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Maldonado v. Frio Hospital Association6/21/2000
situation where the Association exposed itself to vicarious liability for the actions of its employees, the explicit language in place would require significant revision. However, this court is "not free to rewrite the statutes to reach a result we might consider more desirable, in the name of statutory construction." Public Utility Comm'n v. Cofer, 754 S.W.2d 121, 124 (Tex. 1988).
We must likewise reject appellants' claim that the Association is liable under the tangible property provision of the TTCA. Specifically, appellants allege negligence by the Association through its employee-nurses in the operation of the fetal monitor pursuant to section 101.021(2)(Vernon 1997). See Tex.Civ. Prac. & Rem. Code Ann. ยง101.021(2) (Vernon 1997). The co-employee status of the Association and its employee-nurses precludes liability even if it were determined that the nurses were negligent in their use of the fetal monitor. Appellants' remedy, if any, is against the individual practitioners and the Frio Hospital District. We overrule appellants' first issue.
Holmes Affidavit
In their second issue on appeal, appellants argue the trial court erred in overruling their objections to the affidavit of the hospital administrator, Alan Holmes. The rules of civil procedure permit the trial court to consider the affidavit of an interested witness in a summary judgment if the testimony is: (1) clear, positive and direct; (2) otherwise credible and free from contradictions and inconsistencies; and (3) susceptible to being readily controverted. Tex. R. Civ. P. 166a(c); Republic v. Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986). The admission or exclusion of summary judgment evidence rests within the sound discretion of the trial court. Sanders v. Shelton, 970 S.W.2d 721, 727 (Tex. App.-Austin 1998, pet. denied).
Appellants object to the Holmes affidavit on the grounds that it purports to establish that the Association exercised no medical discretion over the birth of Zap Anthony, and that Holmes is an interested witness who offers no more than conclusory legal statements. We disagree. See McCord v. Memorial Med. Ctr. Hosp., 750 S.W.2d 362, 363 (Tex. App.-Corpus Christi 1988, no writ)(holding affidavit from hospital district administrator and president sufficient summary judgment evidence to establish hospital district as political subdivision of State). Holmes testified about the Association's administrative activities, namely hospital hiring practices. This testimony satisfied the requirements of personal knowledge within the parameters of the procedural requirements. See Tex. R. Civ. P. 166a(c)(f); Ryland Group, Inc., v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). In any event, our recognition of the Association's immunity under the hospital district management contractor liability statute renders this argument moot. The trial court did not abuse its discretion in admitting the affidavit as competent summary judgment evidence. We overrule appellants' second issue and affirm the judgment of the trial court.
PUBLISH
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