Brown v. Bettinger

882 S.W.2d 953, 1994 Tex. App. LEXIS 2248, 1994 WL 484362
CourtCourt of Appeals of Texas
DecidedSeptember 8, 1994
Docket09-93-326 CV
StatusPublished
Cited by4 cases

This text of 882 S.W.2d 953 (Brown v. Bettinger) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Bettinger, 882 S.W.2d 953, 1994 Tex. App. LEXIS 2248, 1994 WL 484362 (Tex. Ct. App. 1994).

Opinions

OPINION

BURGESS, Justice.

This is a summary judgment case. We reverse. Daniel M. Brown and Sharon Kay Brown, Individually and as Next Friend of Michael David Hobbs, (“the Browns”) filed their original action against Dr. Jerry Bet-tinger, M.D.,1 on September 11, 1992, for damages allegedly sustained as a result of medical malpractice. The Browns alleged Dr. Bettinger was negligent in his care and treatment of Sharon Brown, in September 1990. Dr. Bettinger filed a motion for Summary Judgment which was granted on October 27, 1993. Dr. Bettinger first treated Sharon Brown on September 12, 1990. She had been examined in the emergency room of Medical Center Hospital in Conroe, Texas, by Dr. John Connor, who then requested Dr. Bettinger to consult on Ms. Brown’s case. Ms. Brown complained of severe headaches, nausea, vomiting and double vision. Dr. Bet-tinger took a medical history from Ms. Brown and then proceeded with physical examination. Following the physical examination, Dr. Bettinger reviewed the diagnostic studies which had previously been performed on Ms. Brown, including an MRI scan, blood [955]*955tests and urinalysis. According to Dr. Bet-tinger’s affidavit, the Browns were informed that a spinal tap would be necessary to rule out subarachnoid hemorrhage. Dr. Betting-er’s affidavit also provides that, prior to performing the spinal tap, the Browns were advised of the potential complications associated with a spinal tap and that having this knowledge, Ms. Brown elected to undergo the spinal tap procedure.

Dr. Bettinger first attempted a spinal tap at the LA-5 interspace, but was unable to enter the subarachnoid space. Dr. Bettinger then moved the spinal tap to the L5-S1 space, but was still unable to access the subarachnoid space. Ms. Brown was then taken to the radiology department where with the aid of fluoroscopic guidance, bloody spinal fluid was obtained. According to Dr. Bettinger, Ms. Brown suffered no complications, was able to move her legs, and had no sensory disturbance other than soreness in her back from the needle punctures.

According to Ms. Brown’s affidavit, Dr. Bettinger performed three separate spinal taps. Ms. Brown contends that when the spinal needle was inserted a second time, “I experienced excruciating pain in my lower back and down the back of my entire left leg to my feet. I immediately began hollering in pain. When Dr. Bettinger was finally able to remove the needle it was bent. Dr. Betting-er then asked for another spinal needle. Dr. Bettinger then inserted the needle a third time and removed it. By then, the pain in my lower back and down the back of the left leg was throbbing.”

The Browns bring a single point of error: “The Court erred in granting Appellee Bet-tinger’s Motion for Summary Judgment because there was controverting medical testimony as to whether Appellee breached the applicable standards of care creating a genuine issue of material fact.” Dr. Bettinger responds via three separate reply points contending: he met his burden of proof by showing no genuine issue of material fact existed with regard to the Browns’ alleged cause of action; the summary judgment proof offered by the Browns failed to adequately controvert his summary judgment proof; and the Browns failed to address all possible grounds upon which the trial court may have granted summary judgment and therefore, because the trial court’s order does not specify the particular grounds, the summary judgment must be upheld on any supportable grounds.

As to the last argument, a point is sufficient if it directs the attention of the court to the error about which complaint is made. Tex.R.App.P. 74(d). Furthermore, a substantial compliance with the rules will suffice in the interest of justice. Tex.R.App.P. 74(p). The Browns’ point sufficiently points out their belief that Dr. Oppenheim was qualified as an expert and his affidavit set out the standard of care, the breach and the causation.

The standard for reviewing a summary judgment as established in Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-549 (Tex.1985): provides a three pronged requirement, a movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that movant is entitled to judgment as a matter of law; in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in their favor.

Pursuant to Texas Rule of Civil Procedure 166a(c), a defendant’s motion for summary judgment should be granted if the summary judgment evidence establishes, as a matter of law, that there is no genuine issue as to any material fact with respect to one or more of the essential elements of plaintiffs cause of action. Citizens First National Bank v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex.1976); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). Where a movant establishes, as a matter of law, that any one essential element of plaintiffs cause of action does not exist, the mov-ant is entitled to prevail on its motion for summary judgment. See Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex.1975).

Dr. Bettinger, in support of his motion for summary judgment, submitted his personal affidavit as summary judgment evi[956]*956dence. For a defendant/physieian’s affidavit to be considered competent summary judgment evidence, such affidavit must state: the physician’s qualifications; the services performed for the patient over the treatment period; that the physician met the standard of care; that the affidavit contains specific denials of each of the allegations of negligence contained in appellants’ petition;' that the physician’s opinion be based upon a reasonable degree of medical probability; and that no act or omission on the physician’s part caused any damage to the plaintiff. See Duncan v. Horning, 587 S.W.2d 471 (Tex.Civ.App. — Dallas 1979, no writ). Dr. Bettinger’s affidavit specifically addressed each and every allegation of negligence asserted by appellants.

In order to prevail in a medical malpractice case, a plaintiff must establish: a duty requiring the health care provider to conform to a certain standard of conduct; the applicable standard of care and its breach; an injury; and a reasonably close causal connection between the breach of that standard of care and the harm. Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex.App.— Houston [1st Dist.] 1988, writ denied); Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 217 (Tex.App. — Houston [1st Dist.] 1986, no writ). In medical malpractice cases, such as our present case, the trier of fact is guided solely by the opinions of experts. See Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965); Cedillo v. Jefferson,

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Bluebook (online)
882 S.W.2d 953, 1994 Tex. App. LEXIS 2248, 1994 WL 484362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-bettinger-texapp-1994.