1989 WL 141182

No Publication

(Cite as: 1989 WL 141182 (Tex.App.-Hous. (14 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 UNDER TEX.R.APP.P. 47.7 UNPUBLISHED OPINIONS MAY NOT BE CITED AS AUTHORITY.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 (14th Dist.).

Melvin James FARMER, Appellant,

v.

Fred L. DeFRANCESCO, M.D., Appellee.

No. C14-88-00768-CV.

Nov. 22, 1989.

On Appeal from the 234th District Court Harris County, Texas Trial Court Cause No. 8705856-A.

Before ROBERTSON, CANNON and ELLIS, JJ.

Opinion

ELLIS, Justice.

*1 This is an appeal from a summary judgment in a medical malpractice case. Melvin James Farmer (appellant) brought suit for personal injuries allegedly sustained by him due to medical treatment and care provided by Dr. Fred DeFrancesco, M.D., at Cypress Fairbanks Medical Center. Appellant submits the trial court erred in granting Dr. DeFrancesco's motion for summary judgment. We affirm.

Appellant, Melvin James Farmer, sustained injury when a piece of concrete fell on his left lower leg in an on-the-job accident. Dr. Fred DeFrancesco, M.D., was the orthopedic surgeon who attended Farmer on his initial admission to Cypress Fairbanks Medical Center on February 12, 1985. On that occasion, Dr. DeFrancesco set the fracture sustained to Farmer's leg. On February 21, 1985, Dr. Defrancesco performed an open reduction and internal fixation of Farmer's left tibia. Routine antibiotic ingestion was a component of Farmer's post- operative treatment. Farmer was discharged on March 5, 1985, without any apparent signs of infection. Farmer again consulted Dr. DeFrancesco because he had felt a popping noise in his leg. On April 2, 1985, Dr. DeFrancesco's examination revealed that Farmer's skin was sloughing at the site of the wound. On the same day, Farmer was re- admitted to Cypress Fairbanks where Dr. DeFrancesco made two incisions on each side of Farmer's leg to release pus which, when cultured, revealed the presence of the bacteria, staphylococcus. Dr. DeFrancesco ordered Keflin intravenously and aggressive whirlpool therapy to treat the infection. Farmer was again discharged on April 18, 1985, with no apparent symptoms of significant infection.

On May 17, 1985, Dr. Montoya, a plastic surgeon, prior to performing a reconstructive skin graft on Farmer, ordered a culture of the wound site. The culture revealed that the wound was then infected with the bacteria, pseudomonas. Subsequent to his skin graft surgery, Farmer was discharged on June 5, 1985, with orders for the home administration of antibiotics to treat the pseudomonas infection.

On July 18, 1985, Dr. DeFrancesco re-admitted Farmer to Cypress Fairbanks Medical Center due to the sloughing of the skin graft at the wound site. On July 19, 1985, Dr. DeFrancesco removed all of the metallic hardware from Farmer's leg. The culture report revealed the presence of the bacterias: pseudomonas, stap aureus and enterococcus. At this point, Dr. DeFrancesco consulted Dr. Castillo, an infectious disease specialist, in regard to the complex nature of the infection. Despite additional surgery and six weeks of intravenous antibiotics, the pseudomonas bacteria persisted at the wound site. Dr. DeFrancesco then determined to transfer Farmer to the University of Texas Galveston Branch for possible hyperbaric oxygen treatment to eradicate the infection. The treatment was unsuccessful and Farmer's leg was amputated.

*2 Appellant submits five points of error. In his first point of error, appellant asserts there was no evidence and/or insufficient evidence to support the trial court's granting of summary judgment in favor of Dr. DeFrancesco. In his second point of error, appellant asserts the trial court's granting of summary judgment was improper since it did not give appellant the opportunity to depose Dr. William Mogabgab. In his third point of error, appellant asserts it was error for the trial court to consider the affidavit of Dr. Carl Vartian since verified copies of appellant's medical records were not attached to Dr. Vartian's affidavit. In his fourth point of error, appellant urges the trial court erred in not adequately considering Dr. Mogabgab's affidavit. In his fifth point of error, appellant urges the trial court erred in forcing appellant to prove a prima facie case.

A summary judgment is not entitled to the same deference given to a judgment following a trial on the merits. Unlike an appeal following a trial on the merits, when reviewing the grant of a summary judgment, the appellate court does not view the evidence in the light most favorable to the judgment of the trial court. Instead, this court must view the evidence in favor of the non-movant, resolving all doubts and indulging all reasonable inferences in favor of reversal of the summary judgment. Nixon v. Mr. Property Management, 690 S.W.2d 546, 549 (Tex. 1985).

