Bond v. Snow
| Decision Date | 15 December 1967 |
| Docket Number | No. 4189,4189 |
| Parties | Leslie D. BOND, Appellant, v. Joseph H. SNOW and Marco T. Eugenio, Appellees. . Eastland |
| Court | Texas Court of Appeals |
Leland D. Sutton, Abilene, for appellant.
McMahon, Smart, Sprain, Wilson & Camp, William H. Berry, Jr., Abilene, for appellees.
Leslie D. Bond brought suit against Dr. Joseph H. Snow and Dr. Marco T. Eugenio seeking damages for alleged medical malpractice. The defendants filed a motion for summary judgment and plaintiff filed an answer thereto. After a hearing, the defendants' motion was granted and summary judgment was rendered in their favor. Leslie D. Bond has appealed.
Appellees' motion for a summary judgment asserted that there was no issue of material fact and that they were entitled to judgment as a matter of law. Each of the appellees filed an affidavit and deposition setting forth appellant's condition and the treatment given and in support of his motion asserted that he had provided appellant with that character of care which a reasonably prudent medical doctor similarily situated would have provided under the same or similar circumstances. Appellees also filed in support of their motion an affidavit by Dr. Jim M. Hooks, an orthopedic surgeon, that he had read the depositions of appellees, had examined the hospital records of appellant, had familiarized himself with the care and treatment of appellant by appellees while in the hospital and afterward, and that in his opinion the post operative infection suffered by appellant was not due to any negligence or malpractice on the part of either of appellees and that the type of care and treatment afforded appellant was in keeping with the kind and character of treatment which a reasonable and prudent medical doctor similarly situated would have provided under same or similar circumstances.
Appellant Bond urges one point of error in which it is contended that the court erred in rendering a summary judgment against him because his pleadings stated a meritorious cause of action against appellees and appellees failed to meet their burden of proving there were no genuine issues as to any material fact in the case. The point is well taken.
On motion for summary judgment the burden of proof is on the movant, and all doubts as to the existence of a genuine issue of material fact are resolved against him. Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Sup .Ct.1965). A defendant moving for summary judgment has the burden of proving that as a matter of law the plaintiff, under his pleadings has no cause of action against the defendant. Neigut v. McFadden, 257 S.W.2d 864 (Tex.Civ.App., 1953, ref. n.r.e.); Kelty v. Travelers Insurance Co., 391 S.W.2d 558 (Tex.Civ.App., 1965, ref. n.r.e.). The basis of appellant's cause of action against appellees, as stated in his pleadings, is that appelless were negligent in the detection, care...
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