ANTHONY S. HYDE AND JANINA E. TYLER v. ROBERT A. WILLIAMSON, M.D.--Appeal from 25th District Court of Gonzales County

NUMBER 13-03-657-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

ANTHONY S. HYDE AND JANINA E. TYLER, Appellants,

v.

ROBERT A. WILLIAMSON, M.D., Appellee.

___________________________________________________________________

On appeal from the 25th District Court

of Goliad County, Texas.

__________________________________________________________________

MEMORANDUM OPINION ON MOTION FOR REHEARING

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion on Motion for Rehearing by Justice Rodriguez

We grant the motion for rehearing // filed by appellee, Robert A. Williamson, M.D., withdraw our memorandum opinion dated October 14, 2004, and substitute the following as the memorandum opinion of this Court.

Appellants, Anthony S. Hyde and Janina E. Tyler, individually and as representatives of the estate of Mary Jane Smith, bring this appeal following an order by the trial court granting a no evidence summary judgment in favor of appellee. By three issues, appellants contend the trial court erred in: (1) sustaining appellee s objections to appellants summary judgment affidavit without affording appellants an opportunity to cure; (2) granting appellee s motion for no evidence summary judgment; and (3) denying appellants motion to continue the summary judgment hearing. We affirm.

I. FACTS

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. OBJECTIONS TO SUMMARY JUDGMENT AFFIDAVIT

By their first issue, appellants contend that the trial court erred in sustaining objections to appellants summary judgment affidavit without affording appellants an opportunity to cure. // We review the trial court s decision on the admissibility of evidence in a summary judgment proceeding under an abuse of discretion standard. See Fricks v. Hancock, 45 S.W.3d 322, 325 (Tex. App. Corpus Christi 2001, no pet.).

In this case, appellee filed a no evidence summary judgment motion based on a lack of evidence regarding causation. Appellants response to the summary judgment motion included an affidavit by appellants medical expert in support of their claim of negligence. The day of the summary judgment hearing, appellee filed objections to appellants summary judgment affidavit stating that: (1) appellants failed to attach certified or sworn copies of the records relied on by the expert in the affidavit; and (2) the affidavit was vague, indefinite, and conclusory. At the hearing, appellee argued that based on these two grounds the affidavit should be stricken and the no evidence summary judgment motion granted. Appellants responded by requesting an opportunity to cure the defect in the affidavit under rule 166a(f). At the conclusion of the hearing, the trial court stated that it would notify appellants whether it would allow them to amend the affidavit. The trial court later granted appellee s no evidence summary judgment.

A. Failure To Attach Medical Records

Rule 166a(f) of the Texas Rules of Civil Procedure, which governs the use of affidavits in summary judgment proceedings, provides that sworn or certified copies of all papers referred to in an affidavit shall be attached or served with the affidavit. Tex. R. Civ. P. 166a(f). It also states, in relevant part, that defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend. Id. Appellants contend that the failure to attach medical records is a defect in form, and therefore, under rule 166a(f) they must be given the opportunity to amend the defect. Appellee argues to the contrary that the defect is substantive, and therefore, the trial court is not required to give appellants the opportunity to amend.

This Court has previously addressed this issue in Noriega v. Mireles, 925 S.W.2d 261, 265 (Tex. App. Corpus Christi 1996, writ denied). In that case we held:

[I]n situations such as this, where there is no dispute regarding the contents of the medical records and the treatment the patient received, and in which the disputed issue relates to additional treatment that the patient clearly did not receive but arguably should have, the failure to attach the relevant medical records to the expert witness s affidavit is a formal, rather than a substantive defect.

Id. Presented with similar circumstances, we adhere to the rationale in Noriega and find the holding applicable to the facts of this case. The failure to attach medical records to the affidavit in this case was a defect as to form. As such, the trial court should have provided appellants the opportunity to amend their affidavit prior to granting the summary judgment. See Garcia v. Willman, 4 S.W.3d 307, 311 (Tex. App. Corpus Christi 1999, no pet.) (finding proponent of summary judgment evidence must be given opportunity to cure defects in form of summary judgment evidence).

B. Conclusory Statements

Appellee additionally objected to appellants expert affidavit as being conclusory. // Affidavits supporting and opposing a motion for summary judgment must set forth facts, not legal conclusions alone. AMS Constr. Co., Inc. v. Warm Springs Rehab. Found., Inc., 94 S.W.3d 152, 157 (Tex. App. Corpus Christi 2002, no pet.); see Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984). A conclusory statement is one that does not provide the underlying facts to support the conclusion, AMS Constr. Co., 94 S.W.3d at 157, and is insufficient to create a question of fact to defeat summary judgment. IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 803 (Tex. 2004); McIntyre v. Ramirez, 109 S.W.3d 741, 749-50 (Tex. 2003).

