Heriberto Martinez Gonzalez v. EC Lewisville, LLC, D/B/A Elite Care Emergency Center Greater Houston Emergency Physicians, PLLC, D/B/A Elite Care Emergency Center And Dr. Harvey Castro

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-17-00122-CV

HERIBERTO MARTINEZ- APPELLANT
GONZALEZ

V.

EC LEWISVILLE, LLC, D/B/A ELITE APPELLEES
CARE EMERGENCY CENTER;
GREATER HOUSTON
EMERGENCY PHYSICIANS, PLLC,
D/B/A ELITE CARE EMERGENCY
CENTER; AND DR. HARVEY
CASTRO

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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 15-04212-158

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MEMORANDUM OPINION1

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1
See Tex. R. App. P. 47.4.
 I. INTRODUCTION

Appellant Heriberto Martinez-Gonzalez sought emergency medical care

from Appellees EC Lewisville, LLC, d/b/a Elite Care Emergency Center; Greater

Houston Emergency Physicians, PLLC, d/b/a Elite Care Emergency Center;

(Elite Care) and Dr. Harvey Castro for right-side abdominal and flank pain, which

was later diagnosed by a physician at Parkland Hospital to be a torsed testicle.

Martinez-Gonzalez filed a health care-liability claim (HCLC) against Appellees;

Appellees filed a no-evidence motion for summary judgment on the willful2-and-

wanton element of Martinez-Gonzalez’s claim for Appellees’ actions occurring

prior to March 13, 2014, and a traditional motion for partial summary judgment

based on Martinez-Gonzalez’s alleged no-causation judicial admission in his

second amended original petition concerning Appellees’ actions on March 13,

2014, or later. The trial court granted both motions and signed a final judgment

for Appellees.

Martinez-Gonzalez perfected this appeal and raises six issues. Because

Martinez-Gonzalez brought forward more than a scintilla of summary-judgment

evidence showing that Dr. Castro deviated from the applicable standard of care

in a willful and wantonly negligent manner and because Appellees’ traditional

motion for partial summary judgment improperly fractures Martinez-Gonzalez’s

2
Unless directly quoting from the civil practice and remedies code, which
uses the spelling of “wilful” as opposed to the more common spelling “willful,” we
will use the more common spelling. See Tex. Civ. Prac. & Rem. Code Ann. §
74.153 (West 2017).

2
HCLC into two distinct parts, and alternatively because the statement in

Martinez-Gonzalez’s live pleading is not a judicial admission, we will sustain

Martinez-Gonzalez’s second and fourth issues and reverse and remand this case

to the trial court.

II. PERTINENT FACTUAL AND PROCEDURAL BACKGROUND

A. Onset of Symptoms and Martinez-Gonzalez’s First Visit to Elite Care

On March 12, 2014, Martinez-Gonzalez experienced abdominal pain,

causing him to seek emergency medical care. Martinez-Gonzalez was admitted

to Elite Care and evaluated by a registered nurse at 11:41 a.m. The nurse’s

impressions are recorded on Elite Care’s form entitled “Emergency Nursing

Record” and subtitled “Abdominal Pain / NVD.” The nurse wrote that Martinez-

Gonzalez complained of waxing and waning flank and gas pain, which had

begun about six hours prior and involved nausea and vomiting. Martinez-

Gonzalez claims that he also told the nurse that he was having inner thigh and

groin pain, but this complaint was not recorded by the nurse.

Dr. Castro’s subsequent evaluation is recorded on Elite Care’s form

entitled “Emergency Physician Record” and subtitled “Abdominal Pain / Flank

Pain.” The form contains numerous boxes to check, apparently to record various

impressions and the patient’s complaints and to guide the physician to other

related examinations and tests. Many of the boxes were checked, but Dr. Castro

did not check the box labeled “Male Genital Exam.” Although Dr. Castro averred

in his summary-judgment affidavit that during the evaluation Martinez-Gonzalez

3
described his pain as an eight out of ten, Dr. Castro also claimed that “Mr.

[Martinez-]Gonzalez denied any testicular pain.”

Martinez-Gonzalez was provided with intravenous fluids and Zofran for his

nausea and vomiting. Dr. Castro ordered a CT scan of Martinez-Gonzalez’s

abdomen, a urinalysis, and blood work, but Dr. Castro did not order an

ultrasound. It is undisputed that Dr. Castro did not perform a genital exam or any

other exam related to testicular torsion.

After analyzing the CT scan and test results, Dr. Castro diagnosed

Martinez-Gonzalez with an umbilical hernia. Dr. Castro instructed Martinez-

Gonzalez to follow up with a gastroenterologist in two days and to return to Elite

Care if his conditions did not improve.

