Court of Appeals of Texas, Fifth District, Dallas
STEVEN HOYT, INDIVIDUALLY, AND AS NEXT OF FRIEND OF MINOR CHILDREN, T.H. AND J.H., AND AS SOLE ADMINISTRATOR OF THE ESTATE OFKRISTINE HOYT, Appellants
DAVID D. KIM, M.D. AND JUAN LUIS ZAMORA, M.D., Appellees
Appeal from the County Court at Law No. 3 Dallas County,
Texas Trial Court Cause No. CC-16-01507-C.
Justices Lang, Fillmore, and Schenck
J. SCHENCK JUSTICE
Steven Wayne Hoyt, Individually and as Next Friend of Minor
Children T.L.H. and J.L.H., and as Sole Administrator of the
Estate of Kristine Hoyt, appeal the trial court's orders
granting no-evidence summary judgment in favor of appellees
David D. Kim, M.D. and Juan Luis Zamora, M.D. in a suit
appellants initiated following the death of Kristine Hoyt
(Kris). While this case arises from a death allegedly related
to the rendition of medical services, the only claims before
us on appeal are fraud and conspiracy to commit fraud. We
conclude appellants failed to present more than a scintilla
of evidence of at least one essential element of these claims
against these doctors. Accordingly, we affirm the trial
court's orders granting summary judgment in favor of Dr.
Kim and Dr. Zamora. Because all issues are settled in law, we
issue this memorandum opinion. Tex.R.App.P. 47.4.
March 2, 2009, Dr. Kim performed exploratory diagnostic
laparoscopic surgery on Kris at Wise Hospital due to
complaints of acute abdominal pain following gastric bypass
surgery the year before. Kris was thirty-seven years old at
the time, and she was the wife of Steven and mother of T.L.H.
and J.L.H. During the surgery, a nurse anesthetist, under the
supervision of anesthesiologist Jason R. Schuh, M.D.,
administered intravenous general anesthesia to Kris.
The anesthesia and/or muscle relaxants administered to Kris
allegedly did not adequately sedate her and, according to Dr.
Kim, she began "bucking" when he inserted a
bladeless trocar into her right abdominal cavity. While the
parties argue over the exact sequence of events, it is clear
that Kris had been on the operating table and under the
effects of anesthesia for some time when the procedure began.
Dr. Kim testified that at some point during the procedure she
"bucked, " perhaps due to the waning effect of
anesthesia, causing the severance of her abdominal aorta.
Complications followed Dr. Kim's efforts to repair the
aorta, and Kris developed disseminated intravascular
coagulopathy and died on the operating room table.
informed Steven of Kris' death. He told Steven that even
though the Justice of the Peace had declined an inquest, an
autopsy was still an option, although Dr. Kim did not think
it was necessary because he knew the cause of death. Steven
advised Dr. Kim and Dr. Schuh that he wanted an autopsy
notified hospital management of Steven's desire to have
an autopsy performed. Hospital management contacted Autopsy
Associates of North Texas ("Autopsy Associates") to
arrange for the autopsy. Autopsy Associates assigned the case
to Dr. Zamora.
after March 2, 2009, and prior to March 4, 2009, Dr. Kim
dictated his initial postoperative report. On March 4, 2009,
Dr. Kim dictated a second operative report after a hospital
medical records department employee notified him that he
could not locate Dr. Kim's initial dictation. In that
second report, Dr. Kim included a post-operative diagnosis of
trocar related injury of the distal aorta, and indicated that
the trocar created a maceration type of injury. In the
procedure portions of his second report, Dr. Kim indicated:
more than 50% of a very small aortic surface was injured by
the trocar; when he could clearly examine the injury that had
occurred, he observed a small macerated tear of the distal
aorta created by the bladeless trocar tip; he had to resect
the distal portion of the tortuous aorta because of the
damage created by the trocar; and an unfortunate bucking at
the exact time of the trocar insertion along with other
factors were the components that led to the aortic injury.
morning of March 6, 2009, Dr. Zamora verbally communicated
the preliminary results of the autopsy to Dr. Kim. Later that
day, at approximately 2:30 p.m., Dr. Zamora transmitted his
preliminary report by facsimile to the hospital and Dr. Kim.
Dr. Zamora's preliminary report attributed Kris'
death to a spontaneous dissection of the aorta and referenced
the use of a flexible catheter, rather than a bladeless
trocar, which is a rigid instrument. On that same day, Dr.
