                              NUMBER 13-05-446-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


JACQUELINE MICHELLE WEDGEWORTH,                                             Appellant,

                                           v.

CHRISTUS SPOHN HEALTH SYSTEMS
CORP., D/B/A CHRISTUS SPOHN
HOSPITAL SHORELINE,                                                         Appellee.


   On appeal from the 105th District Court of Nueces County, Texas.


                         MEMORANDUM OPINION

             Before Justices Yañez, Rodriguez, and Benavides
                 Memordandum Opinion by Justice Yañez

      By three issues, appellant, Jacqueline Michelle Wedgeworth, challenges the

summary judgment granted in favor of appellee, Christus Spohn Health Systems

Corporation d/b/a Christus Spohn Hospital Shoreline (“Spohn”). Specifically, appellant

contends the trial court erred in granting summary judgment in Spohn’s favor on her claims
for (1) fraud and negligent misrepresentation, (2) violations of her due process rights, and

(3) intentional infliction of emotional distress. We affirm, in part, and reverse and remand,

in part.

                                         Factual Background

       Appellant, a registered nurse, worked in Spohn’s endoscopy unit between 1998 and

2002. Diane Kaiser, her supervisor, was in charge of the unit. According to appellant,

Spohn’s unwritten policy permitted nurses to perform a procedure known as “roll and

sleep,” which was used to prepare patients for an endoscopic procedure. Under the

procedure, nurses—without the presence of a physician—sedated the patient, and with the

assistance of an endoscopic technician, observed the insertion of a colonoscope up to the

patient’s cecum.1

       On January 17, 2002, appellant was the nurse in charge of a colonoscopy to be

performed by Dr. Fred Brackett. Pursuant to Spohn’s policy and Dr. Brackett’s orders,

appellant sedated the patient and observed a technician insert the scope. At that point,

appellant learned that Dr. Brackett had been detained and could not be present to perform

the colonoscopy. Dr. Brackett instructed appellant by telephone to continue with the

procedure and begin removing the scope. Appellant complied, and advised Dr. Brackett

that she and the technician had discovered a small polyp. In accordance with the doctor’s

instructions, a second, more experienced technician removed the polyp. The doctor

instructed appellant to continue removing the scope and complete the procedure. The

entire procedure was performed without Dr. Brackett’s presence or supervision.



       1
           The cecum is a large pouch form ing the beginning of the large intestine.

                                                      2
        Approximately a week later, Kaiser learned of the incident and requested that

appellant meet with her and Sarah McMullar, Spohn’s risk-management officer. Following

the meeting, appellant was placed on paid administrative leave for several days; the matter

was referred to Spohn’s Peer Review Committee. At the conclusion of the peer review

process, appellant was told that the incident was referred to the State Board of Nurse

Examiners. Following a second paid administrative leave, appellant returned to work, but

was told not to return to the endoscopy unit because her presence would be disruptive;

instead, she was assigned to a position reviewing charts in the quality assurance

department. Eventually, the State Board investigation of the matter concluded with no

adverse action taken against appellant.

                                     Procedural Background

        Appellant sued Spohn, alleging fraud, negligent misrepresentation, violation of her

procedural due process rights, and intentional infliction of emotional distress. Spohn filed

a motion asserting both traditional and no-evidence grounds for summary judgment. In

support of its motion, Spohn attached evidence, consisting of (1) appellant’s deposition

testimony, (2) the “Employee Discipline Report” issued by Spohn to appellant, (3) Kaiser’s

deposition testimony, and (4) deposition testimony by Nora Frazier, Spohn’s chief nurse

executive.

        In its no-evidence motion, Spohn contends appellant’s claim for violation of her due

process rights fails because there is no evidence that a private right of action exists for

alleged violations of peer review procedures.2 With regard to appellant’s fraud claim,


        2
         Appellant bases her claim that her procedural due process rights were violated on her contention
that Spohn’s peer review process was flawed.

                                                   3
Spohn contends there is no evidence (1) that Spohn made a material representation that

was false, (2) that Spohn made such a representation knowing it was false or with reckless

disregard as to its falsity, or (3) that appellant actually or justifiably relied on the alleged

misrepresentation. As to appellant’s negligent misrepresentation claim, Spohn contends

there is no evidence (1) that it made a false representation, (2) that it acted negligently in

communicating its policies, or (3) that appellant relied upon the alleged misrepresentation.

With regard to appellant’s intentional infliction claim, Spohn contends there is no evidence

(1) that its conduct was extreme or outrageous or (2) that appellant suffered severe

emotional distress. In its traditional motion, Spohn challenged the same elements of

appellant’s claims.

