App.--Corpus Christi 1990, no writ); Moore, 629 S.W.2d at 827 (emphasis added).

In Blackburn v. Blackburn, 163 S.W.2d 251, 255 (Tex.Civ.App.--Amarillo 1942, no writ), the court held that an appellee who filed a sworn inventory and appraisement for divorce, which did not list certain property as separate property, was not barred in the second suit from listing and claiming the property as separate because the appellee had voluntarily dismissed the first suit. The court reasoned the appellee had gained nothing by the first inventory filed because he had not successfully maintained that position. Id.

*3 Since the first petition was abandoned, it was not conclusive or binding on the party in a second suit. Id.; Long, 291 S.W.2d at 296.

In the prior Federal suit, the Adamses alleged Upjohn failed to adequately warn prescribing physicians of the dangers and hazards of Halcion. In the subsequent suit, now on appeal, the Adamses allege Dr. Rios, Dr. Moser and the Cancer Center knew of these dangers and failed to warn Grace. These are contrary positions. However, the Adamses did not successfully maintain the position in Federal Court because they took a non-suit.

Dr. Moser and the Cancer Center argue that "successfully maintained" is not a required element of judicial estoppel. Dr. Rios asserts that the Adamses did successfully maintain their position because they voluntarily dismissed the Upjohn lawsuit which allowed them to file this suit in state court. They analogize that a party who settles a lawsuit is judicially estopped from taking a contrary position in a subsequent action, therefore, a party who voluntarily dismisses their action in a prior proceeding should also be estopped. See Owen v. Knop, 853 S.W.2d 638, 642 (Tex.App.--Corpus Christi 1993, writ denied). We disagree.

We hold that a party who voluntarily dismisses a lawsuit has not successfully maintained any position taken in that suit and is not judicially estopped from taking a contrary position in any subsequent lawsuit. Before the question of judicial estoppel arises, the position assumed in the former proceeding must have been "successfully maintained". We sustain the Adamses' points of error two and three.

In the Adamses' fourth point of error, they assert the trial court erred in granting the motions for summary judgment on the ground of equitable estoppel. However, equitable estoppel was never raised in any of the defendants' motions for summary judgment, therefore, the summary judgment could not have been based on equitable estoppel. We overrule the Adamses' fourth point of error.

In the Adamses' sixth point of error, they assert that the trial court erred in granting summary judgment for the Cancer Center on the ground that it is immune from suit under the Texas Tort Claims Act. There is no dispute that The University of Texas M.D. Anderson Cancer Center is a governmental unit. The Texas Civil and Practice Remedies Code, Section 101.021(2) creates a waiver of sovereign immunity when "personal injury and death [are] caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2) (Vernon 1986).

The Adamses assert the hospital is not immune from liability because the Cancer Center's Outpatient Pharmacy dispensed Halcion to Grace. The Adamses rely on Quinn v. Memorial Medical Center, 764 S.W.2d 915 (Tex.App.--Corpus Christ, 1989, no writ). Quinn holds that dispensing of a drug by a hospital pharmacy is use of tangible personal property and falls within the waiver provisions of the statute. Id. at 917; see also Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32 (Tex.1983); Overton Memorial Hosp. v. McGuire, 518 S.W.2d 528, 529 (Tex.1975). The Adamses support this assertion by attaching Exhibit "M" to plaintiffs' response to defendants' motions for summary judgment. Exhibit "M" contains a list of the drugs dispensed by the Cancer Center's pharmacy to Grace.

*4 The Cancer Center argues the Adamses never alleged in their petition that the pharmacy dispensed Halcion or otherwise acted negligently or wrongfully. Contrary to this assertion, the plaintiffs' third amended petition alleged the Cancer Center and its personnel should have known of the proximate hazards which attend the negligent manner in which Grace Adams' Halcion prescriptions were "caused to be approved and released." Although the Adamses did not specifically plead the hospital dispensed the drug, they have pled that the center was negligent in the use of medication. See Kassen v. Hatley, 887 S.W.2d 4, 13 n. 9 (Tex.1994).

