MARIANNE POTH JONES,FROM A DISTRICT COURT APPELLANT, v. LOUIS H. PARADIES, M.D., APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01494-CV
 
MARIANNE POTH JONES,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
LOUIS H. PARADIES, M.D.,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES STEWART, THOMAS, AND WHITTINGTON
OPINION BY JUSTICE STEWART
JULY 26, 1989
        Appellant Marianne Poth Jones sued appellee Louis H. Paradies, M.D., for medical malpractice. The trial court granted summary judgment in favor of Dr. Paradies. In her sole point of error, Jones complains that the trial court erred in granting summary judgment. We overrule this point and affirm the trial court's judgment.
Background
        Dr. Paradies is a board certified orthopedic surgeon. Jones first saw Dr. Paradies in early 1985 in connection with an injury to her left hip. Dr. Paradies replaced a previously installed prosthetic left hip, and Jones recuperated remarkably well. Later, Jones experienced problems with her right hip. On December 27, 1985, Dr. Paradies surgically replaced Jones's right hip with a prosthesis.
        Following the surgery, Jones continued to experience pain, which also began to cause discomfort in her lower back. In addition, the prosthesis began to cause Jones to walk with a noticeable limp in her right leg. Jones learned that her right leg was longer than her left leg. Dr. Paradies prescribed physical therapy for Jones, but such therapy did not help. Subsequently, another physician replaced the right hip installed by Dr. Paradies with a larger prosthesis. This new prosthesis was secured by a bone graft, unlike the first one. After the second replacement, Jones's condition improved and she experienced no further complications.
        Jones instituted this suit against Dr. Paradies alleging that he negligently measured and inserted the first right prosthesis and that he negligently created the cup prosthesis. Dr. Paradies filed a motion for summary judgment asserting that the uncontroverted summary judgment evidence established as a matter of law that he had not breached the duty of care regarding Jones's treatment and that there was no causal connection between his conduct and Jones's damages. In response, Jones claimed that there were a number of fact questions which precluded summary judgment.
Propriety of Summary Judgment
 
        A defendant who moves for summary judgment has the burden to conclusively negate the existence of one or more of the elements of the plaintiff's cause of action. "Moore" Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936 (Tex. 1972); Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex. App.--Houston [1st Dist.] 1988, writ denied); Frost Nat'l Bank v. Matthews, 713 S.W.2d 365, 368 (Tex. App.--Texarkana 1986, no writ). The essential elements of Jones's malpractice cause of action were: 1) a duty requiring Dr. Paradies to conform to a certain standard of conduct; 2) a breach of the applicable standard of care; 3) resulting injury; and 4) a reasonably close causal connection between the alleged breach of the standard of care and the alleged injury. See Tilotta, 752 S.W.2d at 161; Cloys v. Turbin, 608 S.W.2d 697, 700 (Tex. Civ. App.--Dallas 1980, no writ). In his motion for summary judgment, Dr. Paradies sought to conclusively negate the second and fourth elements of Jones's cause of action.
        In support of his motion, Dr. Paradies attached his own affidavit. Although, as the defendant, Dr. Paradies was an interested expert witness, his affidavit is proper summary judgment evidence. Shook v. Herman, 759 S.W.2d 743, 746 (Tex. App.--Dallas 1988, writ granted); Duncan v. Horning, 587 S.W.2d 471, 473-74 (Tex. Civ. App.--Dallas 1979, no writ). A summary judgment may be based on the uncontroverted evidence of an interested expert on a subject as to which the trier of fact must be guided solely by expert opinion testimony if the evidence is clear, direct, positive, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted. Shook, 759 S.W.2d at 746; Duncan, 587 S.W.2d at 473; see TEX. R. CIV. P. 166a(c). In this case, Dr. Paradies's affidavit meets these requirements.
        Dr. Paradies's affidavit sets out his medical qualifications and describes the services he rendered for Jones. It states that he is familiar with the standard of care for practitioners in the field of orthopedic surgery in Dallas County, Texas, and that his conduct in treating Jones complied with such standard. It also asserts that the damages alleged by Jones were not caused by any improper care rendered by him. Such evidence is clear, direct, positive, otherwise credible, and free from contradictions and inconsistencies. Additionally, Jones could have readily controverted such evidence with an affidavit from another expert witness. Thus, we conclude that, in the absence of controverting evidence which raise a fact question, Dr. Paradies's affidavit is sufficient to negate an essential element of Jones's cause of action.
        In her response to this motion, Jones set forth the following twelve purported fact questions regarding Dr. Paradies's acts and omissions:
    1)        the procedures surrounding the right hip prosthesis and the post-surgical physical therapy and care pertaining to the right hip prosthesis;
 
    2)        the insertion of the right hip prosthesis;
 
    3)        the size of the right hip prosthesis;
 
    4)        the warranties or representations that went with the right hip prosthesis;
 
    5)        the cementing of the right hip prosthesis;
 
    6)        use of a prosthetic device that was too short;
 
    7)        better filling of the canal for the prosthesis;
 
    8)        failure to use an acetabular placement;
 
    9)        failure to advise of the wrong size hip prosthesis;
 
    10)        failure to properly angulate the right leg;
 
    11)        delay in advising Jones that she would have to have the right leg redone because the angulation and fit was improper, causing pain and discomfort for more than a year and a half;
 
    12)        failure to advise Jones that the FDA had approved the particular hip prosthesis for "cement use only."
In support of her response, Jones filed her own affidavit describing Dr. Paradies's conduct and stating certain procedures that he failed to perform in accordance with the purported fact questions. Jones also attached a copy of a letter from the Food and Drug Administration to the manufacturer of the hip prosthesis and portions of her medical records.
        Under her first point of error, Jones argues that her description of Dr. Paradies's acts and omissions was sufficient to raise a fact question as to whether such acts were negligent and as to whether they were a cause of damages to her. In a medical malpractice case, however, proof of negligence must be established through expert testimony. Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex. 1977); Shook, 759 S.W.2d at 747. A lay witness's conclusions are not competent summary judgment evidence on this issue and cannot controvert expert opinion evidence. Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex. 1965); Shook, 759 S.W.2d at 747. Even considering Jones's affidavit, we find no statement therein, or in any of the attached documents, that any of Dr. Paradies's acts failed to conform to the required standard of care. We conclude, therefore, that Jones failed to present sufficient evidence to raise a fact issue as to this essential element of her cause of action. Consequently, Dr. Paradies's affidavit conclusively negated an essential element of Jones's cause of action by establishing that he complied with the standard of care for practitioners in the field of orthopedic surgery in Dallas County, Texas.
        We overrule Jones's sole point of error and affirm the trial court's judgment.
                                                          __________________________
                                                          ANNETTE STEWART
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
 
 
File Date[01-02-89]
File Name[881494F]