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Gomez v. Diaz8/31/2001
esentation was made with the intention that it be acted upon by the other party, (5) the party acted in reliance upon the representation, and (6) the party suffered injury. Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex. 1998). Our analysis of Gomez's DTPA causes of action based on intentional misrepresentation applies to her fraud cause of action as well. That is, we agree that Gomez produced no evidence of any intentional misrepresentation on the part of Diaz. This evidence is essential to show the first four elements of Ms. Gomez's common law fraud cause of action. Therefore, we affirm the trial court's grant of no-evidence summary judgment on this cause of action.
We turn now to Gomez's cause of action for battery. Dr. Diaz moved for traditional summary judgment on the basis that this cause of action was merely a recast health care liability claim. See Tex. R. Civ. P. 166a(c). We agree. The essence of Gomez's battery cause of action is that Diaz's failure to adequately inform her regarding the surgery he performed prevented her from effectively consenting to the operation. Therefore, his performance of the operation constituted battery. Cases regarding whether a patient effectively consented to a medical procedure are expressly brought within the purview of the MLIIA. See Tex. Rev. Civ. Stat. Ann. art. 4590i, subchapter F. We hold the trial court correctly granted summary judgment in favor of Dr. Diaz on this claim.
Finally, we must address Ms. Gomez's allegation that Dr. Diaz intentionally refused to repeat his opinion that the hysterectomy was not performed correctly. Ms. Gomez contends that this amounts to a breach of fiduciary duty and unconscionable conduct. Again, we hold that these are merely recast health care liability claims. We cannot see how this claim amounts to anything other than a claim that the doctor failed to adhere to professional standards of conduct in his treatment of Diaz. If any duty exists for a doctor to repeat statements made to a patient, it would derive from the professional relationship between them. Cf. St. John v. Pope, 901 S.W.2d 420, 424 (Tex. 1995). Thus, any such claim would be--in effect--a claimed departure from the standards that govern the health care industry, and as such, would be a healthcare liability claim governed by the MLIIA. Accordingly, we affirm the trial court's grant of summary judgment on that basis, as well.
As we have found the trial court properly granted summary judgment against Ms. Gomez on all causes of action plead against Dr. Diaz, we affirm the judgment of the trial court in all respects.
Publish. Tex. R. App. P. 47.3(b).
Opinion delivered and filed this 31st day of August, 2001.
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