The Cancer Center next argues the plaintiffs' third amended petition alleges the Cancer Center failed to reject Grace Adams' telephone request for Halcion, therefore, the Adamses are complaining of the Cancer Center's failure to exercise judgment rather than the use of tangible personal property. However, this argument fails to consider the fact that the Cancer Center's Outpatient Pharmacy dispensed Halcion to Grace. See Quinn, 764 S.W.2d at 917.

The Cancer Center argues Quinn is distinguishable from the instant case because in Quinn the question was whether the physician resident had authority to prescribe the medication. The Cancer Center asserts the physician's authority to prescribe Halcion is undisputed in the instant case, and contends the Adamses are challenging the decision to authorize the dispensing of a drug, and not the use of the drug itself.

After reviewing the record, Exhibit "M" is a list of the prescriptions for Halcion, prescribed by Dr. Moser and dispensed to Grace from the Cancer Center Outpatient Pharmacy. Because the dispensing of a drug by a hospital pharmacy is use of tangible property and falls within the waiver of sovereign immunity under the Texas Tort Claims Act, we sustain the Adamses' sixth point of error.

The Adamses assert in points of error five, seven, and eight, that the trial court erred in granting summary judgment for Dr. Moser and the Cancer Center because Dr. Moser's affidavit is insufficient and fact issues remain in the plaintiffs' cause of action. The plaintiff in a medical malpractice action must prove four elements: (1) a duty by the physician to act according to a certain standard; (2) a breach of the applicable standard of care; (3) an injury; and (4) a causal connection between the breach of care and the injury. White, 789 S.W.2d at 315; Pinckley v. Gallegos, 740 S.W.2d 529, 531 (Tex.App.--San Antonio 1987, writ denied).

Dr. Moser and the Cancer Center allege in their motion for summary judgment that they negated two elements of the plaintiffs' cause of action, causation and breach of the standard of care. The Adamses assert Dr. Moser and the Cancer Center failed to negate proximate cause and breach of the standard of care and fact issues remain in their cause of action. Specifically, the Adamses contend Dr. Moser was negligent in his care and treatment of Grace, that he prescribed inappropriate and excessive amounts of Halcion, failed to consider Grace's age and medical history in making the diagnosis, failed to warn of the dangerous side effects of the drug, failed to conduct personal examinations before prescribing the drug, and failed to monitor her behavior.

*5 First, we will consider whether the standard of care element was negated as a matter of law. The Adamses contend Dr. Moser and the Cancer Center did not negate the standard of care element because Dr. Moser's affidavit is conclusory and incomplete. The threshold question in a medical malpractice case is the standard of care. The applicable standard must be established so the fact finder can decide if the defendant deviated from it. Chopra v. Hawryluk, 892 S.W.2d 229, 233 (Tex.App.--El Paso 1995, writ denied); Armbruster v. Memorial Southwest Hosp., 857 S.W.2d 938, 941 (Tex.App.-- Houston [1st Dist.] 1993, no writ); Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex.App.--[1st Dist.1988, writ denied). In medical malpractice cases, the standard of care must be established by expert testimony. Id.

Testimony from an interested expert, that is, the defendant doctor, can establish the standard of care and support summary judgment if the testimony is clear, direct, positive, otherwise credible, free of contradictions and inconsistencies, and capable of being readily controverted. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991); Chopra, 892 S.W.2d at 233; Armbruster, 852 S.W.2d at 941. It is not sufficient for an expert to simply state that he or she knew the standard of care and conclude it was met. Rather, the expert must state what the standard is and explain how the defendant's acts met that standard. Chopra, 892 S.W.2d at 233; Nicholson v. Naficy, 747 S.W.2d 3, 4-5 (Tex.App.--Houston [1st Dist.] 1987, no writ).

Dr. Moser contends that his affidavit meets these criteria, properly setting forth the standard of care in Harris County for a staff physician serving in the Department of Neurosurgery at the University of Texas M.D. Anderson Cancer Center. He states:

During the years 1989-1991, for patients who have undergone neurosurgery and thereafter complain of pain, headaches, depression and sleeplessness, it was within the standard of care for the attending physician to prescribe and/or renew certain medications for the patient. Specifically, prescribing Halcion for sleeplessness and renewing a prescription for Prozac for depression was within the standard of care. The standard of care required that when prescribing and/or renewing any medication, the attending physician should have information regarding the patient's physical and mental history, past medical and surgical history, medicines, allergies, and social history.

