Diane Cox ROBERTS, Appellant, v. SOUTHWEST TEXAS METHODIST HOSPITAL, Appellee.
No. 04-90-00191-CV.
Court of Appeals of Texas, San Antonio.
Feb. 28, 1991.
Rehearing Denied June 5, 1991. Second Rehearing Denied July 9, 1991.
814 S.W.2d 141
Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for the conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
The presumptive exclusion of remote convictions is grounded on a belief in an individual‘s ability to reform. To be admissible, the probative value of convictions more than ten years old must substantially outweigh their unfair prejudicial effect. Thus, rule 609(b) mandates a more stringent balancing test for such older convictions than is employed for more recent convictions. See
Evidence of subsequent and more recent convictions involving felonies or moral turpitude, however, tends to refute the idea of reformation by demonstrating that the older conviction was not merely an isolated incident. See McClendon v. State, 509 S.W.2d 851, 855-57 (Tex.Crim.App.1974). There was no showing that the prior remote felony conviction involved deceit, fraud, cheating, or stealing, which are generally considered more probative of an untrustworthy disposition than crimes of violence. See Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir.1967). Here, there was no swearing match between witnesses. The credibility issue involved that of the alleged victim of a robbery whose testimony was largely undisputed. The question of the remoteness of a prior conviction is still addressed largely to the discretion of the trial court as it was under the former practice. Watkins v. State, 572 S.W.2d 339, 342 (Tex.Crim.App. [Panel Op.] 1978). We conclude that the trial court did not abuse its discretion in excluding the felony conviction. The third point of error is overruled.
The trial court‘s judgment is affirmed.
J. Mark Craun, Stephan B. Rogers, Akin, Gump, Strauss, Hauer & Feld, San Antonio, for appellee.
Before BUTTS, PEEPLES and BIERY, JJ.
OPINION
PEEPLES, Justice.
Diane Roberts sued Southwest Texas Methodist Hospital and Dr. Peter Weston for negligence and battery. The hospital moved for summary judgment on the
Roberts was admitted to the hospital as an outpatient for a diagnostic laparoscopy and a dilation and curettage, to be performed by Dr. Weston. She consented to undergo a laparoscopy, laparotomy, dilation and curettage, and any other procedures which he, in his professional judgment, might deem necessary after the operation had begun. During surgery Dr. Weston determined that additional procedures were required. He instructed a hospital nurse to contact Roberts’ mother to obtain her consent, even though Roberts was an adult. Roberts’ mother gave permission and Dr. Weston removed Roberts’ ovaries, fallopian tubes, uterus, and appendix.
Roberts was discharged from the hospital on February 18, 1987. She gave notice of her health care liability claim to Dr. Weston on February 13, 1989, but gave no notice to the hospital. She filed suit against both the doctor and the hospital on April 27, 1989. She alleged that Dr. Weston had performed procedures on her without her consent and that he was negligent in several ways, and that the hospital‘s nurses had aided and encouraged Weston in doing the unauthorized surgery.
The hospital‘s motion for summary judgment asserted two separate grounds: (1) that Roberts’ claim against it was barred by limitations, and (2) that it had no duty to obtain Roberts’ informed consent. Because the judgment does not specify the ground on which it was based, to obtain reversal Roberts must show that each ground alleged was insufficient to support it. See Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 79 (Tex.1989). There is no suggestion in this appeal that Dr. Weston faced an emergency and could not obtain consent and remove the organs later.
I.
The limitations issue requires interpretation of two parts of the Medical Liability and Insurance Improvement Act.
(a) Any person or his authorized agent asserting a health care liability claim shall give written notice of such claim by certified mail, return receipt requested, to each physician or health care provider against whom such claim is being made at least 60 days before the filing of a suit in any court of this state based upon a health care liability claim.
(c) Notice given as provided in this Act shall toll the applicable statute of limitations to and including a period of 75 days following the giving of the notice, and this tolling shall apply to all parties and potential parties.
Roberts sent a notice of claim to Dr. Weston on February 13, 1989, two years after her surgery, which tolled the statute of limitations (at least as to the doctor) for 75 days. See
The hospital asserts that the notice to Dr. Weston did not toll the statute of limitations as to it because Roberts did not send it a notice of claim as required by
Two Texas courts have addressed this issue. One has held that notice to a hospital does not toll limitations as to a doctor
We believe that Rhodes correctly interpreted the statute. The hospital urges us to follow Maddux instead of Rhodes for several reasons. Limitations, it says, should be tolled only for unknown potential parties. In Maddux the plaintiff knew about the potential party; in Rhodes he did not. Roberts clearly knew where she had undergone surgery, and therefore the hospital says that she should have known to give it notice. This argument has considerable force, but the legislature did not see fit to enact it and we therefore cannot adopt it in the face of
The hospital also argues that the language in subsection (c)—“this tolling shall apply to all parties and potential parties“—originally pertained to a screening panel that was included in earlier drafts and should have been deleted when the screening panel concept was deleted. But we must interpret and enforce the wording of the act as the legislature passed it, not as it perhaps should have been worded. We must presume that each word in a statute was used for a purpose, and we cannot ignore language unless it is necessary to give effect to the legislature‘s clear intent. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981).
