Arguello v. Gutzman

• Decision Date: 24 June 1992
• Docket Number: No. 04-91-00362-CV,04-91-00362-CV
• Citation: 838 S.W.2d 583
• Parties: Pete C. ARGUELLO and Mercy Arguello, Appellants, v. Dennis GUTZMAN, M.D., Appellee.
• Court: Texas Court of Appeals

Page 583

838 S.W.2d 583

Pete C. ARGUELLO and Mercy Arguello, Appellants, v. Dennis GUTZMAN, M.D., Appellee.

No. 04-91-00362-CV.

Court of Appeals of Texas San Antonio.

June 24, 1992.

Rehearing Denied July 20, 1992.

Jerry V. Hernandez, Law Offices of Gregory W. Canfield, San Antonio, for appellants.

Constance S. Kirk, Bailey and Williams, San Antonio, Kevin J. Keith, Fowler, Wiles, Norton & Keith, L.L.P., Dallas, for appellee.

Before BUTTS, CHAPA and BIERY, JJ.

OPINION

BUTTS, Justice.

This is an appeal from a summary judgment granted in favor of Dr. Dennis Gutzman in a medical malpractice action brought by Pete and Mercy Arguello.

Pete Arguello consulted Dr. Gutzman on April 9, 1987, complaining of pain in his right knee. Gutzman diagnosed the condition as a torn medial meniscus and operated on April 24. During the surgery, Dr. Gutzman discovered a bucket handle tear of the medial meniscus. In the attempt to repair the meniscus, one of the jaws of the instrument he was using broke and went into Arguello's knee. Unable to locate the broken piece through arthroscopic visualization or x-rays, Gutzman performed an arthrotomy. He found the piece and, using posterior palpation, brought the broken instrument up to remove it. Arguello was released from the hospital a few days later, and thereafter underwent physical therapy.

The Arguellos filed suit, cause no. 88-CI-16341, against Gutzman, alleging misrepresentation, lack of informed consent, and negligence in the use of the instrument and in failing to inspect it prior to surgery. Gutzman moved for summary judgment on the basis that there was no genuine issue as to any material fact regarding two essential elements of the Arguellos' medical negligence action, breach of duty and proximate causation. Gutzman's affidavit was filed in support of the motion for summary judgment.

The Arguellos responded that Gutzman's affidavit and supplemental affidavit contained conclusory statements and raised genuine fact issues concerning Gutzman's use of the instrument. Gutzman's affidavits, deposition, and answers to interrogatories, and Pete Arguellos' affidavit, were submitted in support of the response. Gutzman filed a supplemental affidavit.

The trial court entered an order granting the motion for summary judgment in favor of Gutzman on the negligence claim. The Arguellos appealed the interlocutory summary judgment. This court dismissed the appeal for lack of jurisdiction. The trial court subsequently ordered the false representation and lack of informed consent claims severed from the negligence cause of action and given cause no. 88-CI-16341-A.

The Arguellos' point of error on appeal is that the trial court erred in granting summary judgment because they presented sufficient summary judgment evidence to create a fact issue and Gutzman failed to prove that no genuine material fact issue existed as to one or more of the essential elements of the Arguellos' cause of action.

A defendant who moves for summary judgment has the burden of proving that no material issue of fact exists as to the plaintiff's cause of action and that it is entitled to judgment as a matter of law. See Griffin v. Rowden, 654 S.W.2d 435 (Tex.1983); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979); TEX.R.CIV.P. 166a(c). This may be accomplished by disproving as a matter of law one or more of the elements essential to the plaintiff's claims. Anderson v. Snider, 808 S.W.2d 54 (Tex.1991). Once the defendant establishes its entitlement to judgment as a matter of law, the plaintiff, as nonmovant, must present summary judgment proof to establish a fact issue. Clear Creek, 589 S.W.2d at 678. In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the nonmovant. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Every reasonable inference from the evidence will be indulged in favor of the nonmovant, and any doubts will be resolved in his favor. Nixon, 690 S.W.2d at 549; Montgomery, 669 S.W.2d at 311.