B. Martinez-Gonzalez’s Symptoms Persist

1. Martinez-Gonzalez returns to Elite Care the next day

Martinez-Gonzalez’s symptoms did not improve, so he returned to Elite

Care the next day—March 13, 2014.3 Elite Care did not admit or check in

Martinez-Gonzalez for another examination; instead, Dr. Castro met with him in

the waiting area. Martinez-Gonzalez informed Dr. Castro of his severe groin and

testicular pain, as well as abdominal and right flank pain. In his summary-

judgment affidavit, Dr. Castro states that Martinez-Gonzalez’s complaints

3
Dr. Castro contends that Martinez-Gonzalez arrived at Elite Care at
approximately 4:00 p.m. on March 13, 2014. Martinez-Gonzalez disputes that he
arrived at 4:00 p.m., but he does not provide a time of arrival.

4
regarding abdominal pain were the same but that Martinez-Gonzalez’s

complaints of groin pain were “new.” The parties dispute what happened next.

Dr. Castro states in his summary-judgment affidavit that he advised

Martinez-Gonzalez to check in to Elite Care for further evaluation and possible

transport to another facility but that Martinez-Gonzalez refused because he only

wanted pain medication. Martinez-Gonzalez denies this account and in his

summary-judgment affidavit, he contends that Dr. Castro suggested that he

should go to Parkland Memorial Hospital in Dallas because there was nothing

else that Dr. Castro could do for him. Martinez-Gonzalez’s affidavit states that he

did not go to Elite Care simply to ask for pain medicine without treatment and that

he did not refuse care or transfer. Martinez-Gonzalez claims that Dr. Castro did

not attempt to check him in or examine him but was trying to “rush me out.”

2. Martinez-Gonzalez leaves Elite Care and is admitted at Parkland

Martinez-Gonzalez left Elite Care and sought treatment at Parkland.

Parkland’s records indicate that Martinez-Gonzalez complained of groin pain

lasting for one and one-half days. Parkland’s medical personnel performed a

genital examination and an ultrasound and diagnosed Martinez-Gonzalez with

testicular torsion.4 Martinez-Gonzalez underwent exploratory surgery during

which his right testicle was found to be nonviable and was removed.

4
“Testicular torsion occurs when a testicle rotates, twisting the spermatic
cord that brings blood to the scrotum.” Sison v. Andrew M., No. 02-16-00129-
CV, 2017 WL 3974356, at *2 (Tex. App.—Fort Worth Sept. 7, 2017, pet. filed)
(mem. op.).

5
 C. Martinez-Gonzalez Contacts Dr. Castro After Surgery

While he was recovering on March 14, 2014, Martinez-Gonzalez called

Elite Care and asked why he had not been diagnosed with testicular torsion in

either of his two prior visits. Martinez-Gonzalez spoke to a nurse who recorded

Martinez-Gonzalez’s complaint and notified Dr. Castro. The following day,

Martinez-Gonzalez received a telephone call from Dr. Castro. Martinez-

Gonzalez’s summary-judgment affidavit states that he informed Dr. Castro of his

extreme disappointment about Dr. Castro’s medical care and failure to examine

him or to call an ambulance to transfer Martinez-Gonzalez to Parkland. Dr.

Castro apologized and said that he was trying to save Martinez-Gonzalez money

on ambulance fees and that the removal of Martinez-Gonzalez’s testicle should

not be a “big deal” because Martinez-Gonzalez was thirty-nine and would not be

having any more children at his age. Appellees point to nothing in the record to

show that Dr. Castro disputes or denies the telephone call or Martinez-

Gonzalez’s recollection of the conversation.

D. Martinez-Gonzalez Files Suit

In May of 2015, Martinez-Gonzalez filed the instant HCLC against

Appellees. Thereafter, Martinez-Gonzalez timely filed a notice and certificate of

service of the report and CV of his expert, Dr. William Gibson. Appellees did not

file an objection to Dr. Gibson’s report or a motion to dismiss. Martinez-Gonzalez

eventually filed a second amended petition.

6
 E. Appellees’ Summary-Judgment Motions

Appellees filed a no-evidence motion for summary judgment, asserting that

no evidence existed to support the willful-and-wanton-deviation-from-the-

standard-of-care element of Martinez-Gonzalez’s HCLC against an emergency

room physician—Dr. Castro.

Appellees also filed a traditional motion for partial summary judgment

“based on insufficient causation evidence.” In this motion, Appellees asserted

that multiple statements in Martinez-Gonzalez’s second amended petition when

taken together, constituted a judicial admission conclusively establishing lack of

causation for Appellees’ alleged negligence on or after March 13, 2014. Based

on this alleged judicial admission, Appellees asserted that they were entitled to

summary judgment as to any acts or omissions occurring on or after March 13,

2014.

F. Martinez-Gonzalez’s Responses to Appellees’ Summary-Judgment
Motions

Martinez-Gonzalez filed responses to Appellees’ summary judgment

motions.5 Martinez-Gonzalez’s response to Appellees’ no-evidence motion for

summary judgment attached the following summary-judgment evidence: Dr.

Gibson’s affidavit6; Martinez-Gonzalez’s medical records from Elite Care;

Martinez-Gonzalez also filed a motion to strike Dr. Castro’s affidavit, but
5

the trial court denied it.
6
Appellees filed a motion to strike Dr. Gibson as an expert, but the trial
court denied it.