       In support of her response, appellant attached (1) her own affidavit; (2) excerpts

from Frazier’s deposition testimony; (3) excerpts from Kaiser’s deposition testimony; (4)

minutes from several staff meetings of the endoscopy unit; (5) excerpts from her own

deposition testimony, and attachments to her testimony; (6) Spohn’s “Statement of Ethics”

and its nursing peer review policies; and (7) three “expert reports” supporting various

aspects of appellant’s allegations.

       Following a hearing on March 1, 2005, the trial court announced on April 8, 2005,

that it was granting Spohn’s motion for summary judgment. On April 11, 2005, the trial

court signed an order granting judgment in Spohn’s favor without stating the grounds for

the ruling. This appeal ensued.

                        Standard of Review and Applicable Law

       The standard of review for the grant of a motion for summary judgment is



                                               4
determined by whether the motion was brought on no-evidence or traditional grounds.3 A

no-evidence summary judgment is equivalent to a pretrial directed verdict, and this Court

applies the same legal sufficiency standard on review.4 In an appeal of a no-evidence

summary judgment, this Court reviews the evidence in the light most favorable to the non-

movant, disregarding all contrary evidence and inferences.5 If the non-movant produces

evidence to raise a genuine issue of material fact, summary judgment is improper.6

        All that is required of the non-movant is to produce a scintilla of probative evidence

to raise a genuine issue of material fact.7 “Less than a scintilla of evidence exists when the

evidence is 'so weak as to do no more than create a mere surmise or suspicion of a fact.'”8

Conversely, more than a scintilla exists when the evidence “rises to a level that would

enable reasonable and fair-minded people to differ in their conclusions.”9 In determining

whether the non-movant has produced more than a scintilla of evidence, we review the

evidence in the light most favorable to the non-movant, crediting such evidence if

reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could



        3
        See T EX . R. C IV . P. 166a(c), (i); see also Ortega v. City Nat'l Bank, 97 S.W .3d 765, 771 (Tex.
App.–Corpus Christi 2003, no pet.) (op. on reh'g).

        4
            Mack Trucks, Inc. v. Tamez, 206 S.W .3d 572, 582 (Tex. 2006); Ortega, 97 S.W .3d at 772.

        5
          City of Keller v. W ilson, 168 S.W .3d 802, 825 (Tex. 2005) (noting that review of a “no-evidence”
m otion for sum m ary judgm ent is effectively restricted to the evidence contrary to the m otion); Ortega, 97
S.W .3d at 772.

        6
            T EX . R. C IV . P. 166a(i).

        7
            Ortega, 97 S.W .3d at 772.

        8
            Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W .2d 61, 63 (Tex. 1983)).

        9
            Id. (citing Transp. Ins. Co. v. Moriel, 879 S.W .2d 10, 25 (Tex. 1994)).

                                                        5
not.10 The burden of producing evidence is entirely on the non-movant; the movant has

no burden to attach any evidence to the motion.11 We may not consider any evidence

presented by the movant unless it creates a fact question.12

        When a party moves for summary judgment under both rules 166a(c) and 166a(i)

of the Texas Rules of Civil Procedure, we will first review the trial court's judgment under

the standards of rule 166a(i).13 If the appellant fails to produce more than a scintilla of

evidence under that burden, then there is no need to analyze whether appellee's summary

judgment proof satisfies the less stringent rule 166a(c) burden.14

                                                    Fraud

        By her first issue, appellant contends the trial court erred in granting summary

judgment in Spohn’s favor on her fraud and negligent misrepresentation claims. We begin

by addressing appellant’s challenge to the summary judgment in Spohn’s favor as to her

fraud claim.

        To prove a fraud claim, a plaintiff must show (1) that a material representation was

made; (2) the representation was false; (3) when the representation was made, the

speaker knew it was false or made it recklessly without any knowledge of the truth and as

a positive assertion; (4) the speaker made the representation with the intent that the other


        10
             Tamez, 206 S.W .3d at 582; City of Keller, 168 S.W .3d at 827.

        11
             T EX . R. C IV . P. 166a(i).

        12
         Binur v. Jacobo, 135 S.W .3d 646, 651 (Tex. 2004); Newkumet v. Allen, 230 S.W .3d 518, 521 (Tex.
App.–Eastland 2007, no pet.).

