Bryan Taylor and Melissa Taylor v. Baylor Scott & White Medical Center-Frisco ( 2022 )

Affirm; Opinion Filed February 10, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00352-CV
BRYAN TAYLOR AND MELISSA TAYLOR, Appellants
V.
BAYLOR SCOTT & WHITE MEDICAL CENTER-FRISCO, Appellee
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-12792
MEMORANDUM OPINION
Before Justices Osborne, Pedersen, III, and Nowell
Opinion by Justice Pedersen, III
Appellants Bryan Taylor and Melissa Taylor appeal the trial court’s judgment
granting the motions for no-evidence and traditional summary judgment filed by
appellee Baylor Scott & White Medical Center – Frisco. The Taylors contend the
trial erred by (1) granting summary judgment against them, and (2) striking an
exhibit the Taylors submitted as summary judgment evidence. We affirm.
I. Background
This is a healthcare liability lawsuit involving spine surgery performed on
Bryan Taylor (Bryan) by Stephen Courtney, M.D., at Baylor Scott & White Medical
Center – Frisco (Baylor). The Taylors complain that Dr. Courtney performed an
unnecessary and different surgery on Bryan than had been represented.1 Dr.
Courtney owned fifty percent of Eminent Spine, LLC, a company that designed and
distributed an intervertebral fusion device called “the Python.” The Taylors allege
that Baylor purchased, at Dr. Courtney’s request, a Python device from Eminent
Spine to use on Bryan. They further allege that after Dr. Courtney improperly
implanted the Python devise into Bryan’s back, the device migrated out of place,
causing damage to surrounding tissue, permanent pain, suffering, and disfigurement.
The Taylors allege that in an effort to realign the device and prevent its migration,
Dr. Courtney performed a second unsuccessful surgery on Bryan, which included
placement of a lumbar interbody fusion cage. As a result, Bryan required a third
surgery, which was performed by a different surgeon.
On September 28, 2016, the Taylors filed suit against Baylor.2 They alleged
three negligence claims, asserting that Baylor breached its reasonable duty of care
in: (1) formulating and enforcing policies and procedures to prevent excessive and
unnecessary surgeries; (2) selecting and retaining the physicians that are granted
staff privileges; and (3) formulating and enforcing policies and procedures for the
purchase of medical devices, including spinal implants and hardware, for use in
orthopedic and neurological surgeries. The Taylors also alleged that Baylor was
1
Bryan was scheduled for L4-L5 microdiskectomy with possible cage and decompression to be
performed by Dr. Courtney; the consent form did not include surgical fusion.
2
The Taylors also sued Dr. Courtney, Eminent Spine, LLC, and Monitoring Concepts Management,
LLC. On December 17, 2019, the trial court granted the Taylors’ motion to dismiss those defendants with
prejudice. The court’s order further stated that Baylor remained a defendant and was not dismissed.
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grossly negligent because it knew of the extreme risks involved but proceeded with
conscious indifference to the rights, safety, or welfare of others. Baylor filed an
answer denying the Taylors’ claims.
After two years of litigation, Baylor filed its no-evidence and traditional
motion for summary judgment, asserting that the Taylors had no evidence that
Baylor breached applicable standards of care. The Taylors filed a response and
attached summary judgment evidence that included, as Exhibit F, a deposition taken
in a different lawsuit.3 Baylor filed a motion to strike Exhibit F of the Taylors’
summary judgment evidence as improper hearsay evidence. After a hearing, the trial
court granted Baylor’s motion to strike the Taylors’ Exhibit F; the court also granted
Baylor’s motions for summary judgment. The trial court denied the Taylors’ motion
for new trial, and the Taylors filed this appeal.
II. Discussion
The Taylors raise two issues on appeal. Their first issue, that the trial court
erred in granting Baylor’s motions for summary judgment, has several sub-issues.
They first contend they provided more than a scintilla of evidence that Baylor
breached its duty to use reasonable care in formulating and enforcing policies and
procedures to prevent excessive and unnecessary surgeries in connection with
physician-owned distributorships (PODs). In their second sub-issue, the Taylors
3
The deposition of Dr. Courtney’s former partner, Cameron Noble Carmody, M.D., was taken in
Carmody v. McMurrey, Case No. 366-05221-2018, in the 366th Judicial District of Collin County, Texas.
