








NUMBER 13-02-00003-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 
                                                                                                                      

SIMON RAMIREZ AND CYNTHIA RAMIREZ,                           Appellants,

v.
 
DR. JOSE CARRERAS,                                                                Appellee.
                                                                                                                                      

On appeal from the 332nd District Court of Hidalgo County, Texas.                                                                                                                      

O P I N I O N

Before Chief Justice Valdez, and Justices Rodriguez and Amidei

Opinion by Justice Amidei
          Appellants Simon and Cynthia Ramirez appeal an adverse jury verdict and judgment
claiming the evidence proves as a matter of law, or the great weight and preponderance
of the evidence proves, that the conduct of Dr. Jose Carreras, appellee, injured Simon and
proximately caused damages to appellants.  The trial court granted appellee’s motion for
directed verdict on appellant’s assault and battery cause of action and submitted
appellants’ common law negligence cause of action to the jury.  We affirm.
Background
          Simon injured his lower back while working for K-Mart on May 9, 1993.  He first
received conservative treatment for a herniated disc.  On April 4, 1995, Dr. Ruben Pechero
performed a successful lumbar laminectomy and spinal fusion operation on Simon’s lower
back.  In order to obtain Simon’s disability rating or impairment level, K-Mart’s worker’s
compensation carrier hired appellee to perform a range-of-motion examination on his back.
During the examination, appellee instructed Simon to remove his back brace and bend
forward.  Appellants testified that after Simon told appellee he could only slightly bend,
appellee placed his right hand on Simon’s back and, by applying pressure, made him bend
over further than he could on his own, thereby injuring Simon.  Appellee denied that he
pushed Simon or injured him during the range-of-motion examination.
          Prior to the trial, appellants appealed a summary judgment granted on their medical
negligence and common law claims.  This Court affirmed the trial court’s summary
judgment as it related to appellants’ medical negligence cause of action, and reversed and
remanded the summary judgment as it related to appellants’ common law negligence
cause of action.  See Ramirez v. Carreras, 10 S.W.3d 757, 764 (Tex. App.–Corpus Christi
2000, pet. denied).  Further, this Court made specific determinations of the law applicable
to this case, inter alia, as follows:
This case concerns the scope of a physician’s duty when examining one who
is not a patient.  We hold that when a physician examines a person for the
benefit of a third party and no physician-patient relationship exists, the only
duty owed by the physician is the duty not to injure the examinee.  Expert
testimony is not required in order to raise a fact question on whether that
duty is breached. 
 
. . .
 
The duty not to injure is entirely different in scope and application from the
standard of care in medical negligence causes of action. In medical
negligence cases, the physician’s conduct is judged against the ‘accepted
standard of medical care,’ which is what a reasonable, competent, similarly-situated medical professional would do. The plaintiff must establish that
standard, typically through expert testimony. 
 
However, before the issue of ‘standard of care’ arises in a medical
negligence cause, it must be first determined whether a relationship existed
between the doctor and patient that triggered the duty for the doctor to
exercise professional judgment and care. The existence or nonexistence of
this duty is a preliminary question of law.  When that relationship does not
exist, Texas law is clear that the physician cannot be liable for professional
negligence because he has no duty to exercise professional care. 
 
. . .
 
Texas courts have held that the relationship between Dr. Carreras and Mr.
Ramirez is not a physician-patient relationship.
 
. . .
 
Even though a doctor is not liable for professional negligence when
examining a nonpatient, he remains liable for any injury he may cause during
the procedure. This has been referred to as the ‘duty not to injure.’
 
. . .
 
Dr. Carreras argues that Ramirez was required to produce expert testimony
to create a fact issue regarding whether Carreras breached the duty not to
injure Ramirez.  We disagree.  Ramirez is not required to show that Dr.
Carreras violated a standard of care. The duty not to injure is a strict duty
which arises by virtue of the relationship between thephysician and the non
patient-examinee.
 
. . .
 
Finally, Carreras argues that Ramirez’s cause of action is governed by the
Texas Medical Liability Insurance Improvement Act, which imposes various
procedural and other requirements. . . . We disagree. 
 
