*1
properly
Bivens claims were
dis
CONCLUSION
they
presented
missed because
a situation
hold that claims under the Texas Whis-
“military decision-making ‘would be
concerning military personnel
Act
tleblower
by
judicially
remedy
undermined
created
nonjus-
guard
are
matters
a state national
exposing
personal liability at the
officers to
tieiable,
properly
and that
the trial court
charged to com
hands of those
are
concluded,
Having
cause.
so
dismissed the
” Holdiness,
(quoting
mand.’
asserted on the less an unwarranted intrusion
constitute no military than personnel
into the structure §in of claims founded
entertainment attempts
§ Bivens.” Id. Newth holding
to characterize this final as dictum pendent to because the state-law claims were Raymond CASAREZ, Appellant, not, Dictum or the dismissed federal claims. persuaded are that state-law claims would we decision-making surely military undermine HOSPITALS, INC., Siena NME d/b/a nonjusticia- to be as the federal claims held Center, Medical and Genaro ble. M.D., Appellees. Vasquez, error, point of Newth contends In his third No. 08-93-00182-CV. holding erred in that claims thе trial court Texas, Appeals of Court of in a concerning military personnel matters El Paso. nonjusticiable. guard national are state distinguish attempts to his case Newth Aug. 1994. officer, by arguing he is an Crawford Rehearing Sept. Overruled Army Na- member of the Texas enlisted Guard, main- that the concern of tional important when the
taining discipline is less However, Newth fails
plaintiff is an officer. the Feres Stanley extension of
to address Chappell doctrines to claims that arise activity incident
out of or are in the course of Stanley, 483 at
to service. See U.S. maintaining The concern for
S.Ct.
military discipline the chain of command disciplinary hinge on whether the
does not military decision-making structure of the by or an enlisted challenged an officer judicial review of conclude that
member. We Texas based on the
a claim no less Act would constitute
Whistleblower military into the
an unwarranted intrusion than the entertainment
personnel structure brought under actions or claims
of Bivens Act, 42 sec- Tort Claims U.S.C.
the Federal the federal whistle- 1983 and
tions point of error is The third
blower statute.
overruled. *2 Schwambach, McGregor,
Malcolm John C. Jr., Paso, appellant. El Hicks, Huchton, Hadley Larry A. Hicks W. Associates, Puig, Kay Yvonne K. C. Jen- & Hammond, kins, Smith, Kemp, Duncan & P.C., Paso, appellees. El BARAJAS, C.J., Before and KOEHLER LARSEN, JJ. OPINION LARSEN, Justice. Casarez,
Raymond plaintiff, brought M.D., against Vasquez, suit Genaro Hospitals NME Sierra Medical Center d/b/a (Sierra hospital), alleging or the their proximately caused his contrac- immunodeficiency virus tion of the human (HIV). motions for Both defendants filed grounds. summary judgment, on different granted summary judgment The trial court defendants, both appeals. affirm the Quali- Vasquez, that sum- cated status as to Dr. but conclude grant- ty have and Infectious mary judgment should not been Assurance Committee ed on statute of limitations Disease of SIERRA Control Committee grounds. part affirm in We therefore MEDICAL These committees CENTER. *3 part. responsible instituting and remand are for isolation reverse patients.
