LeNotre v. Cohen

• Decision Date: 15 October 1998
• Docket Number: No. 14-96-01386-CV,14-96-01386-CV
• Citation: 979 S.W.2d 723
• Parties: Alain LeNOTRE and Marie LeNotre, As next friends of Gaston George LeNotre, and Gaston George LeNotre, Individually, Appellants, v. Kenneth E. COHEN, M.D., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 723

979 S.W.2d 723

Alain LeNOTRE and Marie LeNotre, As next friends of Gaston George LeNotre, and Gaston George LeNotre Individually, Appellants, v. Kenneth E. COHEN, M.D., Appellee.

No. 14-96-01386-CV.

Court of Appeals of Texas Houston (14th Dist.).

Oct. 15, 1998.

Rehearing Overruled Nov. 19, 1998.

Keith T. Gilbert, Houston, for appellants.

Joseph R. Alexander, Jr., T. Christopher Trent, Shannon Phillips Davis, Houston, for appellee.

Before AMIDEI, CANNON and SMITH, ¹JJ.

OPINION

AMIDEI, Justice.

Appellants, Alain, Marie, and Gaston LeNotre (collectively "the LeNotres"), appeal from a summary judgment in favor of appellee, Kenneth E. Cohen, M.D. In one point of error, appellants allege the trial court erred in granting summary judgment because appellee (1) did not provide sufficient notice of the hearing on the motion; (2) did not address all claims raised in the first amended original petition; (3) presented insufficient summary judgment proof; and (4) did not defeat summary judgment proof, which established the existence of a fact issue. We reverse and remand.

Cohen, a pediatrician, saw Gaston LeNotre and Gaston's mother on Monday, November 1, concerning complaints that Gaston had a fever and a poor appetite. Cohen examined Gaston and reported that the physical examination was unremarkable except for some tenderness around the umbilicus. Based on Gaston's present medical history and the physical examination, Cohen diagnosed Gaston with gastroenteritis and recommended a clear liquid diet and bland food. Cohen further advised Gaston's mother to monitor his symptoms and to return to the office if the symptoms worsened or new symptoms arose.

The following morning, Gaston's father called Cohen's office to report that Gaston was not taking clear liquids and was lethargic. Cohen's staff made an appointment for Gaston with Cohen for that afternoon. Gaston's mother called back and requested an earlier appointment. Cohen's staff instructed Gaston's mother to bring him to the office immediately for a blood test and an examination by another physician because Cohen was out of the office. Instead, Gaston's mother canceled the appointment and took him to the emergency room of a local hospital, where hospital staff determined Gaston had appendicitis and performed emergency surgery to remove his appendix.

The LeNotres brought a negligence cause of action against Cohen for failing to use adequate procedures to diagnose Gaston's condition. Cohen answered by a general denial and moved for summary judgment, which the trial court granted.

I. STANDARD OF REVIEW

An appellate court applies the following in reviewing a summary judgment:

1. the movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law;

2. in deciding whether a disputed material fact issue precludes summary judgment, the court must take evidence favorable to the non-movant as true 3. the court must indulge every reasonable inference in favor of the non-movant and resolve any doubts in its favor.

See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

II. INSUFFICIENT NOTICE OF HEARING

The LeNotres first contend Cohen did not provide sufficient notice of the hearing on his motion for summary judgment. Cohen filed his motion for summary judgment and notice of oral hearing with the trial court on June 19, 1996, and delivered the motion and notice to the LeNotres' trial attorney on the same day. The notice set the oral hearing for July 11, 1996, twenty-two days after filing. On June 27, 1996, Cohen amended the notice and served the LeNotres' trial attorney with the amended notice by registered or certified mail. The amended notice set the hearing for July 18, 1996, twenty-one days after filing. The LeNotres contend they were entitled to twenty-four days notice because Cohen mailed the amended notice, instead of hand delivering it to their attorney's office.

Rule 166a of the Texas Rules of Civil Procedure requires that a party serve notice of a summary judgment hearing on opposing counsel at least twenty-one days before the hearing date. TEX.R. CIV. P. 166a(c). Rule 21a of the rules of civil procedure provides, in pertinent part, whenever a party is required to do some act within a prescribed period after service of notice and notice is served by mail, three days shall be added to the prescribed period. See R. 21a. The "mailbox rule" of rule 21a applies to a motion for summary judgment served by mail. See Lewis v. Blake, 876 S.W.2d 314 (Tex.1994).