        13
             Ford Motor Co. v. Ridgway, 135 S.W .3d 598, 600 (Tex. 2004).

        14
             Id.

                                                       6
party should act upon it; (5) the party acted in reliance on the representation; and (6) the

party thereby suffered injury.15 In its no-evidence motion, Spohn argued that appellant

lacked any evidence that Spohn (1) falsely represented its delegation policy, (2) intended

to deceive appellant, or (3) knew the alleged representations regarding its policy were

false. Spohn also argued there was no evidence appellant justifiably relied on any

representation concerning Spohn’s delegation policy.

        In her response, appellant asserts that Spohn (specifically, Kaiser) falsely

represented to her that “[n]urses and staff could perform any delegated task that the

nurses and staff were qualified and comfortable performing.”16 In the section of her

response addressing fraud, appellant cites no evidence that Kaiser intended to deceive her

in communicating the delegation policy to her. Similarly, in her appellate brief, appellant

asserts that “[e]vidence attached to Spohn’s motion for summary judgment, as well as [her]

own evidence” establishes that Kaiser intended to deceive her. However, appellant cites

no evidence in the record supporting this element of her fraud claim. We conclude that

appellant presented no evidence of Spohn’s intent to deceive. Accordingly, we hold the

trial court did not err in granting summary judgment in Spohn’s favor as to appellant’s fraud

claim. We overrule that portion of appellant’s first issue challenging summary judgment

as to her fraud claim.

                                     Negligent Misrepresentation



        15
             In re FirstMerit Bank, N.A., 52 S.W .3d 749, 758 (Tex. 2001).

        16
          Appellant cites “Kaiser Dep. Pg. 47.” W e note that although appellant attached excerpts of Kaiser’s
deposition testim ony to her response, she did not attach any of the excerpted pages cited in her response.
The portions of Kaiser’s deposition testim ony cited by appellant in support of her response are included in
Spohn’s sum m ary judgm ent evidence.

                                                       7
        Appellant’s first issue also challenges the summary judgment granted in Spohn’s

favor as to her claim for negligent misrepresentation. “The elements of a cause of action

for [negligent misrepresentation] are: (1) the representation is made by a defendant in the

course of his business, or in a transaction in which he has a pecuniary interest; (2) the

defendant supplies ‘false information’ for the guidance of others in their business; (3) the

defendant did not exercise reasonable care or competence in obtaining or communicating

the information; and (4) the plaintiff suffers pecuniary loss by justifiably relying on the

representation.”17

        Appellant contends that Kaiser misrepresented Spohn’s delegation policy to her.

As to the first element, regarding Spohn’s pecuniary interest in making the

misrepresentation, appellant presented seven deposition exhibits, reflecting minutes from

several “Endoscopy Associate Meetings,” between July 31, 2001 and February 4, 2002.

The minutes reflect Spohn’s concern for being “above budget” in the volume of patients

processed through the endoscopy unit.

        As to the “false information” element and Spohn’s failure to exercise reasonable

care in communicating the delegation policy, appellant relies on Kaiser’s misrepresentation

to her that (1) “[n]urses and staff could perform any delegated task that they were qualified

to perform and were comfortable in performing, and (2) the doctor was ultimately

responsible for all tasks delegated.” Appellant offered evidence establishing that the

delegation policy was unclear. Nora Frazier, the chief nurse executive and “integrity

officer” in charge of investigating whether procedures that should have been performed


        17
           Henry Schein, Inc. v. Stromboe, 102 S.W .3d 675, 686 n.24 (Tex. 2002) (quoting Fed. Land Bank
Ass’n v. Sloane, 825 S.W .2d 439, 442 (Tex. 1991)).

                                                   8
by doctors were, in fact, being performed by nurses, testified as follows:

       A [Frazier]: Couple of reasons. Number one, my understanding of
       Michelle’s record is that it was a good record, that she was a good nurse—is
       a good nurse, who was in a situation where there were some gray areas with
       respect to practice. And I do believe that there were some mitigating factors
       in the whole incident for which we as a system have some responsibility.

       Q [counsel]: Okay. And what were those mitigating factors, in your opinion?

       A: I think the fact that the scope of nursing practice boundaries, as I
       mentioned earlier, were fuzzy. That, you know, perhaps the whole issue of
       delegated medical acts and what was appropriate or inappropriate had not
       been embedded thoroughly from a Board of Nursing standpoint. It’s fine to
       know what the Board of Nurse Examiners feels is appropriate, but no one
       queried the Board of Nurse Examiners to find out what they felt was
       appropriate or not appropriate for nursing practice. And so for those
       reasons, I felt that it was appropriate to try to help Michelle.