procedures HIV for my patient’s I communicated Once FACTS status to MEDICAL CENTER SIERRA 1989, 27, Vasquez, a On March Genaro personnel, hospital steps took to 'im- the disease, physician pulmonary specializing pre- pose universal isolation. Universal patient admitted a to Sierra Medical Cеnter. 30, being on March cautions were observed terminally acquired ill patient The was patient 1989. died at SIERRA MED- This (AIDS). deficiency syndrome In immune 12, April on ICAL CENTER deposition testimony, Vasquez Dr. related his procedure pa- upon admission the AIDS tient as follows: According to the Guidelines Preven- patient] him [the A: I admitted When tion of of Human Immunode- I hospital diagnosis, and knew this B ficiency Hepatitis Virus to Virus and you, I I communicated this to as told Workers, Safety Health-Care and Public people hospital by means of employers a detailed work should establish history physical doing doing a and and practices that includes standard program pa- an admission instruction on the operating procedures for all activities hav- In both of those I mentioned tient. potential exposure; appropriate admitting diagnosis, which was personal protective equipment should be I positive reactive. communicat- routinely by employer made available And to the nurses. then from then ed exposure. to reduce the risk do, on, they they do whatever need sign a outside posted The people. as to all as well patiеnt’s informing all visitors door Q: you’re telling hospi- me Now that the speak with they and must attendants that this tal understood was AIDS patient’s charge entering the nurse before patient? gloves hospital provided The and room. Yes, A: sir. masks, goggles, outside gowns but no your admitting Q: diagnosis And in plaintiff and all undisputed room. It is instructions, you your doctor’s did knew that were workers precautions should be tak- state what attending patient. an AIDS respect en with treatment patient’s family plaintiff Ray- The hired patient? assistant, Casarez, nursing mond a certified any precau- specifically I did not state A: private duty as a provide additional tions, that was not I was because what treating Mr. trained in nurse. (cid:127) I am supposed supposed to do. diseases, including patients with infectious patient diagnosis, a with a make admit patients in other AIDS cared for diagnosis and treat that a past, and AIDS is transmitted. knew how diagnosis. precautions Whatever techniques in isolation Casarez was educated depends I taken on what are to be spread of HIV and in preventing diagnosis partic- a for that establish as know, “[y]ou if deposition testified patient. ular certified, рatient, of a you’re to take care how testimony, the doctor
Similarly, in affidavit told you have to be about shouldn’t testified: 1989, 11, April isolation.” On 1989, respiratory which irritat- 27, received treatment I admitted an HIV March
On Casarez, part Mr. ed a sore his mouth. positive patient to SIERRA MEDICAL job duties, swabbing the sore when I took the On March CENTER. involuntarily spewed blood patient and communi- history of the thus mouth, eyes, mucus arm. an infectious disease does not transmit over Casarez’s day. died the next disease to others? 8,May Casarez was tested for HIV on question legal duty whether exposurе to 1989 because he feared the virus any particular set of one exists under facts is dying patient’s body from the fluids. He Tips, law. Gooden v. showing received test results he was HIV 1983, writ); (Tex.App. Tyler no Producers — 19,1989.1 positive on June He filed this suit Lindsay, Corp. Grain n against Vasquez Dr. Medical Cen- writ). (Tex.Civ.App. In — Amarillo ter on June asserting Vasquez duty that Dr. breached him, chiefly upon relies two Mr. Casarez SUMMARY JUDGMENT cases; imposing we do not read either as *4 VASQUEZ DR. FOR duty upon the doctor facts here. under the alleged Mr. Casarez’s lawsuit that Dr. Vas- upon Tips. Plaintiff relies first Gooden v. quez negligently expo- causеd Mr. Casarez’s by plaintiff There was struck an automobile ways: in following sure to HIV the by Tips’ patient, driven Dr. who was under (1) failing In precau- to order universal prescription quaaludes the influence of at the incident; tions before the urged time of the accident. Gooden that the (2) failing In to warn the and duty negligently doctor breached his to use dangerous of the condition of .others protect driving public reasonable to the patient dangers the AIDS and the physician’s diagnosis where the in working patient when patient or treatment of his contributed to the properly protected; not plaintiffs injuries. Tyler The Court held (3) failing comply In with OSHA and that there a fact Dr. issue as to whether governmental regulations relat- Tips’ failure to warn his not to drive patients; to the care of AIDS taking quaaludes proximately while resulted (4) failing In to include in his chart ade- party’s injuries. Tips’ in a third Dr. sum- quate protection orders for the mary judgment solely the in that case was based attending pa- health care workers physician-patient relationship [the on the lack aof tient]; injured person. between himself and the (5) question There is no that Mr. Casarez’s failing In appropriate to make an clini- any physician- claims are not on founded