7
Martinez-Gonzalez’s affidavit; Martinez-Gonzalez’s medical-records excerpts

from Parkland Hospital; e-mail correspondence from Appellees’ insurance

provider’s representative, Amy Evans; a description of Elite Care as a free-

standing emergency department; excerpts from the Texas Administrative Code;

and Appellees’ responses to Martinez-Gonzalez’s requests for production.

Noting that Martinez-Gonzalez complained of waxing and waning pain on

March 12, 2014, Dr. Gibson’s summary-judgment affidavit provided, in part, as

follows:

The standard of medical care indicates that any male of Mr.
Martinez-Gonzalez’s age presenting with unexplained abdominal
pain should have a complete abdominal and testicular examination.
Without prompt medical treatment, the testicle can die within hours
to days. However, waxing and waning is correlated with a condition
called intermittent torsion. The literature indicates that there is a
condition known as intermittent torsion, whereby the torsion is only
partial, and can spontaneously detorse, or retorse, causing
intermittent pain. With waxing and waning, or intermittent torsion
with blood flow running through [the] testicle, the testicle could last
more than 24 hours, or even possibly a few days. As such, it is
possible for [the] testicle to be viable for more than 24 hours, or
more. There are cases with patients having intermittent torsion for
several days and still having viable testes. (emphasis in original)

Dr. Gibson’s affidavit further provides the applicable standard of care for

Dr. Castro and Elite Care for March 12 and March 13, 2014, and lists several

specific actions that constituted Dr. Castro’s and Elite Care’s breaches of the

standard of care: (1) failure of the nursing staff to denote groin pain on the

Emergency Nurse Record, (2) failure to timely diagnose Martinez-Gonzalez, (3)

failure to perform a testicular/genital examination, (4) failure to order an

8
ultrasound, (5) failure to re-examine Martinez-Gonzalez after the CT scan, (6)

failure to properly document Martinez-Gonzalez’s symptoms, and (7) failure to

provide Martinez-Gonzalez with appropriate follow-up instructions. Also relevant

to the March 12, 2014 visit was Dr. Gibson’s opinion that “[a]n ultrasound is the

appropriate test to rule out testicular torsion for any male that presents to an

emergency room with abdominal pain, flank pain, nausea, and vomiting to rule

out testicular torsion.”

Dr. Gibson’s affidavit states that Dr. Castro also failed to comply with the

standard of care, which called for “a complete physical exam of the genitals of a

male patient presenting with sudden onset of pain radiating to the groin, right

flank pain, vomiting, and nausea.” According to Dr. Gibson, “[h]ad this been

done, the patient would not have lost his right testicle due to torsion.”7

G. The Trial Court’s Rulings

After a hearing, the trial court granted both of Appellees’ motions for

summary judgment and entered a final judgment in their favor. Martinez-

Gonzalez raises three issues challenging the no-evidence summary judgment

and three issues challenging the traditional, partial summary judgment based on

his alleged judicial admission.

7
Dr. Gibson’s summary judgment affidavit is attached hereto as Appendix
A.

9
 III. SUMMARY JUDGMENT STANDARDS OF REVIEW

When a party moves for summary judgment under both rules 166a(c) and

166a(i), we will first review the trial court’s judgment under the standards of rule

166a(i). Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 680

(Tex. 2017). If the nonmovant met his burden under rule 166a(i), then we

analyze whether the movant satisfied his rule 166a(c) burden. See id. at 680–81.

A. No-evidence Summary Judgment

After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground

that there is no evidence to support an essential element of the nonmovant’s

claim. Tex. R. Civ. P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310

(Tex. 2009). The trial court must grant the motion unless the nonmovant

produces summary-judgment evidence that raises a genuine issue of material

fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 425,

426 (Tex. 2008).

When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for

evidence that would enable reasonable and fair-minded jurors to differ in their

conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168

S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if

10
reasonable jurors could, and we disregard evidence contrary to the nonmovant

unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the

nonmovant brings forward more than a scintilla of probative evidence that raises

a genuine issue of material fact, then a no-evidence summary judgment is not

proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.

v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030

(2004).

B. Traditional Summary Judgment

Following a traditional summary judgment, the issue on appeal is whether

the movant met his summary-judgment burden by establishing that no genuine

issue of material fact exists and that he is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,

289 S.W.3d 844, 848 (Tex. 2009). We review a traditional summary judgment

de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).

We take as true all evidence favorable to the nonmovant, and we indulge

every reasonable inference and resolve any doubts in the nonmovant’s favor.

20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We consider the

evidence presented in the light most favorable to the nonmovant, crediting

evidence favorable to the nonmovant if reasonable jurors could and disregarding

evidence contrary to the nonmovant unless reasonable jurors could not. Mann

11
Frankfort, 289 S.W.3d at 848. We must consider whether reasonable and fair-

minded jurors could differ in their conclusions in light of all of the evidence

presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.

2006); City of Keller, 168 S.W.3d at 822–24.

