1995 WL 737465

No Publication

(Cite as: 1995 WL 737465 (Tex.App.-Hous. (1 Dist.)))

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NOTICE: NOT DESIGNATED FOR PUBLICATION. UNDER TEX.R.APP.P. 47.7 UNPUBLISHED OPINIONS MAY NOT BE CITED AS AUTHORITY.

Court of Appeals of Texas, Houston (1st Dist.).

Lorie A. BRUSH, Appellant,

v.

Abdel K. FUSTOK, M.D., Appellee.

No. 01-95-00452-CV.

Dec. 14, 1995.

On Appeal from the 190th District Court Harris County, Texas Trial Court Cause No. 90-063117.

OPINION

OLIVER-PARROTT, Chief Justice.

*1 Lorie A. Brush, appellant, appeals from a take-nothing summary judgment rendered in a medical malpractice suit brought against Dr. Abdel K. Fustok. Under the first point of error, we must decide whether Brush's claim is barred under the two-year statute of limitations found in article 4590i of the Texas Medical Liability Insurance Improvement Act (the "Act"). Tex.Rev.Civ. Stat. Ann. art. 4590i, § 10.01 (Vernon Supp.1995). Next, we must determine the status of Brush's claim under the Deceptive Trade Practices Act, Tex. Bus. & Comm.Code Ann. § 17.41-.63 (Vernon 1987 & Supp.1995) (DTPA), and her claim that Fustok did not inform her of the risks associated with silicone b Tht implants. Under the third point of error, we must determine whether Fustok's affidavit established treatment in accordance with the applicable standard of care, and if so, whether Brush's controverting affidavit created a question of material fact. We reverse and remand.

Background

The standard of appellate review of a summary judgment order requires us to take as true all evidence and reasonable inferences favorable to Brush, the nonmovant. Chambers v. Conaway, 883 S.W.2d 156, 157 (Tex.1993); Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985). Using this standard, we set out the following chronology of facts.

On April 21, 1987, Fustok initially examined Brush for a six-year history of severe, recurrent breast cysts that drained "foul smelling pus." After his initial assessment of Brush, Fustok's treatment plan included performing a bilateral subcutaneous mastectomy [FN1] followed by reconstructive surgery when the infection resolved. During the next one and a half years, Fustok operated on Brush seven times.

FN1. A bilateral subcutaneous mastectomy is the removal of the breast tissue from both breasts, sparing the skin, nipple and areola. STEDMAN'S MEDICAL DICTIONARY 925 (25th ed.1990).

First, on April 27, 1987, Fustok performed a bilateral subcutaneous mastectomy and inserted tissue expanders beneath each breast muscle. Brush left the hospital three days later.

Second, on May 18, 1987, Fustok surgically expl Tex Brush's right breast and drained and cultured a collection of serous fluid from the right breast area. Due to an infection, Fustok removed the right tissue expander and prescribed "appropriate antibiotic therapy" for Brush. Fustok continued to see Brush in his office.

Third, on July 15, 1987, because the right breast incision continued to drain and was healing slowly, Fustok again surgically explored Brush's right breast area. Fustok found an infection, which he irrigated with an antibiotic solution. Brush left the hospital with a prescription for a different antibiotic.

On August 27, 1987, Fustok operated on Brush a fourth time during which he inserted a new right tissue expander and relocated the left tissue expander, which had dislocated from under the breast muscle. After August 27, 1987, Fustok injected saline into the tissue expanders every one to two weeks.

On December 2, 1987, Fustok operated on Brush a fifth time to replace the dislocated left tissue expander. For five months after the fifth surgery, Fustok injected saline into the tissue expanders every one to two weeks. According to the medical records, however, Brush complained of feeling ill and of feeling pain and numbness in her left arm.

*2 The sixth operation was on May 19, 1988, when Fustok again replaced the left tissue expander because a seroma [FN2] had developed at the left breast area. From June 8, 1988 to October 3, 1988, Fustok examined Brush in his office every one to three weeks.