The standards that must be applied when reviewing a summary judgment have been clearly mandated by the Texas Supreme Court in Nixon, 690 S.W.2d at 548:

1. The movant for summary judgment has the burden of showing that there is 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 judgement, 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.

Further, this court must not consider evidence that favors the movant unless it is uncontroverted. Great American Reserve Co. v. San Antonio Plumbing Supply, 391 S.W.2d 41, 47 (Tex.(FN1)965). The judgment of the trial court cannot be affirmed on any ground not specifically presented in the motion for summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 675 (Tex.1979).

Appellant first contends there is no evidence and/or insufficient evidence to support the trial court's judgment that Dr. DeFrancesco was entitled to summary judgment. We presume Farmer is urging that the summary judgment evidence failed to establish that no genuine issue exists as to a material fact.

A defendant is entitled to a summary judgment if he establishes, as a matter of law, that at least one element of the plaintiff's cause of action does not exist. Sakowitz, Inc. v. Steck, 669 S.W.2d 105, 107-08 (Tex.1984). To recover in a medical malpractice case the plaintiff must prove: "1) a duty requiring the physician to conform to a certain standard of conduct; 2) the applicable standard of care and its breach; 3) injury; and 4) a reasonably close causal connection between the breach of that standard of care and the harm." Pinckley v. Dr. Francisco Gallegos, M.D., P.A., 740 S.W.2d 529, 531 (Tex. App.- -San Antonio 1987, writ denied); Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 217 (Tex. App.--Houston [1st Dist.] 1986, no writ).

*3 Dr. Carl Vartian's affidavit recited his qualifications; described in detail the care and treatment provided by Dr. DeFrancesco to Farmer; stated that he was familiar with the appropriate standard of care for the treatment of patients who presented complaints similar to Farmer's in this locality; stated that it was his opinion the treatment and care provided by Dr. DeFrancesco was in accord with the appropriate standard of care; stated that the same would have been provided by a reasonably prudent physician acting under the same or similar circumstances in Harris County. He stated that Dr. DeFrancesco's care with regard to Farmer was in no way negligent and he stated that in his opinion, based upon reasonable medical probability, no act or omission on the part of Dr. DeFrancesco was in any way a cause of the loss of Farmer's leg. He concluded that in all probability the vascular sufficiency of Farmer's leg was such that the leg ultimately would have been amputated regardless of the treatment rendered from the beginning.

This affidavit is clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies. It was readily controvertible if untrue. Thus Dr. Vartian's affidavit was sufficient to negate the elements of breach of the applicable standard of care and the causal connection between the breach of care and the harm suffered. See Rule 166a(c); Milkie v. Metni, 658 S.W.2d (Tex. App.--Dallas 1983, no writ); Duncan v. Horning, 587 S.W.2d 471 S.W.2d (Tex. App.--Dallas 1979, no writ).

When the movant for summary judgment has negated one of the essential elements of the cause of action, the burden is on the non-movant to produce controverting evidence raising a fact issue as to the element negated. Pinckley, 740 S.W.2d at 531; Nicholson v Memorial Hospital System, 722 S.W.2d 746, 751 (Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.).

Appellant Farmer was required to introduce competent controverting summary judgment evidence to show the existence of a material fact regarding the issues of negligence and proximate causation. First, we note that Dr. Mogabgab's affidavit failed to establish that he was competent to testify as an expert since the curriculum vitae referenced in the affidavit is not attached and made part of the affidavit. Even if we were to consider Dr. Mogabgab's affidavit, Farmer's evidence would fail to controvert Dr. DeFrancesco's summary judgment proof because Dr. Mogabgab's affidavit contains no statement on the appropriate standard of care. The requirement for the standard of care is as follows: "A physician who undertakes a mode or form of treatment which a reasonable and prudent member of the medical profession would undertake shall not be subject to liability for harm caused thereby to the patient." Hood v. Phillips, 554 S.W.2d 160, 165 (Tex. 1977). Not only does Dr. Mogabgab's affidavit fail to articulate an appropriate standard of care, but Dr. Mogabgab does not even suggest that Dr. DeFrancesco's conduct fell below an appropriate standard of care. Further, Dr. Mogagab's affidavit contains no statement that there was a causal connection between any alleged acts or omissions on the part of Dr. DeFrancesco and Farmer's injury. Wheeler, 707 S.W.2d at 218; Duncan, 587 S.W.2d at 474. In a medical malpractice action, proximate cause is an element that ordinarily must be proven by expert testimony. Nicholson, 722 S.W.2d at 751; Ortiz v. Santa Rosa Medical Center, 702 S.W.2d 701, 705 (Tex. App.--San Antonio 1985, writ ref'd n.r.e.)