IV. TRIAL COURT ERRED BY GRANTING NO-EVIDENCE SUMMARY JUDGMENT MOTION

The trial court’s order granting Appellees’ no-evidence summary judgment

states, “The Court is of the opinion Plaintiff failed to put forth more than a scintilla

of admissible evidence regarding the subjective element of the willful and wanton

standard of proof required under Texas Civil Practice and Remedies Code § []

74.351.” In his second issue, Martinez-Gonzalez contends that the trial court

erred by granting Appellees’ no-evidence motion for summary judgment because

he brought forward more than a scintilla of competent summary-judgment

evidence through Dr. Gibson’s summary-judgment affidavit showing that Dr.

Castro had deviated from the standard of care in a willful and wanton manner.8

A. Deviation from Standard of Care With Willful and Wanton Negligence is
Required in Health Care-Liability Claim Arising from Provision of
Emergency Medical Care

“Section 74.153 governs health care liability claims for injuries . . . arising

from the provision of ‘emergency medical care’ in a hospital emergency

department . . . .” Turner v. Franklin, 325 S.W.3d 771, 776 (Tex. App.—Dallas

8
Martinez-Gonzalez and Appellees agree he received “emergency medical
care,” as that term is defined by section 74.001(7) of the civil practice and
remedies code, at Elite Care on March 12 and March 13, 2014. Tex. Civ. Prac. &
Rem. Code § 74.001(7) (West 2017).

12
2010, pet. denied). Section 74.153 sets forth the following standard of proof in

HCLCs involving emergency medical care:

In a suit involving a health care liability claim against a physician or
health care provider for injury to or death of a patient arising out of
the provision of emergency medical care in a hospital emergency
department or obstetrical unit or in a surgical suite immediately
following the evaluation or treatment of a patient in a hospital
emergency department, the claimant bringing the suit may prove that
the treatment or lack of treatment by the physician or health care
provider departed from accepted standards of medical care or health
care only if the claimant shows by a preponderance of the evidence
that the physician or health care provider, with wilful and wanton
negligence, deviated from the degree of care and skill that is
reasonably expected of an ordinarily prudent physician or health
care provider in the same or similar circumstances.

Tex. Civ. Prac. & Rem. Code Ann. § 74.153. Thus, in a HCLC arising from the

provision of emergency medical care, the claimant must show by a

preponderance of the evidence that the health-care provider deviated from the

applicable standard of care with willful and wanton negligence. Id.; Benish v.

Grottie, 281 S.W.3d 184, 192 (Tex. App.—Fort Worth 2009, pet. denied).

“Section 74.153’s statutorily[-]created standard of proof and the applicable

medical standards of care are not the same thing.” Benish, 281 S.W.3d at 191.

Instead,

[t]he medical standard of care is an element of a plaintiff’s medical
negligence cause of action . . . [while] . . . the standard of proof
imposed by section 74.153 requires proof—that is, evidence at trial
that will more than likely be circumstantial—that the physician or
health care provider’s mental state or intent at the time of any
deviation from the medical standard of care was wilful and wanton.

13
Id. Because Benish was an expert-report case, we resolved it without construing

“willful and wanton negligence”; instead, recognizing that “whatever definition of

wilful and wanton is utilized, section 74.153 requires proof at trial of a mental

state or state of mind beyond mere negligence of the physician or health care

provider at the time of the physician or health care provider’s deviation from the

medical standard of care.”9 Id. at 192. In accordance with our holding in Benish,

Martinez-Gonzalez was required to offer summary-judgment evidence that Dr.

Castro’s mental state at the time of his alleged deviation from the applicable

standard of care was willful and wanton. See id.

B. Willful and Wanton Negligence Means Gross Negligence

Although we did not construe section 74.153’s phrase willful and wanton in

Benish, we now construe this standard-of-proof requirement as meaning proof of

gross negligence. See Turner, 325 S.W.3d at 781–82. After reviewing the

legislative history of section 74.153, the Dallas Court of Appeals in Turner held

that “the legislature intended ‘wilful and wanton negligence,’ as used in section

74.153 of the civil practice and remedies code, to mean ‘gross negligence.’” Id.

Several courts of appeals have either expressly adopted Turner’s holding or used

its definition in their analyses. See, e.g., Miller v. Mullen, 531 S.W.3d 771, 779

(Tex. App.—Texarkana 2016, no pet.) (“For purposes of analyzing this summary

judgment, we assume the Turner definition of the willful and wanton standard, as

9
In Benish, we noted that “conflicting definitions [of willful and wanton
negligence as used in section 74.153] may exist.” 281 S.W.3d at 192.

14
urged by both parties[.]”); Burleson v. Lawson, 487 S.W.3d 312, 322 (Tex.

App.—Eastland 2016, no pet.) (quoting with approval Turner’s conclusion “that

‘willful and wanton negligence’ is the equivalent of ‘gross negligence’”); Ho v.

Johnson, No. 09-15-00077-CV, 2016 WL 638046, at *11 (Tex. App.—Beaumont

Feb. 18, 2016, pet. denied) (mem. op.) (citing Turner to support the proposition

willful and wanton negligence “has been interpreted by Texas courts as being

equated with gross negligence”); Sage v. Howard, 465 S.W.3d 398, 407 (Tex.

