Garza v. Levin

769 S.W.2d 644, 1989 Tex. App. LEXIS 727, 1989 WL 28881
CourtCourt of Appeals of Texas
DecidedMarch 30, 1989
Docket13-88-251-CV
StatusPublished
Cited by29 cases

This text of 769 S.W.2d 644 (Garza v. Levin) 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
Garza v. Levin, 769 S.W.2d 644, 1989 Tex. App. LEXIS 727, 1989 WL 28881 (Tex. Ct. App. 1989).

Opinion

OPINION

NYE, Chief Justice.

Appellant, Maria Garza (Garza), filed a medical malpractice action against appellee, Dr. Phillip Levin. The trial court granted a take-nothing judgment in favor of Dr. Lev-in. We affirm.

On October 25, 1984, Maria Garza went to the emergency room at Alice Physician’s and Surgeon’s Hospital. Dr. Levin diagnosed Garza as having gastritis. He treated her and discharged her from the hospital later that afternoon. The same day, Garza went to the emergency room at Spohn Hospital where she underwent an emergency appendectomy for a ruptured appendix.

By one point of error appellant contends the court erred in granting the motion for summary judgment because there were genuine issues of material facts which precluded the granting of summary judgment. We use the following standards when reviewing summary judgment:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact *645 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.

Goswami v. Metropolitan Savings and Loan, 751 S.W.2d 487, 491 (Tex.1988).

Dr. Levin’s summary judgment evidence consists of his personal affidavit. Garza’s evidence consists of her personal affidavit and the affidavit of Dr. Martin Flores.

Garza first contends that Dr. Lev-in’s summary judgment evidence failed to address all of the allegations in her petition. However, the appellate record does not contain the petition on which the motion for summary judgment was granted. The record reflects that an original petition was filed on January 8, 1987; that the motion for summary judgment was signed on December 18, 1987; and that Garza’s first amended original petition was filed on January 15, 1988. An appellate court may only consider the evidence on file before the trial court at the time of the hearing; therefore we do not consider Garza’s first amended original petition filed after the granting of the summary judgment. Gandara v. Novasad, 752 S.W.2d 740, 743 (Tex.App.—Corpus Christi 1988, no writ). Without the original petition before us we cannot determine whether the affidavit failed to address all the allegations as contended. In fact, we presume the omitted document supports the trial court’s judgment. De-Santis v. Wackenhut Corp., 31 Tex.S.Ct.J. 616, 621 (July 13, 1988); Cantu v. Western Fire and Casualty Ins., 716 S.W.2d 737, 739 (Tex.App.—Corpus Christi 1986, writ ref’d n.r.e.). The burden is on the appellant to provide a sufficient record to show reversible error. Escontrias v. Apodaca, 629 S.W.2d 697, 699 (Tex.1982); Tex.R.App.P. 50.

Next, Garza urges that the summary judgment evidence failed to establish that no genuine issue exists as to a material fact. Dr. Levin contends that his affidavit served to negate essential elements of Garza’s cause of action and that Garza’s evidence failed to controvert it.

A defendant is entitled to a summary judgment if he establishes, as a matter of law, that at least one element of the plaintiff’s cause of action does not exist. Sakomtz, Inc. v. Steck, 669 S.W.2d 105, 107-08 (Tex.1984). To recover in a medical malpractice case the plaintiff must prove: “1) a duty requiring the physician to conform to a certain standard of conduct; 2) the applicable standard of care and its breach; 3) injury; and 4) a reasonably close causal connection between the breach of that standard of care and the harm.” Pinckley v. Dr. Francisco Gallegos, M.D., P.A., 740 S.W.2d 529, 531 (Tex.App.—San Antonio 1987, writ denied); Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 217 (Tex.App.—Houston [1st Dist.] 1986, no writ). When the movant for summary judgment has negated one of the essential elements of the cause of action, the burden is on the non-movant to produce controverting evidence raising an issue of fact as to the element negated. Pinckley, 740 S.W.2d at 531; Nicholson v. Memorial Hospital System, 722 S.W.2d 746, 751 (Tex.App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.).

Dr. Levin’s affidavit explained his qualifications: described the treatment he performed on Garza; stated that he was familiar with the standard of care; stated that it was his opinion the treatment was in accordance with the appropriate standard of care; and stated that the same would have been performed by a reasonably prudent physician acting under the same or similar circumstances. He denied that his diagnosis was negligent and stated that in his opinion, based on reasonable medical probability, nothing he did caused damage to Garza. This affidavit is clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies. It was readily controvertible if untrue. Thus, Dr. Levin’s affidavit was sufficient to negate the elements of breach of the applicable standard of care and causal connection between the breach of care and the harm *646 suffered. See Rule 166a(c); Milkie v. Metni, 658 S.W.2d 678 (Tex.App.—Dallas 1983, no writ); Duncan v. Horning, 587 S.W.2d 471 (Tex.Civ.App.—Dallas 1979, no writ).

Appellant Garza was required to introduce competent controverting summary judgment proof to show the existence of a genuine issue of material fact regarding the issue of negligence. First we note that Garza’s personal affidavit is not competent controverting proof because medical conclusions of a lay witness are not competent evidence for the purpose of controverting expert opinion evidence. Gandara, 752 S.W.2d at 743; Nicholson, 722 S.W.2d at 751. The only other possible controverting evidence was an affidavit of Dr. Martin Flores. Dr. Flores explained that he is a medical doctor and received his M.D. degree from a university in Mexico. He stated that he is employed in a hospital in Corpus Christi; however, in this affidavit, a sentence that said he practiced at the hospital in Corpus Christi was scratched out. Dr.

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Bluebook (online)
769 S.W.2d 644, 1989 Tex. App. LEXIS 727, 1989 WL 28881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garza-v-levin-texapp-1989.