Urenena Horton v. MacGregor Medical Association, P.A. and MacGregor Medical Association of San Antonio P.A., and Federico Ng, M.D. and Dennis Oliver, M.D.--Appeal from 285th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00348-CV
Urenena HORTON,
Appellant
v.

MACGREGOR MEDICAL ASSOCIATION, P.A., and MacGregor Medical Association of San Antonio, P.A., and Federico Ng, M.D., and Dennis Oliver, M.D.,

Appellees

 
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CI-17890
Honorable Janet P. Littlejohn, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

 

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: March 21, 2007

 

REVERSED AND REMANDED

Urenena Horton appeals the trial court's grant of summary judgment in favor of defendants Federico Ng, M.D., Dennis Oliver, M.D., and MacGregor Medical Association of San Antonio, P.A. (1) Because we hold that the summary judgment evidence fails to negate Horton's claims of medical negligence as a matter of law, we reverse and remand for further proceedings.

1. Horton argues that the two affidavits filed in support of the defendants' traditional motion for summary judgment fail to establish their entitlement to summary judgment as a matter of law. We agree. To prevail on a traditional motion for summary judgment, a defendant's summary judgment proof must establish that there is no genuine issue of material fact as to one or more essential elements of the plaintiff's cause of action. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). A summary judgment is improper when a movant's proof is legally insufficient even though the non-movant fails to file a response. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). In a medical malpractice action, the defendant care provider must negate one or more of the following elements: (1) the duty of the care provider to act according to a certain standard of care; (2) a breach of that standard of care; (3) a resulting injury; and (4) a causal connection between the care provider's conduct and the injury. Mikolajczyk v. Salazar, 966 S.W.2d 711, 714 (Tex. App.--San Antonio 1998, no pet.). In the present case, the defendants submitted affidavit testimony from Drs. Ng and Oliver to show that they had complied with the standard of care in treating Horton's middle ear condition.

While Dr. Ng's affidavit recites his qualifications and states that he is "familiar with the standard of care for an internal medicine physician who is board certified in Texas in 1997," nowhere in his affidavit does Dr. Ng set forth the actual standard of care required of a reasonably prudent physician treating a patient who presents with symptoms of allergic bronchitis, dizziness, and tinnitus. An expert witness' affidavit must expressly state the standard of care; merely stating his familiarity with the standard of care, along with his conclusion that said standard was met, is insufficient. Whittley v. Heston, 954 S.W.2d 119, 122 (Tex. App.--San Antonio 1997, no pet.). Rather, an expert must specify the applicable standard and then explain how the defendant's actions met that standard. Id. Since Dr. Ng neglected to state the requisite standard of care, his statement that he complied with an undesignated standard is no more than the conclusion of an interested party. Id. While summary judgment may be granted based on the affidavit of an interested expert witness, an expert witness' conclusory statements cannot support a summary judgment. Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999) (expert must "explain the basis of his statements to link his conclusions to the facts"); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) (per curiam). Dr. Ng's affidavit cannot support the summary judgment.

2. Dr. Oliver, like Dr. Ng, is an interested expert witness in this case. His affidavit also fails to articulate the applicable standard of care and makes the conclusory statement that he complied with the standard of care. Dr. Oliver simply states, "I am familiar with the standard of care for an internal medicine physician that is board certified in Texas." This is not a clear or direct statement delineating the requisite standard of care. Whittley, 954 S.W.2d at 122. Furthermore, Dr. Oliver does not explain the basis for his assertion that, "... it is my expert opinion that my entire care, treatment, and diagnosis of [Horton] was at all times in conformity with the accepted standards of care ..." Rather, he simply recounts Horton's presentation of her symptoms and his examination of her, followed by his diagnosis and treatment. Dr. Oliver's conclusion that he acted in conformity with an unspecified standard of care cannot support the summary judgment. See id.

Both Dr. Oliver's and Dr. Ng's affidavits fail to clearly state the applicable standard of care and are merely conclusory in stating that the doctors complied with the standard. Neither affidavit can support the summary judgment. See Earle, 998 S.W.2d. at 890. Accordingly, the trial court's judgment is reversed, and the cause is remanded to the trial court for further proceedings.

Phylis J. Speedlin, Justice

1. The summary judgment order does not reference MacGregor Medical Association, P.A.; however, in its brief, appellee MacGregor Medical Association, P.A., concedes that the summary judgment order disposed of all parties and all claims, and was thus final. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).