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McCall v. Clynch3/22/2000
Henry McCall appeals the trial court's grant of summary judgment in favor of Michael Clynch, M.D. in this suit for sexual exploitation by a nurse and medical malpractice. In two issues, McCall contends the trial court erred in (1) granting summary judgment and (2) overruling his objections to the summary judgment evidence. We affirm in part and reverse and remand in part.
Background
While an inpatient at Garland Community Hospital (the Hospital) for psychiatric treatment and detoxification, McCall developed a sexual relationship with Bonnie Crowder, a nurse at the Hospital. This relationship continued after McCall was released from the Hospital. McCall eventually sued Dr. Clynch, Crowder, another doctor at the Hospital, the Hospital, and the corporation that owned the Hospital for sexual exploitation and negligence.
This is the second appeal from a summary judgment in this case. In 1995, the trial court granted Clynch's motion for summary judgment and severed Clynch from the remaining suit. On appeal, we reversed and remanded the trial court's judgment because Clynch's motion for summary judgment failed to address one of McCall's causes of action. On remand, Clynch filed an amended motion for summary judgment alleging he was entitled to summary judgment on both of McCall's causes of action. McCall responded that certain fact issues precluded summary judgment on his cause of action for negligence. After a hearing, the trial court granted Clynch's motion. This appeal followed.
Standard of Review
The standards for reviewing a summary judgment are well established. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). To prevail on a motion for summary judgment, a defendant must either disprove at least one element of each of the plaintiff's causes of action or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. See id.
Discussion
In McCall's first issue, he contends the trial court erred in granting summary judgment. In his amended petition, McCall alleged causes of action against Clynch for (1) sexual exploitation by a mental health services provider under Chapter 81 of the Texas Civil Practice and Remedies Code (Chapter 81) and (2) medical malpractice under Article 4590i of the Texas Revised Civil Statutes Annotated. In his amended motion for summary judgment, Clynch argued he was entitled to summary judgment on both causes of action because (1) Chapter 81 was not in effect at the time the cause of action accrued; and (2) he negated the essential elements of a medical malpractice cause of action.
1. Sexual Exploitation
In enacting Chapter 81, the legislature provided a mental health patient or former patient a cause of action against a mental health services provider for sexual exploitation. See Tex. Civ. Prac. & Rem. Code Ann. § 81.002 (Vernon 1997). Specifically, the patient may bring suit against the mental health services provider or employer for damages suffered from sexual contact, sexual exploitation, or therapeutic deception by the mental health services provider. See id. However, Chapter 81 only applies to causes of action accruing on or after September 1, 1993, the effective date of the statute. See Act of June 11, 1993, 73rd Leg., R.S., ch. 573, § 2.08, 1993 Tex. Gen. Laws 2166
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