Betty Ann Hardesty, et vir. v. Johan Rathwangl, M.D., et al.--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-93-169-CV

BETTY ANN HARDESTY, ET VIR.,

Appellants

v.

JOHAN RATHWANGL, M.D., ET AL.,

Appellees

From the 13th District Court

Navarro County, Texas

Trial Court # 92-00-03033-CV

O P I N I O N

Betty Ann and Jack Hardesty sued Dr. Johann Rothwangl // and Medical Arts Clinic Association of Corsicana for medical negligence. The Hardestys appeal from two adverse summary judgments granted by the trial court. They initially complain about certain procedural aspects of the summary judgments, contentions that we do not reach in light of our disposition of the appeal on the merits.

The standards for reviewing a summary judgment are well established. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to the summary judgment as a matter of law. Id. The reviewing court must accept all evidence favorable to the non-movant as true. Id. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. Id. Evidence which favors the movant will be considered only if it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).

In reviewing the summary judgment, we must determine whether the defendants, as movants, met their burden by establishing that no genuine issue of material fact exists. See Nixon, 690 S.W.2d at 548. A defendant who moves for a summary judgment without asserting an affirmative defense must disprove as a matter of law one or more of the elements essential to the plaintiff's cause of action. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991).

The defendants objected in the trial court to the affidavit of Dr. Robert Capehart, filed by the Hardestys in opposition to the summary judgments; however, the record does not reflect a ruling on their motion. Thus, the affidavit remains part of the summary-judgment evidence. See Eads v. American Bank, 843 S.W.2d 208, 211 (Tex. App. Waco 1992, no writ).

Dr. Rothwangl's affidavit, attached to his motion for summary judgment, positively states that he was not negligent. Dr. Capehart's affidavit, attached to the Hardestys' response, expresses his opinion that "the use of Hot Biopsy Forceps to treat an AV fistula of the cecum resulting in full thickness destruction of the bowel X 3 fell below acceptable standards of surgical care resulting in perforation, peritonitis and bowel resection" and that "Dr. Rothwangl was negligent." If different inferences may reasonably be drawn from the summary judgment evidence, a summary judgment should not be granted. Nixon, 690 S.W.2d at 549. The affidavit of Dr. Capehart created a fact issue about whether Dr. Rothwangl was negligent in using "hot biopsy forceps" in the colonoscopy procedure. Thus, accepting all evidence favorable to the plaintiffs as true and indulging every reasonable inference and resolving all doubts in their favor, we find that the defendants failed to prove that no genuine issue of material fact exists and that they are entitled to the summary judgment as a matter of law. See id. at 548.

We reverse the summary judgments and remand the cause for trial.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reversed and remanded

Opinion delivered and filed February 2, 1994

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