*2
period
year
preceding the collision made the
HINOJOSA, Jr.,
Before FEDERICO G.
Appellants
basis
this suit.
did not contro-
BASS,1
CHAVEZ and SAM
JJ.
this
vert
evidence.
summary judgment,
his motion for
OPINION
Wendenburg
in
admitted that Peterson had
HINOJOSA, Jr.,
FEDERICO G.
Justice.
formed him of a
seizure
occurred ten
is an appeal
take-nothing
from
sum- months before the traffic accident. Howev
mary judgments
er,
asserting
in a lawsuit
a sur-
testified
affidavit and
wrongful-death
Ap- deposition
specifically
vival action and
he
Peter
claims.
warned
pellants,
Herbert,
Stan
Appellants
Praesel and Louise
son not to drive.
controverted
Bass,
(Ver-
assigned
pursuant
Sam
Justice
this Court
to Tex.
74.003
Gov’t
Code
Ann.
1988).
Chief Justice of the
Court of Texas
non
care to
Wendenburg’s
deposition
affidavit and
testi-
use reasonable
negligence in
mony
with affidavits from Peterson and his
where
to this
wife. That fact issue is immaterial
of his
contrib-
or treatment
however,
appeal,
because
injuries.”
plaintiffs
utes to
Id. at 369.
moved for
on the sole
petition
concluded that Gooden’s
al-
*3
ground
appellants
duty to
that he owed
no
leged
might support
that
a determina-
facts
“
warn Peterson not to drive. The existence of
Tips’
guilty
Dr.
of
‘misfea-
tion that
was
may
duty
question
a
a threshold
that
Id. at
opposed
as
to ‘nonfesanee.’”
sance’
preempt
whether the
the need to determine
any
370 n. 3.
the basis
standard of care was breached. See St. John
public
liability
driving
to the
under Gooden
(Tex.1995).
420,
Pope,
424
901 S.W.2d
Be-
the defendant doctor’s “misfea-
must involve
in
judgments
cause the
involved
“merely failing
than
to confer a
sance” rather
solely
this case were based
on the absence of
(quot-
upon”
driving public. Id.
benefit
the
duty,
legal
a
the issue of whether Wenden-
Torts,
Prosser,
ing
the Law
Handbook of
of
burg warned Peterson not to drive is not
(4th
1971)).
56,
at 339-40
ed.
properly under consideration.
Flynn
duty
was further discussed in
error,
By
their first
Inc.,
Emergicare,
v. Houston
Reversing
summary judg-
Tips
Dr.
as a claim of misfeasance rather
the trial court’s
ment,
Flynn,
than nonfeasance.
869 S.W.2d at
the Gooden court held
“under
facts,
distinction,
Flynn
can owe a
405-06. Based on that
Emergicare
injuries.
Id. at 578. The
doctor
the Freeses’
court concluded
guilty only
alleged
negli-
was
nonfeasance because
Freeses
the doctor
impairment
doctor did not create the cocaine
gent
in his
and treatment of the
Consequently,
that resulted
the accident.
advising
the driver that he
driver and
Flynn
Emergicare
owed
held
failing
could drive or in
to warn the driver
public
patient not
no
to warn its
to drive.
Id. Under
these circum-
following
patient’s
use
cocaine.
stances,
drive
the Iowa
Court held that
Id. at 406.
“to state a claim
the Freeses had not failed
may
granted
on which
relief
Flynn,
physi
Gooden
Under
proved.”
state of facts which could be
only
cian
has a
Id.
patients not to drive when it is the doctor’s
*4
public’s
actions that have threatened the
in
underlying appellants’ claim
The facts
duty
require
physi
terest. This
does not
Johnson, Waller, and
Clin
against
the Sadler
patient
cian to warn his
not to drive when the
substantially
ic
different from the facts
are
merely
doctor’s actions have
failed to confer
in
presented
to the Iowa
Court
safeguard
might
pro
have
a beneficial
Freese,
In
his doctor
Freese.
the driver told
driving public.
tected the
a seizure that occurred less than three
about
case, appellants
In the instant
do not al-
that resulted in
months before the seizure
lege
epilep-
created Peterson’s
ease, however,
that suit. In our
Peterson did
sy
in the
or caused the seizure
resulted
Johnson, Waller,
or the Sadler Clinic
tell
traffic accident which killed Mrs. Praesel.
seizure,
oc
his most recent
which
about
Instead, appellants complain
appellees’
year
than a
before the seizure
curred less
nonfeasance caused Mrs. Praesel’s death.
with
that resulted in his traffic accident
Mrs.
has shown that neither Gooden
Our research
Johnson, Waller,
Consequently,
Praesel.
