Steinkamp v. Arreola

• Decision Date: 23 September 1999
• Docket Number: No. 08-98-00425-CV,08-98-00425-CV
• Citation: 3 S.W.3d 191
• Parties: (Tex.App.-El Paso 1999) CAMILLA STEINKAMP, APPELLANT, v. CAREMARK and PATRICIA ARREOLA, APPELLEES
• Court: Texas Court of Appeals

Page 191

3 S.W.3d 191 (Tex.App.-El Paso 1999)

CAMILLA STEINKAMP, APPELLANT, v. CAREMARK and PATRICIA ARREOLA, APPELLEES.

No. 08-98-00425-CV

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

September 23, 1999

Rehearing Overruled Nov. 3, 1999.

Appeal from 41st District Court of El Paso County, Texas (TC# 94-11506) Before Panel No. 1 Larsen, McClure, and Chew, JJ.

SUSAN LARSEN, Justice

O P I N I O N

This is an appeal from the trial court's summary judgment in favor of the defendant nurse and her employer on the plaintiff's nursing negligence claims. We affirm in part, and we reverse and remand in part.

FACTS

On November 16, 1993, appellee Patricia Arreola, a home care nurse employed by appellee Caremark, was caring for Camilla Steinkamp, who was homebound with a difficult pregnancy. Arreola inserted a catheter in Steinkamp's arm, which began to disintegrate in Steinkamp's vein. Steinkamp had to undergo surgery to remove the catheter fragments without anesthesia because of her pregnancy. She sued Arreola and Caremark, contending that Arreola's negligent insertion of the catheter caused it to disintegrate. She also sued Vygon Corporation, the manufacturer of the catheter. Steinkamp claimed damages in the form of physical pain and mental anguish for having to undergo surgery without anesthesia and present and future physical pain and mental anguish for suffering a permanent, physical impairment known as thoracic outlet syndrome. Vygon filed a motion for summary judgment and a subsequent motion for severance, both of which the trial court granted. Arreola and Caremark then filed their motion for summary judgment. In her response to that motion, Steinkamp relied in part upon Vygon's summary judgment motion and corresponding evidence. That summary judgment evidence included affidavits from Vygon Vice-President John Leaity, engineering professor David Hullender, and registered nurse Rebecca Wilkins, as well as testimony excerpts from Arreola's deposition. Steinkamp also expressly relied on her own responses to Vygon's summary judgment motion, as well as a deposition excerpt from her own nursing expert, Dr. Helen Castillo.¹ Arreola and Caremark objected to Steinkamp's reliance on Vygon's summary judgment evidence, asserting that that evidence was a part of the Vygon case, which had been severed, was not a part of the Caremark case, and therefore was not properly before the trial court. The trial court agreed with Arreola and Caremark, struck that portion of Steinkamp's proffered summary judgment evidence that had originated in the Vygon claim, and granted the defendants' motion for summary judgment. On appeal, Steinkamp challenges the trial court's order striking some of her evidence and the trial court's ultimate decision to grant summary judgment in favor of Arreola and Caremark.

STANDARD OF REVIEW

Caremark and Arreola filed a no-evidence summary judgment motion pursuant to Rule 166a(i) of the Texas Rules of Civil Procedure. The Rule provides:

After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.²

Since its inception, appellate courts have held that the standard of review for a no-evidence summary judgment is the same as that for a directed verdict.³ Thus, we must review the evidence in the light most favorable to the respondent against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences.⁴ A no-evidence summary judgment is improperly granted if the respondent counters with more than a scintilla of probative evidence to raise a genuine issue of material fact.⁵ Less than a scintilla of evidence exists when the evidence is "'so weak as to do no more than create a mere surmise of suspicion . . . .'⁶ More than a scintilla of evidence exists when the evidence "'rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'⁷

After careful review of the record, we find that the trial court erred in striking part of Steinkamp's summary judgment evidence. We also find that Steinkamp's summary judgment evidence showed that more than a scintilla of evidence exists as to her claim for the injuries she sustained from having to undergo surgery without anesthesia, but her summary judgment response contains no evidence linking her thoracic outlet syndrome condition to the broken catheter.

