Opinion
No. 13-05-064-CV
Memorandum Opinion Delivered and Filed August 24, 2006.
On Appeal from the 197th District Court of Cameron County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and CASTILLO.
MEMORANDUM OPINION
Appellant, Donald Streich, appeals from the trial court's order granting summary judgment in favor of appellee, Joseph Dougherty, M.D., on a medical malpractice suit. In the sole issue presented, appellant claims the trial court erred in granting summary judgment. We reverse and remand.
Other aspects of this case have previously been addressed by this Court in Streich v. Pallares, No. 13-02-698-CV, 2005 Tex. App. LEXIS 5224 (Tex.App.-Corpus Christi 2005, no pet.), and Streich v. Lopez, No. 13-02-074-CV, 2004 Tex. App. LEXIS 7703 (Tex.App.-Corpus Christi Aug. 26, 2004, no pet.).
I. Background
Appellant was diagnosed with congestive heart failure and end-stage renal disease. Appellant was admitted to Valley Baptist Medical Center and, on November 3, 1999, Dr. Ruben Lopez inserted a Schon catheter into appellant's internal jugular vein for the purposes of beginning dialysis. Appellant began dialysis under the care of Dr. Dougherty, a nephrologist. Appellant was discharged from Valley Baptist on November 5, 1999.
On November 6, 1999, appellant was again admitted to Valley Baptist complaining of fever and chills. On November 8, 1999, a lab report showed that a blood culture taken from the catheter site and drainage of the dialysis catheter was positive for staphylococcus aureus. On November 12, 1999, Lopez removed the Schon catheter and inserted a left Quinton catheter. On November 14, 1999, appellant told Dr. Dougherty that he was experiencing low back pain. On November 16, 1999, Dr. Dougherty discharged appellant with orders to continue outpatient dialysis. Appellant continued to experience back pain. On November 29, 1999, Dr. Jerry Palleres performed a CT scan of appellant's lumbar spine and concluded that appellant had an atypical compression fracture. On January 8, 2000, Dr. Dougherty told appellant that he had a hairline crack in one of the vertebrae of his tail bone and that his pain would improve gradually. Appellant continued to experience back pain, and on February 5, 2000, Dr. Dougherty referred him to a pain center and requested that nerve conduction studies be performed.
Appellant's back pain continued, and he developed pain in his hips and discomfort and numbness in his legs. Appellant further developed weakness of the lower extremities such that he could not walk. Appellant continued to keep his physicians informed regarding his symptomology.
Dr. Dougherty saw appellant on February 27, 2000, and on February 28, 2000, Dr. Dougherty admitted appellant to Valley Baptist for observation. Dr. Dougherty referred appellant to Dr. Gale Downey, a neurologist, for a consultation regarding appellant's leg pain. On February 29, 2000, Downey performed an MRI of appellant's lower spine. The MRI revealed an epidural mass. On March 1, 2000, Dr. Dougherty referred appellant to Dr. Brent Clyde, a neurosurgeon, who found a lytic lesion at the L4 vertebrae. Clyde recommended surgery.
On March 2, 2000, Dr. Eric Six, a neurosurgeon, performed surgery on the lesion and discovered a large volume of pus, which had developed over time, primarily at the L3 and L4 vertebrae. Cultures taken on March 2, 2000 showed the presence of staphylococcus aureus. Appellant was later informed that this infection was the result of the earlier surgery to insert his catheter.
Appellant's claims against Dr. Dougherty do not involve allegations regarding the surgery or the causation of the infection. Instead, appellant's claims against Dr. Dougherty involve his post-surgical course of treatment.
On February 27, 2002, appellant sent an article 4590(I) notice letter to Dr. Dougherty and other medical providers informing them that a health care liability claim was under consideration. According to the notice, the claim against Dr. Dougherty and others was a result of negligence in the operative and post-operative care provided to appellant for a surgery performed on November 3, 1999, resulting in infection and an epidural abscess. Appellant subsequently filed suit on April 9, 2002.
II. Motion for Summary Judgment
Dr. Dougherty's motion for summary judgment was premised both on traditional grounds and no evidence grounds. In his traditional motion, Dr. Dougherty moved for full or partial summary judgment on grounds that the statute of limitations barred all of appellant's causes of action or, in the alternative, barred any alleged negligence that occurred prior to February 27, 2000. In his no evidence motion for summary judgment, Dr. Dougherty argued that appellant had no evidence of duty, breach of duty, or proximate causation.