Flynn
any
authority has
nór
nor
other Texas
to know
and the Sadler Clinic had no reason
imposed
physicians.
such a
Whether
during
seizures
that Peterson suffered
this court
be the first in Texas to
should
four-year period immediately before the
recognize
duty requires
such a
consideration
seizure that led to this suit.
“factors,
risk,
including the
fore-
of several
foreseeability
injury
from a traffic
seeability,
injury weighed
likelihood of
significantly
accident caused
a seizure is
against
utility of
con-
the social
the actor’s
has no reason to
reduced when
duct,
guard-
magnitude
of the burden of
in
patient
know that his
suffered a seizure
ing against
injury,
consequences
and the
preceding
years.
37 TexAd-
four
Cf.
placing
on the defendant.”
the burden
15.58(1)(F) (West 1995) (Depart-
min.Code
Phillips,
Transp. Co. v.
Greater Houston
Safety
ment of Public
refers drivers license
mayWe
also
suffering
epilepsy to Texas
applicants
from
law of other states.
take into account the
only applicant
if
Advisory Board
has
Medical
Beecham,
at 351.
SmithKline
years).
past
within
three
This
had seizure
Appellants cite us to the Iowa case of
foreseeability
against
militates
bur-
reduced
(Iowa
Lemmon,
Freese v.
lost control however, considering appellants’ claims when driver and the driver’s doctor. their Wendenburg. Wendenburg against testified pleading, alleged that the driver the Freeses always report told his diagnosis and treat- that he consulted the doctor for him, activity to and that it was than three months be- their seizure ment of seizures less practice warn them not to drive. Wen- seizure that caused fore the driver over, specifically contrasted denburg patient also that if a “should the Bird stated seizure, against have and have he could at issue that case Mil an accident in which he could hurt or recognized to warn in the Gooden case: explained, himself.” further utility failing little social There is possible that could hurt kill some- “It’s he patients about known side-effects of warn else, body always up by I follow that utility in drug, great is social but there you if telling patient, ‘And I am the one professionals to encouraging mental health ” kill, going Finally, I’m to be mad as hell.’ in the examination and assist that his medical edu- stated sexual abuse. training cation and were like other doc- Id. taught tor’s that he was that he should duty underly- always putative believe that the warn a not to drive when the We patient reported ing appellants’ against Wendenburg claim seizure. duty recognized more like Gooden testimony establishes fore duty rejected than the in Bird. There is injury seeable nature of the risk of from a utility in little social a doctor’s failure to epileptic patient doctor’s failure to warn an patients suffering from uncon- certain not to drive unless his or her seizures are they trolled should drive. Although foreseeability under control. alone *5 magnitude of the burden inherent legal duty, to is insufficient create a new requiring epileptic pa- doctors to warn such Kerr, (Tex. Boyles v. 855 S.W.2d 599 tients not to is minimal when it is based drive 1993), foreseeability of the risk is the “fore patient’s on disclosure of a recent sei- the Corp. most and dominant” factor. El Chico And, finally, zure. a doctor’s free exercise Poole, (Tex.1987). 732 S.W.2d 311 by professional judgment infringed recently The Texas Court dis- imposing duty a to warn his countervailing cussed how the factors should to avoid until their seizures are weighed against inju- be a foreseeable risk of control. W.C.W., ry in the case of Bird v. Wendenburg raises one additional consid- (Tex.1994). Bird, supreme 767 In the imposition eration relevant to the of a recognize considered whether it should a Wendenburg warn. asserts that Peterson duty running psychologist from a ato third pain him for in his consulted treatment of party negligently misdiagnose to not neck and left arm and for no other reason. against tient’s condition. As the claim affidavit, According Wendenburg’s John- foreseeability the in Bird was son and Waller were the doctors who treated accepted summary as well established the Although Peterson’s seizures. these asser- judgment evidence. Id. at Yet contested, summary judg- tions were not supreme court nevertheless held that a third- Wendenburg ment evidence also shows that party plaintiff negligent could not sue for only was the doctor to whom Peterson re- misdiagnosis when a sexual assault was false- ported activity. Further his renewed seizure