cal progression assessment of the patient relationship, but we believe the case symptomatology the disease and in his may distinguished ground. on be another resulting and determination of isolation, protec- the need for barrier harm, In the found Gooden Court tions, etc., precautions, universal suffi- accident, an automobile was: protect anyone cient to Plaintiff and reasonably consequence [ A] foreseeable might reasonably foreseeably else who physician’s failure to warn his patient. come into contact with that not to drive. There other cases dis [in “duty Plaintiff Vasquez ascribes to Dr. cussed], here, knew, physicians in steps take whatever are reasonable under ordinary the exercise of care should have the circumstances to reduce the likelihood of known, patient’s ... that their condition parties injured by to third who be seriously impair patient’s ability could patient.” question that We formulate the Gooden, to drive a motor vehicle. presented by Vasquez Dr. hеre as follows: S.W.2d at 369-70. duty physician hospital, what does owe the workers, visitors, contrast, par- summary judgment health care and In third evidence hospital in-patient that ties insure this case established that Mr. Casarez was cases, purposes appeal summaiy all For of this from a we assume contest- nonmovant, judgment, we assume that Mr. Casarez contract- ed facts in favor of the and make all possible ed HIV from his infected favor. Nixon v. Mr. in the manner inferences describes, Co., Inc., Property Management he and that his HIV test re- by patient. flected his in all infеction that As by complied duty by to Mr. methods with his well aware of the transmitted, notifying hospital’s and well- infectious disease con- could be also was quality techniques treating trol assurance com- versed in isolation when committee Moreover, hospital patient’s re- mittee AIDS infection. Once patients. committees, walls, he had the doctor protocols tained over within its notified the control duty right rely possessed upon third had warn treating procedures institute isolation persons dangers appropriate involved in warnings attending visiting The visiting patients. its hаrm to Casa- rez, therefore, properly reasonably patient. The trial court was not a foresee- entered summary Vasquez. in favor of Dr. consequence physician’s judgment able failure to professional, order a health care precautions employ, doctor’s to use of which SUMMARY JUDGMENT FOR already
he
well aware.
THE HOSPITAL
upon by plaintiff
second case relied
summary
moved for
Bird,
(Tex.App.—
judgment only
ground
W.C.W. v.
on the
the two-
run;
writ granted),
Dist.]
Houston
re
[1st
of limitations
it ac
statute
Supreme
knowledges
versed
Texas
in Bird
appeal
applicable
Court
*5
W.C.W.,
(Tex.1994).
v.
767
That
868 S.W.2d
of
is that found at
statute
limitations here
§
parent
daugh
case
a
who sued his
involved
16.003
Ann.
Tex.Civ.PRAc. & Rem.Code
(Vernon
negligently misdiagnos
psychiatrist
ter’s
for
was filed more than two
Suit
alleged exposure
a
of sexual abuse. The
years
her as
victim
after
to
Mr. Casarez’s
Supreme
HIV,
there held that “a mental
years
Court
but
after he
less than two
learned
professional duty
no
professional
health
owes
The hospital
of his
test results.
party
negligently
of
third
to not
urged
care to a
that
was aware of the
Mr. Casarez
Bird,
patient.”
transmitted,
misdiagnose a condition of a
way
that he
there
HIV is
knew
Thus,
longer
no
exposed
365
sys-
multiplies, impairing the immune
ly-inflicted
plaintiff
did not
then
disease where
tem,
occur,
allowing
of an
other infections to
and could not know thе nature
Negli
eventually killing the infected human host.
the time a cause of action accrued.
Conduct,
Notes,
inherently
Multiple De-
gent
transmission is one such
Standards
subject
fendants,
Recovery Damages in
cause of action
to the
and Full
undiseoverable
Wadley
Liability
Hu-
discovery rule.
J.K. and Susie L.
Tort
the Transmission of
Virus,
Immunodeficiency
18 Hofstha
Research Institute and Blood
v. Bee man
Bank
(1989).
son,
37, 44
HIV is transmitted
(Tex.App.
S.W.2d
L.Rev.
— Dallas
denied).3
con-
through direct blood-to-blood or sexual
writ
Levine,
person.
