
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




NO. 03-01-0027-CV


Debra Marie Ramirez and Victor Bocanegra, Both Individually and as Next
Friends of Colby Alan Ramirez, a Minor, Appellants


v.


Douglas K. McIntyre, M.D., Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT

NO. 99-12665-A, HONORABLE SCOTT MCCOWN, JUDGE PRESIDING 





DISSENTING OPINION





	A physician rendering emergency treatment will be uncertain after today whether he
can claim the protections of the Good Samaritan Law, a statute the Texas Legislature enacted to
encourage individuals--including physicians--to administer emergency care to victims without
delay.  The question presented by this appeal is whether appellee carried his burden of proof in
establishing his entitlement to summary judgment under the statute.  For the summary judgment to
have been proper, Dr. McIntyre had to conclusively establish his affirmative defense that he did not
administer care "for or in expectation of remuneration"as set forth in section 74.001(b)(1).  Tex. Civ.
Prac. & Rem. Code Ann. § 74.001(b)(1) (West Supp. 2001).  Specifically, the majority concludes
that Dr. McIntyre's affidavit averment that he did not charge for his services or render services in
expectation of compensation is insufficient to establish this defense as a matter of law.  Because
appellee has sustained his burden, I respectfully dissent.
	In her petition, Mrs. Ramirez alleged that she had been diagnosed with gestational
diabetes and was carrying a macrosomic baby.  She had a history of gestational diabetes during the
pregnancy of a previous child born with complications of macrosomia and shoulder dystocia.  Within
six minutes of responding to an emergency call to the hospital's delivery room, Dr. McIntyre, who
had no prior contact with the patient, assessed the situation and accomplished the admittedly
complicated delivery of Mrs. Ramirez's baby.
	The majority agrees that Dr. McIntyre is entitled to invoke the protections of the
statute because he in good faith administered emergency care in a hospital and did not act wilfully
or wantonly.  See id. § 74.001(c).  The remaining issue, then, is whether Dr. McIntyre established
as a matter of law that he did not administer such care "for or in expectation of remuneration."  On
this issue alone, the majority concludes that Dr. McIntyre did not produce conclusive evidence, but
that he raised a fact issue, thus defeating summary judgment.  Having averred unequivocally that he
did not charge Mrs. Ramirez for his services or render his services in expectation of compensation,
in the absence of controverting evidence, Dr. McIntyre is entitled to summary judgment.  See
Hernandez v. Lukefahr, 879 S.W.2d 137, 141 (Tex. App.--Houston [14th Dist.] 1994, no writ).  To
find that Dr. McIntyre falls within the protection of the statute, the majority concludes he must prove
both "that he would not customarily receive remuneration for the services he performed and he
would not legally be entitled to compensation."
	To prevail on a motion for summary judgment, a movant must establish that there is
no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law.  A defendant who conclusively establishes an affirmative defense is entitled to summary
judgment. (1)  A matter is conclusively established if ordinary minds cannot differ as to the conclusion
to be drawn from the summary judgment proof.  Triton Oil & Gas Corp. v. Marine Contractors &
Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982).  Once the movant establishes his entitlement to
summary judgment, the burden shifts to the nonmovant to show why summary judgment should be
avoided.  Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989).
	Although we view the summary judgment proof in the light most favorable to the
nonmovant, and resolve all doubts as to the existence of a genuine issue of material fact in the
nonmovant's favor, see Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex. 1985), 
where the trial court does not specify the ground on which it relies in granting summary judgment,
as here, the summary judgment must be affirmed on appeal if any of the theories advanced are
meritorious, see Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 79 (Tex. 1989).  We are
precluded on appeal from considering grounds not expressly presented in writing in opposition to
the summary judgment motion.  Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671, 676-79 (Tex. 1979).
	In his affidavit submitted in support of his motion for summary judgment, Dr.
McIntyre testified:
I did not charge the plaintiff for my services nor did I render my services in
expectation of compensation.  This was not a situation for which I would ever charge. 
I do not specialize nor am I routinely assigned to an emergency room.  I am not on
an emergency response team and was not on call for the hospital, Dr. Gunter or her
group on the date of this incident.