The trial court's order granting summary judgment does not specify the basis for its ruling. Because Dr. Dougherty moved for summary judgment on both traditional and no evidence grounds and the trial court did not specify which it granted, we can uphold the summary judgment on either ground. See Bruce v. K.K.B., Inc., 52 S.W.3d 250, 254 (Tex.App.-Corpus Christi 2001, pet. denied); see also FNFS, Ltd. v. Sec. State Bank Trust, 63 S.W.3d 546, 548 (Tex.App.-Austin 2001, pet. denied).
When a party moves for summary judgment under both rules 166a(c) and 166a(i) of the Texas Rules of Civil Procedure, we will first review the trial court's judgment under the standards of rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see TEX. R. CIV. P. 166a(c), (i). If the appellant fails to produce more than a scintilla of evidence under that burden, then there is no need to analyze whether appellee's summary judgment proof satisfies the less stringent rule 166a(c) burden. Id.
III. No Evidence Motion for Summary Judgment
A no evidence motion for summary judgment is essentially a pretrial motion for directed verdict, and the appellate court will apply the same standard of review. Zapata v. Children's Clinic, 997 S.W.2d 745, 747 (Tex.App.-Corpus Christi 1999, pet. denied); Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied). We "examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion." City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005); see Whalen v. Condo Consulting Mgmt. Servs., Inc., 13 S.W.3d 444, 446 (Tex.App.-Corpus Christi 2000, pet. denied). The nonmovant need not "marshal its proof," rather, it "need only point out evidence that raises a fact issue on the challenged elements." TEX. R. CIV. P. 166a(i) cmt. When a motion for summary judgment is based on no evidence grounds, the Texas Supreme Court has ordered that:
1. the no-evidence motion can only be brought against "a claim or defense on which an adverse party would have the burden of proof at trial;"
2. "the motion must state the elements as to which there is no evidence;"
3. "the motion must be specific in challenging the evidentiary support for an element of a claim;" and
4. "paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent's case."
TEX. R. CIV. P. 166a(i), 166a(i) cmt.; see Oasis Oil Corp. v. Koch Ref. Co., 60 S.W.3d 248, 250 (Tex.App.-Corpus Christi 2001, pet. denied).
"The trial court may not grant a no-evidence summary judgment if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact." Oasis Oil Corp., 60 S.W.3d at 250; Zapata, 997 S.W.2d at 747. Evidence that is "so weak as to do no more than create a mere surmise or suspicion" of a fact is legally insufficient and constitutes no evidence. Moore, 981 S.W.2d at 269 (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharm., Inc., 953 S.W.2d at 711; Zapata, 997 S.W.2d at 747.
In his no evidence motion for summary judgment, Dr. Dougherty alleged that appellant had no evidence of duty, breach of duty, and proximate causation as required in a medical negligence cause of action. According to Dr. Dougherty, the deadline for appellant's designation of experts had passed and appellant had failed to designate experts to testify that Dr. Dougherty's care and treatment of appellant after February 27, 2000 deviated from the standard of care. In response to the motion for summary judgment, appellant produced the deposition testimony of his expert witness, Dr. Allen I. Arieff.
On appeal, Dr. Dougherty contends that appellant did not offer even a scintilla of evidence that Dr. Dougherty was negligent in his treatment of appellant after February 27, 2000. According to Dr. Dougherty, appellant focuses only on the care rendered by Dr. Dougherty between November 3, 1999, and February 24, 2000, all of which was barred by the applicable statute of limitations.
The elements that must be proven for a medical malpractice action are: (1) a physician's duty to act according to a certain standard; (2) a breach of the applicable standard of care; (3) an injury; and (4) a causal connection between the breach of care and the injury. Krishnan v. Ramirez, 42 S.W.3d 205, 212 (Tex.App.-Corpus Christi 2001, pet. denied); Smith v. Mossbacker, 94 S.W.3d 292, 294 (Tex.App.-Corpus Christi 2002, no pet.); Schorlemer v. Reyes, 974 S.W.2d 141, 147 (Tex.App.-San Antonio 1998, pet. denied).
