Hammonds v. Thomas

Citation770 S.W.2d 1
Decision Date22 February 1989
Docket NumberNo. 9685,9685
PartiesEdwin E. HAMMONDS, Appellant, v. Sellers THOMAS, M.D., et al., Appellees.
CourtCourt of Appeals of Texas

Charles R. Houssiere, III, Robert K. Schaffer, Houssiere & Durant, Houston, for appellant.

Craig Smyser, Vinson & Elkins, Dion C. Raymos, Ryan & Smith, Houston, for appellee.

CORNELIUS, Chief Justice.

This is a medical malpractice case in which a take-nothing summary judgment was rendered against the plaintiff Hammonds and in favor of the defendants, Dr. Sellers Thomas, Dr. John McKechnie, and Methodist Hospital. In three points of error, Hammonds alleges that the doctors' summary judgment affidavits were insufficient to support summary judgment, and that his controverting affidavits raised genuine issues of fact but were improperly excluded from consideration by the trial court. We agree, and reverse and remand the cause against the doctors for trial.

Hammonds challenges the affidavits of Dr. Thomas and Dr. McKechnie as failing to establish the standard of care with any degree of certainty or clarity.

A defendant moving for summary judgment must produce summary judgment evidence showing that at least one essential element of the plaintiff's case is disproven as a matter of law. Until the defendant meets that burden, the plaintiff has no burden to controvert the defendant's proof. 4 R. McDonald, Texas Civil Practice in District and County Courts § 17.26.8 (rev. 1984).

The threshold question in a medical malpractice case is the standard of care. That standard must first be established so that the factfinder can determine if the doctors' conduct deviated from the standard to the degree that it constituted malpractice. Tilotta v. Goodall, 752 S.W.2d 160 (Tex.App.-Houston [1st Dist.] 1988, no writ); Wheeler v. Aldama-Luebbert, 707 S.W.2d 213 (Tex.App.-Houston [1st Dist.] 1986, no writ); Coan v. Winters, 646 S.W.2d 655 (Tex.App.-Fort Worth 1983, writ ref'd n.r.e.); Stanton v. Westbrook, 598 S.W.2d 331 (Tex.Civ.App.-Houston [14th Dist.] 1980, writ ref'd n.r.e.). Affidavits are insufficient to prove the standard of care if the expert merely states that he is familiar with the standard of care and that the treatment was within that standard. They must state what the standard is. See Martin v. Petta, 694 S.W.2d 233 (Tex.App.-Fort Worth 1985, writ ref'd n.r.e.). Moreover, affidavits which merely state conclusions rather than facts are insufficient. Brownlee v. Brownlee, 665 S.W.2d 111 (Tex.1984); Life Ins. Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d 378 (Tex.1978); Pinckley v. Dr. Francisco Gallegos, M.D., 740 S.W.2d 529 (Tex.App.-San Antonio 1987, writ denied); Ford v. Ireland, 699 S.W.2d 587 (Tex.App.-Texarkana 1985, no writ); Martin v. Petta, supra.

Dr. Thomas' affidavit stated the following as the standard of care in this case:

I am familiar with the standard of care in Harris County, Texas, in evaluating and treating Edwin Hammonds' symptoms and conditions. The standard of care in Harris County, Texas, is

1. Performing medical workup.

2. Determining when surgery is necessary, proper, or appropriate.

3. Performance of the type of surgery which was performed in this case.

4. Performing appropriate and/or necessary tests prior to placing a clip on a patient's vena cava.

5. Deciding when to place a clip on a patient's vena cava.

6. Discussing with the Plaintiff his condition.

Dr. McKechnie stated in his affidavit that the standard was:

I am familiar with the standard of care in Harris County, Texas, in evaluating and treating Edwin Hammonds' symptoms and conditions. The standard of care in Harris County, Texas, is to listen to the patient's complaints, if any, then examine, evaluate and treat those complaints which warranted further action. This is how I evaluated Edwin Hammonds. (Emphasis added.)

Neither of these statements is sufficient to establish the standard of care in a specific malpractice case. They are nothing more than generalizations and conclusions which would be applicable to any medical treatment. Statements that one should "determine when surgery is necessary," "perform appropriate tests," "listen to the patient's complaints and then evaluate and treat those complaints" do not provide any measurement by which a trier of fact can determine if the specific medical procedures and techniques used in this case met the standard of expertise held by the medical profession generally. The allegations are not readily controvertible and do not conclusively establish a standard of care. See Duncan v. Horning, 587 S.W.2d 471 (Tex.Civ.App.-Dallas 1979, no writ); Tex.R.Civ.P. 166a(c). While medical experts can now state their opinions on the ultimate fact of whether conduct amounts to negligence and proximate cause, there must still be some specific evidence of what the medical standard of care is. Thus, the affidavits were insufficient to support summary judgment in this case, even if not controverted.

The trial court refused to consider Hammonds' controverting affidavits because they were not filed seven days prior to the hearing on the motion for summary judgment as required by Tex.R.Civ.P. 166a(c). We believe the trial court erred in this respect. The hearing was set for July 11, 1988. Hammonds filed his affidavits on July 5, six days before the hearing. The seventh day before the hearing was July 4, a state and national holiday. Therefore, the filing day was extended to July 5 by virtue of Tex.R.Civ.P. 4, which provides that when the last day of a time period falls on a Saturday, Sunday, or legal holiday the time is extended to the end of the next day which is neither a Saturday, Sunday, nor legal holiday.

Drs. Thomas and McKechnie contend that Rule 4 does not apply to this situation, relying on Williams v. City of Angleton, 724 S.W.2d 414 (Tex.App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.). That case held, in a different context, that Rule 4 did not apply to the requirement of Rule 166a that a motion for summary judgment be filed twenty-one days prior to the hearing thereon. The court's reason for its decision was that Rule 166a is a specific rule which, in case of conflict, would control over Rule 4. We respectfully disagree with our sister court in that regard. It is true that a specific rule controls over a conflicting general rule, but there is no conflict between Rule 4 and Rule 166a. Rule 4 expressly provides that "in computing any period of time prescribed or allowed by these rules (emphasis added)" the last day shall not be counted if it is a Saturday, Sunday, or legal holiday. Rule 166a is one of "these rules" as much as is Rule 4, and it does not provide otherwise than is provided in Rule 4. Since there is no conflict, the rules should be read together and harmonized, i.e., the controverting affidavits must be filed seven days before the hearing, but if the last day falls on a Saturday, Sunday, or legal holiday, it is extended to the next day which is neither a Saturday, Sunday, nor legal holiday. The requirements for Hammonds' response to the motions for summary judgment are prescribed by the Rules of Civil Procedure, and he was entitled to rely on those rules, and specifically on the protection granted by Rule 4, in calculating the time within which he must file his affidavits.

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