The twenty-one-day requirement from notice to hearing, however, does not apply to a resetting of the hearing, provided the nonmovant received notice twenty-one days before the original hearing. See Birdwell v. Texins Credit Union, 843 S.W.2d 246, 250 (Tex.App.--Texarkana 1992, no writ). The reasoning behind the twenty-one day requirement in rule 166a(c) is to give the nonmovant sufficient time to prepare and file a response for the original setting. See Brown v. Capital Bank, N.A., 703 S.W.2d 231, 233 (Tex.App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.). By rescheduling a hearing, the movant is actually giving the nonmovant additional time to respond. Id. Therefore, a party need only give reasonable notice that a hearing on a summary judgment has been rescheduled. See Int'l Ins. Co. v. Herman G. West, Inc., 649 S.W.2d 824, 825 (Tex.App.--Fort Worth 1983, no writ). Reasonable notice, however, means at least seven days before the hearing on the motion because a nonmovant may only file a response to a motion for summary judgment not later than seven days prior to the date of the hearing without leave of court. See id.; TEX. R. CIV. P. 166a(c).

In this case, Cohen gave the LeNotres twenty-two days notice of the original hearing, well within the twenty-one day requirement of rule 166a(c). Because Cohen gave adequate notice of the original hearing, he was only required to give the LeNotres seven days notice of the rescheduled hearing. Cohen, however, gave the LeNotres twenty-one days notice of the rescheduled hearing. Even under the mailbox rule, the notice was more than reasonable. The trial court did not err in overruling the LeNotres' objection regarding insufficient notice.

III. GROUNDS FOR SUMMARY JUDGMENT STATED IN MOTION

Next, the LeNotres argue summary judgment was improper because Cohen's motion for summary judgment did not address their claim that Cohen should have performed more extensive testing to determine a proper diagnosis. A motion for summary judgment must state the specific grounds upon which the movant seeks judgment. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993).

In their first amended original petition, the LeNotres alleged in a narrative describing the chronological events, which formed the basis of their negligence claim, that "[i]n light of the nature of Gaston LeNotre's symptoms and the location of his pain, together with the fact that his symptoms had persisted for a lengthy period of time, it should have been clear that more extensive testing was necessary in order to determine the true nature of Gaston LeNotre's illness." The LeNotres asserted as a theory of recovery that Cohen was negligent in that he failed to use adequate procedures in diagnosing Gaston's condition and failed to use adequate procedures that a reasonable and prudent physician would employ to diagnose a patient under the same or similar circumstances. The LeNotres claim that because Cohen did not specifically respond to the allegation of testing in his motion, he did not present the ground to the trial court and therefore, is not entitled to summary judgment.

A defendant is entitled to prevail on his motion for summary judgment if he can establish with competent proof that as a matter of law, there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). In a medical malpractice case, the plaintiff must prove by competent testimony that the defendant's negligence proximately caused the plaintiff's injury. Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988). To do so, the plaintiff must prove (1) a duty by the physician to act according to a certain standard; (2), a breach of the applicable standard of care; (3) an injury; and (4) a causal connection between the breach of care and the injury. Elam v. Yale Clinic, 783 S.W.2d 638, 642 (Tex.App.--Houston [14th Dist.] 1989, no writ).

In this case, Cohen moved for summary judgment on the ground that his summary judgment proof defeated at least one element of the LeNotres' negligence claim. Cohen asserted that he fully complied with the medical standard of care required in rendering care and treatment to Gaston and did not proximately cause any injury or damage to Gaston. Moreover, Cohen claimed that his affidavit specifically addressed each claim the LeNotres brought against him and that he used adequate procedures under the applicable standard of care to diagnose Gaston's condition. Because Cohen's motion for summary judgment specifically stated the grounds for summary judgment and addressed the LeNotres' negligence claim, we find the trial court did not err in granting summary judgment on the ground that Cohen's motion did not state a specific ground on which he sought judgment.

IV. EXPERT AFFIDAVIT SUPPORTING SUMMARY JUDGMENT

Next, the LeNotres claim Cohen's affidavit is insufficient as a matter of law to support the summary judgment because it (1) does not specifically deny allegations that he failed to use adequate procedures in diagnosing Gaston's condition; (2) makes no reference to Gaston's medical records; (3) does not set forth a proper standard of care; (4) does not discuss why a diagnosis of gastroenteritis was reasonable in light of patient history, the physical examination, and lack of laboratory testing; ...