Silvas v. Ghiatas

ANGELINI, Justice,

dissenting.

Because the trial court correctly granted Dr. Ghiatas’s Motion for Summary Judgment and Severance, I respectfully dissent.

The issue in this case is whether the Sil-vases presented competent expert testimony sufficient to controvert Dr. Ghiatas’s summary judgment proof. Dr. Ghiatas’s summary judgment proof, consisting of Dr. Ghia-tas’s affidavit, was indisputably sufficient to meet the standard required for granting summary judgment. The burden, therefore, shifted to the Silvases to produce competent medical evidence to raise a fact issue. This the Silvases failed to do.

FACTUAL AND PROCEDURAL BACKGROUND

The Silvases are the parents of Denis Sil-vas, who died from cancer on September 9, 1994, at the age of 25. Denis went to the Gonzaba Medical Group Clinic on February 29, March 31, and May 15,1992, complaining of pain in his right leg. An X-ray of Denis’s right leg was ordered and taken on May 15, 1992. Dr. Ghiatas, a radiologist who worked for the Gonzaba Medical Group Clinic on a part-time fee-for-service basis, reviewed the X-ray. Dr. Ghiatas dictated a report and contacted the treating physician and/or his team and notified them that the X-ray revealed an abnormal finding. He marked the abnormal finding on the X-ray films and further communicated his finding to the treating physician through his dictated radiology report.

Denis returned to the Gonzaba Medical Group Clinic on May 29, 1992, but, after waiting several hours, left to attend classes. Denis again returned to the clinic on June 1, 1992, at which time he was referred for an orthopedic consultation. Denis’s right leg broke, however, on June 11, 1992, before he was able to see an orthopedist. Denis was eventually diagnosed with cancer in his right leg which spread to his lungs and caused his death.

The Silvases brought medical malpractice actions against the health care providers involved, including Dr. Ghiatas. The Silvases specific allegations against Dr. Ghiatas were that: (1) he failed to contact and discuss the X-ray findings with a competent physician; (2) he failed to follow up with Denis in order to ensure appropriate action was taken in response to the X-ray report; (3) he failed to inform Denis of the X-ray results; (4) he failed to order further testing or consultation with a specialist; (5) he failed to admit Denis to the hospital or an appropriate facility; (6) he failed to ensure immediate investigation and treatment of Denis’s condition; (7) he failed to warn Denis not to work or bear weight on his leg or that the condition was serious and needed immediate action; and (8) he failed to inform Denis that he would not receive timely and appropriate treatment at the Gonzaba Medical Group Clinic and that he should seek medical care elsewhere.

Dr. Ghiatas filed a Motion for Summary Judgment and Severance. His supporting proof consisted of his affidavit in which he set forth his qualifications as a board-certified radiologist and stated that, based upon his years of training and experience, he was familiar with the standard of care and treatment for a radiologist reading X-ray films for a medical group on a part-time fee-for-service basis. Dr. Ghiatas then described the standard of care, stating specifically what actions a radiologist should take when reviewing films under these circumstances. Dr. Ghiatas further described the radiologist’s relationship to the patient which is ordinarily through the treating physician. This relationship, according to Dr. Ghiatas, is such that it would be improper for the radiologist to contact the patient, to follow-up with further testing and treatment, to consult with specialists, or admit the patient to a hospital. Dr. Ghiatas then indicated that his actions with reference to Denis were in accordance with the described standard of care.