Ac-
tact with an infected
hospital argues that
Defendant
because
quired Immunodeficiency Syndrome: The
way
Mr. Casarez was well aware
Facts,
infec-
at 437. After
S.Cal.L.Rev.
transmitted,
knew
tion,
HIV can remain undetectable
AIDS,
suspected
and indeed
he had been
body
year;
for over a
blood tests to deter-
exposed to the virus at the
of his
instant
presence
mine the
of HIV are considered
exposure,
apply
rule should
only
exposure.
certain
fourteen months after
until
here. The statute should not be tolled
Darby,
John Patrick
Tort
plaintiff
positive,
learned he was HIV
Damages
the AIDS Virus:
claims, because this would lead tо situations
Prospective
Fear
suspecting exposure
where someone
to the
(1988),
197 n. 60
Lee
Wash. &
L.Rev.
prolong
ability
virus could
their
to file suit
citing
Fineberg,
Impact
E.
on Public
years by
being
never
tested and thus
(1986). Thus,
Policy
person
infected
postponing
confirmation of
negative
with the virus
still test
for over
that,
urges
virus. The
further
even
Moreover,
exposure.
after
before
learned he had
contracted
asymptomatic
infected with HIV can remain
*6
(and
exposed
virus
even if he had been
years.
or
virus
months
Id.
186. The
it)
HIV but did not contract
he had a cause
may
years,
lаtent
seven
consid-
remain
damages
of action and
for which he could
by
experts
ered
some
to be a normal incuba-
Thus,
claims,
have sued.
the date
period,
tion
individ-
but some believe certain
upon
which a
positive
discovers HIV
may
asymptomatic
long
for as
uals
remain
disagree.
status should not control. We
We
years.
undisputed
fourteen
Id.
It is
that
HIV,
contracting
believe that the means of
periods
widely.
vary
these latent
testing procedures,
widely varying
the
facts,
disagree
these
we
with the
Given
periods during
symp-
incubation
which no
hospital’s positiоn
discovery
that
the
rule
exist,
require
toms
all
that we formulate a
apply
person suspects
does not
where a
HIV
discovery rule in HIV cases different from
exposure
infection as soon as
occurs. Partic-
urged by
hospital.
the
ularly because individuals cannot know for
Although
probably
HIV has
been in exis-
they
they
until
test
certain
have the virus
years
tence for a
longer,
hundred
or
discovery
positive,
especially
rule seems
diagnosed
Angeles
was first
in Los
in applicable.
Levine,
M.
Acquired
Alexandra
Immunodefi-
Facts,
ciency Syndrome: The
conclude the sounder rule is to
S.Cal.
We
apply
discovery
(1991).4
The cause of the
rule in
the traditional
HIV
L.Rev.
disease,
plaintiff suspects expo
not
until
ascertained
is the
cases even where the
immediately.
HIV retrovirus which attaches to
of limitations
certain
sure
The statute
knows,
normally responsible
begins
white blood cells
for the
to run when an individual
body’s
through
immune functions.
Id. The virus
the exercise of reasonable care and
1993),
Probably
analogous
(Tex.App.
most
use of the discov
Paso
rev'd on
— El
ery
rule in other slow-onset disease cases are
grounds,
contracted the See positive status. That he cannot dam- person A recover S.W.2d at 695. cannot know ages that do his not result from contraction certainty of the infection until he or she tеsts virus, however, preclude not him does virus; if suspects for the he or she invoking damages from however, exposure, not be reason- would contracting the virus. put ascertaining symptoms able off it until Thus, develop.6 hospital’s we believe the concomitantly conclude that we deliberately concern de- would discovery question refuse to allow the lay by testing for the virus is addressed here, jury reach we would in effect be con- formulation of the itself. We have encouraging upon uncon- lawsuits based sidered, reject, and conclude we must exposure, many firmed fear of of which hospital’s argument that could Mr. Casarez probably exposed filed if would never be any brought exposure have suit time after they jeopardize individuals knew would not virus, even before he had waiting they he knew their claims to learn whether may positive. Although plaintiffs actually peo- tested HIV the virus.7 Few contracted possess damages likely bring ple suit for indeed a cause action for are the mere suspicion law resulting anguish caused unless the from the fear and so; requires them HIV, to do hold that by exposure even where dо discovery rule apply does not would encour- disease, see, ultimately Darby, contract the age litigation upon fear of even based Tort ultimately proves fear where such unfounded. Virus, at 199- 45 Wash. & Lee L.Rev. This, believe, policy. bad we would be (1988), damages in such a case would lag