In granting summary judgment in Dr. McIntyre's favor, the district court concluded that Dr. McIntyre
adduced "very strong evidence:"  "[H]e didn't charge for it, he didn't expect to charge for it, and that
it's ordinarily not charged for by anybody, and that he's never heard of one of these emergencies
where there was a charge in this kind of situation."
	To establish facts through an interested witness, as Dr. McIntyre is in this case, the
testimony must be uncontroverted, clear, positive, direct, credible, free from contradiction, and
susceptible to being readily controverted. (2)  Tex. R. Civ. P. 166a(c).  If the testimony meets these
requirements, it will support a summary judgment.  Casso, 776 S.W.2d at 558.  Because Dr.
McIntyre's averments in his affidavit meet all of these requirements establishing each element of his
affirmative defense, I would conclude that he has demonstrated his entitlement to summary
judgment.
	Dr. McIntyre was thus entitled to summary judgment unless Mrs. Ramirez raised an
issue of material fact by refuting this unequivocal evidence.  The summary judgment evidence
provided by Mrs. Ramirez does not raise a fact issue that Dr. McIntyre acted for or in expectation
of remuneration.  In response to the summary judgment motion, the only evidence presented by Mrs.
Ramirez concerning this issue was (i) a portion of Dr. McIntyre's deposition testimony and (ii) the
affidavit of Dr. Stuart Edelberg, a Maryland obstetrician, who opined that Dr. McIntyre was entitled
to charge for the emergency delivery.  The only remuneration testimony submitted by Mrs. Ramirez
in response to the motion is the following exchange:

Q:	Okay.  Now you didn't bill Ms. Ramirez, did you?

A:	No, sir.

Q:	Okay.  You could have billed Ms. Ramirez had you wanted to.  Is that true?

A:	I don't think I--I don't think I am ethically allowed to bill Ms. Ramirez.  I
suppose when you say "could," is it physically possible to send a bill to
someone?  Certainly I could have.

Q:	Sure.  Had you desired to, you could have obtained Ms. Ramirez's address and
sent her a bill for your services.  True?

A:	Yes.


