Kimber v. Sideris

8 S.W.3d 672, 1999 Tex. App. LEXIS 8829, 1999 WL 694264
Court of Appeals of Texas·Decided November 23, 1999·No. 07-98-0204-CV·Published·Cited by 125 cases

Opinions

DON H. REAVIS, Justice.

By this appeal of their medical malpractice action, appellants John Kimber and Shawn Kimber, individually, and as next friends of Julia Kimber, a minor (the Kim-bers) challenge the trial court’s order granting summary judgment in favor of Dr. E.B. Sideris that they recover nothing on their action against Dr. Sideris. By one issue and three sub-issues, the Kim-bers request that we determine whether the trial court erred in granting the motion for summary judgment of Dr. Sideris because genuine issues of material fact exist concerning (a) his duty as Julia’s pediatric cardiologist as a participant in the July 9 surgery and as the referring physician who selected the surgeon and hospital to perform the surgery; (b) whether his acts and omissions before or during the July 9 surgery fell below the standard of care; and (c) whether his acts and omissions contributed to cause Julia’s damages. Based upon the rationale expressed herein, we must reverse.

[674] This appeal arises from a medical malpractice and products liability claim brought by the Kimbers against Dr. Sider-is and others1 as a result of events that occurred between July 6, 1995 and July 9, 1995, which allegedly caused paraplegia to the then 13-year-old Julia. Julia was born with a heart condition known as coarctation of the aorta which results in high blood pressure in the upper portion of the body and low blood pressure in the lower portion of the body. Doctor Sideris, Julia’s pediatric cardiologist since she was a small child, performed an angiogram2 in anticipation of surgery to correct her coarctation. The first of two surgeries, both performed by Dr. John Baay, a heart surgeon recommended by Dr. Sideris, occurred on July 6, 1995. Early on the morning of July 9, 1995, while Julia was not in the Intensive Care Unite (ICU), but under general floor care, she experienced a respiratory episode requiring her transfer to ICU, where she was placed on a ventilator. Later that day, concerned that a significant gradient in Julia’s blood pressure from the upper to the lower extremity of her body had caused her respiratory problems, Dr. Sideris and Dr. Baay agreed that a second surgery was necessary to correct the gradient to be able to remove Julia from the ventilator.

According to the summary judgment evidence, Dr. Sideris was present in the operating suite during the second surgery on July 9. Doctor Baay, assisted by Dr. Ma-soud A. Alzeerah, revised the problem area of the aorta with a large patch graft. However, because the large patch did not correct the gradient, Dr. Baay utilized two additional patches which required with each attempt the (1) cross-clamping of the aorta to stop blood flow and permit Dr. Baay to see what he was doing, (2) opening the patch, (3) adding another piece, (4) suturing the patch, and (5) removing the clamps. Before the surgery was completed, Julia suffered cardiac arrest from an air embolus, and after being resuscitated, Dr. Baay decided to terminate further surgical procedure on the aorta and closed Julia’s chest. Following this second surgery, it was discovered that Julia was paralyzed below her waist.

As a result of the events leading to Julia’s paraplegia, the Kimbers filed suit against numerous defendants, including Dr. Sideris, whom they allege was negligent by eleven specific acts or omissions which proximately caused Julia’s injuries and damages. In response to the foregoing allegations, Dr. Sideris filed by one instrument, a traditional motion for summary judgment pursuant to Rule 166a(c) of the Texas Rules of Civil Procedure, as well as a no-evidence motion for summary judgment in accordance with Rule 166a(i). Following a hearing on the motions held on May 20, 1998, the trial court announced that it would read the motions and rule on them later. Then, on May 22, 1998, the trial court signed its order granting summary judgment in favor of Dr. Sideris and severing the claims against the other defendants into a separate cause of action. Because the order does not specify whether judgment was granted based on Dr. Sideris’s traditional or no-evidence motion, we will review the Kimbers’ issues under both established standards of review beginning with the traditional motion.

Summary Judgment Standard of Review

Rule 166a(c)

In reviewing a summary judgment, this Court must apply the standards established in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985), which are:

1. The movant for summary judgment has the burden of showing that there is [675] no genuine issue of material fact 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.

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Kimber v. Sideris, 8 S.W.3d 672, 1999 Tex. App. LEXIS 8829, 1999 WL 694264 (Tex. Ct. App. 1999).

8 S.W.3d 672 (Kimber v. Sideris) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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