. . .
 
Because a cause for breach of the duty not to injure is not a claim that the
physician departed from an ‘accepted standard’ within the the health care
industry, the Act is inapplicable. Moreover, the Texas Supreme Court has
noted that the Act does not apply to claims where no physician-patient
relationship exists.
 
. . .
 
Accordingly, we disagree with the Houston court in Weathersby v.
MacGregor Medical Assoc., 983 S.W.2d 82,87 n.1 (Tex.App.–Houston [14th
Dist.] 1998, no pet.) (holding that claim for ordinary negligence against health
care provider falls ‘squarely within the Medical Liability and Insurance
Improvement Act’).  In Weathersby, the plaintiff alleged that she suffered a
compression  fracture in her spine as a result of a Dynatron test administered
by a doctor during a post-hire employment physical. Id. at 84. She sued on
grounds of common law negligence. Id at 85. The doctor moved for summary
judgment, proffering his own affidavit stating that his treatment did not cause
the plaintiff’s injuries and that the normal administering of the Dynatron test
would not cause  the injuries sustained by plaintiff. Id. Expressly refusing to
rule on whether Weathersby’s cause of action was for medical negligence or
common law negligence, the court held that regardless of which it was, the
doctor successfully negated the element of causation.  Id. at 87. 
 
Unlike Weathersby, where the plaintiff’s burden was to controvert the
defendant’s summary judgment evidence, Ramirez’s burden is only to
present some evidence on each element of his cause of action. He offered
testimony from both his own and his treating physician’s depositions that is
sufficient to survive a no-evidence challenge.  

Ramirez, 10 S.W.3d at 760-64.
          The foregoing determinations of law govern this case throughout its subsequent
stages under the doctrine of the law of the case.  Kropp v. Prather, 526 S.W.2d 283, 285
(Tex. Civ. App.–Tyler 1975, writ ref’d n.r.e.)
Issues
          Appellants claim in two issues that the trial court erred in overruling their motion for
judgment notwithstanding the verdict and that the jury’s verdict is wrong because (1) the
evidence proves conclusively as a matter of law that appellee injured Simon, which
proximately caused appellants’ damages, or (2) the jury’s verdict is against the great weight
and preponderence of the evidence.
a. Standard of Review.
          When the party with the burden of proof challenges the legal sufficiency of the
evidence to support the jury’s failure to find in its favor, it must show that no evidence
supports the failure to find and the evidence establishes the desired finding as a matter of
law.  Merckling v. Curtis, 911 S.W.2d 759, 763 (Tex. App.–Houston [1st Dist.]1995, writ
denied).  A party attempting to overcome an adverse fact finding as a matter of law must
surmount two hurdles.  Id.  First, an examination of the record for evidence that supports
the jury finding, while ignoring all evidence to the contrary, must produce no evidence
supporting the finding.  Id.  Second, if there is no evidence to support the fact finder’s
answer, then an examination of the entire record must demonstrate that the contrary
proposition is established as a matter of law.  Id.
          Only one standard of review is used in reviewing factual sufficiency challenges,
regardless of whether the court of appeals is reviewing a negative or affirmative jury finding
or whether the complaining party had the burden of proof on the issue.  Id.  In reviewing
a factual sufficiency complaint, we must first examine all of the evidence.  Id.  Having
considered and weighed all of the evidence, we should set aside the verdict only if the
evidence is so weak, or the finding is so against the great weight and preponderance of the
evidence, that it is clearly wrong and unjust.  Id.   We cannot merely substitute our opinion
for that of the trier of fact and determine that we would reach a different conclusion.  Id.
b. Theory of negligence.
          The trial court granted appellee’s motion for directed verdict as to appellants’ assault
and battery cause of action. Appellants do not appeal such directed verdict.  It was
appellants’ burden to prove an affirmative act of appellee which proximately caused injury
to Simon.  Appellants cite evidence that at the range-of-motion examination, appellee
asked Simon to bend forward, and when Simon told him he could not bend, appellee
pushed him forward with his right hand further than he could go on his own.  As the
appellee testified he did not push Simon and that Simon was not injured during the
examination, we must ignore evidence favoring appellants and hold there was evidence
supporting the jury’s answer to question number 1, that is, a finding of “no” negligence and
proximate cause of appellee.  Id. 
          Even if we do not ignore appellants’ testimony supporting negligence, when
weighing such evidence against appellee’s evidence to the contrary, we find that the jury’s
finding was not against the great weight and preponderance of the evidence.  Id.
          Appellants’ issues numbers one and two are overruled.
Sanctions
          Appellee urges a cross point that the trial court erred in denying appellee’s motion
for sanctions and dismissal, filed pursuant to section 13.01 of article 4590i of the Medical
Liability and Insurance Improvement Act (the “Act”).  Tex. Rev. Civ. Stat. Ann. art. 4590i,
§ 13.01 (Vernon Supp. 2003).   Appellee claims appellant failed to file an adequate expert’s
report as required by the Act.  The appellants filed a “Plaintiffs’ Filing of Expert Reports,”
but appellee complains it only contained three one-page medical records concerning
Simon from Dr. Pechero’s office which did not address any standard of care issues and did
not contain a curriculum vitae. 
          Section 13.01 of the Act, provides, inter alia, as follows:
(a) In a health care liability claim, a claimant shall, not later than the 90th day
after the date the claim is filed:
 
