Flynn v. Houston Emergicare, Inc.

OPINION

HEDGES, Justice.

This appeal arises from a summary judgment granted in favor of defendants Houston Emergicare, Inc. and Ron Kremer, M.D. In two points of error, appellant Diane Flynn urges that the trial court erred in granting the summary judgment. We affirm.

1. Fact Summary

Plaintiff Diane Flynn appeals a summary judgment in favor of defendants, Houston Emergicare, Inc. and Dr. Ron Kremer. On January 6, 1988, plaintiff was injured in a rear-end collision caused by William J. Broa-dus. About one hour before the accident, Broadus had been treated by Dr. Ron Kremer, who was employed by Houston Emergi-care, Inc. at the Houston Northwest Medical Center. Plaintiff sued defendants, alleging that they were negligent in failing to admit Broadus to the hospital for observation and in failing to warn Broadus not to drive for a specified period of time.

Defendants moved for summary judgment on plaintiff's ninth amended petition. The summary judgment evidence consisted of the affidavit of Dr. Ron Kremer and excerpts from the depositions of Broadus and of the plaintiffs expert witness, Dr. Blake Berry.

In excerpts from his deposition, Broadus stated that about 8:301 on the night before the accident he snorted cocaine provided by a girl with whom he had sex. He awoke about 5:30 the next morning feeling “kind of sluggish.” When he got into the shower, he felt a “heavy pressure in his chest” as if he were having a heart attack. He drove himself to the emergency room.

Dr. Ron Kremer stated in his affidavit that he examined Broadus at approximately 7:30 a.m. on January 6, 1988. Broadus had come to the emergency room of Houston Northwest Medical Center complaining of chest pain. The doctor took an electrocardiogram and a chest X-ray and placed Broadus placed on a cardiac monitor. The exam and history indicated that Broadus was experiencing a “hyperadrenergic excess sympathetic state of stimulation secondary to cocaine use.” Dr. Kremer prescribed ten milligrams of Inderol, a “betablocker,” to slow the heart rate and lower the blood pressure. Dr. Kremer’s affidavit indicated that there are no known side effects to Inderol at the dosage prescribed, and that based on reasonable medical probability, the prescription would not incapacitate the patient, cause drowsiness, or impair his ability to drive.

Dr. Berry stated that unless he could find a “specific definite cause” for chest pain or unless a private physician examined and released a patient complaining of chest pain, he would admit the patient for 24-hour observation to rule out “myocardial infarction or myocardial ischemia.” Under similar circumstances, he would instruct a patient not to drive even if the symptoms of intoxication had abated.

2. Summary Judgment

A summary judgment for the defendant disposing of the entire case is proper only if, as a matter of law, the plaintiff could not succeed upon any theories pleaded. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983); Havens v. Tomball Community Hosp., 793 S.W.2d 690, 691 (Tex.App.—Houston [1st Dist.] 1990, writ denied).

In her ninth amended petition, plaintiff asserted that defendants were negligent in the care and treatment of Broadus in the following particulars: (1) failing to properly monitor Broadus’ total health and medical clinical picture and failing to properly diagnose the nature, extent, and status of his *405medical and physical condition; (2) failing to admit him to the hospital for observation and failing to assure that he had safe and controlled passage from the hospital; and (3) failing to warn him of the “crash” phenomenon associated with cocaine use and failing to warn him not to drive. Plaintiff would extend defendants’ duty to treat Broadus in a nonnegligent manner beyond the patient himself to the general public.

This is not a medical malpractice ease falling under the Medical Liability and Insurance Improvement Act. That statute defines a “health care liability claim” in terms of the relationship between the physician and patient as follows:

[A] cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.

Tex.Rev.Civ.StatANN. art. 4590i, § 1.03(a)(4) (Vernon Supp.1993) (emphasis added). It is undisputed that no doctor-patient relationship existed between Dr. Kremer and plaintiff. Common-law negligence comprises plaintiffs sole ground for recovery.

Defendants moved for summary judgment on the basis that they owed no duty to plaintiff as a member of the public and absent a doctor-patient relationship with defendants. Any negligence action requires that there must first be a duty flowing from the defendant to the plaintiff. See Fought v. Solce, 821 S.W.2d 218 (Tex.App.—Houston [1st Dist.] 1991, writ denied); Gooden v. Tips, 651 S.W.2d 364, 366 (Tex.App.—Tyler 1983, no writ). The existence of a duty under a given set of facts is a question of law. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990); El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). Because the important facts are undisputed, we need not remand this issue to the trial court for a factual determination before we decide whether any duty exists that controls liability in this case. See W.C.W. v. Bird, 840 S.W.2d 50, 55 (Tex.App.—Houston [1st Dist.] 1992, writ requested).

In Gooden, the plaintiff sought damages from Dr. Tips for personal injuries sustained when the doctor’s patient struck Mr. Gooden with the patient’s automobile. At the time of the collision, the patient was driving under the influence of the drug Quaalude, which had been prescribed for her by Dr-. Tips. The plaintiff alleged that Dr. Tips breached his legal duty to him as a member of the public by negligently prescribing Quaalude for his patient and by failing to warn her not to drive while under the influence of the drug. Gooden, 651 S.W.2d at 365. The Tyler Court of Appeals agreed, reversing the trial court’s summary judgment in favor of the doctor and holding that “under proper facts, a physician can owe a duty to use reasonable care to protect the driving public where the physician’s negligence in diagnosis or treatment of his patient contributes to plaintiffs injuries.” Id. at 369.

The Gooden court limited its holding within a narrow framework. It specifically rejected the imposition of a duty on Dr. Tips to control his patient. The nature of the physician’s care and treatment of the patient is paramount to the extension of duty beyond the patient to the public:

The question appears to be essentially one of whether the defendant has gone so far in what he has actually done, and has got himself into such a relation with the patient, that he has begun to affect the interests of the plaintiff adversely, as distinguished from merely failing to confer a benefit upon him.

Gooden, 651 S.W.2d at 370 n. 3 (quoting Prosser, Handbook of the Law of Torts, § 56, at 339-40 (4th ed. 1971)). The court found that in going so far as to prescribe the drug for his patient, the defendant had begun to injure the interests of the public “by allowing his patient to leave without a warning of the possible adverse effects of the drug.” Gooden, 651 S.W.2d at 370 n. 3. Therefore, a duty to the public arose because the physician created the impairment that resulted in injury to the plaintiff.

We look to the nature of the defendants’ care and treatment of Broadus to decide whether a duty to the public arose in this *406case. Because there is no allegation or evidence that defendants did- anything to create the impairment that ultimately resulted in injury to plaintiff, we hold that defendants did not owe plaintiff a duty to warn Broadus not to drive. We agree with defendants that plaintiff has not shown an affirmative act by Dr. Kremer that caused Broadus’ impairment.2 Broadus’ ingestion of cocaine caused any impairment that led to his automobile accident, and Dr. Kremer’s care and treatment bears no relationship to that incapacity. Therefore, defendants owed no duty to the public to warn Broadus not to drive following his ingestion of cocaine. In so holding, we distinguish the facts in this case from those in Gooden insofar as in that case the physician did create the accident-causing impairment when he prescribed Quaaludes to his patient.

We overrule points of error one and two.

We affirm the judgment of the trial court.

. This detail was contradicted by Dr. Kremer, who stated in his affidavit that Broadus’ medical history indicated that Broadus had been taking cocaine off and on between 11:00 p.m. and 3:00 a.m.

. Plaintiff never alleged that the prescribed drug Inderol created the impairment that resulted in injury to plaintiff.