Gandara v. Novasad, 13-87-452-CV

• Decision Date: 23 June 1988
• Docket Number: No. 13-87-452-CV,13-87-452-CV
• Citation: 752 S.W.2d 740
• Parties: Hector GANDARA, Individually and as Next Friend of Valerie Gandara, Darlene Gandara and Melody Gandara, Appellant, v. Bryan NOVASAD, M.D., Appellee.
• Court: Texas Court of Appeals

Page 740

752 S.W.2d 740

Hector GANDARA, Individually and as Next Friend of Valerie Gandara, Darlene Gandara and Melody Gandara, Appellant, v. Bryan NOVASAD, M.D., Appellee.

No. 13-87-452-CV.

Court of Appeals of Texas Corpus Christi.

June 23, 1988.

Ron Etzel, Pearland, for appellant.

John Roberson, Brian P. Johnson, Houston, for appellee.

Before DORSEY, SEERDEN and BENAVIDES, JJ.

OPINION

DORSEY, Justice.

Appellant, Hector Gandara, filed a medical malpractice action against appellee, Dr. Bryan Novasad, following the death of his wife, Julie. The trial court granted a take-nothing summary judgment in favor of the appellee, of which appellant now complains in five points of error. We affirm.

On January 2, 1986, Julie Gandara arrived at the Memorial-El Campo Hospital where she was treated by the emergency room physician, Dr. Sarwall. The admitting diagnosis was urinary tract infection and possible compazine overdose. ¹ Sarwall immediately contacted the appellee, who took an initial history and performed physical examination of the patient.

Over the next four days, appellee monitored and treated Mrs. Gandara in accordance with Sarwall's original diagnosis. On January 6, the patient began to exhibit symptoms of a neurological disorder which the appellee diagnosed as meningitis. Appellee consulted Dr. William Fleming, a neurology specialist, and Dr. Carl Vartian, an infectious disease specialist. At their suggestion, appellee initiated penicillin treatments and performed a CAT scan, which was negative.

Mrs. Gandara's condition improved until January 9, when she suffered seizures and demonstrated signs of severe neurological deficits. Appellee transferred the patient to Southeast Memorial Hospital, where William Fleming became her primary physician. Mrs. Gandara died of meningitis on January 13, 1986.

Appellant filed suit against appellee alleging that he failed to: 1) take a complete and accurate history of Julie Gandara 2) take proper tests to discover her medical condition; 3) timely diagnose the condition of meningitis; and 4) treat this condition in conformance with the standard of care in the medical community.

The summary judgment evidence before us consists of appellee's answers to interrogatories and the affidavits of appellant, appellee, William Fleming and Carl Vartian. Each affidavit for the defense details her care, treatment and evolving diagnosis and states that appellee's treatment of Mrs. Gandara was "in accordance with the proper standard of care" in the medical community.

Appellant contends in his first, second and third points of error that the affidavits of Carl Vartian, William Fleming and the appellee, respectively, are inadmissible and were therefore erroneously considered by the trial court at the summary judgment hearing because the witnesses were not designated in appellee's answers to interrogatories.

Question 16 of Plaintiff's Interrogatories reads and was responded to as follows:

16. Please set forth the names of each person or persons that you expect to call as a witness to give any expert opinions in this cause; please set forth in full the nature of their opinions you expect to elicit at the time of trial.

Not determined at this time.

Will supplement at a later date.

Appellee never supplemented his response. He did, however, submit the affidavits to appellant along with his motion for summary judgment.

Appellant argues that under Tex.R.Civ.P. 166b(6)b and 215(5), appellee's failure to supplement the answer by identifying his experts renders all three affidavits inadmissible as summary judgment evidence.

We note at the outset that in his response to defendant's motion for summary judgment, appellant directed the foregoing objection only to the affidavits of Vartian and Fleming. Since he made no corresponding objection to appellee's affidavit, appellant waived his right to complain of it on appeal. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 675 (Tex.1979); Tex.R.Civ.P. 166a(e). Point of error three complaining of appellee's affidavit is overruled.

The issue raised in points of error one and two is whether the duty to supplement answers to interrogatories imposed by Rule 166b(6)(b) applies to summary judgments.

Rule 166b(6)(b) provides:

If the party expects to call an expert witness when the identity or the subject matter of such expert witnesses's testimony has not been previously disclosed in response to an appropriate inquiry directly addressed to these matters, such response must be supplemented to include the name, address and telephone number of the expert witness and the substance of the testimony concerning which the expert witness is expected to testify, as soon as is practical, but in no event less than thirty (30) days prior to the beginning of trial except on leave of court. (emphasis added).

Appellant argues that appellee's failure to supplement its answers and disclose Drs. Vartian and Fleming as experts renders their affidavits inadmissible to support the summary judgment.

Rule 166b sets forth procedures governing the form and scope of pre-trial discovery. The purpose is full and complete discovery to avoid gamesmanship and trial by ambush. Garcia v. Peeples, 734 S.W.2d 343, 347 (Tex.1987). Failure to supplement one's answers results in the witness not being allowed to testify, unless good cause for the failure to supplement and disclose is shown. E.F. Hutton & Co., Inc. v. Youngblood, 741 S.W.2d 363, 364 (Tex.1987); Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986).

Summary judgments are controlled by Rule 166a, which provides a comprehensive scheme applicable to summary judgment before trial on the merits is held. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958). Subsection (c) of that rule provides that the motion for summary judgment and supporting affidavits be filed and served at least twenty-one days before the hearing. This was complied with by appellee as the questioned affidavits were filed 124 days before the hearing. In view of the more particular provisions of Rule 166a relating to summary judgments only, it is not necessary that one supplement the answers to interrogatories in order for the affidavits of previously undisclosed witnesses to be used. We decline to apply the rule of E.F. Hutton and Morrow to summary judgment proceedings. Points of error one and two are overruled.

Points four and five state the trial court erred in granting the motion for summary judgment because questions of fact were raised by the evidence.

When reviewing the granting of a motion for summary judgment, we must consider the evidence in the light most favorable to the nonmovant and indulge every reasonable inference in his favor....