The essential elements of a plaintiff's malpractice cause of action are a duty requiring the physician to conform to a certain standard of conduct; the applicable standard of care and its breach; injury; and a causal connection between the breach of the standard of care and the harm. Elam v. Yale Clinic, 783 S.W.2d 638, 642 (Tex.App.--Houston [14th Dist.] 1989, no writ); Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex.App.--Houston [1st Dist.] 1988, writ denied); Pinckley v. Gallegos, M.D., P.A., 740 S.W.2d 529, 531 (Tex.App.--San Antonio 1987, writ denied). See Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex.1977); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949). Gutzman's motion averred his entitlement to summary judgment as a matter of law because of the lack of a material fact issue concerning the elements of breach of duty and proximate cause.

Gutzman's first affidavit set out his educational and professional background; his diagnosis of Arguello's condition as a torn medial meniscus; the details of the surgical procedure he performed; and the post-operative treatment. He stated he was familiar with the standard of care for the diagnosis and treatment of a patient such as Arguello and that, in his expert opinion based upon a reasonable degree of medical probability, his diagnosis and treatment of Arguello were in accordance with the appropriate standard of care. Gutzman also stated that the instrument did not break as a result of any action or inaction on his part, he used the instrument properly and correctly, and that based upon a reasonable degree of medical probability, no act or omission on his part caused or contributed to any injuries suffered by Arguello.

Gutzman's supplemental affidavit details the appropriate standard of care for the diagnosis and treatment of a patient such as Arguello. The patient is initially evaluated through a history and physical examination. When the orthopedic surgeon suspects the patient suffers from a torn medial meniscus, the surgeon should propose an arthroscopic medial mensicetomy. During the procedure, a scope is put into the knee for visualization, followed by probing, and removal of the damaged cartilage within the knee, or ligament reconstruction. If an instrument should break during the surgery, the standard of care requires the surgeon to search for and remove the instrument by use of arthroscopic visualization and x-ray. Gutzman referred to his previously executed affidavit, and stated that "no undue pressure or traction was asserted by me while ... using the meniscus grabber" and that "my use of the arthroscopic device in question was in accordance with the appropriate standard of care". He further stated that it was not his responsibility, as orthopedic surgeon, to examine the devices prior to surgery.

Pete Arguello testified in his affidavit and supplemental affidavit that as a result of the incident, he was hospitalized for several days, experiences continuous knee pain, and is unable to obtain employment or engage in recreational activities.

Gutzman testified in his deposition that he told Arguello his diagnosis of cartilage damage. Prior to surgery the instruments are normally checked by the operating room technician. It is uncommon for the instruments to break. He listed several factors that can cause the instrument to break: the position of the instrument, the particular procedure being performed, the instrument itself, and the anatomical arrangement of the patient. When asked again as to what can cause the instrument to break, Gutzman testified there are two possibilities: misuse and defect.

The Arguellos agree that Gutzman's affidavits state the appropriate standard of care. However, they contend that granting a summary judgment on the basis that no fact issue was created due to the lack of expert testimony establishing that the treatment or diagnosis of Gutzman constituted negligence and was a proximate cause of Arguello's injuries was error. The Arguellos argue the summary judgment evidence establishes that a fact issue exists whether Gutzman applied undue pressure or traction while using the instrument in question and that such issue was not conclusively negated as a matter of law by the summary judgment evidence.

A movant's right to summary judgment can be proved solely on the uncontroverted testimony of an expert witness if the subject matter is such that a trier of fact would be "guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted". Anderson v. Snider, 808 S.W.2d at 55; TEX.R.CIV.P. 166a(c). The affidavit of an interested expert witness can support summary judgment if it meets the requirements of Rule 166a, even if that expert is a party to the suit. Anderson, 808 S.W.2d at 55. If an interested expert witness presents legally sufficient evidence in support of a motion for summary judgment, the opposing party must produce other expert testimony to controvert the claims. Id.

The question is whether Gutzman's affidavits, deposition transcript, and interrogatory answers were sufficient to negate at least one of the elements of the Arguellos' claim. In Charles v. Zamora, M.D., 811 S.W.2d 174 (Tex.App.--Corpus Christi 1991, writ denied), a doctor accused of negligence moved for summary judgment on the basis that his treatment met the appropriate standard of care and that he had not breached his duty to appellant. In his affidavit, the doctor set forth the standard of care and showed, with specificity, his compliance with that standard in treating the plaintiff. The defendant failed to respond with controverting expert testimony. The court held that the affidavit was sufficient to negate the...