We do not accept the hospital‘s suggestion that the Rhodes interpretation of
We hold that notice to Dr. Weston tolled the statute of limitations for 75 days as to the hospital, that Roberts filed her suit within that extended period, and that even though she has never given notice to the hospital, under Schepps its only remedy is to have the suit abated.
II.
We cannot uphold the summary judgment on the second ground urged in the hospital‘s motion—that it had no duty to obtain Roberts’ informed consent. Roberts did not plead lack of informed consent. She pleaded that Dr. Weston removed parts of her body without her consent—that is, that he committed a battery—not that he failed to inform her of the risks of surgery. The court could not have rested the summary judgment on this informed-consent ground because the argument was not responsive to Roberts’ pleaded cause of action.
The hospital defends the judgment on two other grounds that were not properly presented to the trial court. It says that
We reverse the judgment and remand the cause for further proceedings.
ON APPELLEE‘S MOTION FOR REHEARING
The hospital‘s motion for rehearing says that we required that its motion for summary judgment be too precise, and that if Roberts wanted to confine the hospital to the two grounds stated in its motion, she should have excepted to it. It is true that defects in summary judgment motions are comparable to other pleading defects. In 1978 the supreme court held that “the failure of a motion for summary judgment to specify grounds is a defect of form that is waived unless excepted to prior to rendition of judgment.” Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771, 773 (Tex.1978). The court likened summary judgment motions to ordinary pleadings and applied the waiver provisions of rule 90 to them. Id.
But here the hospital‘s motion did not fail to specify grounds. It specified two grounds (limitations and no duty to obtain informed consent), and the hospital seeks now to uphold the judgment on two other grounds (that article 4590i, § 6.02 abolished the cause of action for battery and that as a matter of law its nurses did not aid and encourage the doctor). The Westchester rule was not meant to extend to this situation.
When a motion states no grounds, it suffers from a pleading defect and does not satisfy rule 166a. But that pleading defect is waived if it is not asserted in the trial court.
We note that the version of rule 166-A1 at issue in Westchester said simply that “the motion for summary judgment shall state the specific grounds therefor.” Effective January 1, 1978, rule 166-A was amended to say that the court should grant the motion if the summary judgment proof shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law “on the issues as expressly set out in the motion or in an answer or any other response.”
In City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex.1979), the supreme court stressed the rule‘s new language—that the movant must show himself entitled to judgment as a matter of law “on the issues as expressly set out in the motion“—and held that “[t]he ‘issues’ required by the rule to be ‘expressly presented’ are those pointed out to the trial court in written motions, written answers or written responses to the motion.” Id. at 677. If the parties want to expand or restrict the issues expressly presented in the motion, said the court, they must do so
There is nothing onerous or unreasonable about requiring the movant to state the grounds upon which he seeks to win a lawsuit without a trial. If the grounds are so obvious from the summary judgment proof, what is burdensome about requiring the movant to state them in the motion? Grounds may be stated concisely, without detail and argument. But they must at least be listed in the motion. When a motion for summary judgment asserts grounds A and B, it cannot be upheld on grounds C and D, which were not asserted, even if the summary judgment proof supports them and the responding party did not except to the motion.
Under rule 166a(c) and Clear Creek, the hospital as movant had the burden to include in its motion any grounds that it wanted to assert in the trial court and in this court. We hold that Roberts had no duty to except to the hospital‘s specific motion, which urged two grounds, in order to avoid trying by consent two other grounds that might have been found in the evidence and the trial brief.
The dissent says that
We overrule the other grounds urged in the hospital‘s motion for rehearing for the reasons stated in our original opinion.
The motion for rehearing is overruled.
BUTTS, Justice, dissenting.
On Appellee‘s Motion for Rehearing, it has been brought to the court‘s attention that
The failure of this court to recognize that is error. The parties filed cross-motions for summary judgment. The Hospital conclusively showed there could be no suit on this claim; Roberts is now precluded by statute from recovery based on a battery cause of action. The issue was squarely presented in the Hospital‘s response to Roberts’ motion for summary judgment and in Robert‘s pleadings. Under
Therefore, I respectfully dissent. The Hospital‘s motion for rehearing should be granted on this point.