stating affidavit submitted in support of motion for new trial could not be considered by court of appeals because it was not on file at the time of the summary judgment hearing
How later courts described this case
- stating affidavit submitted in support of motion for new trial could not be considered by court of appeals because it was not on file at the time of the summary judgment hearing
- holding doctor’s affidavit filed with motion for new trial and not on file at time of summary judgment was not before appellate court in reviewing summary judgment proof
Written by the judges who cited it.
The opinion
MIRABAL, Justice,
dissenting.
I respectfully dissent from that portion of the majority’s opinion which affirms the summary judgment in favor of Dr. Chaney.
In his affidavit, Dr.'Chaney states that he is a medical doctor specializing in plastic surgery. He then states that he is familiar with the standard of care for the type of treatment he rendered to appellant, defining the standard of care as the mode or form of treatment “which a reasonable and prudent member of the medical profession would have undertaken under the same or similar circumstances.” Dr. Chaney further states that his medical diagnosis and instructed treatment were in accordance with that standard of care, and “were the same medical diagnosis and instructed treatment which would have been performed by a reasonably prudent physician acting under the same or similar circumstances.”
Generally, a medical specialist has a duty to possess and exercise the degree of knowledge and skill that is reasonably possessed by similar specialists, and not merely the degree of knowledge and skill of a general practitioner. King v. Flamm, 442 S.W.2d 679, 681 (Tex.1969). Texas courts have consistently held that physician specialists are held to a higher standard of care and skill than that possessed by nonspecialists. See Baker v. Story, 621 S.W.2d 639, 642 (Tex.Civ.App.-San Antonio 1981, writ ref’d n.r.e.); Smith v. Guthrie, 557 S.W.2d 163, 167 (Tex.Civ.App.-Fort Worth 1977, writ ref’d n.r.e.). Medical specialists in Texas are held to the standard of a reasonable and prudent specialist, in the defendant doctor’s specialty area, under the same or similar circumstances. See Bronwell v. Williams, 597 S.W.2d 542, 546 (Tex.Civ.App.—Amarillo 1980, writ ref’d n.r.e.).
In his first and second points of error, appellant asserts that summary judgment for appellees was improperly granted because the affidavits of the doctors are in *321 sufficient to support the summary judgment. Appellant specifically asserts that “[n]o applicable defined standard of care is outlined in the affidavits of Appellees.” I agree.
The “applicable standard of care” is determinable as a matter of law, not fact. When Dr. Chaney stated an incorrect standard of care in his affidavit, it was not necessary for appellant to file a controverting affidavit setting out the correct, applicable, standard of care; this is not a “factual” matter that appellant needed to controvert to prevent summary judgment for Dr. Chaney. Dr. Chaney, as movant for summary judgment, had the burden to prove, through uncontroverted, expert affidavit testimony, that he acted in accordance with the applicable standard of care; Dr. Chaney, instead, “proved” that he had acted in accordance with a lesser standard of care than that applicable to specialists. Therefore, the burden never shifted to appellant to introduce controverting proof; Dr. Chaney did not meet his initial burden. The Texas Supreme Court stated the applicable rule as follows:
The trial court may not grant a summary judgment by default for lack of an answer or response to the motion by the non-movant when the movant’s summary judgment proof is legally insufficient. The movant still must establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law_ Summary judgments must stand on their own merits, and the non-movant’s failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the movant’s right.
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).
Appellant’s points of error one and two specifically present, for our review, the question of the sufficiency of appellees’ affidavits, claiming the affidavits are insufficient to support the summary judgment. Appellant has specifically presented this ground for reversal to us. I respectfully disagree with the majority’s construction of San Jacinto River Authority v. Duke, 788 S.W.2d 209 (1990). Even though appellant has not specifically argued that the correct standard of care for Dr. Chaney is the standard applicable to medical specialists, appellant has complained that Dr. Chaney’s affidavit is insufficient to support the summary judgment, thereby raising the ground on which I would reverse. As a matter of law, Dr. Chaney’s affidavit is either sufficient, or it is not. I conclude it is not sufficient to support the summary judgment.
In my opinion, Dr. Chaney failed to conclusively negate any of the four essential elements of appellant’s cause of action, being duty, breach of duty, injury and proximate cause. With regard to the breach of duty element, Dr. Chaney did not conclusively establish that he did not breach the applicable standard of care, being the standard of treatment that a reasonable and prudent specialist in the area of plastic surgery would have undertaken under the same or similar circumstances.
I would reverse and remand the summary judgment for appellee Chaney, along with the remainder of the case.