Hernandez v. Calle

963 S.W.2d 918, 1998 Tex. App. LEXIS 1135, 1998 WL 75979
CourtCourt of Appeals of Texas
DecidedFebruary 25, 1998
Docket04-94-00712-CV
StatusPublished
Cited by3 cases

This text of 963 S.W.2d 918 (Hernandez v. Calle) 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
Hernandez v. Calle, 963 S.W.2d 918, 1998 Tex. App. LEXIS 1135, 1998 WL 75979 (Tex. Ct. App. 1998).

Opinion

OPINION

GREEN, Justice.

Appellants’ motion for rehearing is overruled; however, this court’s opinion dated November 27, 1996 is withdrawn and the following is substituted therefor.

Jeanette Hernandez, individually, and as representative of the estate of Antonio Hernandez, and Anthony Joseph Hernandez, adult child (“Hernandez”) filed suit for medical malpractice and now appeal from the grant of summary judgment in favor of Dr. Cristo Calle and Santa Rosa Hospital (“Calle”). Hernandez argues that the trial court erred because the evidence supporting the summary judgment is legally insufficient, and by granting summary judgment by default. We affirm the judgment of the trial court.

Antonio Hernandez went to Santa Rosa emergency room after sustaining a head injury. After initial observation by another doctor, Dr. Cristo Calle treated Antonio, ordering a CT-scan which revealed a surface bruise of the brain and signs consistent with a stroke. Dr. Calle admitted Antonio Hernandez to Santa Rosa Hospital for observation and treatment of other, unrelated medical problems. Four days later, another CT-scan was performed on Mr. Hernandez confirming the earlier stroke diagnosis. Neither scan revealed the presence of a cancerous brain tumor. A month later, after transfer to Southwest General Hospital for rehabilitation, a third brain scan, in conjunction with a magnetic resonance imaging study, revealed a large, inoperable brain tumor. Mr. Hernandez died as a result of the cancer approximately two months later.

Hernandez filed suit against Santa Rosa Hospital and Dr. Calle alleging negligent failure to properly assess the symptoms and complaints of Antonio Hernandez, failure to administer appropriate tests, failure to refer Antonio Hernandez to a specialist, and failure to diagnose cancer in a timely manner. Subsequently, Calle and Santa Rosa filed a joint motion for summary judgment, alleging no breach of duty and lack of causal connection as the grounds therefor. The affidavit of Dr. Calle was attached to the motion as summary judgment proof. Hernandez failed to respond to the motion for summary judgment.

Hernandez’s first point of error complains the evidence supporting the summary judgment is not legally sufficient, asserting that Calle’s affidavit is defective in that it is eon-clusory and fails to state that all opinions offered therein are based on reasonable medical probability.

A summary judgment movant has the burden to establish that there are no issues of material fact and that the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant, to successfully move for summary judgment, must negate one or more elements of the plaintiff’s case. Edwards v. Garcia-Gregory, 866 S.W.2d 780, 786 (Tex.App.— Houston [14th Dist.] 1993, writ denied); Greene v. Thiet, 846 S.W.2d 26, 29 (Tex.App.—San An tonio 1992, writ denied). A summary judgment cannot be granted solely on the basis that the non-movant failed to respond to the motion for summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). However, if the defendant shows that no material fact issue *920 exists and proves an entitlement to judgment, the burden shifts to the non-moving plaintiff to raise a fact issue to avoid summary judgment. See Greene v. Thiet, 846 S.W.2d at 33. If the non-movant fails to raise a fact issue under those circumstances, the summary judgment must be sustained. See id.

Where the non-movant fails to respond to the motion for summary judgment, any appeal is limited to the legal sufficiency of the movant’s evidence. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d at 678. The non-movant may not raise other grounds for reversal. Id.

Hernandez claims that Calle’s affidavit is fatally defective because it did not state that all opinions offered in denial of Hernandez’ claims were based on a reasonable degree of medical probability, relying on Davis v. Manning, 847 S.W.2d 446, 449 (Tex.App.—Houston [14th Dist.] 1993, no writ). However, we find nothing in Davis requiring that every opinion expressed in the affidavit be based on a reasonable degree of medical probability in order for the affidavit to be competent to support a summary judgment.

In determining the adequacy of a medical expert’s summary judgment affidavit, courts have consistently held that affidavits are sufficient so long as the expert’s opinion regarding carnation is based on a reasonable degree of medical probability. See, e.g., Edwards v. Garcia-Gregory, 866 S.W.2d at 785-87 (affirming sufficiency of one affidavit which offered an opinion as to lack of causation without referencing reasonable medical probability and affirming another which states that according to reasonable degree of medical probability that the treatment was proper and that no act or omission caused or contributed to any of the plaintiff's injuries); Shook v. Herman, 759 S.W.2d 743, 746-47 (Tex.App.— Dallas 1988, writ denied) (opinion on causation is based on reasonable degree of medical probability); see also Duncan v. Horning, 587 S.W.2d 471, 473 (Tex. Civ.App. —Dallas 1979, no writ) (“The defendant’s affidavit ... specifically denies each of the allegations of negligence ... and states the opinion based upon a reasonable degree of dental probability, that no act or omission on his part caused any damage to plaintiff.”). We agree, and hold that the requirement that a medical expert’s opinion be based on reasonable medical probability refers solely to the expert’s opinion on causation.

The focus of Hernandez’s complaint at oral argument, however, differed from her complaint that was presented in her brief. During oral argument, Hernandez urged that Calle’s affidavit was deficient and, therefore, not legally sufficient evidence, because it failed to properly state the appropriate standard of medical care. Further, Hernandez maintained at oral argument that an expert’s affidavit must state the proper standard of care before it can properly be used to negate the proximate cause element of the plaintiff’s case.

In this case, we need not decide whether Calle’s affidavit adequately recounts the appropriate standard of care. An affidavit that makes no reference to the appropriate standard of care may yet be sufficient to sustain a summary judgment if it serves to negate causation. The case cited by Hernandez for the proposition that, to be competent summary judgment proof, an affidavit must

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Bluebook (online)
963 S.W.2d 918, 1998 Tex. App. LEXIS 1135, 1998 WL 75979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-calle-texapp-1998.