Wheeler v. Aldama-Luebbert

• Decision Date: 06 March 1986
• Docket Number: No. 01-85-0426-CV,ALDAMA-LUEBBER,A,01-85-0426-CV
• Citation: 707 S.W.2d 213
• Parties: Malcolm B. WHEELER, et al., Appellants, v. Dr. Alfonsoppellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 213

707 S.W.2d 213

Malcolm B. WHEELER, et al., Appellants, v. Dr. Alfonso ALDAMA-LUEBBERT, Appellee.

No. 01-85-0426-CV.

Court of Appeals of Texas Houston (1st Dist.).

March 6, 1986.

John Gano, Gano & Donovan, P.C., Houston, for appellants.

Joseph R. Alexander, Jr., Andrews & Kurth, Houston, for appellee.

Before EVANS, C.J., and JACK SMITH and WARREN, JJ.

OPINION

JACK SMITH, Justice.

This is an appeal from a take-nothing summary judgment in a medical malpractice suit. The appellants, plaintiffs in the trial court, raise three points of error, all of which allege that the judgment of the trial court should be reversed because there are fact issues to be resolved.

On or about February 27, 1982, Malcolm B. Wheeler was admitted to Methodist Hospital. As a result of numerous tests, appellee made a diagnosis of ruptured cerebral aneurysm causing an intracerebral hematoma, or hemorrhage. Surgery was performed. Wheeler experienced some post-operative "left-sided" weakness, but made rapid improvement for approximately three days. On March 3, Wheeler had a temperature elevation, and on March 4, more left-side weakness and lethargy were detected. Based on this information, the appellee concluded that Wheeler was experiencing vasospasms and also brain swelling as a result of the trauma of the massive hemorrhage. The appellee ordered further diagnostic tests and antibiotic treatment. Four days later, on March 8, culture reports were received, and it was determined that Wheeler had bacterial meningitis.

On March 12, surgery was performed to deliver antibiotics directly into the spinal fluid and the brain to aid in the treatment of the meningitis. By March 17, the meningitis appeared to be cured.

Wheeler continued to suffer from left-sided weakness, which appellee testified was permanent damage caused by the cerebral arterial spasm. It was the appellee's opinion that the spasm prevented the brain from receiving adequate blood, causing a stroke in the affected area of the brain. Wheeler subsequently transferred to another hospital.

Appellants filed suit against the Methodist Hospital, the appellee, and his partner, individually and d/b/a Associates in Medicine, P.A. They alleged: (1) failure to correctly supervise Wheeler's condition; (2) failure to correctly diagnose his condition; (3) failure to correctly treat the condition; and (4) failure to timely stop the bleeding in Wheeler's brain.

In their first two points of error, the appellants contend that the trial court erred in granting the summary judgment because appellee's summary judgment proof, appellee's verified affidavit, is insufficient to establish that there is no genuine issue of material fact. They assert that appellee's affidavit is based upon hearsay, speculation, and conclusions, and conclude that it is of no probative force. Additionally, they allege that the affidavit is deficient because the appropriate standard of care cannot be determined therefrom.

When the movant in a summary judgment proceeding is a defendant, he is entitled to prevail on his motion if he establishes, as a matter of law, that there exists no genuine issue of material fact as to one or more elements of plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Federated Department Stores, Inc. v. Houston Lighting & Power Co., 646 S.W.2d 509, 511 (Tex.App.--Houston [1st Dist.] 1982, no writ). Once the defendant has negated, as a matter of law, such elements of plaintiff's cause of action, the plaintiff has the burden of introducing evidence that raises issues of fact with respect to the elements negated by the defendant's summary judgment evidence. Federated Department Stores, Inc., 646 S.W.2d at 511. This evidence must be of probative force. Woolhouse v. Tolchin Instruments, Inc., 601 S.W.2d 106 (Tex.Civ.App.--Dallas 1980, no writ).

Tex.R.Civ.P. 166-A(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.

The appellants assert that the trial court should not have considered the affidavit testimonial evidence of the appellee because he was an interested witness and was merely stating his conclusory opinions.

Prior to 1978, the appellants' assertions would have been correct. However, in 1978 Rule 166-A(c) was amended, and the amended rule expressly authorized such testimony in support of a motion for summary judgment, as long as such testimony is "uncontradicted, clear, direct and positive, free of circumstances tending to discredit or impeach, and readily controverted." Coan v. Winters, 646 S.W.2d 655, 658 (Tex.App.--Fort Worth 1983, writ ref'd n.r.e.). Appellee's affidavit stated as follows:

My name is Alphonso E. Aldama-Luebbert, M.D. I am over the age of eighteen (18) years and am in all respects competent to make this Affidavit. I have personal knowledge of each of the facts and opinions stated herein.

I am a physician specializing in the practice of neurosurgery. I received my M.D. from the Baylor College of Medicine. I did my internship at St. Luke's Episcopal Hospital in Houston, Texas. My residency was through the Baylor College of Medicine where I also participated in a neurosurgery residency. I am certified as a neurosurgeon by the American Board of Neurological Surgery and a member of the American Medical Association, Harris County Medical Society and Houston Neurological Society. I am licensed to practice medicine by the Board of Medical Examiners of the State of Texas and my license is on file with the appropriate authorities of Harris County.

Mr. Malcolm Wheeler was admitted to the Methodist Hospital during the early morning hours of February 27, 1982. He had been life-flighted from the Community Hospital in Brazosport, Texas and presented with a history, reported by a family member, of suddenly collapsing to the street while walking his dog. A CT scan was performed and showed a right sided intercerebral hematoma and subarachnoid hemorrhage. Mr. Wheeler was then taken to angiography where a right middle cerebral aneurysm was visualized. A correct diagnosis of right middle cerebral aneurysm bleed with right frontal and temporal lobe intracerebral hematomas was made. Mr. Wheeler was then taken to the operating room where right frontal, temporal and parietal craniotomies were performed with evacuation of an intercerebral hematoma and clipping and obliteration of a middle cerebral artery aneurysm.

Later in his hospital stay, other procedures were performed for treatment of plaintiff's condition. On March 12, 1982, a left frontal Ommaya reservoir ws [sic] placed to aid in the treatment of the gram negative meningitis and possible ventriculitis. On April 6, 1982, the Ommaya reservoir was removed and a left ventricular peritoneal shunt placed as treatment for Mr. Wheeler's hydrocephalus. Lastly on May 27, 1982, the left ventricular peritoneal shunt was revised because the original shunt was malfunctioning. Of course, I was continuously monitoring Mr. Wheeler while he was under my care.

I am familiar with the standard of care for the examinations, operative procedures and treatment of Mr. Wheeler and it is my expert opinion that each one of my examinations, operative procedures and treatments of Mr. Wheeler was in accordance with the appropriate standard of care for such, and were the same examinations, operative procedures and treatment which would have been performed by a reasonably prudent physician acting under the same or similar circumstances.

I have reviewed Plaintiff's First Amended Original Petition and I specifically deny each and every allegation contained in that instrument. At all times I properly and...