dissenting.
I respectfully dissent. The summary judgment should be reversed.
The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Smiley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); Tex.R.Civ.P. 166a(c). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the nonmovant. Nixon, 690 S.W.2d at 549; Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Every reasonable inference from the evidence will be indulged in favor of the nonmovant, and any doubts will be resolved in the nonmovant’s favor. Nixon, 690 S.W.2d at 549; Montgomery, 669 S.W.2d at 311. Therefore, the issue on appeal in a summary judgment case is whether the movant met his burden for summary judgment by establishing that there exists no genuine issue of material fact and that he is entitled to judgment as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Tex.R.Civ.P. 166a(c).
In reviewing summary judgment evidence, it is well established that sworn pleadings and denials to requests for admissions are not summary judgment evidence in Texas. Americana Motel, Inc. v. Johnson, 610 S.W.2d 143 (Tex.1980). As such, a motion for summary judgment is a pleading and may not be considered as summary judgment evidence, Kendall v. Whataburger, Inc., 759 S.W.2d 751, 754 (Tex.App. — Houston [1st Dist.] 1988, no writ), nor is a response to summary judgment competent summary judgment evidence. Rhodes v. Interfirst Bank Fort Worth, N.A., 719 S.W.2d 263, 264 (Tex.App. — Fort Worth 1986, no writ). However, affidavits, depositions, interrogatories, and admissions are proper summary judgment evidence when referred to or incorporated in the motion for summary judgment, Stewart v. U.S. Leasing Corp., 702 S.W.2d 288, 290 (Tex.App. — Houston [1st Dist.] 1985, no writ), citing, First Fed. Sav. & Loan Ass’n v. Bustamante, 609 S.W.2d 845, 849 (Tex.Civ.App. — San Antonio 1980, no writ), but the trial court may not receive extrinsic evidence, either oral or documentary, at the hearing on the motion for summary judgment. State v. Easley, 404 S.W.2d 296, 297 (Tex.1966); Citizens State Bank of Dickinson v. Shapiro, 575 S.W.2d 375 (Tex.Civ.App — Tyler 1978, writ ref’d n.r.e.). Statements contained in a brief also do not constitute summary judgment proof. Nationwide Fin. Corp. v. English, 604 S.W.2d 458, 463 (Tex.Civ.App. — Tyler 1980, dism’d as moot).
Supporting and opposing affidavits must be made on personal knowledge and set forth facts which would be admissible in evidence. Tex.R.Civ.P. 166a(f). Statements in an affidavit which are mere conclusions or which represent the affiant’s opinion are insufficient. See Wise v. Dal*591las Southwest Media Corp., 596 S.W.2d 533, 536 (Tex.Civ.App. — Beaumont 1979, writ ref’d n.r.e.). The affidavit must set forth facts, not legal conclusions. Beta Supply, Inc. v. G.E.A. Power Cooling Sys., Inc., 748 S.W.2d 541, 542 (Tex.App.— Houston [1st Dist.] 1988, writ denied); Harbour Heights Dev., Inc. v. Seaback, 596 S.W.2d 296, 297 (Tex.Civ.App. — Houston [14th Dist] 1980, no writ). Hearsay statements contained in an affidavit are not sufficient controverting evidence. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 233 (Tex.1962); Lopez v. Hink, 757 S.W.2d 449, 451 (Tex.App. — Houston [14th Dist.] 1988, no writ); Butler v. Hide-A-Way Lake Club, Inc., 730 S.W.2d 405, 411 (Tex.App. — Eastland 1987, writ ref’d n.r.e.).
In medical malpractice cases, “[ordinarily what constitutes reasonable care is a question for the jury.” Harle v. Krchnak, 422 S.W.2d 810, 815 (Tex.Civ.App. — Houston [1st Dist.] 1967, writ ref d n.r.e.). Further, “[o]rdinarily both negligence and proximate cause must be proven by medical testimony,” and “[t]he doctrine of res ipsa loquitur is generally held by Texas courts to be inapplicable to medical malpractice cases.” Id. at 814-15. However, “[an] exception to [both these rules] has been recognized where the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen, as where the negligence alleged is in the use of mechanical instruments, operating on the wrong portion of the body, or leaving surgical instruments or sponges within the body” and “[i]n such cases the requirement of medical testimony is eliminated, but the necessity of proof of negligence remains.” Id. at 815; see also Rayner v. John Buist Chester Hospital, 526 S.W.2d 637, 639 (Tex.Civ.App. — Waco 1975, writ ref’d n.r.e.).