       Q: Okay. Would it be fair to say that something that caused everything to
       be kind of fuzzy was the lack of clear and precise policies and procedures
       within the unit with regard to roll and sleep and what duties could be
       delegated?

       A. Yes.

       Similarly, Kaiser testified that she sought advice from Margaret O’Donnell, Spohn’s

counsel, as to what tasks a physician could properly delegate; Kaiser testified that it wasn’t

a “black and white” situation. Based on the response from O’Donnell, Kaiser testifed that

the policy was “physicians can delegate if they feel like the person is competent,

comfortable, that they’re not representing themselves as a physician.” After the incident,

Kaiser testified that several doctors approached her and said that the practice of doctors

ordering nurses to start a procedure without the doctor being present was “just not right”

and that it was “about time that [the practice] came to somebody’s attention.” When asked

what alternatives were available to appellant when Dr. Brackett instructed her to begin

withdrawing the scope, Kaiser testified that the alternative was to have “never started the

                                              9
procedure.”

       The minutes of the Endoscopy Associate Meeting dated February 4, 2002,

(approximately two weeks after the incident at issue) reflect the following notation regarding

the delegation policy:

       Policies and Procedures

       Reviewed the conscious sedation policy and procedure. Also discussed the
       policy and procedures for endoscopic manipulation of the endoscope during
       procedure. This policy is still being written, but at present the procedure is
       not to be started without the physician present in the room. Conscious
       sedation is not to be administered without the physician present in the room
       and the scope is not to be inserted into the patient without the physician in
       the room. All associates are to follow these procedures.

       We conclude there is evidence that Spohn was aware that some physicians were

ordering nurses to start procedures without the physician being present, knew there were

no clear and precise policies and procedures within the unit as to what duties could be

delegated, and did not attempt to clarify the delegation policy until after it began

investigating the incident. We conclude the evidence raises a fact issue regarding whether

Spohn negligently communicated its delegation policy because there was no clear policy.

       With regard to whether appellant suffered pecuniary loss because she justifiably

relied on Spohn’s representation of its policy, appellant testified that even though she felt

it was improper to begin a procedure without the doctor being present, she followed Dr.

Brackett’s order because he had said he would assume responsibility for it. The incident

occurred on January 17, 2002; the investigation by the Board of Nurse Examiners was not

concluded until July 2003. Appellant testified that she did not work as a nurse during the

pendency of the investigation because she was “embarrassed,” “uncertain of the outcome,”

and did not want to reveal the investigation to a prospective employer.

                                             10
        Reviewing the evidence in the light most favorable to the non-movant, crediting such

evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable

jurors could not,18 we hold that appellant presented more than a scintilla of evidence raising

a genuine issue of material fact as to each element of her negligent misrepresentation

claim.19 Accordingly, we hold the trial court erred in granting summary judgment in Spohn’s

favor as to appellant’s negligent misrepresentation claim. We sustain that portion of

appellant’s first issue, and reverse the summary judgment as to that claim.20

                                   Violation of Due Process Rights

        By her second issue, appellant contends that Spohn violated her procedural due

process rights by failing to follow its own policies and procedures. Specifically, appellant

contends that Spohn’s investigation of the incident denied her certain rights and

guarantees outlined in Spohn’s peer review process. Appellant argues her due process

rights are implicated because she has a property interest in her employment and her

nursing license.


        18
             See City of Keller, 168 S.W .3d at 827.

        19
             See Ortega, 97 S.W .3d at 772.

        20
            W here, as here, the trial court’s order granting sum m ary judgm ent does not specify the basis for
the ruling, we m ust affirm the judgm ent if any of the theories advanced by the m ovant are m eritorious. Vargas
v. K.K.B., Inc., 52 S.W .3d 250, 254 (Tex. App.–Corpus Christi 2001, pet. denied). Spohn m oved for traditional
sum m ary judgm ent on W edgeworth’s negligent m isrepresentation claim , contending that it had:

        conclusively negated three of the elem ents of [W edgeworth’s] negligent m isrepresentation
        cause of action. In particular, [Spohn] has established that it did not supply false inform ation
        to [W edgeworth]; that it did not fail to exercise reasonable care or com petence in
        com m unicating the inform ation to [W edgeworth]; and that [W edgeworth] did not actually or
        justifiably rely on [Spohn’s] alleged m isrepresentation.

Spohn presented no analysis explaining how its evidence “conclusively negated” the identified elem ents of
W edgeworth’s claim . Nonetheless, for the reasons detailed above, we hold that Spohn failed to conclusively
negate the elem ents of W edgeworth’s negligent m isrepresentation claim . Accordingly, we hold that the trial
court could not properly have granted Spohn’s traditional m otion for sum m ary judgm ent as to that claim .

