Man bites dog

722 S.W.2d 746
Court of Appeals of Texas,
Houston (14th Dist.).
Roy C. NICHOLSON, Appellant,
MEMORIAL HOSPITAL SYSTEM and Southeast Memorial Hospital, Appellees.
No. B14-86-239-CV.
Dec. 11, 1986.
Rehearing Denied Jan. 15, 1987
SEARS, Justice.
This is a case of man bites dog. Appellant, apparently angered by the barking of a dog in a parked truck, approached the truck and bit the dog. The owner of the dog, apparently angered by the unprovoked attack on his best friend, approached Appellant and broke his jaw. Appellant's complaint however, is not against the dog or its owner, but instead Appellant sued Appellees for negligence in their care and treatment of his fractured mandible. The trial court entered a summary judgment in favor of these Appellees, severed Appellant's case against Dr. Naficy, and this appeal followed. We affirm.
Appellant arrived at the emergency room of Appellee hospital (Appellees will hereafter be referred to collectively as “the Hospital”) on April 30, 1982. He had no family physician and requested that someone at the hospital recommend a doctor to treat him. Dr. Naficy, a physician who had staff privileges at that hospital was contacted and he admitted Appellant into the Hospital in the early hours of May 1, 1982. Dr. Naficy then performed a total of four operations on Appellant to repair his fractured mandible. During his hospitalization Appellant developed a tissue infection in his mouth and ultimately left the Hospital against medical advice on June 12, 1982. Appellant then sued the Hospital and Dr. Naficy for negligence in connection with the infection. He alleged the Hospital was negligent in recommending Dr. Naficy, in failing to keep his wound clean, in failing to keep his room clean and in failing to properly and timely change his dressings. He further alleged Dr. Naficy was negligent in his treatment of the wound and the infection.
The Hospital filed a Motion for Summary Judgment alleging that the summary judgment evidence established as a matter of law that the Hospital was not vicariously liable for any negligence of Dr. Naficy; that the Hospital was not negligent in recommending Dr. Naficy, in keeping Appellant's wound and hospital room clean, or in changing the dressings on Appellant's wound. The trial court granted the motion and severed the cause of action against Dr. Naficy thus allowing this summary judgment to become final.
Appellant asserts that the trial court erred in finding no material fact questions on the issues of the Hospital's vicarious liability and its liability for its independent negligence. Hospital's summary judgment evidence included the affidavits of the administrator of Southeast Memorial Hospital and two physicians. Appellant filed a sworn Response to the Motion for Summary Judgment which incorporated portions of three depositions. Two of these depositions were not filed until after the Motion *749 for Summary Judgment was granted. Appellant complains that those two depositions should be part of the appellate record.