judith-brown-street-james-earl-street-jr-and-john-green-independent ( 1999 )

No. 04-98-00288-CV

Judith Brown STREET, James Earl Street, Jr., and John Green, Independent Administrator of the Estate of James Wayne Street, Deceased, Appellants

v.

SID PETERSON MEMORIAL HOSPITAL, Appellee

From the 216th Judicial District Court, Kerr County, Texas Trial Court No. 96-727-A Honorable Emil Karl Prohl, Judge Presiding

Opinion on Motion for Rehearing

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Alma L. López, Justice

Delivered and Filed: April 14, 1999

MOTION FOR REHEARING DENIED

The motion for rehearing filed by appellee, Sid Peterson Memorial Hospital ("Hospital"), is denied. In our original opinion, we asserted that the motion for summary judgment and its supporting evidence challenged the element of causation. Our opinion addressed the issue of causation, and the reason summary judgment could not be granted on that basis.

In its motion for rehearing, the Hospital asserts that we failed to address the disputed issue in this appeal, i.e., whether or not James Street received excessive potassium intravenously. In reviewing the motion for summary judgment, we agree with the Hospital that it can also be construed as challenging whether the Hospital engaged in a negligent act. However, we conclude that the evidence introduced by appellants raised a genuine issue of material fact as to that element of their cause of action.

Texas law recognizes summary judgment to be a harsh remedy requiring strict construction. Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 435 (Tex. App.--San Antonio 1993, writ denied). The reason for applying such a strict standard is because a summary proceeding is "not a conventional trial, but an exception to the usual and traditional formal procedure whereby witnesses are heard in open court and documentary proof is offered and received into evidence." Id. A summary proceeding is not intended to permit a trial by deposition or affidavit and should not be resolved by weighing the relative strength of the conflicting facts and inferences. Id.

Attached to the appellants' response to the Hospital's motion for summary judgment are the affidavits of Judith Street (James Street's mother), Albert Owen Davies, M.D., and Ruthanne Lucas, a registered nurse. Judith Street states in her affidavit that the I.V. bags hanging to her son's I.V. pump had another patient's name on them. Ruthanne Lucas states that the Hospital failed to comply with the minimum acceptable standard of care by administering medications intended for another patient, including potassium chloride. Dr. Davies states that if James Street received an infusion of potassium that was not intended for him (which Lucas stated was the case), then such administration would be a deviation from the standard of care and, in reasonable medical probability, the administration would be the cause of his cardiac arrhythmias, arrest and death.

Lucas's affidavit was sufficient to controvert the summary judgment evidence presented by the Hospital because she stated that the Hospital was negligent in administering medications intended for another patient including potassium chloride. Lucas's statement raises a material issue of fact as to whether the Hospital's improper administration of potassium chloride to James Street intravenously caused his death. Although the Hospital's evidence conflicts with the statement made in Lucas's affidavit, a summary judgment is not to be resolved by weighing the relative strength of the conflicting facts and inferences. Id.

The Hospital's motion for rehearing is denied.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH

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