exposure to the and a time between virus serious, different, be and far less than those result, positive test some eases actually contracting virus associated with period as long be almost as the limitations Here, its inevitable death sentence. itself, problem, employ- exacerbates alleges Mr. Casarez that Sierra’s rule diminishes it. proximately of HIV. caused contraction past are an- he seeks mental then, reasons, we For these believe that care, guish, cost of medical and future mental genuine Mr. Casarez has raised issue *7 petition anguish. Although his not discovered, does fact he material as to when past specify, damages anguish for his mental through the and exercise of reasonable care discovered, be to after he must restricted the time diligence that he had should have virus, contracted as he generally, learned he had contracted v. HIV. See Woods Inc., Mercer, 515, discovery any 769 cannot rule to cover M. invoke William S.W.2d holding comports of law various 5. This with the conclusions 7.One review article discusses the damage some de- Murray elements for infection in jurisdictions. courts in other v. Hamot Darby, tail. See John Tort Erie, Patrick City Pa.Super. Medical 429 Center for of of Damages the AIDS Virus: 625, 196, (1993); 633 American for A.2d 201 Doe v. of Prospective Fear AIDS and 45 Cross, 610, Wash. & 500 National 176 Wisc.2d Red 185, (1988). ac- 192-93 The author Lee L.Rev. 264, (1993); Presbyteri Sweeney N.W.2d 265 knowledges contracting the dis- that the fear of Center, Presbyterian 763 Medical an/Columbia F.Supp. injury, present ease is a real and even where 50, (S.D.N.Y.1991); DiMarco v. Hud 53 develops: disease never Services, Valley 542 son Blood 147 A.D.2d genuine as a and fear of Just reasonable (N.Y.App.Div.1989); Prego v. N.Y.S.2d present injury, cancer a reason- constitutes York, City 147 A.D.2d 541 N.Y.S.2d Newof genuine present and fear of AIDS is a able injury, 1989). (N.Y.App.Div. development though is even of AIDS speculative. fear of To collect for hand, On the there in 6. are circumstances prove must that his AIDS ... HIV carrier plaintiffs wholly which hаve been unaware genuine AIDS and Be- fear of is reasonable. suspect and had reason developing AIDS an HIV cause the risk of from There, developed substantial, until AIDS. the courts will is an HIV carrier infection upheld tolling of until the difficulty proving have limitations fear of lithe that his have diagnosis. symptoms genuine onset of led to the HIV reasonable. Id. at 192- Beeson, omitted]. [Footnotes at 695. 93. (Tex.1988); Weaver, equal not and this HIV cases are created S.W.2d suspicion might point, should proves that his that he that each case We hold case the virus from the AIDS on its fact situation have contracted be considered own goes to his care and than evidence of rather have the merits HIV, being promptly willy-nilly in tested for applied all such 'cases. preclude reliance on the but does his unnecessarily repeating the facts Without Summary discovery rule as a of law. matter it is ably majority opinion, forth in the so set limita judgment in favor of the Casarez, plaintiff, emphasize well was, therefore, grounds improper. tions assistant, nursing very familiar is a male by profession by life-style with the both CONCLUSION dangers of AIDS transmission summary judg- affirm the trial court’s сare-giver proper and with isolation Vasquez, ment in favor of Genaro M.D. We transmissions, prevent procedures such summary judgment trial court’s reverse the including wearing gloves. of mask and Hospitals in of NME Med- favor d/b/a employed through employ- was Casarez proceed- and remand further ical Center Pool, by agency, Medical ment Personnel opinion. in ings accordance with this family provide patient’s additional dying that his from the and knew Justice, KOEHLER, concurring and initially the AIDS effects of virus. He was dissenting. agency instructed Carmen of his Sanchez I concur with the аffirmance of the sum- only protective clothing was to that the he mary judgment granted Vasquez, to Genaro gloves so wear were that some members majority M.D. for the reasons stated family ignorant diagnosis patient’s of his However, I opinion. respectfully dis- must he He dying would not know was of AIDS. portion majority opin- sent from that terminally ill experienced earing for which reverses the ion patients. Obviously aware of he was granted Hospi- had been to the NME possible dangers contracting AIDS tals, grounds Inc. on statute of limitations spewed April when on 1989 his Raymond and remands