Davis v. Manning, A14-92-00634-CV

• Decision Date: 11 February 1993
• Docket Number: No. A14-92-00634-CV,A14-92-00634-CV
• Parties: Ricky Eugene DAVIS, Appellant, v. Sheryl MANNING, M.D., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 446

847 S.W.2d 446

Ricky Eugene DAVIS, Appellant, v. Sheryl MANNING, M.D., Appellee.

No. A14-92-00634-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Feb. 11, 1993.

Michael G. Matthews, Houston, for appellant.

David Owen Cluck, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and ELLIS and LEE, JJ.

OPINION

ELLIS, Justice.

This is an appeal from a summary judgment granted in favor of Sheryl Manning, M.D. (Dr. Manning), appellee. Ricky Eugene Davis, appellant, brought suit against Dr. Manning for medical malpractice based on her negligence in diagnosis, treatment, and follow-up. The parties filed cross-motions for summary judgment and the trial court granted Dr. Manning's motion based upon no proximate cause and no deviation from the standard of care. Judgment was entered for Dr. Manning and appellant filed a notice of limited appeal, limiting his appeal to the trial court's grant of the summary judgment based on a defective affidavit, and the court's denial of his cross-motion for summary judgment. We affirm.

On December 29, 1989, Dr. Manning was employed as a contract physician by MEDICUS Medical Group, and was filling in for another physician at Sun Belt Industrial and Family Clinic (Sun Belt Clinic). On this date, appellant came to the Sun Belt Clinic for medical treatment complaining of frequent urination, sore throat, cold sweats during the night and dizzy spells. After taking appellant's family history, checking his blood pressure, temperature, heart rate, and lungs, and performing a urinary analysis and a finger stick blood sugar test, Dr. Manning diagnosed appellant as having new onset diabetes mellitus. She prescribed 5 milligrams a day of Glucotrol, a hypoglycemic, and a 1200 calorie a day ADA diet. Appellant was given pamphlets explaining the diet. He was ordered to return in a week for a fasting blood sugar test. On January 5, appellant returned to the clinic, and told the receptionist to tell Dr. Manning the medicine was "making him sick." The receptionist phoned back to Dr. Manning, and reported appellant's complaint. Dr. Manning did not see appellant but had a laboratory technician take his weight, blood pressure, and fasting blood glucose level. His blood sugar level had dropped from 361 to 187. Dr. Manning, concluded that the medication was bringing down appellant's blood sugar level but the level was higher than she wanted appellant to maintain. Thus, she ordered his treatment continued in the manner prescribed, increased his Glucotrol to 10 milligrams a day, and told the nurse to set up a return visit for appellant in two weeks. On January 9 and again on February 12, 1990, appellant, or his grandmother, called in for a refill on his prescription of 10 milligram Glucotrol which Dr. Manning approved.

When Dr. Manning did not personally attend appellant on January 5, appellant assumed this meant the Doctor refused to see him ever again and therefore, he never returned to, or called, the clinic again. On March 30, 1990, appellant went to Doctor's Hospital East Loop Emergency Room complaining of pain in his right knee and lower back, problems with falling, involuntary jerking of arms and legs, dry mouth and frequent urination. He informed the physician he was a diabetic and was on 10 milligrams a day of Glucotrol. Appellant's blood pressure, heart rate, temperature and blood were taken, and a physical assessment was done. The laboratory results from appellant's blood sample revealed his blood sugar level to be 655. At 9:00 a.m., appellant was put on insulin inter-veiniously to bring his blood sugar levels down. At approximately 9:50 a.m., his blood was drawn and his blood sugar was down to 456. The insulin treatment was continued and by 10:30 a.m., appellant was resting comfortably and having fewer muscles spasms. At 11:10 a.m. his blood was drawn again and at 11:57 his blood sugar level was down to 262. Appellant was taken off the insulin and sent to talk to the Hospital dietician about his prescribed 1500 calorie a day ADA diet. Appellant was diagnosed as having diabetes mellitus (decompensated) and right sciatic parasthesia. He was prescribed to continue the 10 milligrams a day of Glucotrol, and to take 800 milligrams of Motrin and follow a 1500 calorie a day ADA diet. Appellant was discharged with instructions to follow-up in two days with an office visit to Dr. Manning.