This "admission," Mrs. Ramirez argues, places Dr. McIntyre "squarely" within the exception of
administering care for or in expectation of remuneration.  Thus, Mrs. Ramirez argues that the
excerpted testimony demonstrates that Dr. McIntyre could have sent her a bill and that, based on the
Edelberg affidavit, he was entitled to send her a bill.
	That a physician can physically look up an address and generate a bill to be sent to
an individual does not render emergency care administered for or in expectation of remuneration. 
This testimony does not suffice to refute Dr. McIntyre's affidavit or to create a fact question.  See
Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex. 1997); Ryland Group v. Hood, 924 S.W.2d 120, 122
(Tex. 1996).  Mrs. Ramirez provided no evidence that the parties ever discussed or contemplated
payment for services rendered.  Nor did Mrs. Ramirez present evidence that Dr. McIntyre had
charged for services rendered under similar circumstances.  Thus, except for the Edelberg affidavit
that the trial court ruled was inadmissible, Dr. McIntyre's declaration is uncontroverted.
	The majority concludes that "we cannot say there are no circumstances in the
evidence tending to discredit Dr. McIntyre's testimony."  To be sure, if the credibility of the affiant
is likely to be a dispositive factor in the resolution of the case, summary judgment is not appropriate. 
Casso, 776 S.W.2d at 558.  Mrs. Ramirez does not contend that Dr. McIntyre charged for his
services or rendered the services with the expectation that he would be paid; rather, Mrs. Ramirez
argues, without proof, that Dr. McIntyre may have waived his fee to invoke this statute's protections. 
But there are no facts set forth in the motion or response from which one could infer a waiver. 
Conclusory statements that are unsupported by facts are not proper as summary judgment proof. 
Mrs. Ramirez simply failed to adduce evidence sufficient to raise a fact issue.
	To defeat the motion, the majority concludes that Dr. McIntyre's deposition testimony
stating that (i) "there is nothing about the provision--in my opinion, the provision of emergency
services such as I rendered in this case that would allow me to render a bill for my services" and (ii)
"I don't think, I am ethically allowed to bill Ms. Ramirez" raises a fact issue and is not the positive,
incontestible evidence necessary to establish that he did not act "for or in expectation of
remuneration."
	This testimony does not defeat Dr. McIntyre's entitlement to summary judgment
because the deposition testimony does not conflict with his affidavit testimony, and Mrs. Ramirez
fails to adduce evidence that either raises a fact question or refutes Dr. McIntyre's evidence.  At
most, Dr. McIntyre's testimony supports his averment that he did not charge for the care he provided
by supplying an additional reason for his decision, that it would be unethical.  Moreover, in its
context, the testimony follows unequivocal testimony that he did not ever charge for emergency care
and knew of no other physician who did charge.
	In my view, the majority simply misconstrues the statute, unduly restricting the
availability of summary judgment under the language of section 74.001(b)(1).  Tex. Civ. Prac. &
Rem. Code Ann. § 74.001(b)(1).  I think it is clear that when Dr. McIntyre avers that he did not
charge Mrs. Ramirez nor did he render care in expectation of remuneration, in the absence of
controverting evidence, he falls within the protection of the statute.
	If "for or in expectation of remuneration" were not elsewhere defined in the statute,
none could dispute what it means in this context and that would be the end of our inquiry.  But
section 74.001(d) further defines that phrase and excludes from the protections of the statute any
person who "would ordinarily receive or be entitled to receive" remuneration "even if the person
waives or elects not to charge or receive remuneration on the occasion in question."  Id. § 74.001(d). 
The majority apparently agrees that Dr. McIntyre demonstrated that he "would not ordinarily receive
remuneration."  But they conclude that he failed to demonstrate that he is not entitled to receive
remuneration because under some legal theory he may be entitled to seek it.  Appellants argue on
appeal that we may infer that Dr. McIntyre may have been entitled to recover under an implied
contract or restitution theory.  Because this issue was not expressly presented in writing in response
to the motion for summary judgment, we may not consider it.  See Tex. R. Civ. P. 166a(c); Clear
Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).
	But the language of the statute also counsels against the interpretation given it by the
majority.  This second requirement suggested by the majority simply cannot be found in a
permissible reading of the statutory provision at issue.  In excluding persons from the protections
of the statute who "would ordinarily receive or be entitled to receive" remuneration, without
analysis, the majority enlarges the definition to create a two-pronged requirement.  To find that Dr.
McIntyre falls within the protection of the statute, they conclude he must prove both "that he would
not customarily receive remuneration for the services he performed and he would not legally be
entitled to compensation."  The district court reasoned that the use of the term ordinarily modified
both receive and entitled to receive.  Surely, if the terms contained in the definitional section are
susceptible of two readings, one of which comports with the common sense meaning of "for or in
expectation of remuneration," and one of which does not, we should not adopt the reading that
renders the defined phrase meaningless and superfluous.  A definition cannot be read to undermine
the spirit and the purpose of the statute.  See Nootsie, Ltd. v. Williams County Appraisal Dist., 925
S.W.2d 659, 662 (Tex. 1996) (holding courts must reject interpretations that defeat a statute's
purpose if another reasonable interpretation exists).  Surely it must be read to explain the
phrase--and not destroy it.  We should not parse words beyond their intended meaning.  There is
no authority or basis for the majority's interpretation and the legislative history of the amendments
to the statute does not support it. (3)
	Our judicial task is to discern legislative intent and to implement its intendment.  By
the language of the statute, the legislature clearly intended to encourage physicians and other health
care professionals--in a hospital--to render emergency care.  If entitlement to remuneration under
some unarticulated legal theory or multi-pronged requirement were the test, no doctor would ever
render emergency care.
	At the summary judgment hearing, then, the particularized evidence presented to the
trial court demonstrated that Dr. McIntyre was entitled to summary judgment on his affirmative
defense.  That evidence did not raise a fact issue and was not controverted.  I would conclude, as a
matter of law, the evidence was sufficient (i) to demonstrate that Dr. McIntyre did not administer
emergency care for or in expectation of remuneration and (ii) to support the rendition of summary
judgment.  Accordingly, I would conclude that the trial court did not err and that the judgment should
be affirmed.


  
					Jan P. Patterson, Justice
Before Chief Justice Aboussie, Justices Yeakel and Patterson
Filed:   October 25, 2001
Publish
1.        See, e.g., Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996); Cathey
v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex. 1994); City
of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).
2.        Because Ramirez did not object to the McIntyre affidavit on these grounds, the objection is
waived.  See Ahumada v. Dow Chem. Co., 992 S.W.2d 555, 562 (Tex. App.--Houston [14th Dist.]
1999, no pet.); Patterson v. Mobil Oil Fed. Cred. Un., 890 S.W.2d 551, 554 (Tex. App.--Beaumont
1994, no writ).
3.        That the definition in section 74.001(d) was added by the legislature in 1993 to address
remuneration for "purposes of Subsection (b)(1) and (c)(1)," and not subsection (c)(2)--the only
paragraph specifically addressing physicians--supports this common sense reading of the statute. 
Tex. Civ. Prac. & Rem. Code Ann. §74.001(d) (West. Supp. 2001).

	 Ramirez addresses subsection (c)(2) only to argue that, because Dr. McIntyre stepped in
voluntarily to perform the delivery, he became the attending physician in charge of the delivery.  The
majority does not address subsection (c)(2).