App.—El Paso 2015, no pet.) (“We agree with Turner’s analysis and will follow

it.”).

Gross negligence has both an objective10 and a subjective component.

Reeder v. Wood Cty. Energy, LLC, 395 S.W.3d 789, 796 (Tex. 2012). In

examining proof of the subjective component, courts focus on the defendant’s

state of mind, examining whether the defendant knew about the peril caused by

his conduct and continued to act in a way that demonstrated he did not care

about the consequences to others. Diamond Shamrock Ref. Co. v. Hall, 168

S.W.3d 164, 173 (Tex. 2005) (“[T]he plaintiff must show that the defendant knew

Because the trial court expressly granted Appellees’ no-evidence motion
10

for summary judgment based on the “subjective element of willful and wanton
negligence,” the objective component is not at issue here, so we do not discuss
it. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625–26 (Tex. 1996)
(“When reviewing a summary judgment granted on specific grounds, the
summary judgment can only be affirmed if the ground on which the trial court
granted relief is meritorious.”); see also Miller, 531 S.W.3d at 780 (addressing
no-evidence summary judgment motion based solely on the subjective element
of willful and wanton negligence under section 74.153).

15
about the peril, but his acts or omissions demonstrate that he did not care.”); Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 232 (Tex. 2004) (“[I]t is the

defendant’s state of mind[—]whether the defendant knew about a peril but

nevertheless acted in a way that demonstrated that he did not care about the

consequences[—]that separates ordinary negligence from gross negligence.”);

Turner, 325 S.W.3d at 784.

But “[g]ross negligence does not require proof that the defendant intended

or tried to harm the plaintiff[.]” Turner, 325 S.W.3d at 784. Moreover, “[e]vidence

of ‘some care’ will not disprove gross negligence as a matter of law.” Id.; see

also Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001)

(holding “some evidence of care does not defeat gross-negligence finding”).

Thus, we look for evidence of the defendant’s subjective mental state rather than

the defendant’s exercise of care. Turner, 325 S.W.3d at 784. “A plaintiff may

establish the defendant’s mental state by circumstantial evidence.” La. Pac.

Corp. v. Andrade, 19 S.W.3d 245, 247 (Tex. 1999); see also Benish, 281 S.W.3d

at 191 (recognizing that evidence of physician or health care provider’s mental

state or intent in emergency medical care negligence case will likely be

circumstantial).

C. Analysis

We examine the summary-judgment evidence, including Dr. Gibson’s

affidavit, to determine whether the trial court’s order granting Appellees’ no-

evidence summary judgment expressly on the “subjective element of the willful

16
and wanton standard of proof required under Texas Civil Practice and Remedies

Code §74.351[,]” can be affirmed on that ground. See Cincinnati Life Ins.

Co., 927 S.W.2d at 625–26. Dr. Gibson’s affidavit explains that when a male

patient of Martinez-Gonzalez’s age presents in an emergency-room setting with

right-side abdominal and flank pain, the applicable standard of care requires a

genital exam and an ultrasound in order to rule out testicular torsion. Dr.

Gibson’s points out that Elite Care’s own emergency-physician-evaluation form––

to be used specifically in assessing abdominal pain complaints––includes a place

to document a male genital exam for testicular swelling or tenderness, a blank to

check to order an ultrasound, and lists testicular torsion as one of the diagnoses

to be considered by an emergency-care physician when a male presents with

abdominal and flank pain.

Viewed in light most favorable to Martinez-Gonzalez, the summary

judgment evidence establishes that: on March 12, 2014, Martinez-Gonzalez

went to Elite Care for emergency medical care because he was experiencing

symptoms of right-side abdominal and flank pain; Dr. Castro used the

emergency-physician-evaluation form for assessing abdominal-pain complaints

in his evaluation of Martinez-Gonzalez; Dr. Castro failed to perform a genital

exam on Martinez-Gonzalez, failed to note or rule out any testicular swelling or

tenderness of Martinez-Gonzalez, and failed to order an ultrasound; the

emergency-physician-evaluation form listed “testicular torsion” as one of the

possible diagnoses for causing abdominal pain.

17
 Dr. Castro’s conduct on March 12, 2014 constituted not only a breach of

the standard of care, but willful and wanton negligence in deviating from that

standard, as opined by Dr. Gibson in paragraphs 19, 20, 21, 22, and 26 of his

summary-judgment affidavit.

Examining the entire record, crediting evidence favorable to Martinez-

Gonzalez if a reasonable juror could, drawing every inference in his favor from

that evidence that a reasonable juror could, and resolving any doubts against

Appellees unless reasonable jurors could not, more than a scintilla of summary-

judgment evidence exists that would enable reasonable and fair-minded jurors to

differ in their conclusions as to whether Dr. Castro subjectively acted with willful

and wanton negligence on March 12, 2014, in his decisions to not perform a

genital exam or an ultrasound on Martinez-Gonzalez to rule out testicular torsion

despite the fact that Martinez-Gonzalez suffered from—according to Dr.

