Hammonds v. Thomas

BLEIL, Justice,

concurring.

Although I agree with the majority’s decision in this case, I write separately concerning the adequacy of the affidavits of Sellers Thomas and John McKeehnie, medical experts and defendants in this case. In agreeing with Hammonds that these two affidavits are legally inadequate to support a summary judgment on the basis of Coan v. Winters, 646 S.W.2d 655 (Tex.App.-Fort Worth 1988, writ ref d n.r.e.), and Stanton v. Westbrook, 598 S.W.2d 831 (Tex.Civ.App-Houston [14th Bist] 1980, writ ref'd n.r.e.), the majority errs. While those cases stand for the propositions that the standard of care is the threshold question which must be proved first so that the factfinder can determine whether the doctor’s conduct was negligent, in this particular the holding of these cases is passé. The basis for those holdings was that testimony by a medical expert about what constitutes negligence was then held to be inadmissible in a medical malpractice suit. Coan v. Winters, 646 S.W.2d at 657. Now, this type of testimony is dearly admissible.

*4The medical doctors who gave affidavits are free to express their opinion that there were no acts of medical negligence committed. King v. Bauer, 688 S.W.2d 846 (Tex.1985). The facade that medical experts should testify only as to the standard of care, with the ultimate question of negligence being left to the jury, no longer exists. Fairness dictates that medical experts like these be allowed to express their opinions so long as the opinions are confined to relevant issues and are based on proper legal concepts. Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 365 (Tex.1987); Tex.R.Evid. 704.

The testimony, in lengthy affidavits, showed that the witnesses were expert, that they knew the standard of care in Harris County, that they did not breach the standard of care, and that they were not negligent in any manner which caused injury to Hammonds. I cannot join in holding that the affidavits of Thomas and McKech-nie were insufficient to support summary judgment, even if not controverted.