the cause of action face, mouth, onto blood and mucous alleged against has prior arm. Casarez was well-aware proceedings. further alleged of what he has to be the majority has arrived at its conclusion hospital.1 negligent acts omissions of the that the statute of limitations danger enough concerned He was about applied involving be to all claims cases contracting the that he went virus virus, negligent infliction of rea- the HIV thirty (May testing days less than later soning that virus infected with the him that the showed He learned test results negative expo- test after over Thus, positive on to be HIV June *8 may remain asymptomatic sure and of the twenty-two in in almost months which he had years. disease for months or I have no two-year stat- suit before the standard to file discovery quarrel application with the of limitations would have run. ute of typical case where AIDS/HIV patient, unsuspected to the disease as in not a is Because Casarez himself was ordinary action transfusion But all is an cause of the blood cases. AIDS/ (3) petition, alleged failing to and others 1. In his first amended Casarez In warn the Plaintiff dangerоus condition of the AIDS proximately were caused that his dangers working with an AIDS and the following hospital's acts and omissions: properly protected; when not (1) failing provide In Plaintiff and other (4) failing comply and other In with OSHA protective gowning and a co-workers governmental regulations relating to the dispose proper place gowning; of said patients; of AIDS (2) failing provide Plaintiff and co- (5) In following precautions in In universal goggles of the and other patient; workers Plaintiff with care and treatment of the AIDS eyewear caring protective and fаcewear while and (6) patient; workplace. providing for an AIDS In not Plaintiff a safe 368 personal injuries, malprac wearing protective equipment not a of not medical subject provisions well, time,
tice case to the of the knew as at the of the occurrence Improve Medical and Insurance hospital’s alleged negligent of the acts and Act, art. 4590i ment got as he did after he the results omissions Tex.Rev.Civ.StatAnn. (Vernon Pamphlet per An action for Although test. he not have chosen injuries brought sonal must be not later than to file suit over thе mere traumatic event of years two cause of action accrues. after the having spewed upon been blood and 16.003(a) § & Rem.Code Ann. Tex.Civ.PRAC. bodily patient, fluids of an AIDS (Vernon 1986). Generally, a cause of action very dangers knew well of the that such an accrues when facts come into existence which likelihood, posed and of than event more suit, authorize claimant file is when possibility, a remote that he could be infected wrongful injury, regardless act effects an of with the HIV virus. injury. when the claimant learned of the Just because the HIV virus is involved Weaver, 18, Robinson v. 550 S.W.2d 19 (keeping in mind that this is not a medical (Tex.1977); Wadley L. J.K. and Susie Research case), malpractice put Casarez should not be Beeson, Institute and Blood Bank v. 835 position any ordinary in a better than would 1992, (Tex.App. S.W.2d 693 writ — Dallas discover, accident-victim who did not denied). unjust In to avoid the result order could not have in the exercise of discovered run where limitations would before care, ordinary until after the two- negligent was aware that a act or omission had run. statute injury, Supreme had caused an Court “discovery exception creаted the rule” as an I would affirm the general applied in rule to be medical granted in favor of the as well as the other, malpractice, and a limited number summary judgment granted in favor Inc., Sterling Drug, situations. Moreno v. doctor under the facts of this case. (Tex.1990). 351 Under the S.W.2d rule, a cause of action does not discovers, through accrue until a
the exercise of reasonable care discover, injuries. the nature of his
Moreno, 351; Riojas at v. Phil S.W.2d Inc., (Tex.
lips Properties,
denied).
App. Corpus
writ
It
Christi
—
only
causes of action that can be
those
REYNA, Appellant,
Jesus V.
inherently
characterized as
undiscoverable
applies.
American
Ins., Co.,
Ins.,
Centennial
Co. v. Canal
FIRE INSURANCE
NATIONAL UNION
(Tex.App
[1st
S.W.2d
. —Houston
PITTSBURGH,
COMPANY OF
1991),
part,
part
aff'd in
rev’d in
Dist.]
PENNSYLVANIA, Appellee.
grounds,
opinion, where the did not diligence, ordinary care and the exercise of negligent act or
could not have known of the symptoms until the HIV had devel-
omission very dangers
oped, Casarez was aware of