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Holtschult v. Savin5/14/1999
Appellant Susan Holtschult, individually and as next friend for her daughter Brean, appeals the trial court's summary judgment that she take nothing from appellee Michael Savin, M.D. in this medical malpractice suit. In one point of error she asserts that the trial court erred in granting summary judgment because there are material fact issues on whether she can maintain her claim under the Texas Deceptive Trade Practices Act. For reasons given below, we overrule her point of error and affirm the trial court's judgment.
Holtschult was referred to Dr. Savin because she suffered from deep venous thrombosis. Dr. Savin gave her the anticoagulant medication Coumadin. As a result, Holtschult was required to have her prothrombin time regularly monitored. For about six months, from September 1991 to March 1992, Holtschult did not have her prothrombin time monitored. In March 1992, Dr. Savin told Holtschult that a prothrombin time measurement was necessary, but one was never done. A month later, Holtschult was hospitalized with severe clotting.
Holtschult sued Dr. Savin on claims of medical negligence and claims under the Texas Deceptive Trade Practices Act (DTPA). The trial court originally granted Dr. Savin summary judgment that Holtschult take nothing on all her claims. Holtschult appealed, and this Court affirmed the judgment on the claims of medical negligence but reversed the judgment on the DTPA claims because Dr. Savin's motion for summary judgment had not addressed those claims. On remand, Dr. Savin addressed the DTPA claims in an amended motion for summary judgment, and once again the trial court granted his motion. Holtschult again appeals.
The parties agree that, in general, a plaintiff is statutorily barred by the Texas Medical Liability and Insurance Improvement Act from bringing a DTPA claim against a physician for a claim for damages resulting from the physician's negligence. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 12.01(a) (Vernon Supp. Pamph. 1999). Holtschult, however, argues that there is an exception if the DTPA claims are not based upon negligence or a physician's breach of the accepted standard of medical care. If the DTPA claims are based upon a knowing misrepresentation or breach of express warranty in cases in which a physician warrants a particular result, the claims are not statutorily barred. Sorokolit v. Rhodes, 889 S.W.2d 239, 243 (Tex. 1994).
Dr. Savin responds that the underlying nature of a plaintiff's claim determines whether it is statutorily barred. He cites to the very same case that Holtschult cites:
""Claims that a physician . . . was negligent may not be recast as DTPA actions to avoid the standards set forth in the Medical Liability and Insurance Improvement Act."" Sorokolit, 889 S.W.2d at 242. If a DTPA claim requires a determination of whether a physician failed to meet the standard of medical care, it is a claim based on negligence and is barred by the statute. MacGregor Med. Ass'n v. Campbell, 985 S.W.2d 38, 40 (Tex. 1998) (per curiam). A health care liability claim is "a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient." Tex. Rev. Civ. Stat. Ann. art. 4590i, § 1.03(a)(4) (Vernon Supp. Pamph. 1999); see Campbell, 985 S.W.2d at 41.
We now turn to the allegations Holtschult made in her first amended original petition, the live pleading at the time Dr. Savin filed his amended motion for summary judgment. The petition asserts:
"On the occasion(s) in question, Dr. Michael Savin neglig
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