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Santos v. Holzman1/27/2005
Appellants, Alejandro and Martha Santos, appeal the decision of the Hidalgo County trial court granting the motion of appellee, Madelyn Holzman, M.D., to sever the claims against Dr. Holzman and to transfer venue to Cameron County. The Santoses also appeal the subsequent decision of the Cameron County trial court to dismiss the Santoses's claim. Because the motion to transfer was improperly granted, we reverse and remand.
I. FACTS
The underlying suit in this dispute involves a claim of medical malpractice resulting from an ineffective vasectomy and subsequent faulty medical advice, which resulted in two wrongful pregnancies.
In March 1998, Alejandro Santos underwent a vasectomy in a clinic located in Hidalgo County, Texas. Alejandro claims that his urologist, Dr. Roger Vitco, failed to advise him to refrain from sexual relations immediately following the procedure. Alejandro, believing that the procedure was immediately effective, resumed sexual relations with his wife, Monica, who then became pregnant after the vasectomy and gave birth in December 1998. Following the birth of this child, Alejandro underwent a fertility test in order to determine whether the vasectomy had eventually become effective. The test showed that Alejandro was still fertile. Due to his dissatisfaction with the doctor's past performance, Alejandro then decided to seek a second opinion before undergoing a second vasectomy and was referred to Dr. Madelyn Holzman. Dr. Holzman, who practices and lives in Cameron County, Texas, examined Alejandro. The Santoses allege that Dr. Holzman told Alejandro that he was infertile and could resume sexual relations with his wife. She then had him submit to a sperm count, which, when conducted a few days later, tested positive for fertility. However, according to the Santoses, these results were never reported to Alejandro. Because he had been assured of his infertility by Dr. Holzman, Alejandro resumed sexual relations with his wife. About a year after Dr. Holzman's examination and diagnosis, Monica again became pregnant and, in August 2001, gave birth to another child.
During this second post-vasectomy pregnancy, Alejandro was examined by a third urologist, who found that Alejandro was still fertile and recommended a second vasectomy, which was conducted successfully.
Alejandro and Monica then sued Dr. Vitco and the clinic from the first vasectomy for medical malpractice and wrongful pregnancies. The couple later added Dr. Holzman and several other parties to the suit. Dr. Holzman was added to the medical malpractice and wrongful pregnancy claims for advising Alejandro that he could resume unprotected sexual relations with his wife at a time when he was still fertile and for failing to communicate the results of the sperm count to the Santoses.
Dr. Holzman filed a motion to sever the claims against her and to transfer venue to Cameron County. The motion was granted and the claims against her were severed and transferred to a Cameron County district court, whereupon Dr. Holzman filed a motion to dismiss. The Cameron County district court judge granted the motion and dismissed the suit.
On appeal, the Santoses complain of three issues: (1) the motion to sever and transfer the claims against Dr. Holzman should not have been granted by the Hidalgo County district court; (2) the Cameron County court erred in granting Dr. Holzman's motion to dismiss; and (3) the Cameron County court erred in denying the Santoses's motion for a new trial.
II. SEVERANCE AND VENUE
We first address the issues of severance and transfer of venue. Trial courts may sever claims that are improperly joined to t
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