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Gomez v. Diaz8/31/2001
Opinion by Justice Dorsey
Maria L. Gomez brings this appeal complaining that the trial court improperly granted summary judgment against her on all causes of action against appellees Pedro S. Diaz, M.D. and Pedro S. Diaz, M.D., P.A. (collectively referred to herein as Diaz). Plaintiff sued Dr. Diaz for fraud, misrepresentation, breach of fiduciary duty, violations of the DTPA, breach of express warranty and battery. She specifically excluded any claims for professional negligence from her lawsuit.
Ms. Gomez's lawsuit stems from injuries she alleges to have sustained as a result of undergoing a hysterectomy performed by Dr. Douglas Matey in 1996. Dr. Diaz was neither involved in performing that operation nor in rendering any treatment leading up to it. Ms. Gomez first saw Dr. Diaz in 1997, almost a year after her hysterectomy. She claims that at that time, Dr. Diaz told her that the hysterectomy had been badly done, leaving her bladder damaged and her ovaries "dangling."
Dr. Diaz recommended that Ms. Gomez have her bladder repaired and her ovaries removed. Ms. Gomez complains that Diaz advised her of no other treatment alternatives. Diaz, in fact, performed the surgery to make the repairs. Ms. Gomez also complains that this surgery was performed incorrectly, and that despite Dr. Diaz's knowledge that the surgery did not go well, he falsely assured her that she would recover from it satisfactorily and that her prognosis was good. Also, Ms. Gomez complains that Dr. Diaz refused to repeat the statements he made to her regarding the poor quality of the hysterectomy that had been performed the year before, which prevented her from filing suit to recover for the damages she sustained as a result.
Ms. Gomez alleges that Dr. Diaz's refusal to assist her "in exposing the previous malfeasance" committed by the doctor who performed the hysterectomy amounted to a breach of fiduciary duty and was unconscionable. She claims that his failure to advise her of alternatives to having her ovaries removed was unconscionable, and was performed without effective consent, which she was unable to give absent full knowledge of the available alternative courses of treatment. She also claims that Diaz fraudulently induced her into consenting to the removal of her ovaries. Finally, she claims that Diaz's refusal to repeat his criticisms about the hysterectomy was calculated to prevent her from pursuing a cause of action against the providers of that surgery.
Standard of Review
Dr. Diaz moved for summary judgment on both traditional and no-evidence grounds. Compare Tex. R. Civ. P. 166a(c)with Tex. R. Civ. P. 166a(i). The standards by which this Court reviews the two types of summary judgments are different. See Michael v. Dyke, 41 S.W.3d 746, 750-51 (Tex. App.--Corpus Christi 2001, no pet.).
We review a trial court's grant of traditional summary judgment by using the same standards used by the trial court. SeeTex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546, 548-49 (Tex. 1985). To prevail, the moving party must conclusively establish the absence of any genuine question of material fact and entitlement to judgment as a matter of law. See Tex. R. Civ. P. 166a(c). The motion must state the specific grounds upon which judgment is sought. Id. The movant must either prove all essential elements of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986), or negate at least one essential element of the non-movant's cause of action. See Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). If the moving party moves for summary judgment on an affirmative defense, he must conclusively establish each element of the
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