Connor v. Waltrip

McCLUNG, Justice,

concurring.

While I agree with the majority that the judgment of the trial court should be affirmed, I feel additional' comment is indicated.

In his affidavit Dr. Waltrip named his qualifications, and stated that he saw Con-nor on two occasions, evaluated him, and made a diagnosis and a recommendation. He stated that he was aware of the standard at the time he saw Connor and that the standard was to proceed in the manner in which he proceeded. He stated that he complied with the standard and caused no injury.

In a similar case, this Court last year considered, and rejected as insufficient, an affidavit offered as summary judgment proof in Johnson v. Susat, 773 S.W.2d 601 (Tex.App.—Dallas 1989, writ denied). In that affidavit defendant’s expert witness stated that what Susat did was a usual method, one of the treatments that can be done, and an acceptable procedure. Regarding the standard of care, the affiant merely stated that Susat’s actions were not necessarily above or below the standard.

The instant case is distinguishable from Susat . The affidavit in Susat contained comments about what Susat did but did not explain or describe what he did. It contained a reference to a standard of care but did not lay out the standard. Here, Dr. Waltrip, in his affidavit, described his actions and stated that the standard was to proceed in that manner. The better practice is to set out the standard and then describe the actions taken to show compliance with the standard. While Dr. Wal-trip’s affidavit could have been more artfully worded and explanatory, we hold it is nonetheless, adequate.

We have a developing line of cases involving similar affidavits, many of which were held to be sufficient to support a motion for summary judgment. In Shook v. Herman, 759 S.W.2d 743 (Tex.App.—Dallas 1988, writ denied), this Court upheld a summary judgment granted in favor of Dr. Herman. In his affidavit Dr. Herman described the medical services performed, stated that he acted in accordance with the standard of care and denied any negligence. See also Tilotta v. Goodall, 752 S.W.2d 160 (Tex.App.—Houston [1st Dist.] 1988, writ denied) (affidavit wherein Dr. Goodall stated that surgery was standard medical practice in cases like Tilotta’s; that he was familiar with the standard of care and in compliance with it; that he caused no injury to plaintiff and was not negligent, held to be sufficient summary judgment evidence) and Kemp v. Heffelman, 713 S.W.2d 751 (Tex.App.—Houston [1st Dist.] 1986, no writ) (affidavit wherein Dr. Heffelman stated he was familiar with the standard of care and acted in accordance with it, and that his actions were the same as those of any reasonably prudent doctor, held to be sufficient summary judgment evidence).

While I do agree with the majority, I am compelled to comment that Dr. Waltrip’s affidavit provides only marginally sufficient summary judgment proof. As explained by the majority, the medical standard of care must be established so that the fact finder can determine whether the physician’s act or omission deviated from the standard to the degree that it constituted negligence or malpractice. Rodriguez v. Reeves, 730 S.W.2d 19, 21 (Tex.App.—Corpus Christi 1987, writ ref’d n.r.e.). Mere conclusory statements are not sufficient. See Snow v. Bond, 438 S.W.2d 549, 551 (Tex.1969).

Affiants who do not thoroughly set out the standard of care applicable to the procedure involved, at the time of the com *542 plained of incident, and fail to thoroughly explain what they did and how they met or exceeded the standard, will not present sufficient summary judgment evidence6

I concur.