White v. Wah, 01-89-00257-CV

• Decision Date: 05 April 1990
• Docket Number: No. 01-89-00257-CV,01-89-00257-CV
• Citation: 789 S.W.2d 312
• Parties: Gerald E. WHITE, Appellant, v. John WAH, M.D., Michael J. Chaney, M.D., the Woodlands Community Hospital, and Gulf Coast Emergency Physician's Association, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 312

789 S.W.2d 312

Gerald E. WHITE, Appellant, v. John WAH, M.D., Michael J. Chaney, M.D., the Woodlands Community Hospital, and Gulf Coast Emergency Physician's Association, Appellees.

No. 01-89-00257-CV.

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

April 5, 1990.

Rehearing Denied May 10, 1990.

Sanford B. Kahn, Jonette S. Anderson, Houston, for appellant.

Bradley E. Bartlett, Malcolm Williams & Eugene Nettles, Rebecca S. Mathews, Houston, for appellees.

Before DUGGAN, WARREN and MIRABAL, JJ.

OPINION

DUGGAN, Justice.

This is an appeal from a take-nothing summary judgment in a medical malpractice action.

Appellant was injured when a small piece of his nose was torn off in an accident. He was taken to the emergency room of The Woodlands Community Hospital, where he was treated by Dr. John Wah, an agent of Gulf Coast Emergency Physician's Association. Dr. Wah consulted with Dr. Michael Chaney, a plastic surgeon, regarding treatment of the cavity created by the detachment of skin from appellant's nose. Appellant contends that the doctors' treatment left him disfigured.

Appellant filed suit, alleging negligent treatment by the two physicians, and negligent hiring and retaining by Woodlands and Gulf Coast.

The four appellees moved for summary judgment; the motions of Drs. Wah and Chaney were supported by affidavits.

Following a hearing, the trial court granted the four motions for summary judgment, as well as Dr. Chaney's motion to strike. Appellant's motion for new trial was overruled after a hearing, and this appeal followed. Appellant raises seven points of error.

In his first and second points of error, appellant asserts that the trial court erred in granting the appellees' motions for summary judgment because the doctors' affidavits are factually insufficient.

A defendant is entitled to summary judgment when the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action, and that on the undisputed evidence, he is entitled to a take-nothing judgment. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). A defendant physician is entitled to summary judgment if he presents expert testimony to establish the absence of one element of the plaintiff's cause of action, and the plaintiff fails to present competent medical evidence sufficient to raise a fact question on the issue. Milkie v. Metni, 658 S.W.2d 678, 680 (Tex.App.--Dallas 1983, no writ).

The burden of introducing evidence to avoid summary judgment shifts to the nonmovant, however, only if the movant's evidence meets the criteria of Texas Rule of Civil Procedure 166a(c), and negates all genuine issues of material fact with respect to an essential element of the nonmovant's cause of action. Cloys v. Turbin, 608 S.W.2d 697, 699-700 (Tex.Civ.App.--Dallas 1980, no writ). Rule 166a(c) 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.

To defeat a summary judgment, the nonmovant's controverting evidence need only raise an issue of fact with respect to the element or elements of the cause of action negated by the movant's summary judgment evidence; it need not be sufficient to meet the nonmovant plaintiff's burden of persuasion at trial. Cloys, 608 S.W.2d at 700.

In a medical malpractice cause of action, 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); Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965). To do so, the plaintiff must prove four elements: (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. Pinckley v. Gallegos, 740 S.W.2d 529, 531 (Tex.App.--San Antonio 1987, writ denied); Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 217 (Tex.App.--Houston [1st Dist.] 1986, no writ). A defendant is entitled to prevail on his motion for summary judgment if he establishes, as a matter of law, that at least one essential element of the plaintiff's cause of action does not exist. Pinckley, 740 S.W.2d at 531; Cloys, 608 S.W.2d at 699.

Dr. Wah's Affidavit

A physician's affidavit submitted in support of a motion for summary judgment should articulate the standard of care which applies to the medical services and treatment rendered on behalf of the patient alleging malpractice. Tatom v. Guillebeau, 686 S.W.2d 705, 706-707 (Tex.App.--Tyler 1985, no writ). The affidavit must state the standard of care, indicate that the standard would be used by a reasonably prudent physician under the same or similar circumstances, and state that the defendant physician adhered to that standard of care. McCord v. Avery, 708 S.W.2d 954, 956 (Tex.App.--Fort Worth 1986, no writ); Wheeler, 707 S.W.2d at 216-17. Dr. Wah's affidavit does not meet these criteria.