                                                       11
        In its motion, Spohn argued it is entitled to summary judgment on appellant’s

violation of due process claim because there is no private right of action alleging a violation

of the Texas Nursing Practice Act (“TNPA”),21 including alleged violations of peer review

procedures. According to Spohn, the TNPA peer review requirements are identical to

those applicable to physicians under the Texas Medical Practice Act (“TMPA”);22 because

no private right of action exists under the TMPA,23 no private right of action exists under

the TNPA.

        In her response, appellant simply details the various alleged violations of Spohn’s

policies and procedures. With respect to Spohn’s assertion that no private right of action

exists under the TNPA, appellant “does not rely upon the [TNPA] as a basis for her action.”

Appellant argues that she has a claim for violation of her due process rights “not under the

[TNPA], but with relation to the policies and procedures created by [Spohn] with regard to

the due process that should have been afforded to [her].” Thus, appellant asserts that

Spohn violated her procedural due process rights by failing to follow its own policies and

procedures. However, appellant cites no evidence in support of her position that “a cause

of action exist[s]” based on Spohn’s alleged violations of its “policies and procedures.” We

conclude that appellant presented no evidence in response to Spohn’s challenge to

appellant’s claim that her due process rights were violated. The trial court did not err in

granting judgment in Spohn’s favor as to this claim. We overrule appellant’s second issue.


        21
             See T EX . O C C . C OD E A N N . §§ 301.001-.607 (Vernon 2004 & Supp. 2007).

        22
             See id. §§ 160.001-.102 (Vernon 2004 & Supp. 2007).

        23
          See Cole v. Huntsville Mem'l Hosp., 920 S.W .2d 364, 373 (Tex. App.–Houston [1st Dist.] 1996, writ
denied) (holding no private right of action exists under TMPA).

                                                        12
                              Intentional Infliction of Emotional Distress

          In her third issue, appellant contends the trial court erred in granting summary

judgment in Spohn’s favor as to her claim for intentional infliction of emotional distress. To

prevail on a claim of intentional infliction of emotional distress, a plaintiff must establish that

(1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme

and outrageous; (3) the defendant’s conduct caused the plaintiff emotional distress; and

(4) the plaintiff suffered severe emotional distress.24 A defendant's conduct satisfies the

second element only if it is “‘so outrageous in character, and so extreme in degree, as to

go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.’”25 In its motion, Spohn challenged the second and

fourth elements, arguing there was no evidence (1) its alleged actions were extreme and

outrageous or (2) that appellant suffered severe emotional distress.

               With respect to the challenged fourth element—that appellant suffered severe

emotional distress—appellant responded:

          There is evidence to show that [appellant] is mentally unable to seek
          employment as a nurse due to the treatment of [appellant] by [Spohn] and
          the fear that this could happen again, and there is evidence in the record that
          this type of action by [Spohn] could cause severe emotional trauma similar
          to post-traumatic stress syndrome.

The “evidence” cited by appellant is an “expert report,” which states, in relevant part,

“[t]hreat of loss of licensure for a professional is an extremely stressful and traumatic event.

The professional can experience symptoms very similar to Post Traumatic Stress Disorder


          24
               Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W .3d 788, 796 (Tex. 2006).

          25
               Id. (citing Twyman v. Twyman, 855 S.W .2d 619, 621 (Tex. 1993) (quoting R ESTATEM EN T (S EC ON D )
OF   T OR TS   § 46 cm t. d (1965))).

                                                         13
and Major Depression.” The report does not mention appellant specifically, nor does it

state that appellant has suffered any emotional distress. Appellant cites no other evidence

in support of her assertion that she suffered severe emotional distress. We conclude

appellant presented no evidence that she suffered severe emotional distress. Accordingly,

the trial court did not err in granting summary judgment in Spohn’s favor on appellant’s

claim for intentional infliction of emotional distress. We overrule appellant’s third issue.

                                       Conclusion

       We reverse the trial court’s summary judgment in Spohn’s favor as to appellant’s

negligent misrepresentation claim and remand to the trial court for further proceedings.

As to appellant’s claims for fraud, violation of her due process rights, and intentional

infliction of emotional distress, we affirm the trial court’s judgment in Spohn’s favor.




                                                  LINDA REYNA YAÑEZ,
                                                  Justice




Memorandum Opinion delivered and filed
this the 10th day of April, 2008.




                                             14
