Opinion
No. 04-05-00903-CV
Delivered and Filed: October 18, 2006.
Appeal from the 45th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-16173, Honorable John D. Gabriel, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
Reginald O. Collins sued his former attorney Corbin L. Snow III for legal malpractice in prosecuting Mr. Collins's unsuccessful health care liability suit against Dr. David H. Gordon for the damages arising out of the death of Collins' wife Cletis. Collins concedes his suit against Snow is "grounded entirely on Snow's failure to plead, prove and submit the lack of informed consent claim [arising out of the administration of Panglobulin, a form of intravenous immune globulin] to the jury." Because the trial court granted Snow's motion for summary judgment without stating a basis for its ruling, the judgment must be affirmed if any of the grounds in Snow's motion is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). One of the grounds in Snow's motion is that "there is no evidence that [his] alleged failure . . . with respect to the pleading, proving and submission of a lack of informed consent claim proximately caused damages to Collins." See Tex. R. Civ. P. 166a(i) (providing for "no evidence" motion for summary judgment).
When "a legal malpractice case arises from prior litigation, a plaintiff must prove that, but for the attorney's breach of his duty, the plaintiff would have prevailed in the underlying case." Hoover v. Larkin, 196 S.W.3d 227, 231 (Tex.App.-Houston [1st Dist.] 2006, pet. denied). In a suit like this one based on the lack of informed consent, proof of this causation element requires the plaintiff to establish (1) the patient would have refused the treatment had she been informed of the undisclosed risks; and (2) she was injured by the occurrence of a risk of which she was not informed. See Mills v. Pate, No. 08-04-00335-CV, 2006 WL 1508616, at *9 (Tex.App.-El Paso June 1, 2006, no pet.) (citing Hartfiel v. Owen, 618 S.W.2d 902, 905 (Tex.Civ.App.-El Paso 1981, writ ref'd n.r.e.)); see also Williams v. Heuser Chiropractic, No. 12-02-00019-CV, 2004 WL 100462, at * 12 (Tex.App.-Tyler Jan. 21, 2004, no pet.) (mem. op.); Greene v. Thiet, 846 S.W.2d 26, 31 (Tex.App.-San Antonio 1992, writ denied).
Contrary to his argument in this Court, Collins's summary judgment proof — including the affidavit of attorney Mary Wimbish does not address the first prong of the causation element, i.e., whether Mrs. Collins or a reasonable person in her position would have refused the Panglobulin had she been fully informed of its undisclosed risks. In the trial court, Collins recognized that it was his burden to establish "that the risk that Dr. Gordon failed to disclose `could have influenced a reasonable person in making a decision to give or withhold consent.'" But, he argued, this "is a jury issue and cannot be resolve[d] on the basis of a motion under Rule 166a(i) T.R.C.P." This is incorrect. Rule 166a(i) permits a defendant to "move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim . . . on which an adverse party would have the burden of proof at trial." Tex. R. Civ. P. 166a(i). "The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact." Id. A motion under Rule 166a(i) may properly challenge the plaintiff's evidence of causation. See, e.g., W. Inv., Inc. v. Urena, 162 S.W.3d 547, 552 (Tex. 2005) (holding plaintiff presented no evidence in response to Rule 166a(i) motion on causation).
Because Collins failed to raise a genuine issue of material fact on whether Mrs. Collins or a reasonable person in her position would have refused the Panglobulin had she been fully informed of its undisclosed risks, the trial court properly granted Snow's motion for summary judgment. Accordingly, we affirm the trial court's judgment.