The Silvases responded to Dr. Ghiatas’s Motion for Summary Judgment by contending there are material fact issues which prevent summary judgment in favor of Dr. Ghia-tas. To controvert Dr. Ghiatas’s summary judgment proof, the Silvases relied, primari*56ly, on the affidavit of Dr. Michael McGuire, an orthopedic surgeon. In his affidavit, Dr. McGuire stated his qualifications by attaching his curriculum vitae and by stating he was familiar with the standard of care for radiologists such as Dr. Ghiatas. Dr. McGuire then gave his opinion that Dr. Ghia-tas was negligent and failed to act as a radiologist using reasonable care and prudence would have under the same or similar circumstances, proximately causing Denis’s injuries and death. Dr. McGuire also listed five specific acts and/or omissions which he believed constituted negligence on the part of Dr. Ghiatas: (1) failing to contact and discuss the X-ray findings with a competent physician; (2) failing to ensure the X-ray report was reviewed by a competent physician; (3) failing to follow up and ensure appropriate action was taken in response to the X-ray and report; (4) failing to inform Denis of the X-ray results; and (5) failing to inform Denis and/or a competent physician of the need for immediate treatment.

A hearing was held on the summary judgment motion on January 30, 1996. Before the court ruled, however, the Silvases filed their Motion to Supplement Summary Judgment Evidence. They requested leave to file Dr. McGuire’s Supplemental Affidavit in response to Dr. Ghiatas’s objections to Dr. McGuire’s original affidavit. The trial court overruled the Motion to Supplement and granted Dr. Ghiatas’s Motion for Summary Judgment and Severance. The Silvases appealed, contending that, in spite of their unsuccessful attempt to supplement the record with another affidavit from Dr. McGuire, Dr. McGuire’s original affidavit was sufficient to raise a fact issue. Thus, they argue that the trial court erroneously granted summary judgment in Dr. Ghiatas’s favor.

DISCUSSION

A. Applicability of Rule 166a(c) to Non-Movant Affidavits

Rule 166a(c) of the Texas Rules of Civil Procedure sets forth the following with regard to the testimony of an interested or expert witness in a summary judgment proceeding:

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.

Tex.R. Crv. P. 166a(c).

Dr. Ghiatas’s affidavit clearly met the requirements of Rule 166a(c). As such, Dr. Ghiatas met his burden of showing he was entitled to judgment as a matter of law. Once Dr. Ghiatas satisfied the summary judgment requirements, the burden then shifted to the Silvases to raise a fact issue. Because this is a medical malpractice case, the Silvases were required to negate Dr. Ghiatas’s right to summary judgment by presenting expert medical testimony. See Chopra v. Hawryluk, 892 S.W.2d 229, 231 (Tex. App.—El Paso 1995, writ denied). Their expert was required to specifically identify the applicable standard of care, show that he is familiar with the standard and testify as to why the treatment at issue fell below the standard. See Knetsch v. Gaitonde, 898 S.W.2d 386, 388 (Tex.App.—San Antonio 1995, no writ).

The Silvases do not contend that the burden of raising a fact issue did not shift to them, but rather that, as non-movants, their expert testimony is not subject to the stringent evidentiary standards set forth in Rule 166a(c). I disagree. First, the Silvases offer no authority in support of their position. In fact, they admit that this court in Knetsch recognized, at least in dicta, that non-mov-ants are held to the same stringent standards in presenting expert testimony in opposition to summary judgment motions in medical malpractice cases as are movants. Secondly, the Texas Supreme Court has recently noted the applicability of Rule 166a(c) to a non-movant’s expert affidavit. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996). In Ryland, the supreme court, referring to the non-movant’s affidavit, stated that eonclusory affidavits are not enough to raise fact issues and that “[t]hey are not *57credible, nor susceptible to being readily controverted.” Id. (citing Rule 166a(e)). Thus, in order to raise a fact issue, Dr. McGuire’s affidavit was required to be “clear, positive and direct, otherwise credible and free from contradictions and inconsistencies,” and it must have been capable of being “readily controverted.” Tex.R. Crv. P. 166a(c). Dr. McGuire’s affidavit does not satisfy this standard.1

The Silvases argue that, even if they were required to meet the Rule 166a(c) burden, their summary judgment evidence was sufficient. Again, I disagree. Dr. McGuire failed to state the facts upon which his opinion was based. Therefore, his testimony was conelu-sory and not readily controvertible. Further, as stated above, this court has held that in order to raise a fact issue, the plaintiffs expert must specifically identify the standard of care applicable, demonstrate familiarity with that standard and show why the defendant’s treatment fell below the standard. See Knetsch, 898 S.W.2d at 388. Although the majority concludes that Dr. McGuire’s affidavit, considered in its entirety, is sufficient to satisfy this test, I believe Dr. McGuire’s testimony falls short.

