Silvas v. Ghiatas

954 S.W.2d 50, 1997 WL 330960

• Court: Court of Appeals of Texas
• Decided: August 28, 1997
• Docket: 04-96-00695-CV
• Status: Published

Opinions

OPINION

HARDBERGER, Chief Justice.

INTRODUCTION

This is a medical-malpractice case. Inez Silvas, individually and as executor of his son Denis’s estate, brought suit along with his wife, Luisa Silvas. Mr. and Mrs. Silvas sued six health care providers, claiming that the providers were negligent in providing medical care to Denis Silvas. Abraham Ghiatas, M.D., one of the six defendants, moved for summary judgment on the negligenceclaim. The trial court granted summary judgment and Mr. and Mrs. Silvas perfected this appeal. We reverse.

FACTS

In February 1992, Denis Silvas saw a physician and complained of pain in his right knee. After two more visits to this physician, the physician ordered an X-ray of Denis’s right leg. Dr. Ghiatas reviewed the X-ray and prepared a report indicating that there was a very serious problem. Dr. Ghia-tas recommended a clinical evaluation and bone scan. Denis saw his treating physician approximately two weeks after the X-ray was taken, and the treating physician referred him to an orthopedic specialist.

On June 11, 1992, approximately five days before Denis was to see the orthopedic specialist, his right leg broke while he was at work. When Denis went to the hospital for the break, he was told that he had bone cancer or osteosarcoma of the right leg. Denis’s right leg was amputated and he was forced to undergo a great deal of medical treatment for the cancer. The cancer ultimately reached his lungs and he died on September 9, 1994 at the age of twenty-five.

STANDARD OF REVIEW

In their sole point of error, Mr. and Mrs. Silvas claim that the trial court erred in granting summary judgment in favor of Dr. Ghiatas because genuine issues of material fact remained. To prevail on summary judgment, the movant must disprove at least one of the essential elements of each of the plaintiff’s causes of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). This burden requires the movant to show that no genuine issue of material fact exists 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). In determining whether a material fact issue exists to preclude summary judgment, evidence favoring the nonmovant is taken as true, and all reasonable inferences are indulged in favor of the nonmovant. Id.; see also Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). Further, any doubt should be resolved in favor of the nonmovant. Nixon, 690 S.W.2d at 548-49; see also Doe, 907 S.W.2d at 477.

DISCUSSION

In his motion for summary judgment, Dr. Ghiatas alleged that he met the applicable standard of care in reading Denis’s X-rays and that no act or omission on his part proximately caused the damages claimed by Mr. and Mrs. Silvas. He attached his own affidavit as summary judgment proof. Dr. Ghiatas’s affidavit set forth with particularity the standard of care for a radiologist reading X-ray films for a medical group on a part-time fee-for-service basis, and detailed the steps taken to comply with that standard of care in the reading of Denis’s X-rays.

Mr. and Mrs. Silvas opposed the summary judgment motion, claiming that genuine issues of material fact remained as to their claim that Dr. Ghiatas was negligent in his care and treatment of their son. Their summary judgment proof included the affidavit of Dr. Michael McGuire, an orthopedic surgeon, deposition excerpts from the deposition of Dr. Ghiatas, deposition excerpts' from the deposition of Denis Silvas, and discovery responses filed by one of the other defendants in the case. The court granted Dr. Ghiatas’s motion without stating the grounds upon which it was granted.

At the hearing on his motion for summary judgment, Dr. Ghiatas claimed that the summary judgment proof offered by Mr. and Mrs. Silvas was defective. Specifically, Dr. Ghiatas asserted that the expert affidavit of Dr. McGuire was eonclusory in nature and did not address the threshold issue of the proper standard of care. As such, Dr. Ghia-tas claimed that the affidavit was not competent summary judgment proof and should not be considered by the trial court. In response to these arguments, Mr. and Mrs. Silvas sought leave to file an amended affidavit to correct any defects in the summary judgment proof. The trial court denied this request. Mr. and Mrs. Silvas then filed a motion to supplement their summary judgment evidence with a corrected expert affidavit. The trial court ultimately denied this motion as well.

On appeal, Mr. and Mrs. Silvas claim that the affidavit filed with their initial response was competent summary judgment proof and should have been considered by the trial court. Although the record does not reflect whether or not this affidavit was considered by the court, Mr. and Mrs. Silvas claim that “it is apparent that the court was swayed by defense counsel’s arguments” regarding the affidavit. They claim that their expert affidavit, if considered by the court, was sufficient to support a jury verdict in the case. We agree.

