Cedillo v. Jefferson

• Court: Texas Court of Appeals
• Writing for the Court: Before EVANS; EVANS; O'CONNOR; O'CONNOR
• Citation: Cedillo v. Jefferson, 802 S.W.2d 866 (Tex. App. 1991)
• Decision Date: 03 January 1991
• Docket Number: No. 01-89-01167-CV,01-89-01167-CV
• Parties: Henry and Bertha CEDILLO, Surviving Parents of Lora Beth Cedillo, Minor, Deceased, Appellants, v. Larry JEFFERSON, M.D., Appellee. (1st Dist.)

Page 866

802 S.W.2d 866

Henry and Bertha CEDILLO, Surviving Parents of Lora Beth Cedillo, Minor, Deceased, Appellants, v. Larry JEFFERSON, M.D., Appellee.

No. 01-89-01167-CV.

Court of Appeals of Texas Houston (1st Dist.).

Jan. 3, 1991.

Rehearing Denied Jan. 31, 1991.

John William Donovan, Houston, for appellants.

Claude M. McQuarrie, III, Houston, for appellee.

Before EVANS, C.J., and DUNN and O'CONNOR, JJ.

OPINION

EVANS, Chief Justice.

Plaintiffs, Henry and Bertha Cedillo, surviving parents of Lora Beth Cedillo, a minor, deceased, appeal from a take-nothing summary judgment in favor of the defendant, Larry Jefferson, M.D.

Plaintiffs assert two points of error: first, the trial court abused its discretion in denying their motion for a continuance of the summary judgment proceeding; and second, Dr. Jefferson's summary judgment proof is insufficient to support the summary judgment.

A ruling on a motion for continuance is within the sound discretion of the trial court. State v. Wood Oil Distrib. Inc., 751 S.W.2d 863, 865 (Tex.1988). We may not reverse the trial court's ruling on a motion for continuance unless appellant shows a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986).

Plaintiffs' child, Lora Beth Cedillo, died after surgery on July 17, 1983. On March 26, 1984, plaintiffs initiated this suit alleging medical malpractice. About three years later, on December 14, 1987, plaintiffs filed a "Joint Status Report" with the court, representing that discovery was not complete because of difficulties in obtaining expert medical witnesses. Plaintiffs advised the court they expected to have such witnesses within 60 to 90 days, and estimated that 10 to 12 months would be needed to complete discovery. In early 1988, the court notified plaintiffs the case would be dismissed for want of prosecution, and in response, on March 24, 1988, plaintiffs filed a motion to retain, stating that their counsel had contacted a medical consultant who had agreed to review the medical records. The court granted the motion to retain. On November 29, 1988, the trial court entered a docket control order, which among other things, required plaintiffs to designate all expert witnesses by July 3, 1989. On that date, July 3, 1989 plaintiffs designated one expert medical witness, Dr. H. Barry Jacobs.

On August 3, 1989, defendant moved for summary judgment, which the court set for hearing on August 25, 1989. On August 11, 1989, the trial court ordered plaintiffs to file the written report of their medical expert on or before August 21, 1989. On August 21, 1989, plaintiffs withdrew their designation of Dr. Jacobs as an expert witness, asserting they had been unable to obtain a written report from him, "as requested by defendants, and ordered by this court." In their notice of withdrawal, plaintiffs substituted the name of Dr. James K. Martin, an expert witness. Plaintiffs also notified Dr. Jefferson that the court, on September 1, 1989, would orally hear their notice of withdrawal and motion to substitute the new expert witness. On August 24, 1989, plaintiffs filed their motion for continuance, attaching an unsigned copy of an affidavit prepared for Dr. Martin. The court heard Dr. Jefferson's motion for summary judgment on August 25, 1989, and after taking the matter under advisement, granted the defendant's motion on August 30, 1989. In the interim period, between the hearing of the motion and the court's announcement of its decision, plaintiffs, on August 28, 1989, filed a response to the motion for summary judgment, attaching the signed affidavit of the medical expert, Dr. James K. Martin. ¹

Plaintiffs cite TEX.R.CIV.P. 166a(f), which states:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Here, plaintiffs contend they had only 15 days to obtain a medical expert's affidavit to controvert Dr. Jefferson's motion for summary judgment. Thus, they argue, the court abused its discretion in refusing to allow them sufficient time to obtain the affidavit of their substitute medical expert.