*4 We find appellant failed to produce controverting evidence to raise a genuine issue of material fact as to the elements of negligence and proximate cause which were conclusively negated by Dr. DeFrancesco's clear summary judgment proof. Appellant's point of error one is overruled.

In his second point of error, appellant submits the trial court's granting of summary judgment was improper since it did not give appellant the opportunity of taking Dr. William Mogabgab's deposition. In his brief, Dr. DeFrancesco argues the trial court has broad discretion in determining whether to grant additional time to respond to a summary judgment motion. Anderson v. Industrial State Bank of Houston, 478 S.W.2d 215, 219 (Tex. App.--Houston [14th Dist.] 1972, writ ref'd n.r.e.). Dr. DeFrancesco further emphasizes that he filed his motion for summary judgment on February 1, 1988. The hearing was originally scheduled for February 22, 1988. Appellant then moved for an extension of time to file a controverting affidavit. The trial court granted this motion, over Dr. DeFrancesco's objection, and the matter was set for oral hearing on March 28, 1988. Further, this case had been on file since February 5, 1987 which was just over one year before the trial court granted appellant an additional five weeks to file a controverting affidavit from a qualified medical expert. We find this was sufficient time for Mr. Farmer to have deposed a qualified medical expert. We do not find an abuse of discretion by the trial court in refusing to grant Mr. Farmer an extension of time to depose Dr. Mogabgab. Appellant's point of error two is overruled.

In point of error three, appellant urges that Dr. Vartian's affidavit is defective because it is based upon a review of the unverified copies of medical records which are not attached to the motion for summary judgment. Rule 166a(e) provides that, "Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend." TEX. R. CIV. P. 166a(e). Appellant filed no exception prior to the hearing to indicate that he was prejudiced in any way by the alleged defect in failing to attach copies of the medical records reviewed by Dr. Vartian. An exception must be made prior to trial or it is waived. Rule 166a(e); Youngstown Sheet and Tube Co., 363 S.W.2d 230, 234 (Tex.1963). We note also that Dr. Vartian testified he reviewed medical records from four admissions of appellant to Cypress Fairbanks Medical Center and one admission from the University of Texas Medical Branch, Galveston, Texas. Dr. Vartian then summarized the medical records in a detailed narrative. The summary judgment was not based upon the facts and information provided by the medical records, themselves. Rather, it was based upon the clear, unequivocal and uncontroverted expert opinions of Dr. Vartian on the controlling issues of this case. By reciting how he became personally familiar with the underlying facts so as to testify as an expert witness, Dr. Vartian showed the requisite degree of personal knowledge. Tilotta v. Goodall, 752 S.W.2d 160, 164 (Tex. App.-- Houston [1st Dist.] 1988, writ pending). Further, we note again that Farmer did not challenge Dr. Vartian's competency as an expert at the trial court and, therefore, waived any right to challenge his competency on appeal. Tilotta, 752 S.W.2d at 165. Appellant's point of error three is overruled.

*5 In point of error four, appellant asserts the trial court did not adequately consider Dr. Mogabgab's affidavit. We do not agree. We refer appellant to the following language contained in the judgment signed by the trial court on April 19, 1988: "Defendant waived the late filing of Plaintiff's controverting affidavit, which was duly considered by the Court." Appellant's point of error four is overruled.

In his fifth point of error, appellant urges the trial court erred in requiring appellant to prove at the hearing a prima facie case. Rule 418(e), TEX. R. CIV. P. provides that a brief "shall contain such discussion of the facts and the authorities relied upon as may be requisite to maintain a point at issue." Points of error not supported by arguments and authorities are waived. Bobbit v. Womble, 708 S.W.2d 558 (Tex. App.--Houston [1st Dist.] 1986, no writ); Hatch v. Davis, 621 S.W.2d 443 (Tex. App.--Corpus Christi 1981, writ ref'd n.r.e.). In the case before us, appellant neglects to provide any reference to the record. The single case cited by appellant is not dispositive Appellant's point of error five is overruled.

Accordingly, we affirm the judgment of the trial court.DP1Do Not Publish - TEX. R. APP. P. 90.

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