When a defendant health care provider moves for summary judgment in a medical-malpractice action, it must negate one or more of the following elements of the plaintiff’s cause of action: (1) the duty of the physician to act according to a certain standard; (2) a breach of that standard of care; (3) an injury; and (4) a causal connection between the breach and the injury. See, e.g., Brown v. Bettinger, 882 S.W.2d 953, 956 (Tex.App.—Beaumont 1994, no writ); White v. Wah, 789 S.W.2d 312, 315 (TexApp.— Houston [1st Dist.] 1990, no writ). To support a summary judgment, the physician’s expert testimony must identify the relevant standard of care, establish that the expert is familiar with that standard, and demonstrate that the medical care provided complied with the standard of care. White, 789 S.W.2d at 315-16. Dr. Ghiatas’s affidavit met this standard because it explicitly identified the applicable standard of care, described in detail all services provided and the reason therefor, and stated unequivocally that the services provided complied with the standard of care used by other reasonably prudent radiologists acting under the same or similar circumstances. See Davis v. Manning, 847 S.W.2d 446, 449-51 (Tex.App.—Houston [14th Dist.] 1993, no writ) (finding affidavit with such detail sufficient to support summary judgment).

Once the defendant-movant has successfully negated an element of the plaintiffs cause of action, such as breach of the standard of care, the burden shifts to the plaintiff to produce competent medical testimony that raises an issue of fact with regard to negligence. See Pinckley v. Gallegos, 740 S.W.2d 529, 531 (Tex.App.—San Antonio 1987, writ denied). To raise a fact issue sufficient to defeat summary judgment, the plaintiff’s controverting expert affidavit should specifically identify the standard of care, establish the expert’s familiarity with that standard, and explain why the treatment rendered by the defendant health-care provider breached the applicable standard. See Knetsch v. Gaitonde, 898 S.W.2d 386, 388 (Tex.App.—San Antonio 1995, no writ); see also Connor v. Waltrip, 791 S.W.2d 537, 541-42 (Tex.App.— Dallas 1990, no writ) (McClung, J., concurring). However, the expert’s affidavit need not recite the pattern jury charge definition of negligence to be sufficient. Knetsch, 898 S.W.2d at 389. “In the case of an affidavit, the totality of the instrument must be examined, rather than any specific formalistic words.” Id.

The affidavit proffered by Mr. and Mrs. Silvas in this case meets the test set out above. Dr. McGuire states in his affidavit that he is familiar with the applicable standard of care. He also states that Dr. Ghiatas was negligent because he did or failed to do “that which a physician and/or health care provider and specifically a radiologist acting in the capacity [Dr. Ghiatas] describes in his affidavit and deposition, using reasonable care and prudence would have done under the same or similar circumstances.” Finally, he lists specific omissions that breached this standard of care and proximately caused the plaintiffs’ damages. Specifically, he states that Dr. Ghiatas was negligent in:

1.Failing to contact and discuss the X-ray findings of Denis Silvas with a competent physician;

2. Failing to ensure that the X-ray report was reviewed by a competent physician;

3. Failing to follow-up and ensure that appropriate action had been taken in response to the X-ray and report;

4. Failing to inform plaintiff of the results of the X-ray or ensure that plaintiff had been informed of the results and implications of the X-ray and the X-ray report; and

5. Failing to inform plaintiff and/or a competent and responsible physician of the need for immediate investigation and treatment of the conditions revealed on the X-ray.

Examining the totality of this affidavit, we find that the standard of care is stated with sufficient particularity as it may be reasonably understood to require a radiologist to affirmatively do that which Dr. McGuire states that Dr. Ghiatas failed to do.