Essentially, Dr. McGuire states in his affidavit that he is competent and qualified to testify, that he reviewed certain information in connection with the case, that he is familiar with the standard of care in this situation, that Dr. Ghiatas was negligent in failing to do five items relating to Denis’s X-ray, and that Dr. Ghiatas’s negligence caused the damage. However, Dr. McGuire fails to specifically identify the applicable standard of care, fails to demonstrate his familiarity with the standard of care or to show how he is familiar with the standard of care, and fails to show why Dr. Ghiatas’s treatment fell below that standard. Merely stating that he is familiar with the standard of care and testifying with regard to whether the standard was met is not sufficient to satisfy Rule 166a(e). See Evans v. Conlee, 787 S.W.2d 570, 572 (Tex.App.—Corpus Christi 1990, writ denied). Yet, that is essentially what Dr. McGuire did in this case.

B. Competency of Non-Movant’s Affidavit Under Rule 166a(f)

The Silvases chose to offer the expert testimony of Dr. McGuire, an orthopedic surgeon, in an attempt to controvert Dr. Ghia-tas’s summary judgment proof. Rule 166a(f) addresses the competency of summary judgment affidavits as follows:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

Tex.R. Civ. P. 166a(f).

Dr. Ghiatas challenges the competency of Dr. McGuire to testify regarding the standard of care applicable to a radiologist. According to Dr. Ghiatas, Dr. McGuire’s testimony is insufficient because he has never practiced radiology, he has no radiology training and experience, and he fails to demonstrate how he is familiar with the standard of care applicable to radiologists. The Sil-vases argue that since Dr. Ghiatas did not raise this issue in the trial court, he may not raise it on appeal. Rule 166a(f) points out that defects in the form of affidavits or attachments are not grounds for reversal unless objected to in order to give the opposing party an opportunity to amend. The qualification of an expert to testify in a particular discipline is not a defect in the form of the affidavit, but rather is a substantive defect. Therefore, Dr. Ghiatas is not precluded from raising the competency issue on appeal. See Feldman v. Manufacturers Hanover Mortgage Corp., 704 S.W.2d 422, 425 (Tex.App.— Houston [14th Dist.] 1986, writ ref'd n.r.e.).

In order to testify as an expert, a witness must be qualified “by knowledge, skill, experience, training, or education.” Tex.R. Civ. Evid. 702; Broders v. Heise, 924 S.W.2d 148, *58152 (Tex.1996). The Silvases argue, and the majority agrees, that Dr. McGuire was competent to testify regarding the standard of care applicable to radiologists. The majority relies on “common knowledge that orthopedic surgeons and radiologists work closely together.” The majority further relies on Dr. McGuire’s curriculum vitae which “reveals that a large percentage of the articles and abstracts written by Dr. McGuire have appeared in” radiology publications. I do not agree that Dr. McGuire’s competency may be established by common knowledge. Further, Dr. McGuire’s curriculum vitae does not indicate a large percentage of radiology-related publications, and certainly not to such an extent to show he is qualified to testify to the standard of care for radiologists.

