Milkie v. Metni, 05-82-00601-CV

Decision Date10 August 1983
Docket NumberNo. 05-82-00601-CV,05-82-00601-CV
Citation658 S.W.2d 678
PartiesMrs. Aleda A. MILKIE, Indiv. and as Representative, Appellant, v. Fouad N. METNI, M.D., Appellee.
CourtTexas Court of Appeals

John Gano, Gano & Houssiere, P.D., Houston, for appellant.

George C. Chapman and Thompson & Knight, Dallas, for appellee.

STEWART, Justice.

This is an appeal from a summary judgment granted in a medical malpractice suit. Aleda Milkie sued Dr. Metni, a thoracic and cardiovascular surgeon, under the wrongful death and survival statutes of Texas for improper treatment of Sam Milkie, deceased husband of Aleda Milkie. Dr. Metni performed coronary bypass surgery on Sam Milkie on February 25, 1977, after which Sam Milkie suffered a stroke, went into a coma and died on March 19, 1977. On appeal, Milkie contends that Dr. Metni was negligent, not in the performance of surgery or in the post-operative care, but in choosing a course of surgical, as distinguished from medical, treatment.

Milkie asserts error because before ruling on Dr. Metni's Motion for Summary Judgment, the trial court found that Dr. Barkman, Milkie's only medical witness, was not competent to testify as an expert witness in the case. We find no error in the trial court's ruling.

Whether a witness qualifies as an expert is a matter of judicial discretion. Roberson v. Factor, 583 S.W.2d 818, 821 (Tex.Civ.App.--Dallas 1979, writ ref'd. n.r.e.). The trial court's determination of whether to admit the testimony of an expert will not be disturbed on appeal unless a clear abuse of discretion is shown. Wilson v. Scott, 412 S.W.2d 299 (Tex.1967); Air Shields, Inc. v. Spears, 590 S.W.2d 574, 579 (Tex.Civ.App.--Waco 1979, writ ref'd. n.r.e.). The party offering an expert witness has the burden of establishing his qualifications. "The person offered must possess special knowledge as to the very matter on which he proposes to give an opinion." 2 C. McCormack & R. Ray, Texas Law of Evidence, § 1401 (Texas Practice 3d ed. 1980).

The issue here is whether Dr. Metni's decision to perform bypass surgery, as opposed to treatment by medication, was negligence. A witness must necessarily be knowledgeable about both types of treatment to express an opinion as to whether surgery was the proper form of treatment under the circumstances. Dr. Barkman's own testimony showed that he did not have the requisite knowledge of both alternatives, nor did he have knowledge of the circumstances existing at the time Dr. Metni's decision was made.

Dr. Barkman was a semi-retired medical doctor, 82 years of age, who had not done surgery in years and had never performed heart surgery. He had no past experience in treatment of coronary disease. Although Dr. Barkman had been Sam Milkie's friend and family physician since the early 1960's, he had never given Sam Milkie a physical examination, having treated him only for colds, flu, allergies and weight reduction. Dr. Barkman referred all his cardiac patients to a cardiologist for treatment, as he did Sam Milkie when he complained of chest pain 8 days before the surgery in question was performed.

Dr. Barkman further testified that bypass surgery was out of his field; that he let the cardiologist to whom he referred his heart patients decide whether such surgery was indicated and that he did not know under what circumstances thoracic surgeons determine whether or not bypass surgery should be performed. In addition, Dr. Barkman stated that he did not know the cause of Sam Milkie's death, that he had not reviewed the deceased's medical records and that he never saw Sam Milkie again after he referred him to the cardiologist. Thus, the record reflects that Dr. Barkman did not know the form of treatment which a reasonable and prudent member of the medical profession would undertake under the same or similar circumstances of this case. Hood v. Phillips, 554 S.W.2d 160, 165 (Tex.1977). We hold there was no abuse of discretion in excluding the testimony of this witness. Wilson, 412 S.W.2d at 303-04; Roberson, 583 S.W.2d at 821.

Milkie further contends in her other three points that the trial court erred in granting summary judgment because Dr. Metni failed to prove he was entitled to a judgment as a matter of law. Milkie claims there is a genuine issue of material fact regarding the proper mode of treatment of Sam Milkie. Since we have sustained the trial court's holding that Dr. Barkman was incompetent to testify, plaintiff has no controverting expert evidence in the record. Tex.R.Civ.P. 166-A(c) provides:

A summary judgment may be based on uncontroverted testimony...

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25 cases
  • Hatley v. Kassen
    • United States
    • Texas Court of Appeals
    • December 3, 1992
    ...ill or suicidal patients to express an opinion on whether Johnson received the proper treatment under the circumstances. See Milkie v. Metni, 658 S.W.2d 678, 679 (Tex.App.--Dallas 1983, no writ) (party offering expert witness must establish that expert possesses special knowledge as to the ......
  • Rodriguez v. Pacificare of Texas, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 12, 1993
    ...861 F.2d 1040, 1042 (7th Cir.1988). Texas state courts also allow this procedure in medical malpractice cases. See, e.g., Milkie v. Metni, 658 S.W.2d 678, 680 (Tex.App.--Dallas 1983, no writ); Gaut v. Quast, 505 S.W.2d 367, 369 (Tex.Civ.App.--Houston 1974, writ ref'd The decision to qualify......
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