Dr. Ghiatas nevertheless argues that, notwithstanding the standard-of-care issue, Dr. McGuire’s affidavit is not competent summary judgment proof because it fails to set forth facts that would be admissible in evidence and affirmatively show that Dr. McGuire was competent to testify to the matters stated therein. Essentially, Dr. Ghiatas claims that Dr. McGuire was not qualified as an expert in radiology. Mr. and Mrs. Silvas respond that Dr. Ghiatas failed to challenge their witness’s qualifications in the trial court, and should not be allowed to complain of this issue for the first time on appeal. We do not reach the issue of whether Dr. Ghiatas may properly challenge Dr. McGuire’s qualifications on appeal because even if Dr. Ghiatas had objected at the trial court level, it is clear from McGuire’s affidavit that he was qualified to testify. As our Texas Supreme Court recently held, the plaintiffs controverting expert need not be a specialist in the particular area in which the defendant-physician practices so long as his affidavit demonstrates that by virtue of his knowledge, skill, experience, training, or education regarding the specific issue before the court, his testimony would assist the jury in determining the fact issues of negli-genee and/or causation. See Broders v. Heise, 924 S.W.2d 148, 153 (Tex.1996). Although Dr. McGuire was not a radiologist, it is common knowledge that orthopedic surgeons and radiologists work closely together. Their professions are interrelated and then-specialties intertwined. Indeed, it would be a rare orthopedic injury in which an X-ray and radiology report were not involved prior to surgery. Dr. McGuire, as an orthopedic surgeon, was sufficiently familiar with the practice of radiology to qualify him as an expert witness. This conclusion is further supported by the curriculum vitae attached as an exhibit to Dr. McGuire’s affidavit. This exhibit reveals that a large percentage of the articles and abstracts written by Dr. McGuire have appeared in publications such as Radiology, Skeletal Radiology, American Journal of Radiology, and Proceedings of the Scientific Assembly of the Radiological Society of North America. We conclude that Dr. McGuire was competent to testify regarding the matters set forth in his affidavit.

Dr. Ghiatas further argues that Dr. McGuire’s affidavit was not competent summary judgment evidence because it was not readily controvertible. Dr. Ghiatas claims that Dr. McGuire failed to set out the facts upon which his opinion was based. We disagree. The affidavit of Dr. McGuire clearly sets forth five specific omissions claimed to constitute medical negligence. The alleged omissions are objective facts that are readily controvertible. As such, Dr. McGuire’s affidavit does not fail as merely conelusory.

In his final challenge to the controverting affidavit offered by Mr. and Mrs. Silvas, Dr. Ghiatas asserts that the affidavit fails to address all of the allegations made by Mr. and Mrs. Silvas and negated by Dr. Ghiatas. Specifically, Dr. Ghiatas contends that Dr. McGuire failed to controvert Dr. Ghiatas’s denial that he had a duty to (1) directly contact patients or their families to discuss his interpretation of their radiological studies; (2) suggest, recommend, or otherwise set up orthopedic consultations; (3) advise the patient not to work or to bear weight on the affected limb; (4) suggest that the patient seek health care elsewhere; (5) admit the patient to a hospital for treatment; (6) judge the competency of the treating physician; (7) consult with a specialist on the patient’s behalf; and (8) arrange for a transfer of the patient to another facility. Accordingly, Dr. Ghiatas asks this court to affirm the summary judgment in part as to these allegations if a decision is made to reverse and remand as to the others. What Dr. Ghiatas fails to recognize, however, is that all of the allegations contained in Plaintiffs Fourth Amended Original Petition, the live pleading at the time the motion for summary judgment was filed, comprise one cause of action—medical negligence. Dr. Ghiatas cites Johnston v. Vilardi, 817 S.W.2d 794 (Tex.App.—Houston [1st Dist.] 1991, writ denied), in support of his contention that summary judgment should be affirmed on part of Mr. and Mrs. Silvas’s claim. The Johnston ease is distinguishable from the ease at bar, though, because the Johnston court affirmed in part and reversed and remanded in part a summary judgment as it pertained to two distinct causes of action, not multiple allegations within a single cause of action. See Johnston, 817 S.W.2d at 797. We are aware of no law, and none has been cited by Ghia-tas, requiring us to effectively split the plaintiffs’ cause of action by affirming summary judgment in part and reversing and remanding in part. The plaintiffs’ medical negligence cause of action must stand or fall as a unit when challenged via a motion for summary judgment. A fact issue as to eyen one of the plaintiffs’ allegations of negligence in this case is sufficient to defeat summary judgment on the medical negligence claim.

Having found that Dr. McGuire’s affidavit adequately stated the standard of care and established Dr. McGuire’s qualifications as an expert, it is apparent that Dr. McGuire’s affidavit was properly before the trial court. Because this affidavit raises material issues of fact, summary judgment was not proper. In reaching this conclusion, we express no opinion on the merits of the plaintiffs’ claim. Our only task is to decide if a fact issue has been raised sufficient to entitle Mr. and Mrs. Silvas to a trial on the merits. Because we conclude that material issues of fact were raised, we reverse the summary judgment in favor of Dr. Ghiatas and remand this case for further proceedings.

ANGELINI, J., dissents.