FN2. A seroma is a mass caused by the collection of clear watery fluid in the tissue. 1408 (25th ed.1990).

The seventh and final operation was on November 9, 1988, when Fustok removed the tissue expanders and inserted silicone breast implants. The last time Fustok examined Brush was on March 7, 1989.

On November 29, 1990, Brush filed a medical malpractice claim against Fustok alleging the following: [FN3]

FN3. Brush's third amended petition filed on February 8, 1994, sets out these seven allegations. We do not know if Brush's original and second petition contain the same seven allegations because they are not part of the transcript.

1. Fustok performed inappropriate surgery on April 28, 1987, when he inserted breast expanders despite the presence of an infection;

2. Fustok failed to appropriately treat the infection post-operatively;

3. Fustok failed to seek consultation with an infection specialist;

4. Fustok failed to remove the breast expanders despite the presence of an infection;

5. Fustok failed to perform breast surgery correctly;

6. Fustok failed to refer Brush to a breast specialist; and

7. Fustok's representations were false, misleading and deceptive to the extent that he represented that he was a breast surgery specialist, that Brush needed the surgery immediately, and that she would be normal after several weeks.

Fustok filed a motion for summary judgment March 14, 1994. On March 31, 1994, Brush filed her fourth amended petition alleging that Fustok's misrepresentations violated the DTPA. Brush filed her response to Fustok's motion for summary judgment on April 4, 1994. On the same day, Fustok filed a notice of request that the pending motion for summary judgment be considered as a motion for partial summary judgment. Brush responded to this on April 8, 1994.

On April 7, 1994, Fustok objected to Brush's affidavit because it was a lay person's affidavit. Additionally, Fustok objected to a letter from Brush's subsequent doctor, Dr. Bessire. Fustok also objected to Brush's interrogatory answers. On the same date, Fustok replied to Brush's response to Fustok's motion for summary judgment. Then, on April 8, 1994, Fustok specially excepted to Brush's DTPA claim, contending that Texas does not recognize such a cause of action against a physician.

Brush filed her fifth amended original petition on May 5, 1994, contending that she was diagnosed with silicone adjuvant disease on February 12, 1994. She alleged that Fustok was negligent because he failed to adequately advise Brush of the risks associated with silicone breast implants.

The trial judge granted Fustok's special exceptions on July 12, 1994 and ordered Brush to strike her DTPA claim; otherwise, the same would be dismissed with prejudice. On August 10, 1994, Brush filed her sixth amended original petition, without striking her DTPA claim.

On December 27, 1994, the trial judge granted Fustok a take-nothing summary judgment. The court denied Brush's motion to set the summary judgment order aside.

Standard of Review

*3 Either party may move for summary judgment under rule 166a of the Texas Rules of Civil Procedure. The movant has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Nixon, 690 S.W.2d at 548; Marchal v. Webb, 859 S.W.2d 408, 412 (Tex.App.--Houston [1st Dist.] 1993, writ denied). As previously stated, in deciding whether there is a genuine issue of material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Marchal, 859 S.W.2d at 412. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Id.

Once a movant has established a right to summary judgment, the burden shifts to the nonmovant. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Marchal, 859 S.W.2d at 412. The nonmovant must present to the trial court any fact issues that would preclude summary judgment. Marchal, 859 S.W.2d at 412.

For a defendant as movant to prevail on a summary judgment, he must either (1) disprove at least one element of plaintiff's theory or recovery, or (2) plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. Id. In short, a summary judgment entered in favor of a defendant is proper only if the plaintiff could not succeed on any of the theories pleaded, as a matter of law. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983); Ceballos v. El Paso Health Care Sys., 881 S.W.2d 439, 440-41 (Tex.App.--El Paso 1994, writ denied).