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contend they provided more than a scintilla of evidence that Baylor breached its duty
to use reasonable care in formulating and enforcing policies and procedures for the
purchase of medical devices. Third, the Taylors argue that Baylor breached its duty
to use reasonable care in the selection and retention of physicians who are granted
staff privileges. The Taylors’ fourth sub-issue, which pertains to their assertion of
gross negligence, contends that Baylor had actual subjective awareness of the risk
involved but proceeded with conscious indifference to the rights, safety, or welfare
of others. In their second issue, the Taylors assert the trial court erred by striking
Exhibit F of their summary judgment evidence—the deposition testimony of Dr.
Cameron Carmody.
A. Admissibility of Dr. Carmody’s Deposition Testimony
We begin with the Taylors’ second issue. The Taylors contend the trial court
erred in excluding Dr. Carmody’s deposition testimony—Exhibit F of the Taylors’
summary judgment evidence. We review a trial court’s decision to admit or exclude
summary judgment evidence under an abuse of discretion standard. See Starwood
Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017) (“We review the rendition
of summary judgments de novo. But we review a trial court’s decision to exclude
evidence for an abuse of discretion.”) (citations omitted); Nelson v. Pagan, 377
S.W.3d 824, 830 (Tex. App.—Dallas 2012, no pet.). We will affirm the trial court’s
ruling unless the court acted unreasonably or in an arbitrary manner, without regard
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for any guiding rules or principles. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211
(Tex. 2002).
Baylor contends the trial court properly excluded the deposition testimony as
inadmissible hearsay. Hearsay is testimony a witness “does not make while
testifying at the current trial or hearing,” which is offered “to prove the truth of the
matter asserted.” TEX. R. EVID. 801(d). Hearsay is not admissible unless allowed by
statute, the rules of evidence, or other rules prescribed under statutory authority.
TEX. R. EVID. 802. According to Rule 801(e)(3), deposition testimony is not hearsay
if the deposition was taken in the same proceeding. The rule directs us to look to
Rule 203.6 of the Texas Rules of Civil Procedure for a definition of “same
proceeding.” Id. “Same proceeding” is defined to include “a proceeding in a different
court but involving the same subject matter and the same parties or their
representatives or successors in interest.” TEX. R. CIV. P. 203.6(b). Depositions taken
in different proceedings may be used, but only as permitted by the Texas Rules of
Evidence. TEX. R. CIV. P. 203.6(c).
Dr. Carmody’s deposition testimony was not taken in the same proceeding. It
was taken in connection with a lawsuit pending before the 366th District Court of
Collin County, Texas; the only parties to that suit were Dr. Carmody, Cameron
Carmody, M.D., P.A., and William C. McMurrey. In the case before us, the trial
court is different—the 192nd District Court of Dallas County, Texas. The parties are
different—Dr. Carmody, his professional association, and McMurrey are not parties
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in this case, nor are they representatives or successors in interest to any party in this
case. Further, there is nothing in the record to indicate that the subject matter of Dr.
Carmody’s Collin County lawsuit is the same as the subject matter of this lawsuit.
Clearly, Dr. Carmody’s deposition was not taken in the “same proceeding” and does
not meet the conditions to establish that the deponent’s statement is not hearsay. See
TEX. R. EVID. 801(e)(3).
The Taylors do not dispute Baylor’s assertion that Dr. Carmody’s deposition
testimony was not taken in the same proceeding. Nor do they argue that Dr.
Carmody’s deposition testimony is admissible under any hearsay exclusion. Instead,
they argue that Dr. Carmody’s deposition is admissible summary judgment evidence
because it is sworn testimony (albeit from another case) and because the exhibit
included the sworn declaration page of the court reporter’s transcript of the
deposition.
