Turner v. Franklin
325 S.W.3d 771
Tex. App.2010Background
- K.M.T., 14, presented to the Presbyterian Hospital Allen ED with sudden, severe lower abdominal pain and left testicular swelling.
- Franklin, the ED physician, suspected torsion or epididymitis and ordered a scrotal ultrasound and pain meds/antibiotics.
- Cohn, the on-call radiologist, reviewed the ultrasound at home and reported epididymitis with no torsion; Franklin diagnosed epididymitis and discharged K.M.T. around 3:45 a.m.
- Over the next several days, K.M.T. was treated by his pediatrician and in the ED with epididymitis diagnoses; subsequent ultrasound later indicated a left testicular tumor.
- Strand, a urologist, later concluded torsion and performed exploratory surgery, removing a torsed, nonviable left testicle; the Turners sued Franklin and Cohn for health care liability under §74.153.
- The trial court granted summary judgments in favor of Cohn and Franklin; the appellate court reversed as to Franklin, affirmed as to Cohn, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §74.153 apply to the Turners’ claims? | Turners contend no emergency care was provided. | Defendants argue emergency care statutory language supports applicability. | Yes; claims arise from emergency medical care under §74.153. |
| What is the meaning of wilful and wanton negligence under §74.153? | Gross negligence standard should apply; evidence on intent is immaterial. | Requires proof of intent or extreme disregard. | Wilful and wanton negligence means gross negligence. |
| Can gross negligence be decided by summary judgment? | Gross negligence is a jury issue, not suitable for summary judgment. | Summary judgment may determine gross negligence where appropriate. | Summary judgment can resolve gross negligence if evidence supports it. |
| Was the summary judgment proper as to Franklin and Cohn? | Franklin’s subjective awareness not proven; Cohn’s no-evidence showing insufficient. | Franklin failed to negate subjective element; Cohn’s evidence insufficient for willful/wanton. | As to Franklin, summary judgment improper; as to Cohn, no-evidence judgment proper. |
Key Cases Cited
- Moriel v. Transp. Ins. Co., 879 S.W.2d 10 (Tex. 1994) (defines gross negligence with objective and subjective elements)
- Hogue v. City of Las Colinas, 271 S.W.3d 248 (Tex. 2008) (stresses subjective awareness and conscious indifference)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standard for gross negligence analysis and summary judgment considerations)
- Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex. 1981) (equates gross negligence with conscious indifference to rights of others)
- Frias v. Atl. Richfield Co., 999 S.W.2d 97 (Tex.App.-Houston [14th Dist.] 1999) (evidence of care does not necessarily negate gross negligence)