Freddie Louis Brewer v. Alfred Hughes Unit, et al.--Appeal from 52nd District Court of Coryell County

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Brewer-FL v. Alfred Hughes Unit et al /**/




No. 10-96-124-CV









From the 52nd District Court

Coryell County, Texas

Trial Court # 28,573




This is an appeal by Appellant Brewer from an order of the trial court granting Appellee Dr. Gwen Owen's motion for a summary judgment and dismissing Appellant's lawsuit with prejudice.

Appellant, a prison inmate, brought suit pro se informa pauperis against Dr. Owen, a physician employed by the Hughes Unit of the Texas Department of Criminal Justice, alleging that Dr. Owen failed to treat his hypertension and obesity and was deliberately indifferent to his medical needs; and that she changed a notation in his medical chart which erroneously reflects a diagnosis of obesity rather than hypertension. Appellant purports to state a claim for medical malpractice and sues under the Tort Claims Act alleging his medical chart contributes tangible personal property.

Dr. Owen filed an amended motion for a summary judgment asserting, among other things, that Appellee was not negligent in her care and diagnosis of Appellant. Dr. Owen attached her affidavit to her motion which stated she did treat his hypertension; that when she examined him on April 14, 1994, his blood pressure was normal after his being off blood pressure medicine for a month; that he no longer needed medication and that she did not re-order it for him. She further stated that she never removed any reference to hypertension from his medical record. She attached exhibits of Appellant's medical records which substantiate and verify her affidavit. The trial court granted Dr. Owen's amended motion for a summary judgment and dismissed Appellant's lawsuit with prejudice.

Appellant appeals on two points of error.

Point one: "The court below erred in granting Appellee Owen's summary judgment. No standard of care was established."

Point two: "The court below erred in granting Appellee Owen a summary judgment on grounds of qualified immunity."

When there is no genuine dispute on a material issue and the movant is entitled to a summary judgment as a matter of law, a summary judgment should be granted. Nixon v. Mr. Property Management, 690 S.W.2d 546 (Tex. 1985). The defendant can prevail on a motion for summary judgment by conclusively establishing every factual element of an affirmative defense. Gibbs v. General Motors, 450 S.W.2d 827, 828 (Tex. 1970). When a trial court does not specify the grounds relied on for its ruling, the reviewing court will affirm the order if any theory advanced is meritorious. Ins. Co. of North America v. Security Ins. Co., 790 S.W.2d 407, 410 (Tex. App.-Houston [1st Dist.] 1990).

Appellant's first point asserts Dr. Owen did not establish a standard of care and is therefore not entitled to a summary judgment on his medical malpractice claim. It is Appellant's burden to establish a medical standard of reasonable and prudent medical care, and to show a causal relationship between a physician's standard of medical care violation and the patient's injury. Hood v. Phillips, 554 S.W.2d 160, 165 (Tex. 1977).

Appellee submitted summary judgment evidence to support her contention there was no deliberate indifference and no negligence with respect to Appellant's medical needs and treatment. Appellee submitted her affidavit, relevant portions of Appellant's prison files and medical records. Appellee's summary judgment evidence is uncontroverted. Appellant has not come forward with any evidence to defeat Appellee's motion or to substantiate his claims.

Appellant's second point asserts the trial court erred in granting Dr. Owen's summary judgment on grounds of qualified immunity. Appellee did not assert her entitlement to qualified immunity in her amended motion for summary judgment, and the trial court did not grant the motion on this ground.

Appellant's claim is a cause of action under the Texas Medical Liability and Insurance Improvement Act, RCS Art. 4590i. Such Act contains provisions in subchapter M which must be followed in order to assert a claim against a physician or health care provider:

Subsection 13.01(d) provides:

Not later than the later of the 180th day after the date on which a health care liability claim is filed . . . the claimant shall, for each physician or health care provider against whom a claim is asserted:

(1) furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report, or

(2) voluntarily nonsuit the action against the physician or health care provider.


If a plaintiff-claimant fails to comply with subsection 13.01(d), then subsection (e) takes effect and provides in (3) that the court shall dismiss the action of the claimant with prejudice to the claim's refiling.

Here, Appellant failed to comply with the above statutes by failing to provide an expert report with 180 days of the filing of his malpractice claim.

Appellant's points one and two are overruled. The judgment is affirmed.


Chief Justice (Retired)


Before Chief Justice Davis,

Justice Vance, and

Chief Justice McDonald (Retired)


Opinion delivered and filed November 27, 1996

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