The Taylors contend that court records, including testimony from other cases
in other courts, may be acceptable summary judgment evidence.4 They contend that
other courts have held that transcripts of trial testimony and court records from other
4
The Taylors cite the following cases: Soefje v. Jones, 270 S.W.3d 617, 626 (Tex. App.—San Antonio
2008, no pet.) (trial court took judicial notice of certified pleadings, documents, briefs, and testimony from
prior litigation involving the same parties); Paradigm Oil, Inc. v. Retamco Operating, Inc., 161 S.W.3d
531, 539–40 (Tex. App.—San Antonio 2004, pet. denied) (court refused to take judicial notice of testimony
from previous proceeding because transcript of testimony from prior proceeding not properly authenticated
and entered into evidence); and Escamilla v. Estate of Escamilla, 921 S.W.2d 723, 726 (Tex. App.—Corpus
Christi–Edinburg 1996, writ denied) (requested testimony from first trial not properly before the trial court
at the second trial because not authenticated and entered into evidence).
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proceedings are admissible summary judgment evidence.5 The Taylors urge that this
Court should interpret these cases to conclude that so long as a deposition is certified,
it is proper summary judgment evidence in a different proceeding. We note,
however, that the Taylors’ cited cases considered the admissibility of trial testimony,
pleadings, or documents from a prior proceeding. None of those cases addressed the
admissibility of deposition testimony, specifically deposition testimony from a
different proceeding where the court, parties, and subject matter of the case are not
the same. In addition, none of the cases addressed the admission or exclusion of
hearsay testimony.
Because the record establishes that Dr. Carmody’s deposition testimony is not
from the same proceeding, and the deposition did not fall within any exclusion to
the hearsay rule, the trial court did not abuse its discretion in excluding this evidence.
See Trantham v. Isaacks, 218 S.W.3d 750, 755 (Tex. App.—Fort Worth 2007, pet.
denied) (deposition of third party taken in unrelated lawsuit not admissible); Romero
v. Parkhill, Smith & Cooper, Inc., 881 S.W.2d 522, 527 (Tex. App.—El Paso 1994,
writ denied) (“[S]ince Parkhill was not a party to the lawsuit for which the deposition
5
The Taylors cite Gunville v. Gonzalez, 508 S.W.3d 547, 562–63 (Tex. App.—El Paso 2016, no pet.),
in which the court concluded that plaintiffs’ summary judgment evidence of testimony excerpts from a prior
trial was not admissible because it was not properly authenticated. They also cite Gardner v. Martin, 345
S.W.2d 274, 276–77 (Tex. 1961), in which the court addressed the requirement that papers, records, or
other documents from prior proceeding be certified or sworn, and Old Republic Surety Co. v. Bonham State
Bank, 172 S.W.3d 210, 218 n.4 (Tex. App.—Texarkana 2005, no pet.), in which the court held that an
uncertified trial transcript consisting entirely of unsworn statements was not admissible summary judgment
evidence.
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was taken, that deposition is inadmissible hearsay as to Parkhill.”). We overrule the
Taylors’ second issue. See Butnaru, 84 S.W.3d at 211.
B. Baylor’s Motions for Summary Judgment
To prevail on their medical negligence cause of action, the Taylors were
required to prove (a) a duty requiring Baylor to act according to applicable standards
of care; (b) a breach of the applicable standards of care; (c) resulting injuries; and
(d) a reasonably close causal connection between the alleged breach of care and the
alleged injury. See Blan v. Ali, 7 S.W.3d 741, 744 (Tex. App.—Houston [14th Dist.]
1999, no pet.); Mills v. Angel, 995 S.W.2d 262, 267 (Tex. App.—Texarkana 1999,
no pet.). In its no-evidence motion for summary judgment, Baylor asserted that the
Taylors had no competent evidence from a qualified expert witness establishing that
Baylor breached its standards of care. And in its traditional motion, Baylor asserted
that its summary judgment evidence conclusively established that Baylor did not
breach the standards of care. It also asserted there is no genuine issue of material
fact concerning the Taylors’ allegations against Baylor.
We review a trial court’s ruling on a motion for summary judgment de novo.
Hillis v. McCall, 602 S.W.3d 436, 439 (Tex. 2020). We consider the evidence in the
light most favorable to the nonmovant, and we indulge every reasonable inference
and resolve any doubts in the nonmovant’s favor. Cmty. Health Sys. Prof’l Servs.
Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017) (quoting Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). Where, as here, a trial
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court’s order does not specify the grounds for its summary judgment, we must affirm
if any of the theories presented to the trial court and preserved for appellate review
are meritorious. Id.When a party has moved for summary judgment on both no-evidence and
traditional grounds, we generally address the no-evidence motion first. See
Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). If the nonmovant
fails to produce more than a scintilla of evidence on the essential elements of a cause
of action challenged by a no-evidence motion, there is no need to analyze the
movant’s traditional grounds for summary judgment. Ford Motor Co. v. Ridgway,
135 S.W.3d 598, 600 (Tex. 2004); see TEX. R. CIV. P. 166a(i).
To prevail on a traditional motion for summary judgment, however, the
movant must show that there is no genuine issue of material fact and that it is entitled
to judgment as a matter of law. See Cmty. Health, 525 S.W.3d at 681; TEX. R. CIV.
P. 166a(c). “A defendant who conclusively negates at least one of the essential
elements of a cause of action or conclusively establishes an affirmative defense is
entitled to summary judgment.” Frost Nat. Bank v. Fernandez, 315 S.W.3d 494, 508
(Tex. 2010).
1. Duty to Implement and Enforce Policies and Procedures
“The test for determining whether a hospital has a duty of care and whether
that duty has been breached is what an ordinary hospital would have done under the
same or similar circumstances.” Mills, 995 S.W.2d at 268. Generally, both parties
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agree that hospitals have a duty to manage the care, services, competence, and
quality of care and services provided at the hospital; a duty to create policies,
procedures, bylaws, rules, and regulations that govern the hospital; and a duty to
ensure that the policies and procedures it implemented were in fact instituted and
that compliance is enforced by the hospital. See Chesser v. LifeCare Mgmt. Servs.,
L.L.C., 356 S.W.3d 613, 631 (Tex. App.—Fort Worth 2011, pet. denied).
2. Duty to Prevent Excessive and Unnecessary Surgeries
In advocating that hospitals have a duty to prevent excessive and unnecessary
surgeries, the Taylors focus their complaint on those excessive and unnecessary
surgeries performed by a surgeon seeking to use, and to profit from the use of,
medical devices distributed by that surgeon’s POD.6 The Taylors charge Baylor with
failing to implement and enforce policies to monitor and restrict its physicians from
over-utilizing their own medical devices on patients to gain more profit. The Taylors
urge that if Baylor had looked at Dr. Courtney’s practices, it would have known that
Dr. Courtney was performing unnecessary and negligent surgeries in order to use his
Python medical device. They also urge that if Baylor had become aware of Dr.
Courtney’s unethical practices, it would have implemented its no-POD policy
earlier, thus preventing Bryan’s unnecessary and negligent surgeries.
6
The Department of Health and Human Services Office of Inspector General (HHS OIG) describes
physician owned distributorships (PODs) as physician-owned entities that derive revenue from selling, or
arranging for the sale of, implantable medical devices ordered by their physician-owners for use in
procedures the physician-owners perform on their own patients at hospitals or ambulatory surgical centers.
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In 2011, the United States Senate Finance Committee issued a report on the
newly emerging POD marketplace.7 Concluding that clear legal guidance was
needed, the Committee requested the Department of Health and Human Services
Office of Inspector General (HHS OIG) to conduct an inquiry and develop
recommendations for further action to address patient and program risks presented
by PODs. In March 2013, the HHS OIG issued a Special Fraud Alert, identifying
certain attributes and practices of PODS that it believed produced substantial fraud
and abuse risk and posed dangers to patient safety. The HHS OIG also issued a
targeted report addressing the prevalence and use of spinal devices supplied by
PODs. In 2016, the Senate Finance Committee issued an update to its 2011 report.
The 2016 report identified six primary concerns about PODs and made
recommendations for addressing those concerns.8
In his deposition and affidavit, the Taylors’ designated expert, Dr. Charles
Burton, stated that Baylor had a duty to have policies that (1) identified physician
owned distributorships (PODs), and (2) prohibited the hospital from purchasing any
devices from PODs. Dr. Burton opined that this is the applicable standard of care for
7
In the proceedings below, both parties and their experts referred to Senate Finance Committee and
Department of Health and Human Services Office of Inspector General studies and reports pertaining to
PODs. Baylor included these reports as part of its summary judgment evidence.