Duty in a medical malpractice case is triggered by the existence of a physician-patient relationship. St. John v. Pope, 901 S.W.2d 420, 423 (Tex. 1995). A physician-patient relationship comes into being only upon a physician's express or implied consent. See id. Where no prior relationship exists, the doctor must take some affirmative step to treat the patient before a relationship can be established. See Ortiz v. Shah, 905 S.W.2d 609, 611 (Tex.App.-Houston [14th Dist.] 1995, writ denied); Lopez v. Aziz, 852 S.W.2d 303, 306 (Tex.App.-San Antonio 1993, no writ). "The duty to treat the patient with proper professional skill flows from the consensual relationship between the patient and physician, and only when that relationship exists can there be a breach of a duty resulting in medical malpractice." St. John, 901 S.W.2d at 423; see Ramirez v. Carreras, 10 S.W.3d 757, 761 (Tex.App.-Corpus Christi 2000, pet. denied). Once such a relationship exists, however, the physician then owes the patient a duty to treat him or her with the skills of a trained, competent professional, and a breach of that duty may give rise to a malpractice action. Reynosa v. Huff, 21 S.W.3d 510, 513 (Tex.App.-San Antonio 2000, no pet.).
The threshold question in a medical malpractice case is the standard of care. Jones v. Miller, 966 S.W.2d 851, 854 (Tex.App.-Houston [1st Dist.] 1998, no pet.). The applicable standard must be established so the fact finder can decide if the defendant deviated from it. Id. To raise a fact issue sufficient to defeat summary judgment, the plaintiff's controverting expert should specifically identify the standard of care, establish the expert's familiarity with that standard, and explain why the treatment rendered by the defendant health-care provider breached the applicable standard. Hightower v. Saxton, 54 S.W.3d 380, 389 (Tex.App.-Waco 2001, no pet.); Keeton v. Carrasco, 53 S.W.3d 13, 25 (Tex.App.-San Antonio 2001, pet. denied).
In order to be a proximate cause, the negligence must have been a substantial factor in bringing about the harm and without which, the harm would not have occurred. Columbia Med. Ctr. of Las Colinas v. Bush ex rel. Bush, 122 S.W.3d 835, 852 (Tex.App.-Fort Worth 2003, pet. denied); Sisters of St. Joseph of Tex., Inc. v. Cheek, 61 S.W.3d 32, 35 (Tex.App.-Amarillo 2001, pet. denied). To establish proximate cause, a plaintiff must prove both cause-in-fact and foreseeability. Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988). Cause-in-fact requires a causal connection between the injuries suffered and the negligence of appellants based upon "reasonable medical probability," not mere conjecture, speculation, or possibility. See Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995). For an injury to be foreseeable, "a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission." Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995).
In the instant case, the medical records and deposition testimony indicate clearly that Dr. Dougherty and appellant had a physician-patient relationship and that Dr. Dougherty provided appellant a course of treatment from November of 1999 through August of 2000. Accordingly, Dr. Dougherty owed appellant a duty to treat him with the skills of a trained, competent professional. Reynosa, 21 S.W.3d at 513.
Dr. Arieff testified regarding the applicable standard of care. His testimony established his familiarity with that standard, and he explained why the treatment rendered by Dr. Dougherty breached the applicable standard. Hightower, 54 S.W.3d at 389; Keeton, 53 S.W.3d at 25. In short, Areiff testified that Dr. Dougherty did not provide adequate post-surgical treatment of appellant's condition and that an adequate post-surgical course of treatment would have remedied appellant's infection associated with the insertion of his catheter. Dr. Areiff specifically detailed the symptomology that appellant suffered and the protocols that could have identified the infection. Dr. Arieff further testified that Dr. Dougherty's failure to properly treat and diagnose the infection resulted in appellant's multiple surgeries and disability.
Although Dr. Dougherty contends that the record contains no evidence that he was negligent in his care subsequent to February 27, 2000, or that any such negligence proximately caused appellant's damages, our review of the record would indicate otherwise. Specifically, appellant was under Dr. Dougherty's care on February 27, 2000, February 28, 2000, February 29, 2000, and subsequently, without diagnosis of the infection until March 2, 2000.
While Dr. Arieff offered evidence that a reasonably careful nephrologist would have investigated appellant's progressive neurological disability by ordering neuroimaging studies, requesting a gallium scan or an indium scan, or consulting a neurosurgeon or neurologist, this evidence does not describe a failure on a specific date, but a failure that occurred over the whole course of treatment. Specifically, Dr. Areiff's evidence does not prove that Dr. Dougherty should have provided specific treatments on specific ascertainable dates, but that Dr. Dougherty failed to provide specific treatments that should have been provided at some point in the course of treatment, but not at every exam or at any specific exam. No specific date for these failures can be ascertained from the summary judgment evidence. Accordingly, we conclude that the trial court could not have properly granted Dr. Dougherty's no evidence motion for summary judgment.