(1) file a separate cost bond in the amount of $5,000 for each
physician or health care provider named by the claimant in the action;
 
(2) place case in an escrow account in the amount of $5,000 for each
physician or health care provider named in the action; or
 
(3) file an expert report for each physician or health care provider with
respect to whom a cost bond has not been filed and cash in lieu of the
bond has not been deposited under Subdivision (1) or (2) of this
subsection.
 
. . .
 
(r)(6)’Expert report’ means a written report by an expert that provides
a fair summary of the expert’s opinions as of the date of the report
regarding applicable standards of care, the manner in which the care
rendered by the physician or health care provider failed to meet the
standards, and the causal relationship between that failure and the
injury, harm, or damages claimed.

Id.  Appellee has not established that appellants were required to file an expert’s report.
Under section 13.01, an expert’s report is not required if the claimant files a $5,000 bond,
or places in escrow $5,000 for each physician named by the claimant in the action.  See
id.  Appellee does not mention whether appellants filed a bond or placed money in escrow
as allowed by section 13.01.  Appellee failed to meet his burden to negate appellants’
compliance with sub-sections (1) or (2) of section 13.01.
          Even if appellants did not file a bond or escrow funds, appellee’s main complaint as
to the “Plaintiffs’ Filing of Expert Reports” is that it did not address any standard of care
issues relating to appellee.  As this Court determined in the previous appeal of this case,
and is the law of this case, since there was no relationship of doctor and patient between
appellee and Simon, appellee had no duty to conduct the examination according to the
accepted standards of medical care, and was only liable for any injury he may have caused
during the procedure.  Ramirez, 10 S.W.3d at 762.  It is well established that the Texas
Medical Liability and Insurance Improvement Act does not apply to claims where no
physician-patient relationship exists.  Id. at 764.
          Appellee argues that the opinion in Weathersby v. MacGregor Med. Assoc., 983
S.W.2d 82(Tex. App.–Houston [14th Dist.] 1998, no pet.), applies to bring this case under
the Act, but in our prior opinion in this particular case, we expressly disagreed with the
Weathersby opinion insofar as it held that an ordinary negligence claim against a health
care provider falls “squarely” within the Act.  Ramirez, 10 S.W.3d at 764.  Again, this
Court’s previous determination of law in this case is law of this case which the trial court
could not overturn and we will not overturn in this appeal.  Briscoe v. Goodmark Corp., 102
S.W.3d 714, 716 (Tex. 2003).  The trial court did not err in denying appellee’s motion for
sanctions.
          Appellee’s cross point is overruled.
          The judgment of the trial court is affirmed.
                                                                           _________________________
                                                                           MAURICE AMIDEI, JUSTICE
                                                                           (ASSIGNED)


Opinion delivered and filed
this 19th day of August, 2004.