8
The Committee’s concerns included: (1) possible financial transactions that violate federal laws such
as the Anti-Kickback Statute and the Stark Law; (2) inherent conflicts of interest for POD physicians when
they have a financial incentive to perform surgeries; (3) overutilization leading to an increase in surgeries;
(4) risk of patients receiving unnecessary medical treatment; (5) confusion in the medical community as to
the legality of PODs; and (6) lack of transparency surrounding POD industry.
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hospitals because “major hospital systems across the nation have well-known no-
POD policies.”9 He further opined that this is the standard for hospitals because it is
well known that surgeons using their own devices present an inherent conflict of
interest that puts the physician’s medical judgment at odds with the patient’s best
interests, and this conflict of interest compromises patient safety and results in
unnecessary medical procedures. Dr. Burton asserted that Baylor breached the
standard of care by either not having such policies in place or failing to provide
effective peer-review to enforce such policies.
Baylor implemented a no-POD policy on November 22, 2016. In 2015, when
Dr. Courtney performed surgery on Bryan, Baylor did not have a policy prohibiting
the hospital from purchasing medical devices from PODs. However, this was not
uncommon. Dr. Burton agreed that in 2013, 2014, 2015, and beyond, many hospitals
did not have policies that prohibited purchasing from PODs. Baylor asserts, and Dr.
Burton concedes, that PODs were not prohibited in 2015, and in fact, they are not
prohibited today. Dr. Burton further concedes that in January 2015, no regulatory
agency or federal law prohibited hospitals from buying products from PODs. Thus
Baylor was not required by law to have a no-POD policy in 2015. And Dr. Burton’s
proposed standard of care would hold Baylor to a standard higher than that required
by law. See Methodist Hosp. v. German, 369 S.W.3d 333, 342–43 (Tex. App.—
9
Dr. Burton did not state when the “major hospital systems across the nation” implemented their no-
POD policies.
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Houston [1st Dist.] 2011, pet. denied) (expert could not claim nurses breached
standard of care to “draw conclusions” from patient observations because it created
standard higher than set forth in Nursing Practice Act); Schneider v. Haws, 118
S.W.3d 886, 889–90 (Tex. App.—Amarillo 2003, no pet.) (expert’s attempt to
impose upon doctor and his assistant “a standard of care greater than that compelled
by law . . . constituted no evidence, as a matter of law, of the applicable standard of
care”).
Baylor asserts that even before implementing its no-POD policy, it properly
managed conflicts of interest with its surgeons and their PODs. The HHS OIG and
Senate Finance Committee made recommendations for managing conflicts of
interest related to PODs and compliance with federal law. In his deposition, Dr.
Burton could not point to any evidence that Eminent Spine exhibited any of the
suspect characteristics identified by HHS OIG of a POD with conflicts of interest
that needed to be managed. In his affidavit, Dr. Burton opined that a no-POD policy
must state that the hospital will not purchase or enter into agreements for the
purchase of implants, instruments or other medical devices if any purpose of the
purchase is to generate or maintain referrals from a physician who has, directly or
indirectly, a financial interest in the utilization of the item purchased. In his
deposition, Dr. Burton agreed that he had reviewed the 2009 Agreement Relating To
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Purchase of Spinal Implants between Baylor, Eminent Spine, and Dr. Courtney.10
When asked if this agreement contained a provision stating that there was no
expectation that Dr. Courtney would refer patients to Baylor in exchange for the use
of his device, Dr. Burton stated that he did not recall.11 However, he conceded that
he knew of no evidence that Dr. Courtney was expected to refer patients to Baylor
in exchange for Baylor’s purchasing Eminent Spine products.
The Taylors did not produce evidence that Baylor’s peer-review practices
failed to manage conflicts of interest with respect to PODs. The 2009 Agreement
between Baylor, Eminent Spine, and Dr. Courtney required that Dr. Courtney
disclose to his patients, in writing, his ownership or investment interest in Baylor
and in Eminent Spine. Dr. Burton acknowledged that Baylor required such a
disclosure. He also acknowledged that in 2013, Baylor required Eminent Spine to
confirm that such disclosures were being made. According to the record, Bryan
signed a consent form that disclosed Dr. Courtney’s interest in Eminent Spine less
than two months before Bryan’s surgery.