Pursuant to the standard of care, the attending physician was required to instruct the patient that should she have any problems whatsoever with the prescribed medication, she should notify the attending [physician]. Further, when requested by the patient to refill such prescribed medication, the attending [physician], in making his or her decision about whether to refill, was required to inquire about the success of the medication for that patient, as well as the frequency and time of day the patient is taking the medication.

*6 In December 1988, Ms. Adams was referred to Dr. Babaian at the M.D. Anderson Cancer Center for further evaluation and treatment for low pack [sic] pain and hematuria. Ms. Adams also complained of staggering, stumbling and confusion. A complete physical examination was performed, and information was obtained regarding Ms. Adams' past medical and surgical history, medicines, allergies, social history, including Ms. Adams' "history of severe depression with admissions in the past." A cystoscopy was successfully performed on Ms. Adams and a CT scan of her brain was ordered.

It was around the time of Ms. Adams' July 1989 hospitalization that I became involved in Ms. Adams' care and treatment. Ms. Adams was seen at M.D. Anderson on 7/31/89, 10/2/89, 11/30/89, and 12/18/89. I personally visited with Ms. Adams on 5/4/90 and 6/22/90.

Dr. Moser further stated he prescribed 40 .125 mg tablets of Halcion on 9/13/89; 30 .25 mg tablets on 2/26/91; 90 .25 mg tablets on 3/26/91; and 30 .25 mg on 7/8/91. He specifically stated that all of the plaintiffs' allegations were without merit and based his expert opinion upon a reasonable medical probability that none of his actions breached the appropriate standard of care for a patient such as Grace Adams.

The Adamses responded with an affidavit from Dr. John McInnes Henderson, M.D., that contained his sworn expert testimony, based upon a reasonable degree of medical certainty. He stated that he was familiar with the standard of practice in Harris County, Texas during the years 1989 to 1991. Contrary to Dr. Moser's position, Dr. Henderson stated based upon his expert opinion, that Dr. Moser breached the standard of care practiced in Harris County when he rendered care to Grace Adams during the years 1989 through 1991.

Dr. Henderson gave specific reasons for his belief that Dr. Moser breached the standard of care and because of such breach he stated the negligence of Dr. Moser was a proximate cause of the death of Silas Adams. Specifically, Dr. Henderson stated:

Dr. Moser provided an inappropriate drug, Halcion, for Ms. Adams considering her age and prior psychiatric history; Ms. Adams had a brain tumor during this period and the use of Halcion was an inappropriate selection, especially in combination with Prozac; the drugs were repeatedly prescribed without adequate supervision; the prescriptions were refilled in quantities too large and the prescriptions too frequent, e.g., 90 Halcion and 180 Prozac both prescribed on 3/27/91; Dr. Moser is a surgeon and not trained in psychopharmacology; Ms. Adams was an elderly patient and Halcion is a sedative agent known to produce diverse adverse side effects especially in elderly patients; according to the warnings in the package insert Halcion should be prescribed for only limited periods, e.g., 30 days and Dr. Moser far exceeded these warning on more than one occasion; and Dr. Moser did not adequately supervised his patient, or he would have known that shortly before the offense Ms. Adams was having "violent thoughts" because she stated in the Harris County Sanity Evaluation on August 28, 1991, that she specifically wanted to stab her husband.

*7 After reviewing the summary judgment proof, we conclude a genuine issue of fact exists as to both the standard of care and causation element, which is sufficient to defeat the motion for summary judgment. Accordingly, we sustain the Adamses' fifth, seventh, and eighth points of error.

In conclusion, we sustain the Adamses' first point of error, asserting the trial court erred in granting the motions for summary judgment. Therefore, we reverse the motions for summary judgment granted in favor of Dr. Rios, Dr. Moser and the Cancer Center and remand to the trial court for proceedings consistent with this opinion.

The judgment of the trial court is reversed and remanded.

END OF DOCUMENT