Appellee s no evidence motion for summary judgment centered on causation. Therefore, we will examine the affidavit of appellants expert, Philip Totonelly, M.D., to determine whether his discussion of causation was conclusory. In his affidavit, Dr. Totonelly set out his qualifications, the treatment Mary Jane Smith received and, while describing the standard of care, explained how appellee breached that standard. Regarding causation, he testified that Ms. Smith was discharged home after 3 days of hospitalization and on the fourth day, not surprisingly, died suddenly of complications directly related to her recent untreated ischemic event. Dr. Totonelly additionally stated that in his opinion based upon reasonable medical probability, the above enumerated breaches of the standard of care singularly and/or collectively were a proximate cause of the evolvement of Ms. Smith s heart condition and eventual infarct which was a cause of her untimely death. Dr. Totonelly offered only his opinions and conclusions regarding causation without an explanation as to how the enumerated breaches ultimately caused Ms. Smith s death. See IHS Cedars, 143 S.W.3d at 803 (finding affidavit conclusory because it lacked explanation as to how the conduct was cause in fact of injuries); Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999) (stating that expert must explain the basis of his statements to link his conclusions to the facts); Windsor v. Maxwell, 121 S.W.3d 42, 50 (Tex. App. Ft. Worth 2003, pet. denied) (finding statement conclusory as to causation because it did not explain how the complained of action caused the injury). His statements in the affidavit fail to provide a sufficient causal nexus between the duties and alleged breaches on the part of appellee and the death of Ms. Smith. See IHS Cedars, 143 S.W.3d at 803. Therefore, we conclude that Dr. Totonelly s expert affidavit was conclusory and insufficient to create a question of fact as to causation. // See id.; McIntyre, 109 S.W.3d at 749-50.

Although we determined earlier that the trial court should have allowed appellants the opportunity to attach the medical records, we find the trial court did not abuse its discretion in striking appellants affidavit as the attachments could not have cured its conclusory nature. Appellants first issue is overruled.

II. GRANTING OF SUMMARY JUDGMENT

By their second issue, appellants generally assert that the trial court erred in granting appellee s no evidence motion for summary judgment.

A no evidence summary judgment asserts there is no evidence of one or more essential elements of claims upon which the opposing party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). A no evidence summary judgment is essentially a pretrial directed verdict, to which the appellate courts apply a legal sufficiency standard of review. AMS Constr. Co., Inc., 94 S.W.3d at 159. In response to a no evidence motion, the non-movant is only required to present evidence that raises a genuine fact issue on the challenged elements. Id. A no evidence summary judgment is properly granted only if the non-movant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to the challenged element of the claims. Tex. R. Civ. P. 166a(i).

Appellee s no evidence summary judgment motion asserted that there was no evidence of causation to support appellants claims. See id. The burden was therefore placed on appellants to present summary judgment evidence raising a genuine issue of material fact as to the challenged element. See id.

Because we have determined that the trial court did not abuse its discretion in striking Dr. Totonelly s affidavit, appellants have failed to raise an issue of fact on the element of causation. See Shelton v. Sargent, 144 S.W.3d 113, 127 (Tex. App. Fort Worth 2004, pet. denied). Consequently, appellee s no evidence motion for summary judgment was properly granted. Appellants second issue is overruled.

III. MOTION TO CONTINUE

Appellants contend in their third issue that the trial court abused its discretion in denying their motion to continue the summary judgment hearing. //

It is within the trial court s discretion to grant a continuance until the requested discovery is completed. Laughlin v. Bergman, 962 S.W.2d 64, 65 (Tex. App. Houston [1st Dist.] 1997, pet. denied). We will not disturb the trial court s denial of a motion for continuance absent a clear abuse of discretion. Id.

Appellants rely on Texas Rule of Civil Procedure 166a(g) in support of their motion for continuance. See Tex. R. Civ. P. 166a(g). Rule 166a(g), entitled When Affidavits Are Unavailable, provides that a court may order a continuance [s]hould it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition. See id. However, this rule does not apply in this case as appellants did present by affidavit facts to justify their opposition. Appellants offered the affidavit of their medical expert, Dr. Totonelly, to raise an issue of fact in response to appellee s no evidence summary judgment. Appellants cannot successfully contend the motion to quash the deposition of Dr. Totonelly hampered their preparation of a response to the motion for summary judgment, as anything Dr. Totonelly would have said in the deposition, he could have said in his affidavit. See McMahan v. Greenwood, 108 S.W.3d 467, 499 (Tex. App. Houston [14th Dist.] 2003, pet. denied).

Because appellants did in fact present an affidavit to justify their position, we find the trial court did not abuse its discretion in denying appellants motion for continuance. Appellants third issue is overruled.

IV. CONCLUSION

Accordingly, the judgment of the trial court is affirmed.

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion on Motion for Rehearing

delivered and filed this 17th day of February, 2005.