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Hoyt v. Kim

Court of Appeals of Texas, Fifth District, Dallas

April 28, 2017


         On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-16-01507-C.

          Before Justices Lang, Fillmore, and Schenck



         Appellants 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.


         On 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.

         Dr. Kim 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 performed.

         Dr. Kim 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.

         On or 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.

         On the 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."[1]

         On 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 Kris' death.

         Appellants 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.[2] 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.

         The trial court granted Dr. Kim's and Dr. Zamora's no-evidence motions for summary judgment.[3] Appellants filed a Motion for New Trial or Motion for Reconsideration through which appellants attempted to introduce additional summary judgment evidence.[4] The trial court denied the motion.[5] 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.

         Standard of Review

         We 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)).


         In two 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.[6]

         Dr. 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.[7] 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.

         Applying 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. ...

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