In Haddock v. Arnspiger, 793 S.W.2d 948 (Tex.1990), the court stated;
Historically, res ipsa loquitur has been restrictively applied in medical malpractice cases: ‘There are only very, very few instances where a pleading of res ipsa loquitur is applicable in medical malpractice cases.’ Goodnight v. Phillips, 418 S.W.2d 862, 868 (Tex.Civ.App.— Texarkana 1967, writ ref’d n.r.e.)_ In fact, Texas courts have generally recognized that res ipsa loquitur is inapplicable in medical malpractice cases.... However, an exception is recognized when the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen, requiring no expert testimony. Examples of this exception include negligence in the use of mechanical instruments, operating on the wrong portion of the body, or leaving surgical instruments or sponges within the body....
Id. at 9511 (citations omitted; emphasis in original).
*592Where “the most likely cause of the cast bum was either defective plaster or [the] misapplication of the cast material” by the doctor, the denial by two doctors that the cast material was misapplied was “not conclusive evidence that the cast was not misapplied” even without opposing medical testimony, for “[i]t is the jury’s function thereafter to determine whether the doctor’s acts conformed to the standard of care,” and “the jury was free to reject any of [the doctor’s] assertions that the alleged negligence did not occur.” Davis v. Marshall, 603 S.W.2d 359, 361 (Tex.Civ.App.— Houston [14th Dist.] 1980, writ ref’d n.r.e.); see Williams v. Bennett, 610 S.W.2d 144, 146 (Tex.1980); Bronwell v. Williams, 597 S.W.2d 542, 546-47 (Tex.Civ.App. — Amarillo 1980, writ ref’d n.r.e.).
With regard to the negligence allegations, the appellants contended at the summary judgment that the appellee was negligent in 1) failing to offer alternative procedures to appellants; 2) failing to properly inform the appellants of all the risks involved with the surgical procedures; 3) failing to adequately answer all of appellants’ inquiries and falsely misleading the appellants concerning the consequences of the surgery; 4) failing to properly examine and inspect the surgical device that failed prior to surgery; and 5) misusing the instrument during surgery, causing it to break inside appellant’s knee. Appellants further asserted that the doctrine of res ipsa loquitur applied since the instrument that broke during surgery, while in use by the appel-lee, would not in the ordinary course of events have broken without negligence on the part of the appellee. Moreover, appellants maintained that because of the negligence of the appellee, which caused the instrument to break in the appellant’s knee, the appellant was required to undergo additional, more serious surgery in order to remove the broken piece, as well as hospitalization which would not have been otherwise necessary.
The summary judgment evidence indicated that appellee: 1) did not deny that any other procedures were available to the appellant, or that he so advised the appellant; 2) conceded that he did not make it a practice to advise his patients of the risk of a broken instrument, since that did not normally occur; 3) conceded that he had advised the appellants that the arthroscopic medial meniscectomy procedure originally planned for the appellant would ordinarily not take long and would not require hospitalization; 4) conceded that he never examined or inspected the surgical instruments used during surgery; 5) conceded that the meniscus grabber he was using during the arthroscopic medial meniscectomy procedure on the appellant broke while he was using it, which normally occurred only through misuse or defect; 6) failed to contend that the instrument was defective, thereby leaving only the question of his misuse of the instrument; 7) conceded that because a piece of the instrument remained in the knee of the appellant, appellee was required to perform an additional and more difficult surgical procedure, known as an arthrotomy, to remove the piece from the appellant’s knee; and 8) conceded that this more difficult, additional procedure caused the appellant to endure additional surgery, hospitalization and related consequences which were not normally necessary for the original arthroscopic medial meniscectomy procedure.
Although the appellee never contended the meniscus grabber was defective, in his affidavits the appellee attempted to satisfy his burden with regard to the allegations of misuse of the meniscus grabber by stating: 1) “At all times, I properly and correctly *593used the arthroscopic device in question”; 2) “I would further state that no undue pressure or traction was asserted by me while I was using the meniscus grabber on Pete Arguello”; and 3) “It is my expert opinion that the instrument was not misused by me, and it did not break because of any neglect on my part.” Clearly, these are conclusions which will not support a summary judgment. Wise, 596 S.W.2d at 536. Although the appellants properly objected to these conclusions, the summary judgment was nevertheless granted.
In his motion for summary judgment, the appellee contends that he is entitled to a summary judgment because:
The basis of this Motion for Summary Judgment is two-fold: there is no genuine issue as to any material fact regarding two essential elements of Plaintiffs’ medical negligence action, breach of duty and proximate cause. First, the Defendant, Dennis Gutzman, M.D., did not fall below the standard of care for physicians practicing orthopedic surgery, in treating and operating upon Pete Arguello. Second, the actions of Dennis Gutzman, M.D. did not cause any injury to the Plaintiff.
