AT AUSTIN
NO. 3-92-199-CV
LUTHER HUGHES,
APPELLANT
vs.
GEORGETOWN MEDICAL CENTER, P.A., HOWELL R. GADDY, M.D., AND DAVID NICHOLS, M.D.,
APPELLEES
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 90-506-C277, HONORABLE JOHN R. CARTER, JUDGE PRESIDING
Luther Hughes appeals from the summary judgment rendered against him in the medical malpractice action he brought against Dr. Howell Gaddy, Dr. David Nichols, and Georgetown Medical Center, P.A. (collectively, "defendants"). In three points of error, Hughes complains that the trial court erred in granting summary judgment in defendants' favor. We will reverse the judgment of the trial court and remand the cause.
Only a brief summary of the factual background is needed. Hughes was injured when his pickup truck rolled over him in 1988. Gaddy is a family care physician who treated Hughes in the emergency room on the day of the accident and provided follow-up care. Gaddy is also a partner in Georgetown Medical Center, P.A. Nichols is a radiologist who reviewed Hughes's x-rays on the day of his accident. Based on affidavits from Gaddy and Nichols, the trial court granted summary judgment for all defendants.
In his first two points of error, Hughes complains that the trial court erred in granting summary judgment for Gaddy and Nichols.
The standards for reviewing a summary judgment are well established:
1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.
Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
The function of summary judgment is not to deprive a litigant of its right to a full hearing on the merits of any real issue of fact, but to eliminate patently unmeritorious claims and untenable defenses. Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex. 1952). Its purpose is not to provide a trial by deposition or affidavit, but to provide a method of summarily terminating a case when it clearly appears that only questions of law are involved and no genuine issues of material fact remain. Gaines v. Hamman, 358 S.W.2d 557, 563 (Tex. 1962).
In order for a defendant/movant to be entitled to summary judgment, he must conclusively establish that there is no genuine issue of fact as to at least one essential element of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). If the movant's proof conclusively negates an essential element of the non-movant's legal theory, the non-movant must, in order to avoid summary judgment, produce controverting evidence that raises a fact issue as to the element or elements negated. Nicholson v. Memorial Hosp. Sys., 722 S.W.2d 746, 751 (Tex. App.Houston [14th Dist.] 1986, writ ref'd n.r.e.). To be sufficient to raise an issue of fact, any controverting affidavits must consist of more than mere legal conclusions. Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984).
In a medical malpractice case, the plaintiff must prove "that the diagnosis or treatment complained of was negligence and that it was a proximate cause of the patient's injuries." Williams v. Bennett, 610 S.W.2d 144, 146 (Tex. 1980). Additionally, the requisite proof of negligence and proximate cause can generally be established only by expert testimony. Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex. 1965); Garza v. Levin, 769 S.W.2d 644, 646 (Tex. App.--Corpus Christi 1989, writ denied); Shook v. Herman, 759 S.W.2d 743, 747 (Tex. App.Dallas 1988, writ denied).
We will assume for the sake of argument that Gaddy's affidavit in support of his motion for summary judgment and Nichols's affidavit in support of his motion are both sufficient to conclusively negate the elements of breach of the standard of care and proximate cause. Hughes had the burden, therefore, to produce controverting evidence that raised an issue of material fact as to both of these issues.
In response to Gaddy's motion for summary judgment, Hughes presented the affidavit of Dr. Stephen E. Earle. In the pertinent parts of his affidavit, Earle states the applicable standard of care and his familiarity with the standard. Earle further states:
Specifically, Dr. Hal Gaddy failed to exercise a degree of skill and diligence in diagnosing and treating Mr. Hughes' broken hip as would ordinarily be exercised by physicians under like circumstances. Dr. Gaddy was aware of the patient's complaint of pain in his right hip. It had been previously reported to him by the emergency medical technicians and emergency room personnel. Also noted in the emergency room record were multiple small abrasions of the right hip, however, there was failure to thoroughly evaluate the area of major complaint by the patient, i.e., his fractured right hip.
Earle also describes the follow-up care provided by Gaddy. He then states that "[h]ad Dr. Hal Gaddy exercised the degree of skill and diligence in diagnosing and treating Mr. Hughes' injuries as would ordinarily be exercised by physicians under like circumstances, he would have diagnosed the broken hip by external observation and examination and in addition by x-ray." Earle further states that "it is my expert opinion based upon reasonable medical probability that Dr. Hal Gaddy's failure to diagnose the hip fracture on October 6, 1988 ultimately caused and contributed to the deterioration of Mr. Hughes' physical condition . . . ."
Gaddy argues that Earle's affidavit contains only conclusory statements that are insufficient to raise an issue of fact. We disagree. Earle's affidavit contains more than mere conclusions. While more detail could no doubt have been added, Earle's statements bear no resemblance to the grossly conclusory affidavits in the cases cited by Gaddy. See, e.g., Sherard v. Smith, 778 S.W.2d 546, 549 (Tex. App.Corpus Christi 1989, writ denied); Pinckley v. Dr. Francisco Gallegos, M.D., P.A., 740 S.W.2d 529, 533 (Tex. App.San Antonio 1987, writ denied). We conclude that Earle's affidavit is sufficient to raise a question of material fact as to both breach of the applicable standard of care and proximate cause.
In response to Nichols's motion for summary judgment, Hughes presented a second affidavit by Earle. In this second affidavit, Earle again states the applicable standard of care and that he is familiar with the standard of care. He further concludes, after reviewing the x-rays of Hughes, that "an acute femoral neck fracture is present" and was not diagnosed by Nichols. Earle states that "it is my expert opinion based on reasonable medical probability that the treatment Dr. David Nichols rendered to Mr. Hughes by reviewing his x-rays and reading them did not meet the standard of care . . . . Dr. Nichols failed to exercise a degree of skill and diligence in diagnosing by radiography Mr. Hughes' broken hip as would ordinarily be exercised by physicians under like circumstances." Furthermore, Earle states that the failure to diagnose the broken hip caused and contributed to the deterioration of Hughes's condition. As in Earle's other affidavit, these statements are more than bald conclusory statements and raise an issue of material fact with respect to both breach of the applicable standard of care and proximate cause.
In his third point of error, Hughes complains that the trial court erred in granting summary judgment in favor of Georgetown Medical Center. In its brief to this Court, the Medical Center concedes that the grant of summary judgment in its favor was dependent on the grant of summary judgment in favor of Gaddy. Because we sustain point of error one, complaining of the summary judgment in favor of Gaddy, we also sustain point of error three.
Based on our foregoing discussion, we sustain Hughes's three points of error. We reverse the trial court's judgment as to all three defendants and remand the cause for further proceedings.
J. Woodfin Jones, Justice
[Before Chief Justice Carroll, Justices Aboussie and Jones]
Reversed and Remanded
Filed: April 14, 1993
[Do Not Publish]