Instead of following up with Dr. Manning, appellant went back to Doctor's Hospital East Loop Emergency Room on April 2, 1990 with his symptoms worsening. However, the wait was too long so he left and went to the Hermann Hospital Emergency Room. Appellant was admitted to the hospital with a blood sugar level of 840 and diagnosed as having diabetes myoclonus. Appellant was discharged from the hospital on April 10, 1990 and diagnosed as having insulin dependent diabetes mellitus and seizure disorder.

Pursuant to TEX.R.APP.P. 40(a)(4), appellant filed a notice of limited appeal, limiting his appeal to the trial court's grant of the summary judgment based on a defective affidavit, and the court's denial of his cross-motion for summary judgment. These are the only two issues before the Court in this appeal.

In a medical malpractice suit, because the trier of fact must be guided by the opinion testimony of experts, Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965), a defendant physician can obtain summary judgment based on his or her uncontroverted testimonial evidence if he establishes, as a matter of law, that there exists no genuine issue of material fact as to one or more elements of the plaintiff's cause of action. TEX.R.CIV.P. 166a(c); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 215 (Tex.App.--Houston [1st Dist.] 1986, no writ). The pertinent portion of TEX.R.CIV.P. 166a(c) states:

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 of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.

TEX.R.CIV.P. 166a(c).

Appellant, in points of error one, two, and three, attacks the sufficiency of Dr. Manning's affidavit. He alleges the affidavit is not clear, positive, direct, credible or free from inconsistencies and could not have been readily controverted by him. Appellant contends Dr. Manning's affidavit did not address his informed consent cause of action. Further, he complains that Dr. Manning raised for the first time in her affidavit the affirmative defense of "lack of negligence."

As an initial matter, there is no such affirmative defense as "lack of negligence." See TEX.R.CIV.P. 93, 94. Dr. Manning filed a general denial to appellant's suit based in negligence. Clearly, a general denial to negligence causes of action means a defendant is stating she was not negligent. Thus, appellant was not raising "lack of negligence" in her affidavit for the first time.

The appellant correctly sets out the requirements which an interested witness' affidavit must meet to comply with the rules. The affidavit must state: 1) the physician's qualifications; 2) the services performed for the patient/Plaintiff over the treatment period; 3) that the physician met the standard of care; 4) specific denials of each of the allegations of negligence contained in patient/Plaintiff's petition; 5) that her opinion is based upon a reasonable degree of medical probability; and 6) that no act or omission on the physician's part caused any damage to the patient/Plaintiff. Duncan v. Horning, 587 S.W.2d 471, 473 (Tex.Civ.App.--Dallas 1979, no writ).

Dr. Manning's affidavit stated as follows:

My name is Sheryl Manning, M.D. I'm over the age of eighteen (18) years. I am an adult resident of Houston, Harris County, Texas, and I am fully competent and able to testify herein. I am a doctor of medicine, licensed to practice in Harris County, Texas. I have personal knowledge of all the facts set forth herein and am able to swear, as I do hereby swear, that all said facts and statements contained herein are true and correct. All opinions stated herein are based on reasonable medical probability.

I am a doctor of medicine practicing in Houston, Harris County, Texas. I received my doctor of medicine from the University of Texas health Science Center in Houston in 1987. I have completed one year of residency in internal medicine at the Martin Luther King General Hospital in Los Angeles, California.

Ricky Eugene Davis was first seen by me at Sunbelt Industrial Family Practice Clinic on December 29, 1989. His initial presentation of complaints were of frequent urination which had been present for about one month and a sore throat for two weeks with cold sweats during the night. He further complained of dizzy spells for about one week. He denied any fever or chills but did complain of general malaise. His family history was positive for diabetes in his father.

On physical examination, Mr. Davis was noted to be in no acute distress. There was some inflammation in the posterior pharynx with exudate. His heart was regular, without murmur, and his lungs were clear to auscultation. A urinalysis was ordered and was positive for sugar as well as ketones. Fingerstick blood sugar was elevated at 361.

My clinical assessment of Mr. Davis on this initial visit was new onset diabetes. I started Mr. Davis on Glucotrol 5 mg. daily and a 1200 calorie ADA diet. I asked Mr. Davis to return in one week for a recheck of his blood sugar.

Mr. Davis returned to the Sunbelt Industrial & Family Practice Clinic on January 5, 1990. His blood glucose was 187 at this visit, a significant improvement. His glucose was not as low as I desired, therefore, I increased his Glucotrol to 10 mg. daily. I requested that he return in two weeks...