In addition, the Taylors presented no evidence that Dr. Courtney performed
excessive and unnecessary surgeries in order to use, and profit from the use of, the
10
The Agreement was produced as part of Baylor’s summary judgment evidence.
11
Paragraph 6.2 of the Agreement, titled “No Referral Obligation,” states: “The parties acknowledge
and agree that this Agreement does not require, and shall not be construed to require (directly or indirectly,
explicitly or implicitly), Hospital to use any Products of Eminent Spine, nor does this Agreement require
Physician to refer or admit any patient to or order any goods or services from Hospital or any other facility,
person or service related to Hospital.”
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Python medical device distributed by Eminent Spine. In his deposition, Dr. Burton
stated that he did not perform any analysis to compare the number of surgeries
performed by Dr. Courtney before and after he began using Eminent Spine products.
The Taylors’ only evidence that Dr. Courtney performed excessive and unnecessary
surgeries was Dr. Carmody’s deposition testimony in an unrelated proceeding—
evidence that the trial court struck as inadmissible hearsay. Thus, there is no
evidence that Dr. Courtney performed excessive and unnecessary surgeries in order
to use Eminent Spine medical devices.
In summary, the Taylors have not come forward with any evidence that Baylor
had a duty to have a no-POD policy in 2015. They failed to bring forth evidence that
Baylor breached its duty to manage conflicts of interest with respect to the hospital,
its physicians, and their PODs. The Taylors also failed to present admissible
evidence that Dr. Courtney performed unnecessary and excessive surgeries in order
to utilize Eminent Spine medical devices. Once Baylor challenged the Taylors’ claim
that Baylor breached its duty to prevent Dr. Courtney from performing excessive
and unnecessary surgeries in order to use, and profit from the use of, medical devices
distributed by his POD, the Taylors had the burden to produce more than a scintilla
of evidence raising a genuine issue of material fact as to those elements of their cause
of action. See Ford Motor, 135 S.W.3d at 600. Because they failed to do so, the trial
court did not err in granting Baylor’s motion for no-evidence summary judgment as
to this issue.
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3. Duty to Enforce Policy for the Purchase of Medical Devices
In its motions for summary judgment, Baylor also asserted that the Taylors
have no evidence that Baylor breached its standard of care by failing to comply with
its policy for the purchase of medical devices. Baylor’s policy states: “[r]equests for
instruments, supplies, equipment and products new to Baylor Medical Center at
Frisco must be justified and initially approved by the Medical Executive Committee
(MEC).” The policy describes a seven-step procedure for obtaining MEC approval.
In their response, the Taylors asserted that Baylor breached the applicable
standard of care by allowing Dr. Courtney to use his Python device without obtaining
prior approval by the MEC. However, the Taylors did not come forward with any
evidence that affirmatively shows Baylor did not comply with its policy. Instead, the
Taylors assert the “evidence” in support of their claim is the absence of documentary
proof that (1) the policy and procedures were followed and (2) the device received
prior MEC approval. They assert that two of Baylor’s witnesses—Baylor’s corporate
representative, Dr. Andrews, and Baylor’s expert witness, Dr. Pate—agree there is
no proof that Baylor followed its policy with respect to the Python device. However,
the record establishes these witnesses merely stated that they personally had not seen
anything to show when Eminent Spine went through the MEC approval process for
the Python device. Dr. Pate testified that it was his understanding that Eminent Spine
went through the MEC approval process before using the Python on patients at
Baylor. He stated that there should be a document somewhere but he had not asked
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for it. The absence of evidence of prior approval does not create some evidence that
there was no prior approval. See City of Keller v. Wilson, 168 S.W.3d 802, 813 (Tex.
2005) (“In claims or defenses supported only by meager circumstantial evidence, the
evidence does not rise above a scintilla (and thus is legally insufficient) if jurors
would have to guess whether a vital fact exists.”). “When the circumstances are
equally consistent with either of two facts, neither fact may be inferred.” Id.The Taylors argue that a fact issue exists because Baylor has no proof it
followed the policy. However, the burden was on the Taylors to present more than a
scintilla of evidence raising a genuine issue of material fact that Baylor breached its
duty to comply with its policy for the purchase of new medical devices. See TEX. R.