It is uncontested that the appellant was additionally damaged during the surgery performed by the appellee because the instrument broke while being used by the appellee during the procedure. It is also uncontested that the additional damages to the appellant were in the form of an additional, more severe surgical procedure which was required to remove the piece of the instrument still in appellant’s knee, hospitalization, and other related consequences. Therefore, the only remaining question as to this cause of action is whether the negligence of the appellee doctor caused the damages suffered by the appellants. Consequently, this being a summary judgment case, the dispositive issue is whether the appellee has established his burden of showing that no genuine issues of material fact exist as to his negligence and that he is entitled to judgment as a matter of law. Nixon, 690 S.W.2d at 548.
Initially, we note that appellee has relied on objected to conclusions which will not support a summary judgment. Wise, 596 S.W.2d at 548. Further, this case clearly involves “the use of mechanical instruments,” and the “leaving [of a part of a] surgical instrument within the body.” Rayner, 526 S.W.2d at 639. Thus, this case falls within the exceptions to the general rule, which eliminates the requirement of medical testimony, permits the application of res ipsa loquitur, and leaves questions of fact for the jury’s determination. Davis, 603 S.W.2d at 361; Id. at 639. Moreover, the summary judgment evidence presented to the court failed to eliminate all issues of fact as to whether appellee’s negligence caused the uncontradicted consequential damages suffered by the appellants resulting from the breaking of the surgical instrument at the hands of the appellee during the surgical procedures performed. Nixon, 690 S.W.2d at 548; Wise, 596 S.W.2d at 536. The point should be granted.
The majority and concurring opinions leave claimants in these circumstances between a rock and a hard place. Two things are absolutely clear: 1) if the doctor had left the entire instrument in the knee instead of just a piece of the instrument, no medical evidence would have been required of the appellant to avoid the summary judgment; and 2) as between the claimant, the doctor, and the manufacturer, only the claimant is alleged to be free of any negligence, having done nothing but provide his leg.
According to the doctor, the harm to the claimant was caused either through the doctor’s misuse of the instrument, or because the instrument was defectively made by the manufacturer. The manufacturer will undoubtedly take the position that the instrument was not defective and, therefore, it must have been misuse by the doctor that caused the harm. Although the claimant will have been required to present medical evidence merely to have his day in court against the doctor, the manufacturer will simply point to the doctor’s own statement in attempting to escape liability without presenting any medical testimony at all. Somehow, this disturbs my sense of justice.
*594Because issues of fact remain, this summary judgment should be reversed and remanded for trial.
. The concurring opinion misplaces its reliance on Haddock, 793 S.W.2d 948, as controlling here. As set out in the text of this opinion, the court in Haddock recognized the exceptions wherein res ipsa loquitur is applicable in medical malpractice cases, and this case falls within the three exceptions: 1) the nature of the malpractice falls within the common knowledge of laymen; 2) there was negligence in the use of the surgical instrument; and 3) part of a surgical instrument was left within the body. Id. at 951.
Clearly, it does not take a medical expert to know that a surgical instrument is not supposed to break and remain either in part or whole, inside the body. Further, the appellee doctor conceded that since the instrument in question normally did not break except through misuse or defect, he did not advise his patients of the possibility that the instrument in question might break. Without ever contending that the instrument was defective, the appellee doctor also conceded that the instrument broke while he was using it on appellant’s knee and that a piece of the instrument remained in the appellant’s knee, which required a subsequent, more severe operation which caused harm to the appellant.
Further, Haddock is not controlling because it is easily distinguished from the case before us. Unlike the present case: 1) in Haddock, the allegations were directed at an alleged negligent proctological examination which the claimant contended caused a rupture, whereas the allegations in the case before us were directed at the doctor’s handling of the instrument which caused it to break in the claimant’s knee, leaving a piece of the instrument in the knee; 2) in Haddock, the flexible colonoscope used during the medical procedure did not break, nor did part of it remain inside the body of the claimant; 3) in Haddock, the evidence clearly disclosed that the instrument involved was a "sophisticated medical instrument which require[d] extensive training and experience for proper use” and was “not a matter plainly with*592in the common knowledge of laymen,” whereas no such summary judgment evidence was presented regarding the instrument in this case; and 4) Haddock was not a summary judgment case.
Moreover, the concurring opinion concedes that the issue in the case before us does not involve the necessity of medical testimony at all, suggesting instead that "[s]ince the nature of the occurrence involves the breaking of a metal instrument, it seems that it might be appropriate to have a metallurgist or engineer give an opinion as to whether too much pressure was applied to this particular instrument or whether it was defective in its design or manufacture.” Certainly, this appellant should not be denied his day in court because he failed to present the testimony of a metallurgist or engineer at the summary judgment hearing, based on the premise that medical expert testimony was required in this medical malpractice case.