Gibson—classic testicular-torsion symptoms and despite the fact that Elite Care’s

assessment form for use on patients experiencing abdominal pain, which Dr.

Castro used, had blanks to note the performance of a genital exam, to note any

testicular swelling or tenderness, and to order an ultrasound and listed testicular

torsion as a possible diagnosis applicable to a male experiencing abdominal and

flank pain severe enough to seek emergency medical care. That is, reasonable

jurors could differ in their conclusions as to whether Dr. Castro possessed actual,

subjective awareness of the extreme risk that Martinez-Gonzalez suffered from

the time-sensitive condition of testicular torsion and yet consciously disregarded

18
that risk and its consequences by not conducting an applicable genital exam or

ultrasound. See Sage, 465 S.W.3d at 407 (holding more than a scintilla of

evidence existed regarding subjective element of willful and wanton negligence

under section 74.153); Timpte Indus., 286 S.W.3d at 310 (quoting Mack Trucks,

206 S.W.3d at 582); Hamilton, 249 S.W.3d at 426 (citing City of Keller, 168

S.W.3d at 822).

Further, the summary-judgment evidence that a reasonable juror could

credit favorably to Martinez-Gonzalez establishes that on March 13, 2014,

Martinez-Gonzalez returned to Elite Care complaining of excruciating right

testicular pain and asked for Dr. Castro. Dr. Castro spoke to Martinez-Gonzalez

in the waiting area instead of admitting him for a follow-up examination. Although

Dr. Castro claims that Martinez-Gonzalez only wanted pain medication and

refused to check into Elite Care, Martinez-Gonzalez claims that he did not ask

only for pain medication and did not decline to check in, but instead that Dr.

Castro “rushed me out” of Elite Care, said he could do nothing further for

Martinez-Gonzalez, and told him to go to Parkland Hospital. Martinez-Gonzalez

contends that because he did drive himself to Parkland and did attain admission

there, his actual conduct was inconsistent with Dr. Castro’s contention that

Martinez-Gonzalez wanted only pain medication and refused to be admitted to

Elite Care. Martinez-Gonzalez testified via his summary-judgment affidavit that

he spoke with Dr. Castro after his surgery at Parkland to remove his right torsed

testicle and that Dr. Castro stated he did not believe that the loss of Martinez-

19
Gonzalez’s testicle was a “big deal” because at Martinez-Gonzalez’s age, he

would not be having any more children.

Concerning Dr. Castro’s alleged willful and wanton negligence in deviating

from the standard of care applicable on Martinez-Gonzalez’s March 13, 2014,

visit to Elite Care, Dr. Gibson opines in paragraphs 19, 23, 24, 25, and 26 of his

summary-judgment affidavit that Dr. Castro’s conduct and actions on March 13,

2014, constituted not only a breach of the standard of care and a violation of

various provisions of the Texas Administrative Code, but also constituted willful

and wanton negligence in deviating from the standard care.

Again, examining the entire record, crediting evidence favorable to

Martinez-Gonzalez if a reasonable juror could, drawing every inference in his

favor from that evidence that a reasonable juror could, and resolving any doubts

against Appellees unless reasonable jurors could not, more than a scintilla of

summary-judgment evidence exists that would enable reasonable and fair-

minded jurors to differ in their conclusions as to whether Dr. Castro acted with

willful and wanton negligence on March 13, 2014—in his decisions to not admit

Martinez-Gonzalez for screening, examination, treatment, and transfer, despite

Martinez-Gonzalez’s time-sensitive emergency medical condition of a torsed right

testicle. Thus, more than a scintilla of evidence exists that that would enable

reasonable and fair-minded jurors to differ in their conclusions as to whether Dr.

Castro’s deviations from the standard of care on March 13, 2014, were done with

willful and wanton negligence. See Turner, 325 S.W.3d at 784–85 (holding

20
defendant’s expert testimony of no willful and wanton negligence in deviation

from standard of care applicable to testicular torsion did not conclusively negate

willful and wanton element); Timpte Indus., 286 S.W.3d at 310 (quoting Mack

Trucks, 206 S.W.3d at 582; Hamilton, 249 S.W.3d at 426 (citing City of Keller,

168 S.W.3d at 822).

We hold that the trial court erred by granting summary judgment on

Appellees’ no-evidence motion for summary judgment. We sustain Martinez-

Gonzalez’s second issue.11

V. TRIAL COURT ERRED BY GRANTING APPELLEES’ TRADITIONAL MOTION FOR
PARTIAL SUMMARY JUDGMENT

In his fourth issue, Martinez-Gonzalez contends that the trial court erred by

granting Appellees’ traditional motion for partial summary judgment because

statements in his live pleading did not constitute a judicial admission regarding

causation and because he set forth competent summary-judgment evidence to

create a genuine issue of material fact on causation.