Standard of Care

In her first issue, Steinkamp asserts that the trial court erred in striking: (1) Vygon's summary judgment evidence, which the trial court seemingly concluded was not properly before the court because that evidence pertained to a portion of the case that had been severed, and (2) deposition excerpts from Steinkamp's expert witness, which the trial court arguably determined was not competent testimony from one qualified to render an expert opinion.

Rulings concerning the admission or exclusion of summary judgment evidence are reviewed under an abuse of discretion standard.⁸ Mindful of the well-settled principles and rules concerning this standard of review, we turn to the first issue of whether the trial court abused its discretion in striking Vygon's summary judgment evidence as part of Steinkamp's proffered summary judgment evidence.

In our recent decision, Saenz v. Southern Union Gas Co.,⁹ we stated that "[w]hile we do not interpret Rule 166a(i) as requiring a party to needlessly duplicate evidence already found in the court's file, a party must nevertheless insure that the evidence is properly before the trial court for consideration in resolving the motion for summary judgment.¹⁰ Mere existence in the court's file of a response to an earlier summary judgment is not enough.¹¹ A party achieves the task of ensuring that the evidence is properly before the court either by requesting in the motion that the trial court take judicial notice of the evidence that is already in the record or by incorporating that document or evidence in the party's motion.¹² With regard to incorporation by reference, magic language is not necessary; it is only necessary that the party makes the court aware of that particular evidence to which the party is referring. In this case, Steinkamp stated in the first paragraph of her response to Arreola and Caremark's summary judgment motion that she was relying in part upon Vygon's summary judgment motion, which necessarily included the attached summary judgment evidence. Additionally, in the body of her motion, Steinkamp referred to certain express portions of Vygon's summary judgment evidence, stating that it was already before the court. Because Steinkamp alerted the court exactly upon what evidence she was relying in her response to the defendants' motion for summary judgment, Steinkamp met the Rule 166a(i) requirement. Thus, Vygon's motion for summary judgment evidence was properly before the trial court, and the trial court abused its discretion in excluding it.

With regard to the trial court's exclusion of Steinkamp's expert witness testimony, although the parties dispute whether Dr. Castillo was qualified to render an expert opinion as to the nursing standard of care, our first determination is whether the facts of this case demand that Steinkamp meet her burden of establishing an expert witness at all. In this case, we conclude no expert witness testimony was necessary because the doctrine of res ipsa loquitur applied.

Res ipsa loquitur is used only in certain limited cases where the circumstances surrounding the accident constitute sufficient circumstantial evidence of the defendant's negligence to support such a finding.¹³ Specifically, res ipsa loquitur applies only when two factors are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence, and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant.¹⁴ The likelihood of other causes need not be completely ruled out, but their likelihood must be "'so reduced that the jury can reasonably find by a preponderance of the evidence that the negligence, if any, lies at the defendant's door.'¹⁵

Generally, proof of negligence in medical malpractice claims must be established through expert testimony.¹⁶ As another general rule, Texas courts view res ipsa loquitur as inapplicable to medical malpractice cases.¹⁷ There is an exception to these general rules, however, that is as well settled as the general rules themselves: where medical negligence is demonstrated by facts that can be evaluated by resort to common knowledge, expert testimony is not required because "'scientific enlightenment is not essential for the determination of an obvious fact.'¹⁸ The Medical Liability and Insurance Improvement Act further restricts the application of the doctrine to only those circumstances in which it had been applied before the effective date of the Act.¹⁹ Examples of the res ipsa loquitur exception include negligence in the use of mechanical instruments, operating on the wrong portion of the body, or leaving surgical instruments or sponges within the body.²⁰ "In such cases the requirement of medical testimony is eliminated, but the necessity of proof of negligence remains."²¹

Our research reveals that the present case is notably dissimilar to that of any other Texas case because this case turns on leaving a medical instrument inside the body, while other Texas cases turn on the use of the instrument.²² For example, this case clearly differs from Haddock v. Arnspiger,²³ where the Texas Supreme Court held that res ipsa...