When the trial court's order granting summary judgment does not specify the grounds on which it is granted, then on appeal, the appellant must show that each of the arguments alleged in the movant's motion is insufficient to support the order. Ceballos, 881 S.W.2d at 441; see also Collins v. Allied Pharmacy Management, Inc., 871 S.W.2d 929, 932 (Tex.App.--Houston [14th Dist.] 1994, no writ).

First Point of Error: Statute of Limitations

Brush asserts in her first point of error that the limitations period had not expired, and that the trial court erred by granting summary judgment on this basis. We agree.

A party moving for summary judgment under the statute of limitations must conclusively establish that the statute of limitations barred the lawsuit. Chambers, 883 S.W.2d at 158; Marchal, 859 S.W.2d at 412. Thus, the movant must conclusively show the date from which the limitation period began. Jones v. Cross, 773 S.W.2d 41, 43 (Tex.App.--Houston [1st Dist.] 1989, writ denied).

The applicable statute of limitations, which is found in section 10.01 of the Act, provides:

Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed.

*4 Tex.Rev.Civ. Stat. Ann. art. 4590i, § 10.01 (Vernon Supp.1995). Under this section there are three possible dates from which medical malpractice liability claims run: (1) the date of the breach or tort; (2) the date the health care treatment that is the subject of the claim ended; or (3) the date the hospitalization for which the claim is made is completed. Chambers, 883 S.W.2d at 158; Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987). The completion of hospitalization is not relevant to the facts of this case.

Here, to be a timely suit, an event giving rise to liability must have occurred after September 14, 1988. [FN4] Fustok argues that the date of the breach or tort controls, and that the limitations period began on May 18, 1988, the date of the sixth surgery. [FN5] Brush, on the other hand, argues that the limitations period began on March 7, 1989, the date "treatment" ended.

FN4. Article 4590i provides that proper notice "shall toll the applicable statute of limitations to and including a period of 75 days following the giving of notice...." Tex.Rev.Civ. Stat. Ann. art 4590i, § 4.01 (Vernon 1992) (emphasis added). Brush sent notice on September 21, 1989 and filed suit on November 29, 1990. Thus, counting backwards, any event occurring after two years and 75 days before November 29, 1990, the date Brush filed suit, is within the limitation period. September 14, 1988 is two years and 75 days before November 29, 1990.

FN5. Fustok does not state the precise date of May 18, 1988, rather, he asserts that the six surgeries occurring before September 14, 1988 are time barred.

In Kimball, the Texas Supreme Court clarified when to apply each of the Act's three limitations-triggering events. Kimball, 741 S.W.2d at 372. The Kimball court stated that the three-date scheme was intended to aid plaintiffs having difficulty ascertaining the precise date on which their injury occurred, especially "in circumstances where the claim arose from a course of treatment that extended for a period of time." Id. (emphasis added). Such a situation often arises in suits alleging "misdiagnosis or mistreatment." Id. When the precise date of the specific breach or tort is ascertainable, however, the Act requires that the limitation period run from the date of the breach or tort. Id. Thus, the controlling question here is whether Brush's claims arose from a "course of treatment."

Whether a claim arises from a course of treatment depends on the specific facts of the case. Rowntree v. Hunsucker, 833 S.W.2d 103, 106 (Tex.1992). Courts consider factors such as whether a physician-patient relationship exists concerning the condition that is the subject of the litigation, whether the physician continues to examine or attend the patient, and whether the condition requires further services from the physician. Id. For example, a single instance of a drug prescription renewal does not demonstrate sufficient involvement by the physician to constitute a continuing course of treatment. Id. at 108.