CIV. P. 166a(i). The Taylors failed to do so. Therefore, the trial court did not err in
granting Baylor’s motion for no-evidence summary judgment as to this issue.
4. Duty to Enforce Policy for Physician Retention
In its motions for summary judgment, Baylor argued that the Taylors had no
evidence that Baylor breached the standard of care for credentialing Dr. Courtney—
initially granting him privileges to practice in the hospital, and then allowing him to
retain them. “In Texas, by statute, a hospital is not liable for improperly credentialing
a physician through its peer review process unless the hospital acts with malice.”
Romero v. KPH Consol., Inc., 166 S.W.3d 212, 214 (Tex. 2005) (citing TEX. OCC.
CODE § 160.010(b), (c)). In Romero, the supreme court noted that “[p]roof of malice
is made more difficult in this setting because peer review communications and
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proceedings are generally confidential and privileged from disclosure.” Id. at 214–
15 (citing TEX. OCC. CODE § 160.007(a)).
The Taylors contend that Baylor breached its physician retention policy by
ignoring Dr. Courtney’s many bad surgical outcomes. They rely on Dr. Carmody’s
excluded testimony to establish that Dr. Courtney had a “multitude of bad surgical
outcomes” prior to Bryan’s 2015 surgery. They argue that if Baylor had enforced its
own policy to continuously monitor and evaluate the competency of its physicians,
Dr. Courtney would not have had privileges at Baylor in 2015, and he would not
have performed unnecessary and negligent surgeries on Bryan.
In his deposition testimony, Baylor’s expert, Dr. Pate, opined that Baylor’s
medical staff bylaws and rules and procedures follow the procedures required by the
Joint Commission. Baylor utilizes an Ongoing Professional Practice Evaluation
(OPPE) in credentialing, and the MEC also evaluates the quality and appropriateness
of medical care rendered to patients. Baylor provided the deposition testimony of
Dr. Jimmy Laferney, Baylor’s Vice President for Medical Staff Affairs, with respect
to Baylor’s policies and procedures for credentialing and retention of physicians. He
described the process and documentation necessary to apply for privileges. Baylor’s
privileges are for two years—a physician must re-apply for privileges every two
years. Dr. Laferney confirmed that as part of its peer review process, Baylor
conducts ongoing professional performance evaluations for every physician, in
which every patient encounter is considered. He testified that Dr. Courtney was one
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of the first physicians to be granted privileges at Baylor Frisco. He identified the
delineation of privileges documentation showing that Dr. Courtney was credentialed
and granted privileges to perform spine surgery. He also identified documentation
showing that Dr. Courtney’s privileges were renewed every two years. He verified
that Dr. Courtney had privileges to conduct spine surgery at Baylor at the time of
Bryan’s surgery.
The Taylors argue that a fact issue exists because Baylor has no proof that Dr.
Courtney was peer reviewed in accordance with Baylor’s credentialing policies.
They point to Dr. Pate’s deposition testimony that he had no proof Dr. Courtney was
peer reviewed in accordance with Baylor’s policies. However, the absence of proof
of peer review does not create some evidence that there was no peer review. See City
of Keller, 168 S.W.3d at 813. In his deposition, Dr. Pate discussed Baylor’s peer
review policies and stated that he believed Baylor was monitoring Dr. Courtney’s
surgeries.
The Taylors also rely on Dr. Burton’s testimony that Baylor breached its
standard of care by failing to provide quality assurance on Dr. Courtney’s practice;
however, Dr. Burton testified in his deposition that he had no information about the
specifics of the credentialing process for Dr. Courtney. He agreed that he had not
seen any evidence that Baylor’s credentialing, peer review, or ongoing performance
evaluations were in any way biased. He admitted he had not reviewed any of the
Baylor medical staff bylaws or policies and procedures. Nor did he recall reviewing
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the depositions of Dr. Fitzgerald, Dr. Laferney, or Jeff Andrews with respect to peer
review and quality review. When asked if he knew if Baylor had a credentialing or
peer-review process for its physicians with staff privileges, Dr. Burton stated: “I
would assume that it did. It’s required by the certifying governmental authority.” He
also stated that based on the fact that Baylor is still in business, Baylor must be
conducting ongoing professional performance evaluations of its physicians with
staff privileges to the satisfaction of the governmental agencies.