IV. Traditional Motion for Summary Judgment
We review the trial court's granting of a traditional motion for summary judgment de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Alejandro v. Bell, 84 S.W.3d 383, 390 (Tex.App.-Corpus Christi 2002, no pet.). To prevail on a summary judgment motion, a moving party must establish that no genuine issue of material fact exists and judgment should be granted as a matter of law. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). In deciding whether there is a genuine issue of material fact, we resolve any doubt against the movant, and view the evidence in a light most favorable to the nonmovant. Id.
A defendant moving for summary judgment on the affirmative defense of a tolled limitation statute has the burden of conclusively establishing that defense. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant must (1) conclusively prove when the action accrued, and (2) negate the discovery rule if it applies and has been pleaded or raised. Id. If the movant establishes that the statute of limitations bars the action, the nonmovant must then offer proof raising a fact issue to avoid summary judgment. Id.
In this case, Dr. Dougherty moved for full or partial summary judgment on all of appellant's causes of action or, in the alternative, for any alleged negligence that occurred prior to February 27, 2000. In his motion for summary judgment, appellee contends that appellant's causes of action are barred by limitations because the treatment complained of occurred between November 3, 1999, and February 27, 2000, more than two years before suit. According to appellee, all allegations of negligence which occurred prior to February 27, 2000, were barred by the statute of limitations. Dr. Dougherty further contends that appellant failed to present any summary judgment evidence that appellee was negligent after February 27, 2000, or that such post February 27, 2000, negligence proximately caused appellant's alleged damages. In a footnote in his appellate brief, Dr. Dougherty concedes that the notice letter tolls the statute of limitations for seventy-five days, so any post-February 27, 2000, negligence claims would be timely.
Because this case was originally filed before September 1, 2003, former article 4590i, section 10.01 of the Texas Revised Civil Statutes governs this case. Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.01-12.01, 1977 Tex. Gen. Laws 2039-2053 (as amended) (henceforth "Former TEX. REV. CIV. STAT. art. 4590i"), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at TEX. CIV. PRAC. REM. CODE ANN. § 74.001 et seq. (Vernon Supp. 2004-05)). Former article 4590i, section 10.01, in pertinent part, provides:
Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed . . .
Former TEX. REV. CIV. STAT. art. 4590i, § 10.01.
The former statute created a two-year limitations period in which to bring suit on health care liability claims. See id.; Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987). Under the statute, commencement of limitations begins on one of three dates: (1) the occurrence of the breach or tort; (2) the date the medical or health care treatment that is the subject of the claim is completed; or (3) the date the hospitalization for which the claim is made is completed. See former TEX. REV. CIV. STAT. ANN. art. 4590i, 10.01; Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001); Kimball, 741 S.W.2d at 372. A plaintiff may not simply choose the most favorable date that falls within this provision, but rather, if the specific date of the alleged tort is ascertainable, the limitations period commences upon that date. Shah, 67 S.W.3d at 841; Earle v. Ratliff, 998 S.W.2d 882, 886 (Tex. 1999). In other words, if the date of the occurrence of the breach or tort is ascertainable, then an inquiry into the second and third categories is unnecessary. Shah, 67 S.W.3d at 841. If the date is not ascertainable, the plaintiff must establish a course of treatment for the alleged injury in which the last treatment date becomes relevant to determining when limitations begins. Id. In such a case, the commencement of the limitation period occurs on the last date appellee treated appellant and had a chance to perform his alleged duties. See Shah, 67 S.W.3d at 843. However, if the date of the alleged tort is ascertainable, limitations begin to run on that date whether or not the plaintiff established a course of treatment. Id. at 841.
By virtue of section 4.01 of the former act, a person could extend the two-year limitations period for seventy-five days by giving notice of a claim under the Act. See Former TEX. REV. CIV. STAT. ANN. art. 4590i, § 4.01; De Checa v. Diagnostic Ctr. Hospital, Inc., 852 S.W.2d 935, 937-38 (Tex. 1993) (notice given in accordance with section 4.01(a) tolls the applicable statute of limitations for seventy-five days, effectively creating a two-year-and-seventy-five-day statute of limitations); Theroux v. Vick, 163 S.W.3d 111, 114-15 (Tex.App.-San Antonio 2005, pet. denied). Generally, a suit may not be filed outside this extended limitations period. De Checa, 852 S.W.2d at 938. Moreover, notice under former section 4.01 could not toll a limitations period that had already elapsed. Id. at 938 n. 4.