Dr. Wah's affidavit states:

I am a physician who was providing emergency room medical services at the time of the incident made the basis of this lawsuit at The Woodlands Community hospital.

I am licensed to practice medicine in Texas. I am board certified in family practice. I was and am actively engaged in emergency room practice and services. I have knowledge and am familiar with the type of care and treatment of a reasonable and prudent doctor under the circumstances in this case.

On October 10, 1985, Gerald E. White came into The Woodlands Community Hospital Emergency Room. I was on duty at the time. Mr. White brought in a 2 X 2 centimeter piece of tissue in a non-sterile container, submerged in water and without ice, which had been severed off his nose. I examined the tissue and found that it was in poor condition and frayed. I placed in [sic] in a sterile dressing on ice in a sterile container. I called Michael J. Chaney, M.D., a plastic surgeon, and discussed with him the possibility of reattaching the evulsed nose tissue. After discussing it with Dr. Chaney, I decided that Mr. White's nose would have a better cosmetic result if allowed to heal secondarily, i.e. without attempting to reattach the evulsed tissue. I explained this decision to Mr. White. The wound was a clean wound. There was no embedded foreign matter and minimal bleeding was present. The wound was easy to clean and could be kept clean without difficulty; therefore, I did not prescribe an antibiotic because it was unlikely that the wound would become infected. I told him to see Michael J. Chaney, M.D. the next day for follow up treatment.

I am familiar with the facts stated herein and they are true and correct.

In his affidavit, Dr. Wah broadly states that he is "familiar with the type of care and treatment of a reasonable and prudent doctor under the circumstances in this case;" he then provides a one-paragraph description of the treatment he gave appellant. The affidavit's brevity destroys its effectiveness as competent summary judgment evidence. Dr. Wah does not identify the appropriate standard of care; he fails to allege that his treatment accorded with any standard of care. Further, Dr. Wah neglects to show that the treatment he gave appellant equaled that which reasonably competent physicians would have given. In this regard, Dr. Wah does not sufficiently describe his treatment; his affidavit does not state (1) that he correctly supervised, monitored, and knew appellant's condition; (2) that his diagnosis and treatment was correct and proper; (3) that the treatment he gave appellant was correct and proper; or (4) that all of his acts were consistent with the appropriate standard of care. See Wheeler, 707 S.W.2d at 216. For these reasons, Dr. Wah's affidavit is insufficient, in itself, as summary judgment evidence.

Further, the affidavit does not negate any of the four necessary components of appellant's cause of action. It does not state that Dr. Wah's treatment did not cause appellant's injuries. See Wheeler, 707 S.W.2d at 217.

Dr. Wah's affidavit does not identify an appropriate standard of care, allege compliance with such a standard, or negate an element of the appellant's cause of action. The affidavit is an insufficient basis for summary judgment and the trial court erred in dismissing the action against Dr. Wah. Appellant's points of error are sustained as to Dr. Wah, and by extension, to Gulf Coast Emergency Physician's Association, for which Dr. Wah was an agent.

Dr. Chaney's Affidavit

Dr. Chaney's affidavit establishes testimonial competence, first-hand knowledge of the facts presented, and summarizes the affiant's medical training and experience. The affidavit continues:

On October 10, 1985, I received a phone call from the Emergency Room physician of The Woodlands Community Hospital regarding a man who had suffered an avulsion injury to the skin of his nose approximately one to two centimeters in size while doing construction work. The Emergency Room physician told me that the skin was frayed and in poor condition. I was told that there was no exposure of bone or cartilage. It has been my observation that if an avulsion injury is small and no underlying structure such as bone or cartilage is exposed, that a skin graft will have an inferior cosmetic result compared to secondary wound healing or reconstruction with a skin flap. Based upon this observation and the facts relayed to me from the Emergency Room physician, I instructed the physician to discard the tissue and clean the wound with peroxide, cover it with neosporin ointment and a non-adherent gauze dressing. The patient...