Here, the summary judgment evidence supports a finding that Brush's claim arose from a "course of treatment." First, Fustok and Brush had a twoyear patient-physician relationship for treatment of Brush's breast cysts. Second, Brush's condition required ongoing medical treatment. Specifically, in his affidavit, Fustok states that the treatment of Brush's cysts required a subcutaneous mastectomy followed by breast reconstruction, including silicone breast implants. Third, in preparing Brush for the silicone breast implants, which was the "final stage of the reconstructive surgery," Fustok saw Brush on a regular basis for approximately two years. Additionally, Brush's petition alleges mistreatment during the course of her relationship with Fustok. Suits alleging mistreatment are precisely the type of suits in which, according to Kimball, the end of the "course of treatment" triggers the limitations period. Kimball, 741 S.W.2d at 372. Because Brush's alleged injury occurred during a course of treatment, her medical malpractice claim ran from the date the treatment ended.

*5 In determining the date the treatment ended, we look to the last day the physician saw the patient. Marchal, 859 S.W.2d at 413. Here, the limitations period began on March 7, 1988, which was the last day that Fustok saw Brush. Thus, because Brush filed suit on November 29, 1989, she was not barred by the statute of limitations as set out in the Act.

Because Fustok failed to establish as a matter of law that the statute of limitations barred Brush's suit against him, he was not entitled to summary judgment on this ground.

We sustain Brush's first point of error.

Second Point of Error: DTPA Claim and Failure to Inform+ In her second point of error, Brush contends that the trial court erred in granting a take nothing summary judgment because Fustok's summary judgment evidence did not address Brush's DTPA claim or her claim that Fustok failed to inform her of the risks associated with silicone breast implants. We find that the DTPA claim had been struck and was not properly before the trial court, but that Brush's allegation regarding Fustok's inadequate disclosure of the risks was properly before the trial court at the time of the summary judgment hearing. Rule 166a(c) provides that the trial court should render summary judgment on the pleadings on file at the time of the hearing. Cluett v. Medical Protective Co., 829 S.W.2d 822, 826 (Tex.App.--Dallas 1992, writ denied). Any issue that the nonmovant contends rebuts the movant's entitlement to summary judgment must be before the court at the time of the hearing. Cornerstones Mun. Utility Dist. v. Monsanto Co., 889 S.W.2d 570, 574 (Tex.App.--Houston [14th Dist.] 1994, writ denied).

1. Brush's DTPA Claim

Fustok specially excepted to Brush's DTPA claim on the grounds that Texas does not recognize such a cause of action. The trial judge granted Fustok's special exception and ordered Brush to strike her DTPA claim from her fourth amended petition. When special exceptions are sustained, the pleader may either amend the petition or refuse to amend and challenge the ruling on appeal. Detenbeck v. Koester, 886 S.W.2d 477, 479 (Tex.App.--Houston [1st Dist.] 1994, n.w.h.). Here, however, Brush has not appealed the trial court's order granting the special exception.

Brush refused to amend her petition and filed a sixth amended petition that set out the same DTPA claim. Because Brush failed to comply with the trial judge's order, her DTPA claim was dismissed with prejudice and was not a part of the live pleadings at the time of the hearing. Because the DTPA claim was not before the trial court, Fustok was entitled to summary judgment without addressing the DTPA claim in his summary judgment evidence.

2. Brush's Sixth Amended Petition

Rule 166a(c) provides that any written response filed on the seventh day before the hearing on the summary judgment motion will be deemed timely and may properly be considered without leave of the court. Because Brush's sixth amended petition was filed more than seven days before the summary judgment hearing, it was properly before the trial court. Tex. R. Civ. P. 166a(c). Brush's sixth amended petition alleged inadequate disclosure of the risks associated with silicone implant disease. Neither Fustok's motion for summary judgment nor his summary judgment evidence addressed this allegation. Accordingly, the trial judge erred in granting a take-nothing judgment.

*6 We overrule Brush's second point of error as it relates to the DTPA claim. We sustain the part of Brush's second point of error concerning inadequate disclosure of the risks associated with silicone breast implants.

Third point of error: Genuine Issue of Material Fact+

In her third point of error, Brush contends that the trial court erred in granting summary judgment because Fustok's summary judgment evidence did not negate an essential element of Brush's medical malpractice claim.