According to Dr. Dougherty's brief:
Appellee firmly and conclusively established that, since Appellant's notice letter was sent on February 27, 2002 and no suit was filed prior to February 27, 2002, all alleged negligence occurring on or before February 27, 2000 is absolutely barred by the two year statute of limitations pursuant to § 10.01 of the Texas Medical Liability and Insurance Improvement Act.
Dr. Dougherty appears to be contending that the date that appellant sent his notice letter has some impact on the accrual of appellant's cause of action. We do not agree. The notice letter does not establish the accrual date of the cause of action for limitations purposes; rather, its purpose is to toll limitations once the cause of action has accrued. Likewise, suits based on the conclusion of a course of medical or health care treatment are based on the course of treatment and not the completion of treatment. As stated previously, limitations begin to run on: (1) the occurrence of the breach or tort; (2) the date the medical or health care treatment that is the subject of the claim is completed; or (3) the date the hospitalization for which the claim is made is completed. See Former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01; Shah, 67 S.W.3d at 841.
According to the summary judgment evidence, appellant was examined by Dr. Dougherty over the course of multiple occasions spanning from November of 1999 until the infection was finally diagnosed on March 2, 2000. Appellee's alleged negligent failure to diagnose and treat the infection allegedly occurred over the span of those dates. While individual dates of examination and treatment are readily ascertainable, as they are in all course of treatment cases, the failure occurred over the whole course of treatment and no single date for the failure can be ascertained.
Viewing the evidence in the light most favorable to appellant, there is an issue of fact about whether Dr. Dougherty committed the alleged tort as part of an on-going course of treatment that extended through February 27, 28, 29, and March 1, by failing to recognize and treat appellant's infection that was secondary to his prior surgery. Gilbert v. Bartel, 144 S.W.3d 136, 142 (Tex.App.-Fort Worth 2004, pet. denied); see, e.g., Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998) (affirming summary judgment in favor of physician whose failure to diagnose plaintiff's cancer occurred on readily ascertainable dates, even though course of treatment by same physician eventually led to correct diagnosis). We would note that some of the medical records identify Dr. Dougherty as a referring physician on March 1, 2000, and March 2, 2000. We would also note that Dr. Dougherty's reply to appellant's response to the motion for summary judgment concedes that Dr. Dougherty provided additional medical care to appellant from February 28, 2000 to August 2000. We conclude that limitations on the course of treatment had not yet run on February 27, 2002, when appellant sent his notice letter. Accordingly, appellant had an effective limitations period of two years and seventy-five days. Suit was brought well within that time on April 9, 2002.
Dr. Dougherty failed to carry his burden to conclusively establish that limitations barred appellant's suit. KPMG Peat Marwick., 988 S.W.2d at 748. Suit was brought within the applicable limitations period. Accordingly, the trial court could not have appropriately granted summary judgment on this ground.
V. Conclusion
We reverse and remand this matter to the trial court for further proceedings consistent with this opinion.
DISSENTING MEMORANDUM OPINION
Because I would uphold the summary judgment granted on no-evidence grounds, I respectfully dissent.
THE LAW
A no-evidence motion for summary judgment asserts that there is no evidence of one or more essential elements of a claim on which the adverse party will bear the burden of proof at trial. TEX. R. CIV. P.166a(i). A no evidence challenge requires us to review only the evidence and reasonable inferences from the evidence that tend to support the finding, disregarding all evidence and inferences to the contrary. Burt v. Williams, 133 S.W.3d 718, 719-20 (Tex.App.-Corpus Christi 2003, no pet.) (citing Sw. Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex.App.-Houston [1st Dist.] 1992, writ denied)).