A. Impermissible Fracturing of Martinez-Gonzalez’s HCLC

Appellees’ traditional motion for a partial summary judgment is improper. It

impermissibly fractures Martinez-Gonzalez’s single HCLC into two distinct parts

11
Martinez-Gonzalez’s first and third issues also challenge the propriety of
the no-evidence summary judgment granted by the trial court, but because we
reverse the no-evidence summary judgment in toto based on Martinez-
Gonzalez’s second issue and because Appellees’ no-evidence motion for
summary judgment was granted solely on the subjective element of the willful
and wanton standard of proof, we need not address his other issues challenging
the no-evidence summary judgment. See Tex. R. App. P. 47.1.

21
for purposes of attaining a judgment: a HCLC for Appellees’ conduct on or

before March 12, 2014, and a HCLC for Appellees’ conduct on or after March 13,

2014. Appellees’ traditional motion for partial summary judgment asserted that

no causation exists for Appellees’ acts on or after March 13, 2014, and sought a

“partial” summary judgment on the portion of Martinez-Gonzalez’s HCLC that

encompassed Appellees’ alleged negligent acts on or after March 13, 2014.12 A

trial court is not authorized to adjudicate fragmentary issues of fact or law which

are not dispositive of any claim or contention or to render summary judgments

splitting a cause of action. See Timothy Patton, Summary Judgments in Texas:

Practice, Procedure and Review § 3.03[1] (3d ed. 2017) (citing Pecorino v.

Raymark Indus., Inc., 763 S.W.2d 561, 570, 576 (Tex. App.––Beaumont 1988,

no writ)). Thus, because Appellees’ traditional motion for partial summary

judgment attempts to negate causation in Martinez-Gonzalez’s HCLC only from

March 13, 2014, forward, it impermissibly fractures Martinez-Gonzalez’s HCLC

and is improper. Id. The trial court erred by granting a traditional, partial

summary judgment on causation on the portion of Martinez-Gonzalez’s HCLC

alleging negligent acts by Appellees on or after March 13, 2014.

12
Appellees argued that on March 13, 2014, based on the alleged judicial
admission in Martinez-Gonzalez’s live petition, too much time had passed to
save Martinez-Gonzalez’s testicle, regardless of Dr. Castro’s alleged acts and
omissions on that date, thereby defeating causation as a matter of law as to
Appellees’ negligence on March 13, 2014.

22
 The sole basis for Appellees’ traditional motion for partial summary

judgment is the alleged judicial admission by Martinez-Gonzalez. Because the

statement pleaded by Martinez-Gonzalez does not meet the requisites of a

judicial admission, as we discuss below, we alternatively hold that the trial court

erred by granting Appellee’s traditional motion for partial summary judgment for

this reason.

B. No Judicial Admission

A judicial admission must be a clear, deliberate, and unequivocal

statement, and occurs when an assertion of fact is conclusively established in

live pleadings, making the introduction of other pleadings or evidence

unnecessary. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex.

2000) (quoting Regency Advantage Ltd. P’ship v. Bingo Idea–Watauga, Inc., 936

S.W.2d 275, 278 (Tex. 1996) and Chilton Ins. Co. v. Pate & Pate Enters.,

Inc., 930 S.W.2d 877, 884 (Tex. App.—San Antonio 1996, writ denied)). As long

as the statement stands unretracted, it must be taken as true by the court and

the jury. See Lee v. Lee, 43 S.W.3d 636, 641 (Tex. App.—Fort Worth 2001, no

pet.). Assertions of fact, not pleaded in the alternative, in the live pleadings of a

party are regarded as formal judicial admissions. Holy Cross Church of God in

Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001). A statement of opinion,

however, is not susceptible to being characterized as a judicial admission. See

Hedge v. Bryan, 425 S.W.2d 866, 868 (Tex. Civ. App.—Tyler 1968, writ ref’d

n.r.e.) (“[I]n order for a statement to constitute a judicial admission, it must . . . be

23
a statement of fact, rather than opinion.”); Roberts v. Burkett, 802 S.W.2d 42, 45

(Tex. App.—Corpus Christi 1990, no writ) (“Statements of opinion are not judicial

admissions.”).

C. Analysis

In paragraph 15 of the “Background Facts” section of Martinez-Gonzalez’s

second amended petition, he pleads that on March 12, 2014, he was evaluated

by a registered nurse at Elite Care at 11:41 a.m.; that he reported his pain level

to be an eight out of ten; that he complained of pain radiating to his inner

thigh/groin but the nurse did not note this; that his abdominal pain and back pain

began at about 6:00 a.m. and had increased by 10:00 a.m.; that he took Tums

around 10:30 a.m.; and that when his pain did not improve, he went to Elite Care.

Paragraph 21 of the “Background Facts” section of Martinez-Gonzalez’s second

amended petition alleged:

A testicular examination should be performed on any male
presenting with a chief complaint of lower abdominal pain, back/
flank pain, or any pain that radiates to the groin. It is well
established that testicular torsion may cause referred pain to the
abdomen thereby requiring a genital exam. Early diagnosis and
treatment are vital to saving the testicle and preserving future
fertility. The testis salvage rate approaches 100% in patients who
undergo detorsion within 6 hours of the start of pain. However there
is only a 50% viability rate if detorsion occurs >12 hours; and
virtually no viability if detorsion is delayed >24 hours.4 [citing
Wampler SM, Llanes M (September 2010). ‘Common scrotal and
testicular problems’. Prim. Care 37 (3): 613–26.”] Gonzalez
exhibited fairly textbook presentation of acute testicular torsion that
mandated prompt diagnosis and treatment. However, the diagnosis
apparently was not even entertained, nor was proper treatment
initiated. Elite care failed to have in place a procedure or protocol

24
 that would implement timely emergency medical care for an
individual complaining of testicular pain.

