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Agbor v. St. Luke's Episcopal Hospital11/30/1995
Comfort and Kingsley Agbor, individually and as next friend of their minor son, Dikeh Agbor (the Agbors), appeal a summary judgment granted to St. Luke's Episcopal Hospital (St. Luke's), asserting the trial court erroneously interpreted the Texas Medical Practice Act (the Texas Act) as requiring a showing of malice in a claim for negligent credentialing, and, alternatively, the Texas Act violates the Open Courts Provision of the Texas Constitution. We reverse and remand.
On November 19, 1990, Dikeh was delivered by Dr. Suzanne Rothchild at St. Luke's. The Agbors allege that in dislodging Dikeh's shoulder from the birth canal, Dr. Rothchild injured Dikeh's brachial plexus, permanently disabling his arm. The Agbors also allege that St. Luke's was negligent and grossly negligent in renewing Dr. Rothchild's staff privileges because she was not a Texas resident, was not properly insured for medical malpractice and was a defendant in several malpractice actions.
The Agbors sued Dr. Rothchild for medical malpractice and St. Luke's for "negligent credentialing." In its motion for summary judgment, St. Luke's urged that the Texas Act provides immunity for credentialing actions taken by health-care entities absent a showing of malice. See TEX. REV. CIV. STAT. ANN. art. 4495b Section(s) 5.06 (l) & (m) (Vernon Supp. 1995). The trial court granted the motion for summary judgment and severed the Agbors' action against St. Luke's from the action against Dr. Rothchild. The Agbors bring this appeal.
Because it is potentially dispositive of this appeal, we will initially address St. Luke's first reply point that this court lacks jurisdiction to hear this appeal because the Agbors' notice of appeal was not timely filed. St. Luke's motion for summary judgement was orally granted on September 20, 1993, and the Agbors' action against St. Luke's was severed on December 10, 1993. A written take-nothing summary judgment was signed on December 17, 1993, but reflected the cause number of the original action, 92-19823, rather than that of the severed action, 92-19823-A. A second summary judgement reflecting the severed cause number was signed on January 26, 1994. The Agbors filed a motion for reconsideration and new trial on February 16, 1994, and an appeal bond on April 15, 1994.
St. Luke's argues that since the second summary judgement granted no relief beyond that granted in the first, the second summary judgment is a nullity. It further maintains that the trial court's use of the incorrect cause number was merely a clerical error, and should have been corrected by judgement nunc pro tunc. See TEX. R. CIV. P. 316. Thus, St. Luke's contends that the trial court's plenary power expired on January 16, 1994, thirty days after the first summary judgement order was signed. See TEX. R. CIV. P. 329b; Uvere v. Canales, 825 S.W.2d 741, 744 (Tex. App.--Dallas 1992, orig. proceeding). Accordingly, it contends that the trial court had no power to modify its judgment, except for correction of clerical errors by nunc pro tunc. See Id. St. Luke's argues that since the trial court's plenary power had expired, entry of the January 26, 1994, summary judgement did not extend the time for the Agbors to perfect an appeal. See Stephens v. Henry S. Miller Co., 667 S.W.2d 250, 252 (Tex. App.--Dallas 1984, writ dism'd by agr.). Thus, St. Luke's contends the Agbors' appeal bond was not timely filed. We disagree.
The summary judgement entered on December 17, 1994, was in cause number 92-19823 rather than the severed cause number 92-19823-A. Thus, the summary judgement entered on December 17 ordered that the Agbors take nothing from St. Luke's in cause number 92-19823 when St. Luke's was no l
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