A defendant in a medical malpractice action is entitled to summary judgment when the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact as to one or more essential elements of the plaintiff's claim. Wheeler v. Yettie Kersting Memorial Hosp., 866 S.W.2d 32, 36 (Tex.App.--Houston [1st Dist.] 1993, no writ); White v. Wah, 789 S.W.2d 312, 315 (Tex.App.--Houston [1st Dist.] 1990, no writ). Thus, as movant, Fustok had the burden of negating one or more of the following elements of Brush's claim: 1) a duty of the physician to conform to a certain standard; 2) a failure to conform to the required standard; 3) a resulting injury; and 4) a causal connection between the physician's conduct and the injury. Cloys v. Turbin, 608 S.W.2d 697, 700 (Tex.1980); Bradford v. Alexander, 886 S.W.2d 394, 396 (Tex.App.--Houston [1st Dist.] 1994, no writ). Once the defendant-physician negates one of these elements, the burden shifts to the nonmovant plaintiff to produce controverting evidence raising a fact issue concerning the element or elements negated by the defendant-physician. Wheeler, 866 S.W.2d at 36. The plaintiff's controverting evidence need not be sufficient to meet the plaintiff's burden of persuasion at trial. White, 789 S.W.2d at 315.

In support of his motion for summary judgment, Fustok submitted his affidavit, his medical records setting out his treatment of Brush, and the deposition of Brush.

In a medical malpractice case, a physician may rely on his own affidavit in support of a motion for summary judgment if it meets the requirements of Texas Rules of Civil Procedure 166a(c). Bradford, 886 S.W.2d at 396. Rule 166a(c) provides:

A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.

A physician's affidavit submitted in support of a motion for summary judgment meets the requirements of rule 166a(c) if it sets out the applicable standards of care, states that a reasonably prudent physician under the same or similar circumstances would use those standards, and states that the physician adhered to those standards. Bradford, 886 S.W.2d at 396; see also White, 789 S.W.2d at 317 (holding that physician's affidavit which stated these three things met the requirements of rule 166a).

1. Breach of the Standard of Care

*7 Fustok contends that his summary judgment evidence negated both the breach of the applicable standard of care element and the proximate cause element.

In his affidavit, after stating that he is a licensed physician who specializes in plastic surgery, Fustok outlined his medical treatment of Brush. Fustok further stated:

I am familiar with the standards of care in Houston, Harris County, Texas in 1987-1989 for a plastic surgeon with a patient with Ms. Brush's condition. Those standards would include: taking a complete history and advising the patient of options of treatment for breast cysts; carrying out the patient's chosen treatment; treating any complications that may arise, such as drainage of a seroma; continuing to inject the tissue expanders with saline to the desired enlargement; and when ready, removing the tissue expanders and inserting the breast implants.

As outlined above, that is precisely what I did. I have reviewed the Plaintiff's Third Amended Original Petition and I specifically deny each and every allegation made against me therein. I specifically deny that I failed to meet the standard of care owed the plaintiff in using the care, skill and diligence ordinarily used by a skilled medical professional under the same or similar circumstances.

Based upon my education and experience, and my personal knowledge, it is my opinion that I exercised reasonable care in conformity with the standard of care in the community in the treatment and administration of medical care I provided to Ms. Brush.

Fustok's affidavit tracks the language approved in White, 789 S.W.2d at 317. As in White, Fustok stated that he is familiar with the standards of care rendered to a patient in Brush's condition, that a plastic surgeon practicing in Houston, Harris County would use those standards, [FN6] and that his treatment of Brush complied with those standards. Id.; see also Bradford, 886 S.W.2d at 396.

FN6. The statement of law concerning the standard of care for medical malpractice suits is: A physician who undertakes a mode or form of treatment that a reasonable and prudent member of the medical profession would undertake shall not be subject to liability for harm caused to the patient. Hood v. Phillips, 554 S.W.2d 160, 165 (Tex.1977); see also White, 789 S.W.2d at 317. By stating that he practiced as a plastic surgeon in Harris County would, Fustok met this requirement.