Appellees intertwine paragraph 15’s estimation––that Martinez-Gonzalez’s

“abdominal pain and back pain began at about 6 a.m.”—with paragraph 21’s

statement that: “[t]he testis salvage rate approaches 100% in patients who

undergo detorsion within 6 hours of the start of pain. However there is only a

50% viability rate if detorsion occurs >12 hours; and virtually no viability if

detorsion is delayed >24 hours[.]” Then Appellees perform the math.13 Then

Appellees argue that putting the statements in paragraphs 15 and 21 together

and superimposing the computed math on Martinez-Gonzalez’s petition,

Martinez-Gonzalez has therefore judicially admitted that no causation exists in

his HCLC against them concerning any willful and wanton deviation from the

standard of care on March 13, 2014, because Martinez-Gonzalez arrived at Elite

Care on March 13, 2014, more than twenty-four hours after the onset of his

symptoms.

We cannot agree that this required combination of juxtaposing different

pleaded background statements, intertwining them, and computing math based

13
The math is as follows. Computing 12 hours after paragraph 15’s
“around 6:00 a.m.” on March 12, 2014 equals approximately 6 p.m. on March 12,
2014; so, juxtaposing that with paragraph 21’s viability rates, a 50% right-testicle
viability rate exists for Martinez-Gonzalez only through 6 p.m. on March 12, 2014.
Then, adding another 12 hours to 6 p.m. on March 12, 2014 (to reach 24 hours)
equals 6:00 a.m. on March 13, 2014. And juxtaposing that with paragraph 21’s
viability rates, a 0% viability rate for Martinez-Gonzalez’s right testicle existed by
6:00 a.m. on March 13, 2014.

25
solely on a medical article’s stated testicle-salvage rates cited in a footnote of a

live pleading, is a statement of fact that is clear, deliberate, and unequivocal as

required to constitute a judicial admission. See Horizon/CMS Healthcare Corp.,

34 S.W.3d at 905 (holding plaintiff’s pleadings constituted judicial admission that

defendant was a health care entity). It is not clear; multiple statements must be

intertwined and math computed to reach the statement purportedly “judicially

admitted.” It is neither deliberate nor unequivocal for the same reason. Nor is it

a statement of fact. At most, it is a statement of medical opinion in a medical

article cited in a footnote of Martinez-Gonzalez’s second amended original

petition. See, e.g., Hedge, 425 S.W.2d at 868 (explaining statement of opinion is

not judicial admission). Moreover, it was controverted by Dr. Gibson’s summary-

judgment affidavit.14 And finally, pleadings are generally not competent evidence

in a summary judgment proceeding in any event. See, e.g., Laidlaw Waste Sys.

(Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (“Generally,

pleadings are not competent evidence, even if sworn or verified.”); see also In re

B.I.V., 870 S.W.2d 12, 13–14 (Tex. 1994) (holding that summary judgment

should not be based on a pleading deficiency that could be cured by

14
Dr. Gibson’s affidavit set forth expert testimony explaining that because
Martinez-Gonzalez articulated that his abdominal pain symptoms were “waxing
and waning,” as noted in Appellees’ medical records, Martinez-Gonzalez could
have been experiencing intermittent testicular torsion, where the testis twists and
untwists on the spermatic cord. According to Dr. Gibson, under this diagnosis, “it
is possible for [a] testicle to be viable up to 24 hours or more. There are cases of
patients that have had intermittent torsion for several days and still have viable
testicles.”

26
amendment); Womack v. Allstate Ins. Co., 296 S.W.2d 233, 237 (Tex. 1956)

(“[W]hen the affidavits or other summary judgment ‘evidence’ disclose facts

which render the position of the moving party untenable, summary judgment

should be denied regardless of defects which may exist in the pleadings of the

[nonmovant].”).

We therefore hold that the trial court erred by granting Appellees’

traditional motion for partial summary judgment. We sustain Martinez-

Gonzalez’s fourth issue.

VI. CONCLUSION

Having sustained Martinez-Gonzalez’s second issue resulting in reversal

of the trial court’s no-evidence summary judgment and having sustained

Martinez-Gonzalez’s fourth issue resulting in the reversal of the trial court’s

traditional, partial summary judgment, we need not address Martinez-Gonzalez’s

first, third, fifth, or sixth issues. See Tex. R. App. P. 47.1. We reverse the

summary judgments granted by the trial court and remand this case for further

proceedings. See Tex. R. App. P. 43.2(d), 43.3.

/s/ Sue Walker
SUE WALKER
JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ

DELIVERED: March 8, 2018

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APPENDIX A

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