A defendant moving for summary judgment on a statute of limitations affirmative defense must prove conclusively the elements of that defense. See Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 527, 530 (Tex. 1997). As the majority states, former article 4590i, section 10.01 of the Texas Revised Civil Statutes governs this case since suit was filed before September 1, 2003. Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1.01-12.01, 1977 Tex. Gen. Laws 2039-2053 (as amended) (hereafter "article 4590i"), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at TEX. CIV. PRAC. REM. CODE § 74.001 et seq. (Vernon Supp. 2006)). A plaintiff may not simply choose the most favorable date but, rather, if the specific date of the negligence could be ascertained, then the limitations period commences upon that date. Earle v. Ratliff, 998 S.W.2d 882, 886 (Tex. 1999). In other words, if the date of the occurrence of the breach or tort is ascertainable, then an inquiry into the second and third categories is unnecessary. Shah v. Moss, 67 S.W.3d 836, 841(Tex. 2001). When a doctor fails to properly diagnose a patient, the continuing nature of that failure alone does not extend the limitation period. Bala v. Maxwell, 909 S.W.2d 889, 892 (Tex. 1995). Dr. Dougherty was not entitled to summary judgment unless he conclusively established that the statute of limitations barred the lawsuit. Gomez v. Carreras, 904 S.W.2d 750, 752 (Tex.App.-Corpus Christi 1995, no writ) (citing Rowntree v. Hunsucker, 833 S.W.2d 103, 104 (Tex. 1992); Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983)).
With respect to the medical negligence claim, to raise a fact issue sufficient to defeat summary judgment, the plaintiff's controverting expert should specifically identify the standard of care, establish the expert's familiarity with that standard, and explain why the treatment rendered by the defendant health-care provider breached the applicable standard. See Hightower v. Saxton, 54 S.W.3d 380, 389 (Tex.App.-Waco 2001, no pet.). It necessarily follows that he must also show that personal injury was proximately caused by such deviation. Rodriguez v. Reeves, 730 S.W.2d 19, 21 (Tex.App.-Corpus Christi 1987, writ ref'd n.r.e.). The medical standard of care must be established so that the fact finder can determine whether the physician's act or omission deviated from the standard of care to the degree that it constituted negligence or malpractice. Id. The fact finder would then decide whether the deviation was of such degree that it constituted the alleged tort of medical negligence. See id.
APPLICATION A. Limitations
Appellant Donald Streich filed suit on April 9, 2002, alleging that appellee Dr. Joseph Dougherty committed acts constituting medical negligence during "treatment on or about November 3, 1999, [that] continued . . . until on or about the year 2000." In his no-evidence motion for summary judgment, Dr. Dougherty asserted that (1) the suit was time-barred as to all claims allegedly occurring between November 3, 1999 and February 27, 2000, and, (2) as to claims allegedly occurring after February 27, 2000, Streich could adduce no summary-judgment evidence of duty, breach of duty, and proximate causation-particularly, deviation from the standard of care.
In his summary-judgment response, Streich maintained he "received medical/dialysis treatment from Dr. Dougherty at least until March 2, 2000, when he was advised by [a surgeon] that he had a lytic lesion, and [he] continued to receive treatment until April 17, 2000 when a second surgery was performed on his back." In his summary-judgment affidavit, Streich's sole reference to Dr. Dougherty is that the physician told him "the CT scan revealed a hairline crack to one of the vertebrae . . . and that the pain . . . would gradually improve." Implicit in Streich's summary-judgment evidence is, generally, that Dr. Dougherty allegedly did not perform certain exams that would have detected the lytic lesion.
Streich's complaint is essentially that Dr. Dougherty allegedly did not, but could have, performed or ordered certain exams during specific office visits when Streich presented with symptoms requiring further diagnostics. I would hold that the dates on which the physician's alleged negligence took place were readily ascertainable. See Shah, 67 S.W.3d at 843; Bala, 909 S.W.2d at 892. Thus, the two-year limitations period began to run during the specific office visits occurring between November 3, 1999 and February 27, 2000. See former TEX. REV. CIV. STAT. ANN. art. 4590i 10.01; Shah, 67 S.W.3d at 843; Bala, 909 S.W.2d at 892. Streich did not file suit during the pertinent two-year period. Thus, the two-year statute of limitations barred the claims allegedly occurring between November 3, 1999 and February 27, 2000. See former Tex. Rev. Civ. Stat. art. 4590i § 10.01; Bala, 909 S.W.2d at 892. Thus, Dr. Dougherty was entitled to summary judgment because he conclusively established that the statute of limitations applied and barred these claims. See Gomez, 904 S.W.2d at 752. Accordingly, the trial court properly granted the no-evidence summary judgment on limitations grounds for the claims. See Tex. R. Civ. P. 166a(i); Burt, 133 S.W.3d at 719-20.