The Taylors did not produce any evidence that Baylor acted with malice in
credentialing Dr. Courtney. Further, they did not produce any admissible summary
judgment evidence raising a genuine issue of material fact that Baylor breached its
standard of care for credentialing Dr. Courtney. See TEX. R. CIV. P. 166a(i).
Accordingly, the trial court did not err in granting summary judgment with respect
to this issue.
5. Gross Negligence
In its motions for summary judgment, Baylor argued that there was no
evidence supporting either the objective element or the subjective element of a gross
negligence claim.12 Baylor asserted there is no evidence it intended to harm Bryan.
It urged that when viewed objectively at the time of its care and treatment, there was
12
“Gross negligence” is statutorily defined as an act or omission: “(A) which when viewed objectively
from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering
the probability and magnitude of the potential harm to others; and (B) of which the actor has actual,
subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the
rights, safety, or welfare of others.” TEX. CIV. PRAC. & REM. CODE § 41.001(11).
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no evidence that any alleged act or omission of Baylor involved an extreme degree
of risk, considering the probability and magnitude of the potential harm to others.
See TEX. CIV. PRAC. & REM. CODE § 41.001(11)(A). Also, it urged there was no
evidence of any alleged act or omission concerning which Baylor had an actual,
subjective awareness of the risk involved but nevertheless proceeded with conscious
indifference to the rights, safety, or welfare of Bryan. See id. §41.001(11)(B).
In response, the Taylors argued that Baylor had actual subjective awareness
Dr. Courtney was harming patients but Baylor proceeded with conscious
indifference, repeatedly ignoring its own policies to protect the rights, safety, and
welfare of its patients. The Taylors’ evidence of Baylor’s gross negligence consisted
of Dr. Carmody’s excluded testimony. Without this evidence, the Taylors have no
evidence to create a fact issue.
Further, our conclusions above—that Baylor did not breach its standards of
care as to the Taylors—are even more damaging to the Taylors’ gross negligence
claim. Other than in worker’s compensation cases, a finding of ordinary negligence
is a prerequisite to a finding of gross negligence. See Ware v. Cyberdyne Sys., Inc.,
No. 05-10-01080-CV, 2012 WL 376671, at * 4 (Tex. App.—Dallas Feb. 7, 2012, no
pet.) (mem. op.) (citing Sonic Sys. Int’l, Inc. v. Croix, 278 S.W.3d 377, 395 (Tex.
App.—Houston [14th Dist.] 2008, pet. denied)). Here, we conclude the trial court
properly granted summary judgment on the Taylors’ gross negligence claim because
summary judgment was proper on their predicate negligence claims. See Sonic Sys.
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Int’l, 278 S.W.3d at 394–95 (where party was entitled to summary judgment on
negligence claim, party was also entitled to summary judgment on gross negligence
claim); Seaway Prods. Pipeline Co. v. Hanley, 153 S.W.3d 643, 659 (Tex. App.—
Fort Worth 2004, no pet.) (because appellant failed to show some evidence of
negligence, appellant was not entitled to recover for gross negligence).
III. Conclusion
We affirm the judgment of the trial court.
/Bill Pedersen, III//
200352f.p05 BILL PEDERSEN, III
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BRYAN TAYLOR AND MELISSA On Appeal from the 192nd Judicial
TAYLOR, Appellants District Court, Dallas County, Texas
Trial Court Cause No. DC-16-12792.
No. 05-20-00352-CV V. Opinion delivered by Justice
Pedersen, III. Justices Osborne and
BAYLOR SCOTT & WHITE Nowell participating.
MEDICAL CENTER-FRISCO,
Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee Baylor Scott & White Medical Center-Frisco
recover its costs of this appeal from appellants Bryan Taylor and Melissa Taylor.
Judgment entered this 10th day of February, 2022.
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