Kim made hand-written changes to his operative report,
deleting most of the references to a trocar injury, and
adding "[a]t the time of this dictation, the findings at
autopsy were not available."
April 27, 2009, Dr. Zamora issued his final report and
notified Steven that, in his opinion, Kris died of
"Dissecting Aneurysm of the Aorta" and that
microscopic sections of the aorta showed changes that are
consistent with a degenerative vascular disease known as
Erdheim's Medial Degeneration. After receiving Dr.
Zamora's autopsy report, which conflicted with what Dr.
Kim had told Steven, appellants arranged for pathologist
Michael Baden, M.D. to perform a second autopsy. Dr. Baden
performed the second autopsy on June 10, 2009. He concluded
Kris died from massive internal hemorrhage caused by an
inadvertent perforation of the aorta during the laparoscopic
procedure, not as the result of a preexisting degenerative
vascular disease. This conclusion is consistent with the
explanation Dr. Kim gave to Steven immediately following
sued several individuals and the anesthesia group alleging
claims of negligence causing Kris' death and/or
participation in a subsequent cover-up regarding the cause of
her death. With respect to Dr. Kim and
Dr. Zamora, appellants did not allege any acts of negligence
that caused Kris' death. Rather, they alleged Dr. Kim and
Dr. Zamora participated in a post-mortem fraud consisting of
a cover-up of the true cause of Kris' death.
trial court granted Dr. Kim's and Dr. Zamora's
no-evidence motions for summary judgment. Appellants filed a Motion for New Trial or
Motion for Reconsideration through which appellants attempted
to introduce additional summary judgment
evidence. The trial court denied the
motion. Thereafter, the trial court
severed appellants' claims against Dr. Kim and Dr. Zamora
from those against the remaining defendants making its
summary judgment orders final. This appeal followed.
review a no-evidence motion for summary judgment under the
same legal sufficiency standard used to review a directed
verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 750-51 (Tex. 2003); Pollard v. Hanschen, 315
S.W.3d 636, 638 (Tex. App.-Dallas 2010, no pet.). The moving
party must file a motion that specifies which elements of the
nonmoving party's claim lack supporting evidence.
Tex.R.Civ.P. 166a(i); Thomas v. Omar Investments,
Inc., 129 S.W.3d 290, 293 (Tex. App.-Dallas 2004, no
pet.). Once a proper motion is filed, the burden shifts to
the nonmoving party to present evidence raising any issues of
material fact. Pollard, 315 S.W.3d at 638. We
examine the record in the light most favorable to the
non-movant and disregard all contrary evidence and
inferences. King Ranch, 118 S.W.3d at 750-51. A
no-evidence summary judgment is improper if the respondent
brings forth more than a scintilla of probative evidence to
raise a genuine issue of material fact on the challenged
elements. Tex.R.Civ.P. 166a(i); Wal-Mart Stores, Inc. v.
Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). The
respondent is "not required to marshal its proof; its
response need only point out evidence that raises a fact
issue on the challenged elements." Tex.R.Civ.P. 166a(i)
cmt.- 1997; Hamilton v. Wilson, 249 S.W.3d 425, 426
(Tex. 2008) (per curiam). We review a no-evidence summary
judgment for evidence that would enable reasonable and
fair-minded jurors to differ in their conclusions.
Hamilton, 249 S.W.3d at 426 (citing City of
Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)).
issues, appellants contend the trial court erred in granting
Dr. Kim's and Dr. Zamora's no-evidence summary
judgments because appellants' summary judgment evidence
raised fact issues on the challenged elements of their fraud
and conspiracy to commit fraud claims.
Kim's no-evidence motion for summary judgment recited the
elements of appellants' fraud and conspiracy to commit
fraud claims, and asserted appellants could not provide any
evidence to support each and every element of those claims.
Dr. Zamora's motion asserted appellants could not provide
any evidence of each element of their fraud claim other than
damages. As to appellants'
conspiracy to commit fraud claim, Dr. Zamora asserted
appellants could not provide any evidence of fraud, or that
the defendants acted together and had a meeting of the minds.
the standard of review, we note that in order to defeat the
no-evidence motions for summary judgment, appellants had to
bring forth evidence sufficient to raise a genuine issue of
material fact on every challenged element of each of its
causes of action. RTLC AG Prods., Inc. v. ...