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.
Dec. 11, 1986.
Rehearing Denied Jan. 15, 1987
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