ly imputed psychologist’s himto because of a Wendenburg was the evidence shows misdiagnosis. Id. at 768. prescription doctor who renewed Peterson’s The Bird court follow- concluded just for anti-seizure medicine seven months outweighed factors the foreseeable risk of in this suit. before the collision resulted 1) injury: utility eradicating sexual brief, Wendenburg explains In that he abuse, psychologist the extent to which the prescription filled this to save Peterson rely provided by must information expense having to visit the who child, patient, availability often a treating were his seizures. reporting against person other sanctions custody proceeding, question of a is a of law false information The existence in- in relation to the the inexact nature of the science that must be determined Realty, necessity psychologists surrounding Centeq facts. Inc. v. volved and the (Tex.1995). 195, 197 Be freely professional judgment Siegler, their 899 exercise S.W.2d case in diagnosing sexual abuse. Id. at 769. More- cause this is movant, appellants’ Wendenburg which was the we must we addressed that claim under indulge every point first of error. If the “reasonable medi- resolve doubts and reason- cannot in- cal standard of care” claim appellants. able inference in favor of See Co., appellees’ alleged failure to ferred from the Property Management v. Mr. Nixon driving public, did not stan- Under this review, present their claim to the trial court. dard of has failed to event, appellants’ must overrule either we prove as a matter of law that the nature of point second of error. his treatment of Peterson was so unrelated negate any as to conceivable summary AFFIRM the trial court’s We to warn. we sustain Johnson, judgments granted in favor of Wal- point first of error as it relates to Wenden- ler, and the Sadler Clinic. We REVERSE burg. summary judgment granted in favor of and REMAND that case to appellants’ second We now address proceedings. trial court for further it of error as relates judgments granted the trial court in favor BASS, (Assigned), dissenting. SAM Justice and the Sadler Clinic. judgment of I would affirm the complain point, appellants Under this regard appellees. to all of the court with the trial court failed to address their claim be that Peterson’s medical treatment “was majority that neither Goo- concedes low the reasonable medical standard of care den, Flynn, Texas case has nor nor other epileptics.” Appellants did not raise this physician’s duty general extended court, petition claim in the trial but their drive, public to warn his included a claim that “failed to take unless the own actions have driving public action to dangerous caused the condition exhibited pa from the condition that afflicted their present patient. I in the find no evidence *6 tient.” proceeding ap- which shows that pellees did act that caused Peterson’s appeal, claim On we cannot consider a seizure, epileptic condition or or contributed presented that was not to the court. injuries by Lynn suffered Terri Prae- Beecham, at 355. See SmithKline sel, damages or to the suffered Stan cannot consider the claim we Praesel Louise Herbert. and/or medical standard of based “the reasonable Moreover, Wendenburg, Dr. whom the ma- care” unless that claim can be inferred from trial, jority for was never would send back appellees’ alleged protect the driv failure to epilepsy, on the but consulted treatment ing public. This link between the claim rather informed that this illness was based on the doctor’s to use reasonable being physicians. treated other Dr. Wen- care and the claim based on a failure to denburg solely surgery treated Peterson public may traced back to the injuries an spine to his as a result of language following from Gooden: injury sustained when he was rear-ended facts, can owe a under an automobile accident. Dr. duty to care to use reasonable concerning the had no to Peterson negli- driving public where the he was never treatment of since gence of his treatment employed for the care or treat- consulted or injuries. plaintiffs tient contributes ment of this illness. John, Gooden, 369; St. cf. appel- Accordingly, I would overrule all of (the doctor-patient lack of a S.W.2d at 423 judg- points affirm the lants’ of error and relationship preclude appellants’ would ment of the trial court. claims, however, claim to the extent that this claim). liability may be read as a health care
If “reasonable medical standard from their
of care” claim can be inferred Gooden,
claim based on a doctor’s