Trevino v. Houston Orthopedic Center, A14-88-643-CV

• Citation: 782 S.W.2d 515
• Decision Date: 16 November 1989
• Docket Number: No. A14-88-643-CV,A14-88-643-CV
• Court: Court of Appeals of Texas
• Parties: Richard TREVINO, et al., Appellants, v. HOUSTON ORTHOPEDIC CENTER, et al., Appellees. (14th Dist.)

Page 515

782 S.W.2d 515

Richard TREVINO, et al., Appellants, v. HOUSTON ORTHOPEDIC CENTER, et al., Appellees.

No. A14-88-643-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Nov. 16, 1989.

John W. Donovan, Houston, for appellants.

Steven A. Wisch, Steve Gonzalez, Houston, for appellees.

Before J. CURTISS BROWN, C.J., and JUNELL and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

This is an appeal from summary judgments in favor of appellees, Houston Orthopedic Center and Dr. Thomas S. Padgett, defendants in a medical malpractice suit. Dr. Padgett supported his motion for summary judgment with his own affidavit as a medical expert in which he explains the applicable standard of care prevalent in Harris County, states that he acted in accordance with that standard of care, and denies any negligence in his treatment of David M. Trevino's fractured leg, which developed infection after surgery. Appellants did not controvert Dr. Padgett's affidavit with sworn, medical testimony favoring their position, but they allege that Dr. Padgett's affidavit is insufficient as a matter of law to negate the allegations of malpractice set forth in their petition. The trial court also granted summary judgment to Dr. John J. DeBender, another physician associated with Houston Orthopedic Center; however, appellants do not appeal that judgment. The trial court viewed its finding of no negligence on the parts of Drs. Padgett and DeBender as a bar to imposing vicarious liability upon Houston Orthopedic Center under the basis of respondeat superior, and it granted summary judgment for the Center. We reverse both summary judgments.

At age 16, appellant David M. Trevino suffered a broken leg at football practice. While running a reverse pattern, he was tackled at the knees. Upon examination, Dr. Padgett diagnosed the injury as a fractured left distal femur, and he performed a closed reduction of the fracture and percutaneously pinned the femur epiphysis under general anesthetic. According to Dr. Padgett's affidavit, this is the standard of care in Harris County for treating a fractured distal femur, and the standard in Harris County for follow-up care is to prescribe oral and parenteral antibiotics, and resect any drainage from the wound site. "This is how I treated David M. Trevino," Dr. Padgett stated in his sworn affidavit.

In a medical malpractice suit, because the trier of fact must be guided by the opinion testimony of experts, Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965), a defendant physician can obtain summary judgment based on his or her uncontroverted testimonial evidence if he establishes, as a matter of law, that there exists no genuine issue of material fact as to one or more elements of the plaintiff's cause of action. TEX.R.CIV.P. 166a(c); Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 215 (Tex.App.--Houston [1st Dist.] 1986, no writ).

Tex.R.Civ.P. 166a(c) in material part provides:

A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. (Emphasis added.)

Once the defendant has negated, as a matter of law, such elements of the plaintiff's cause of action, the plaintiff has the burden to introduce expert testimony to prove that the defendant physician's diagnosis or treatment constituted negligence which was a proximate cause of the injuries. See Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949); Wiggins v. Cameron, 763 S.W.2d 434, 435 (Tex.App.--Houston [14th Dist.] 1988, writ denied).

However, in this case, we do not find that Dr. Padgett's affidavit evidence showed as a matter of law that he was not negligent. Especially troublesome is the lack of specificity in his reply to appellants' allegations of negligence during the two-and-a-half years he treated appellant's infected leg following the closed reduction surgery in September, 1979. In appellants' First Amended Original Petition, they allege as a proximate cause of injury and damage, taken separately and collectively, that Dr. Padgett was negligent:

a. In using equipment that was not sterile and infected David M. Trevino;

b. In not diagnosing an infection for three months after the onset of signs of infection;

c. In not taking proper and adequate measures to control the infection in David M. Trevino's left knee once it was discovered d. In not removing all of the draining sinus around the left knee during the July 29, 1980 surgery;

e. In not referring David M. Trevino to another physician for a different opinion for 1 1/2 years;

f. In recommending postponement of additional surgery on David M. Trevino for over two years with a continuous infection;

g. In releasing David M. Trevino on February 19, 1982 when his left knee was still draining at the July 29, 1980 incision site.

Additionally, appellant offered extensive medical records, properly admissible as evidence under Tex.R.Civ.Evid. 803(6), which reveal that Dr. Padgett performed two additional operations in the twelve months following the closed reduction procedure: in February, 1980, he manipulated young Trevino's left knee under anesthetic; in August, 1980, he surgically removed the sinus track, scraped the underlying bone,...