Although the supreme court has recognized that there are circumstances where a member of one medical speciality may testify with regard to another speciality, the offering party is not relieved of the requirement-to establish that the expert has “knowledge, skill, experience, training, or education” regarding the issue before the court which qualifies the expert to give an opinion on that subject. See Broders, 924 S.W.2d at 153. The Silvases have failed to meet this requirement. There are many types of health care practitioners, several of whom work closely together in rendering patient care. To recognize that one health care discipline is interrelated and intertwined with another is not, in my opinion, sufficient justification to allow an expert witness to testify regarding the standard of care in a related discipline. The Silvases cite the case of Hersh v. Hendley, 626 S.W.2d 151 (Tex.App.—Fort Worth 1981, no writ) in support of their argument that a medical professional in one speciality can testify in a suit against a medical professional in a related speciality. In that case, which involved the alleged malpractice of a podiatrist, the plaintiff offered expert medical testimony regarding the standard of care from an internist and an orthopedic surgeon. This expert testimony was considered competent because the acts of negligence at issue related to practices commonly and equally recognized and developed in all fields of practice, such as taking a medical history. Id. at 154-55.

The standard of care required of a radiologist in reviewing X-rays and reporting the results is by no means commonly and equally recognized and developed in all fields of practice. Radiology is a distinct medical specialty. Although there may be certain standards of patient care for radiologists which are commonly and equally recognized and developed in all fields of practice, it simply cannot be said that those items Dr. McGuire has identified as negligent acts fall into this category. The negligent acts identified relate very specifically to what a radiologist, in Dr. McGuire’s opinion, should do concerning the reporting, follow up, and review of X-ray findings.

Furthermore, both the Silvases and the majority have somewhat overstated Dr. McGuire’s qualifications to testify regarding the standard of care of radiologists as evidenced by his curriculum vitae. Dr. McGuire’s curriculum vitae, while quite impressive with regard to his qualifications as an orthopedic surgeon, indicates nothing in the way of radiological experience. There is absolutely nothing in the curriculum vitae from which it can be implied that Dr. McGuire is familiar with the standard of care for radiologists such as Dr. Ghiatas. The only reference to radiology is the fact that Dr. McGuire has been published in some radiology-related publications. Dr. McGuire’s curriculum vitae, consisting of 24 pages, shows he is a board certified orthopedic surgeon. His education, academic positions, hospital appointments, medical society memberships, medical society committees, university teaching positions, honors and awards, professional activities, and visiting professorships all relate primarily to orthopedic surgery.

Dr. McGuire lists a total of 38 published articles, 5 published book chapters, 57 published abstracts, 7 articles submitted for publication, 2 video tapes, 17 research activities, and 41 presentations. A review of these items reveals 11 published articles in radiology-related publications and 2 published abstracts in radiology-related publications. The remainder of Dr. McGuire’s activities relate to orthopedic surgery and other areas *59of medical disciplines, but not specifically to radiology. Thus, only a small percentage of Dr. McGuire’s articles and abstracts have appeared in radiology-related publications. Moreover, there is no indication of whether these articles and abstracts address the substantive practice of radiology or whether they simply discuss a specific topic of orthopedic surgery that might be of interest to a radiologist.

Dr. McGuire’s affidavit contains no statement pertaining to his qualifications to testify in the field of radiology. In fact, his affidavit contains no statement pertaining to his qualifications to testify other than to refer to his curriculum vitae and to state that his opinions are based on his “education, training and experience.” I cannot, therefore, agree that Dr. McGuire is sufficiently qualified, by virtue of his knowledge, skill, experience, training, or education regarding the specific issue before the court, to assist the fact finder in determining the ultimate issues of negligence and/or causation. See Broders, 924 S.W.2d at 153. Thus, the Silvases have failed to prove Dr. McGuire is qualified to testify to the standard of care of a radiologist such as Dr. Ghiatas.

Because the Silvases failed to present competent summary judgment proof to controvert Dr. Ghiatas’ affidavit, I would affirm the trial court’s judgment.

. I note that the majority does not specifically discuss the issue of whether the non-movant is held to the Rule 166a(c) standard. The majority implicitly finds that Rule 166a(c) does apply to the non-movant because the majority opinion contains a discussion regarding whether Dr. McGuire’s affidavit was readily controvertible. Therefore, while I agree with the majority's apparent opinion that the non-movant is held to the Rule 166a(c) standard, I disagree as to whether the non-movant has met its burden.