Nicholson v. Naficy

747 S.W.2d 3, 1987 Tex. App. LEXIS 9080, 1987 WL 29290

• Court: Court of Appeals of Texas
• Decided: December 24, 1987
• Docket: 01-87-00337-CV
• Status: Published

Opinions

COHEN, Justice.

This is an appeal from a take nothing summary judgment in a medical malpractice case.

Appellant, Roy C. Nicholson, sued appel-lee, Dr. Sadeque Naficy, for medical malpractice arising from appellee’s treatment of appellant’s fractured jaw. Appellant’s petition asserted that appellee was negligent:

1. In failing to properly diagnose;

2. In failing to possess the requisite degree of skill or training to treat appellant’s condition;

3. In failing to remove the molar in question at the time of the initial surgery;

4. In failing to consult with an oral surgeon;

5. In placing wires in appellant’s mouth in such a location as to irritate the mouth tissue;

6. In permitting appellant to suffer infection; and

7. In failing to obtain appellant’s informed consent to the treatment.

To recover for a medical malpractice, a plaintiff must establish:

(1) a legally cognizable duty requiring the physician to conform to a certain standard of conduct;

(2) the applicable standard of care and its breach;

(3) actual injury to the plaintiff;

(4) a reasonably close causal connection between the breach of the standard of care and the complained of harm.

See Cloys v. Turbin, 608 S.W.2d 697, 700 (Tex.Civ.App.—Dallas 1980, no writ); see also Perdue, The Law of Texas Medical Malpractice, 22 Hous.L.Rev. 1, 47 (2d ed. 1985).

To obtain a summary judgment, the doctor must show by uncontroverted evidence that the patient has no cause of action against him on any theory alleged. Ford v. Ireland, 699 S.W.2d 587 (Tex.App.—Texarkana 1985, no writ). The doctor-movant will prevail if he establishes, as a matter of law, that no genuine issue of material fact exists as to one or more elements of the patient’s cause of action. Wheeler v. Aldama—Luebbert 707 S.W.2d 213 (Tex.App.—Houston [1st Dist.] 1986, no writ). Any doubts about the existence of a genuine issue of a material fact must be resolved in favor of the nonmovant, and if differing inferences may reasonably be drawn from the evidence, a summary judgment should not be granted. Ford v. Ireland, 699 S.W. 2d at 588-589; see also Montgomery v. Kennedy, 669 S.W.2d 309, 310-311 (Tex.1984).

Appellant asserts in his first of five points of error that the trial court erred in granting summary judgment because the evidence failed to establish as a matter of law that appellee was not negligent in failing to properly diagnose his infected jaw.

Dr. Naficy’s summary judgment proof consisted of an affidavit by Dr. Oscar Maldonado and references to depositions by Dr. Maldonado and himself.

Dr. Maldonado’s affidavit did not directly discuss the issue of proper diagnosis. It states:

It is evident from the medical records, as well as from my examination of Mr. Nicholson, that he developed a tissue infection following the surgical repair of his fractured mandible. The cultures of his wound revealed the presence of staph epidermidis and beta hemolytic strep (non-A, non-B, non-D group). Staph epi-dermidis is a common organism found on the skin and is rarely associated with an infectious process. Similarly, beta hemo-lytic strep is commonly present in the mouth. Normally this bacteria exists in the oral cavity without causing any harm, however, in the presence of tissue trauma it can become virulent and cause an infection, such as in Mr. Nicholson’s case.

Based on the laboratory and clinical findings of this patient, and my own training and experience, it is my opinion based on a reasonable medical probability that Mr. Nicholson’s infection originated from the bacteria present in his own mouth. Therefore, I am also able to say that it is most unlikely that the bacteria responsible for his infection was transmitted from the hospital environment or the hospital personnel.

The affidavit does not establish that appel-lee was not negligent in his failure to diagnose the infection.

The summary judgment motion asserts that two days after the surgery, infection was detected in the surgical area, and ap-pellee prescribed antibiotics. Appellee relied on certain pages of his and Dr. Maldonado’s depositions that “confirmed” appel-lee’s diagnosis of the infected tissue.

Appellee’s deposition testimony states, “When I first saw that there was the appearance of swelling and some redness in the incision line or suture line of operation, then I started him on antibiotics.” Appel-lee also stated that this was six days after appellant entered the hospital and two days after the surgery.

Dr. Maldonado’s deposition testimony merely states that he saw appellant and that appellant required oral surgery to clean all the infected tissue.

The affidavit and the depositions do not establish that there is no genuine fact issue on some element of the claim for failure to diagnose the infection. The summary judgment proof¹ did not establish an applicable standard of care, nor did it establish that appellee did not breach this standard. Specifically, it did not state what steps should have been taken during the six days of Dr. Naficy’s care to prevent or detect infection, and that such procedures were properly executed.

Appellant’s first point of error is sustained.

The judgment is reversed, and the cause is remanded.

DUNN, J., dissenting.

1 . The court’s judgment does not recite that it considered Dr. Naficy’s deposition, but only that it reviewed the pleadings, the motion, and appellant’s response to the motion. None of these refer to the language in the dissenting opinion about daily washing and cleaning, which is found at p. 78 of Dr. Naficy's deposition. That page was not cited, quoted, attached to any motion or response, or relied on in the trial court or in this Court by any party to establish the standard of care. We do not believe that an appellate court is free to search the entire record, including materials not cited to or relied on by the trial court, to support the judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex.1979). Such an exercise requires this Court to take extraordinary steps to support the judgment, contrary to the standard of review that controls our review of summary judgments.