We overrule plaintiffs' contention. At the time Dr. Jefferson filed his motion for summary judgment, plaintiffs' lawsuit had been on file for almost five and one-half years. In their motion for continuance, plaintiffs contended only that the withdrawal of their expert witness, Dr. Jacobs, was "unexpected." Plaintiffs did not make any showing, in support of their motion for continuance, explaining why they had not, and could not, obtain an executed affidavit of their new expert witness, Dr. Martin, before the hearing of the defendant's motion for summary judgment. Under the circumstances reflected in the record, we cannot say the trial court abused its discretion in denying plaintiffs' motion for continuance. State v. Crank, 666 S.W.2d 91, 94 (Tex.1984), cert. denied, 469 U.S. 833, 105 S.Ct. 124, 83 L.Ed.2d 66 (1984); Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex.1963); Smith v. Christley, 684 S.W.2d 158, 161 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.); TEX.R.CIV.P. 252.

In their second point of error, plaintiffs contend Dr. Jefferson's affidavit is insufficient as a matter of law to support his motion for summary judgment. In this affidavit, Dr. Jefferson states that since July 1, 1982, he has been the Medical Director of Pediatric Intensive Care at Texas Children's Hospital in Houston. He states that on February 15, 1983, Dr. James E. Allison, III, consulted him regarding Dr. Allison's infant patient, Lora Beth Cedillo, who had been admitted to the hospital through the emergency room. Lora Beth suffered from a pulmonary condition common to premature infants, and this condition required her hospitalization.

Dr. Jefferson stated he attended Lora Beth from February 15, 1983, until the date of her death on July 17, 1983, and as her consulting pediatric intensive care specialist, he oversaw her general care and treatment as well as her specialty care requirements for her pulmonary problems. As Lora Beth's condition warranted, Dr. Jefferson consulted with other specialists about her care. In April 1983, he referred Lora Beth to Dr. Barbara Reed, who performed diagnostic esophagogastroscopy, and then referred Lora Beth to Dr. William J. Porkorny, a pediatric surgeon. Dr. Porkorny performed a pyloromyotomy on April 29, 1983, and performed a fundoplication and gastronomy on June 22, 1983, to alleviate Lora Beth's gastrointestinal distress. During this last procedure, Dr. Porkorny inserted a gastroscopy tube, through which Lora Beth received her feedings and medications.

At that time, Lora Beth suffered decreased perfusion and had increased respiratory requirements, and Dr. Jefferson directed that she be intubated and placed on a central venous line. He said these procedures were completed promptly and without complications in the emergency room. He then ordered Lora Beth transferred to the pediatric intensive care unit, where therapy was continued. He consulted Pediatric Surgery Service to evaluate her abdominal distension, and that Service, with Dr. Porkorny, evaluated her abdominal symptoms and followed her gastrointestinal status. Dr. Jefferson said despite these efforts, Lora Beth died on July 17, 1983.

Dr. Jefferson stated he was familiar with applicable standards of ordinary care among pediatric intensive care specialists practicing in Harris County and in similar communities in 1983, and that under the specified clinical circumstances, it was an "acceptable standard of pediatric medical practice to consult a pediatric surgeon" for the purpose of "selecting, placing, and monitoring a pediatric patient's gastroscopy tube." Dr. Jefferson said this was especially true because of the availability of such specialists at the Texas Medical Center. He said during his care of Lora Beth, he consulted pediatric surgeons to monitor the status of her gastronomy tube, and his practice in that regard was in keeping with the standard of care stated above.

Dr. Jefferson said the care and treatment he provided to Lora Beth did not at any time fall short of the standard of medical care and treatment ordinarily exercised by pediatric intensive care specialists "in this community," and that it was his opinion, "based upon a reasonable degree of medical probability," that all the medical care and treatment he rendered Lora Beth from February 15, 1983, to July 17, 1983, "fully met or exceeded applicable standards of medical care prevalent in Houston, Texas, at that time."

The opinion of an interested medical expert may constitute competent summary judgment proof when it meets the criteria set forth in TEX.R.CIV.P. 166a(c). Duncan v. Horning, 587 S.W.2d 471, 473 (Tex.Civ.App.--Dallas 1979, no writ). To constitute competent summary judgment proof, the medical expert's testimony must be clear, positive, and direct, otherwise credible, free from contradictions and inconsistencies, and of a subject matter that the trier of fact must be guided solely by the opinion testimony of an expert. TEX.R.CIV.P. 166a(c). The evidence must also be such that it could have been readily controverted by the nonmovant. Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex.1986); Kemp v. Heffelman, 713 S.W.2d 751, 752-53 (Tex.App.--Houston [1st Dist.] 1986, no writ); Duncan, 587 S.W.2d at 473.

We agree with plaintiffs that a medical expert's affidavit is insufficient if it merely sets forth the expert's conclusionary statement that he is familiar with the standard of care and that the treatment was within that standard. Martin v. Petta, 694 S.W.2d 233, 238 (Tex.App.--Fort Worth 1985, writ ref'd n.r.e.). We...