B. Deviation from the Standard of Care
I would further hold that the statutory notice letter tolled the statute of limitations as to alleged torts occurring on or after February 27, 2000. See former TEX. REV. CIV. STAT. ANN. art. 4590i § 10.01; Bala, 909 S.W.2d at 892. With respect to the claims allegedly occurring on or after February 27, 2000, to survive the no-evidence summary-judgment challenge, Streich must have adduced competent evidence that Dr. Dougherty deviated from the articulated standard of care. See Hightower, 54 S.W.3d at 389; Rodriguez, 730 S.W.2d at 21.
In his summary-judgment response as to the standard of care, Streich focused on excerpts from his expert's deposition testimony. Review of Streich's expert's testimony shows that, with the symptoms presented, the standard of care required the following: (1) conducting more tests, including an MRI of the spinal column or gallium or indium scans to localize the site of the abscess; (2) obtaining a blood culture; (3) ordering bone scans; and, (4) "When one has progressive disability or continued pain it is obligatory on the managing physician to find out why and what is going wrong, and this was not done."
In his live pleading, Streich alleged generally that "[a]s a result of the negligent acts on the part of Defendants, [he] suffered injuries and damages." In his summary-judgment response, Streich maintained that he received medical treatment from Dr. Dougherty "until March 2, 2000," when he learned of the lytic lesion, and "until April 17, 2000" after a second surgery. Further, Streich maintained that Dr. Dougherty deviated from the standard of care by not performing certain exams that would have detected the lytic lesion. Streich pointed to his expert's deposition testimony (appended as an exhibit to the response) as to Dr. Dougherty's alleged failure to diagnose the lytic lesion. With respect to the deviation from the standard of care element, Streich's expert's deposition testimony stated as follows:
The standard calls for a dialysis patient who undergoes progressive disability and pain to find out why in the simplest of terms, and this was not done. . . . Better imaging studies by the radiology departments. . . . It's the job of the nephrologist to make sure he can live as reasonably normal life as is possible. . . . [b]e constantly vigilant for infections. . . . When someone develops a disability or severe pain, the patient is entitled to the standard of care that calls for the nephrologist to find out why that is happening and what to do about it, and this is what was not done. . . . [Streich] had major disability, major problems, obvious signs of what was going on. It was never worked up, never diagnosed, and not treated. It's the job of the nephrologist to make sure that those things don't happen. . . . [Dr. Dougherty] did not obtain consultation from a neurosurgeon or neurologist as to what this disability might have been due to. I feel reasonably certain that had a good neurologist been consulted on this and ordered the appropriate tests, they would have figured out just what was going on. I mentioned the neuroradiology department suggested additional imaging studies, and they were ignored. . . . [Dr. Dougherty] never did bone scans or indium scans or gallium scans.
Streich's expert also testified that "pus would not have been picked up easily by a gallium scan or even a good MRI."
Streich provided a summary-judgment affidavit from another expert attesting that Streich could not have discovered the "improperly identified" results of the CT scan "until March 2, 2002, when further diagnostic testing was done. . . ."
I have already concluded that the applicable statute of limitations barred complained-of torts before February 27, 2000. As to complaints from that date forward, I would hold that Streich did not adduce competent summary-judgment evidence to prove Dr. Dougherty deviated from the standard of care. The sole complaint in Streich's affidavit as to Dr. Dougherty was the physician's communication of the results of a CT scan, allegedly improperly read by another physician. Streich's expert's affidavit stated that, on March 2, 2000, "further diagnostic testing was done" and revealed the lytic lesion. His other expert's articulated standard of care indicated the need for further diagnostic testing. As demonstrated by Streich's own evidence, "further diagnostic testing" occurred during the relevant period. Streich does not dispute that Dr. Dougherty requested the additional testing that led to the surgery disclosing the lytic lesion. Because Streich's summary-judgment evidence does not demonstrate that Dr. Dougherty deviated from the standard of care, the trial court properly granted the physician's no-evidence summary judgment motion. See TEX. R. CIV. P. 166a(i); Hightower, 54 S.W.3d at 390; Rodriguez, 730 S.W.2d at 21.
CONCLUSION
Because I would hold that the trial court properly granted Dr. Dougherty's no-evidence summary-judgment motion on his limitations defense and on the element of deviation of the standard of care, I would overrule the sole issue presented and affirm.