Brush introduced her own affidavit, her interrogatory answers, and Dr. Bessire's letter. Fustok contends that her interrogatory answers and Dr. Bessire's letter are not proper summary judgment evidence. Because we find that Brush's affidavit raises a fact issue, however, we need not address these issues.

Fustok's affidavit states that a standard of care for a person in Brush's condition includes advising her of options of treatment for breast cysts. In her affidavit, Brush states that Fustok advised her that a bilateral mastectomy was her only option. Because we are required to take evidence favorable to the nonmovant as true and will resolve any doubts about the existence of a fact issue in the nonmovant's favor, we find that Brush's affidavit raises a fact issue as to whether Fustok breached the standard of care established by his own affidavit. Nixon 690 S.W.2d at 548-49.

Fustok asserts that Brush's affidavit was not competent testimony because it was not expert testimony. We agree that a lay person's testimony cannot controvert medical expert testimony that establishes the appropriate standards of care. Hernandez v. Lukefahr, 879 S.W.2d 137, 142 (Tex.App.--Houston [14th Dist.] 1994, no writ). Expert testimony, however, is not required for matters within the experience of the lay person. Chambers, 883 S.W.2d at 158. Accordingly, a lay person can establish a fact question as to whether the physician complied with the appropriate standards of care as articulated by the physician. Donovan v. Jones, 830 S.W.2d 825, 826-27 (Tex.App.--Houston [1st Dist.] 1992, no writ). [FN7] Brush, in her affidavit, does not, and as a lay person could not dispute the appropriate standard of care. Rather, she merely states that Fustok did not comply with the standards set forth in his own affidavit, and thus raises a genuine issue of material fact as to whether Fustok breached the standard of care.

FN7. We disagree with the Fustok's version of Donovan, 830 S.W.2d 825. Rather, we find Donovan similar to Brush's case. The physician- defendant in Donovan, like Fustok, submitted his own affidavit, which set out the appropriate standards of care, and the lay-plaintiff submitted an affidavit disputing whether the physician complied with the standard. Id. at 836-27. The Donovan court held that the lay-plaintiff raised a fact issue. Id. Similarly, in Prestegord v. Glenn, 441 S.W.2d 185 (Tex.1969), there was conflicting testimony concerning whether the plaintiff experienced certain symptoms. The Texas Supreme Court held that the resolution of this factual dispute was for the trier of fact in a conventional trial. Id. at 187.

2. Proximate Cause

*8 Next, Fustok asserts that he is entitled to summary judgment on the grounds that he negated the proximate cause element of Brush's claim. We disagree.

In addressing proximate cause, Fustok states the following:

It is ... my opinion, based upon a reasonable degree of medical probability, that ... no act or omission on my part was a cause of any injury to Ms. Brush.

Affidavits that merely state conclusions are not sufficient to establish a right to summary judgment. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991); Chopra v. Hawryluk, 892 S.W.2d 229, 232 (Tex.App.--El Paso 1995, n.w.h.); see also Wheeler, 866 S.W.2d at 40. Fustok's affidavit mirrors the language of the physician's affidavit in Chopra, in which the court held that such an affidavit "in no way sets out how his acts or omissions could have caused no harm to [the plaintiff]." Chopra, 892 S.W.2d at 232. The Chopra court held that the defendant-physician failed to negate the proximate cause element. Id. Similarly, Fustok's affidavit does not set out how his acts or omissions could not have caused harm to Brush. Id. The trial court could not determine from Fustok's affidavit how Fustok came to the conclusion that his acts or omissions did not harm Brush. Id. Accordingly, we find that Fustok did not negate the proximate cause element, and the burden did not shift to Brush to present controverting evidence concerning the element of proximate cause.

We sustain Brush's third point of error.

We remand the case for further proceedings.

Justices MIRABAL and WILSON also sitting.

END OF DOCUMENT