Cloys v. Turbin

• Decision Date: 26 September 1980
• Docket Number: No. 20382,20382
• Citation: 608 S.W.2d 697
• Parties: Martha CLOYS, Appellant, v. Richard TURBIN, M.D. and North Texas Family Practice Association, P.A., Appellees.
• Court: Texas Court of Appeals

Page 697

608 S.W.2d 697

Martha CLOYS, Appellant, v. Richard TURBIN, M.D. and North Texas Family Practice Association, P.A., Appellees.

No. 20382.

Court of Civil Appeals of Texas, Dallas.

Sept. 26, 1980.

John W. Henvey, Dallas, for appellant.

John H. Martin, Thompson & Knight, Dallas, for appellees.

Before AKIN, CARVER and STOREY, JJ.

AKIN, Justice.

This is an appeal from a summary judgment granted the defendants, Richard Turbin, M.D., and North Texas Family Practice Association, P.A., with whom Dr. Turbin is associated, in an action for medical malpractice brought by the plaintiff, Martha Cloys. Because the defendants have not negated, as a matter of law, the existence of one or more elements of Mrs. Cloys' cause of action for negligence, we reverse the summary judgment and remand the case to the trial court.

Mrs. Cloys consulted Dr. Turbin in early June 1978, complaining of a cough and chest pain and of a mole-like growth on her left arm, which had recently changed color and bled. The parties disagree as to whether Mrs. Cloys also told Dr. Turbin that the growth had fallen off and grown back. In any event, no biopsy of the growth was performed until approximately three months later, when Mrs. Cloys consulted another physician, at which time the growth was diagnosed as malignant melanoma. Mrs. Cloys immediately underwent surgical excision of an area on her upper left arm, dissection of lymph nodes, and a skin graft.

Mrs. Cloys alleged in her first amended petition that her June consultation with Dr. Turbin gave rise to a doctor-patient relationship creating a duty on the part of Dr. Turbin to exercise the degree of skill, care, and learning possessed by other persons in the medical profession. She further alleged that Dr. Turbin negligently breached this duty by failing to perform a biopsy and pathological examination of the growth on her arm, by failing to inform her of the dangers of not having the growth biopsied and examined, by advising her that biopsy and examination of the growth were unnecessary, by failing to diagnose the growth as malignant melanoma, and by failing to refer her to a physician who could properly diagnose the growth or perform a biopsy and examination of the growth. She further alleged that Dr. Turbin's negligence was a proximate cause of the malignant melanoma remaining, growing, and spreading in her body, of its not being removed at the earliest possible time, of her incurring past and future medical expenses which would otherwise not have been incurred, of past and future physical pain and mental suffering, of lost future earning capacity, of reduction of her anticipated normal life span, and of reduction of her anticipated chances of surviving malignant melanoma had it been discovered in early June 1978.

In response to this pleading, the defendants filed a motion for summary judgment, relying on the affidavit and deposition of Dr. Turbin and on the affidavit of Dr. Phillip Morrow, the physician who performed the excision on plaintiff's arm along with the skin graft and lymph node dissection. Contending that the testimony of these two experts was uncontroverted and that the subject matter of the action was such that the trier of facts was required to be guided solely by the opinion testimony of experts, the defendants asserted that they were entitled to summary judgment because, as a matter of law, there was no genuine issue of material fact in the case. The trial court agreed with the defendants' contentions and granted summary judgment that plaintiff take nothing from them. However, we do not agree that summary judgment was proper in this case.

The motion for summary judgment of a defending party is to be granted under rule 166-A if, as a matter of law, the summary judgment evidence establishes that there is no genuine issue of material fact with respect to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). In other words, a defendant is entitled to prevail on his motion for summary judgment if he establishes, as a matter of law, that at least one essential element of a plaintiff's cause of action does not exist. Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex.1975). However, it is difficult to establish conclusively a negative proposition in a summary judgment proceeding. 4 W. DORSANEO, TEXAS LITIGATION GUIDE § 101.02(3) (1980). See, e. g., Sifford v. Santa Rosa Medical Center, 524 S.W.2d 559, 561-63 (Tex.Civ.App.-San Antonio 1975, no writ).

Rule 166-A(c) provides that:

A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must 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. (Emphasis added.)

In Duncan v. Horning, 587 S.W.2d 471, 472-74 (Tex.Civ.App.-Dallas 1979, no writ), we held that the testimony of an interested expert witness, as well as that of an interested witness or expert witness, which meets the criteria of rule 166-A(c) and negates an essential element of a non-movant's cause of action, entitles the movant to a summary judgment unless the non-movant introduces competent summary judgment evidence controverting the testimony. However, the burden of introducing evidence to avoid summary judgment in this situation shifts to the non-movant only if the movant's evidence meets the criteria of rule 166-A(c) and negates all genuine issues of material fact with respect to an essential element of the non-movant's cause of action. Combs v. Fantastic Homes, Inc., 584 S.W.2d 340, 344 (Tex.Civ.App.-Dallas 1979, writ ref'd n.r.e.). Further, the controverting summary judgment evidence introduced by the non-movant need only be sufficient to raise an issue of fact with respect to the element or elements negated by the movant's summary judgment evidence; it need not be sufficient to meet the burden of persuasion that the non-movant plaintiff would have at trial. See Tigner v. First National Bank of Angleton, 153 Tex. 69, 74, 264 S.W.2d 85, 87 (1954).

The four essential elements of plaintiff's cause of action in this case are: (1) a legally-cognizable duty requiring the defending party to conform to a certain standard of conduct for the protection of another against an unreasonable risk, (2) a failure by the defending party to conform to...