Cathryn Lisa Garnett v. Giovanna Ghafoori, M.D. and Muhammad Motiwala, M.D. ( 2008 )

NUMBER 13-06-130-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CATHRYN LISA GARNETT, Appellant,

v.

GIOVANNA GHAFOORI, M.D. AND

MUHAMMAD MOTIWALA, M.D., Appellees.

On appeal from the 138th District Court

of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela Memorandum Opinion by Justice Garza   

   This is a medical malpractice claim in which appellant, Cathryn Lisa Garnett, appeals the trial court's granting of (1) two no-evidence motions for summary judgment, (2) a dismissal with prejudice of all of her claims against appellee, Muhammad Motiwala, M.D., and (3) a qualifications challenge to her expert witness by appellee, Giovanna Ghafoori, M.D. ⁽¹⁾ By four issues, Garnett contends that: (1) the trial court erred in granting Ghafoori's no-evidence motion for summary judgment because fact issues remain as to whether her expert witness, John R. Graybill, M.D, was qualified to offer expert testimony on the appropriate standard of care, whether Ghafoori breached that standard of care, and whether Ghafoori's alleged breach of the standard of care was the proximate cause of her injuries; (2) the trial court erred in granting Ghafoori's objections to the qualifications of Graybill pursuant to section 74.401 of the Texas Civil Practice and Remedies Code because this case is governed by former article 4590i and the trial court failed to conduct a hearing on Ghafoori's qualifications challenge, as required by former article 4590i; (3) the trial court erred in granting Motiwala's no-evidence motion for summary judgment because fact issues remain as to whether Motiwala breached the appropriate standard of care and whether the breach was a proximate cause of her injuries; and (4) the trial court erred in granting Motiwala's motion to dismiss with prejudice because Graybill's expert report is adequate under former article 4590i, section 13.01(r)(6) of the Texas Revised Civil Statutes (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) (Vernon Supp. 2006)) ⁽²⁾, and, alternatively, because there is also a claim alleging improper use of packaging inserts, no expert report is required. We affirm the judgment of the trial court.

I. Factual and Procedural Background

In 1996, Garnett underwent surgery for cosmetic breast augmentation with implant placement. Upon learning about her family's history of breast cancer, Garnett elected to undergo a prophylactic bilateral total mastectomy to reduce her risk of breast cancer in 1999. ⁽³⁾ Garnett then contacted Ghafoori, a plastic surgeon, to perform breast reconstruction surgery to re-insert breast implants for aesthetic purposes. Ghafoori conducted the breast reconstruction surgery in multiple surgical procedures that occurred on March 18, 1999, November 19, 1999, July 7, 2000, and October 3, 2000.

However, in August 2002, Garnett notified Ghafoori that she was experiencing tenderness in her right breast and that her right breast appeared smaller than her left breast. ⁽⁴⁾ On September 6, 2002, Garnett underwent a second breast reconstruction surgery. Garnett was to have both of the breast implants removed and replaced. In this surgery, Ghafoori discovered that the "right implant was found to be fine with normal fluid collection and scar tissue present." Ghafoori further discovered that the left "implant was fine, with a larger amount of fluid build up around this implant than on the right side." Garnett alleges that, at this time, Ghafoori discovered an infection in one implant, and conducted an intraoperative telephone consultation with Motiwala, an infectious disease physician, regarding the discovered infection. As a result of the alleged conversation with Motiwala and the discovery of the infected implants, Garnett contends that Ghafoori removed the implants, soaked them in Betadine, ⁽⁵⁾ and put the same infected implants back into her body. Garnett further alleges that Ghafoori and Motiwala breached appropriate standards of care for failing to remove and replace the infected breast implants with new breast implants and for failing to recommend that the implants be removed and replaced, respectively. ⁽⁶⁾

Conversely, Ghafoori contends that she was unaware of an infection in Garnett's breast implants at the time of surgery. Out of an abundance of caution, Ghafoori contends that she removed the implants and sent cultures of the implants, tissue, and drained fluid to the pathology department for testing prior to reinserting the implants. ⁽⁷⁾ On September 12, 2002, Ghafoori received the results from the tests conducted by the pathology department: a positive culture for fungus Bipolaris. Under the care of several infectious disease specialists, including Motiwala, Garnett was treated with the antifungal medication, IV itraconazole. As a result of the positive culture for fungus Bipolaris and at the request of the infectious disease specialists, Garnett underwent a third surgery to remove both the right and left breast implants.

On August 29, 2003, Garnett filed suit against Valley Baptist Medical Center ("VBMC") and Valley Baptist Ambulatory Surgery Center, L.L.C. ("VBASC"). Ghafoori was joined as a defendant by Garnett's first amended petition on February 26, 2004, and Motiwala was joined by Garnett's second amended petition on October 19, 2004. ⁽⁸⁾

On November 12, 2004, Ghafoori filed a no-evidence summary judgment motion alleging that Garnett had failed to designate a qualified medical doctor to opine on the care and treatment rendered by Ghafoori and as to whether the alleged negligence proximately caused Garnett's claimed damages.

On April 26, 2005, Motiwala filed a motion to dismiss with prejudice with the trial court. On May 17, 2005, in response to Motiwala's motion to dismiss, Garnett filed an expert report from Graybill that was written on letterhead from The University of Texas Health Science Center at San Antonio and dated February 25, 2004. The expert report was accompanied by Graybill's extensive curriculum vitae. Additionally, Garnett designated Graybill as plaintiff's testifying expert witness.

On July 22, 2005, Garnett filed a supplemental report from Graybill. The supplemental report was an electronic mail dated July 15, 2005, sent by Graybill. Later, on August 2, 2005, Motiwala filed a no-evidence motion for summary judgment alleging that Garnett has failed to produce legally sufficient evidence establishing that Motiwala was negligent and that such negligence caused Garnett's injuries and damages.

On November 2, 2005, Ghafoori filed an objection to the qualifications of Graybill pursuant to section 74.101 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.101 (Vernon 2005). On November 23, 2005, Ghafoori filed a second no-evidence motion for summary judgment alleging that Garnett had not presented any evidence of both a standard of care violation against Ghafoori and a breach of a standard of care that proximately caused the damages sustained by Garnett. In support of this motion, Ghafoori attached deposition testimony from Graybill, Motiwala, and herself.

On December 15, 2005, the trial court conducted a hearing on all pending motions from all parties. On February 15, 2006, the trial court granted the following motions: (1) Ghafoori's objection to the qualifications of Graybill pursuant to section 74.401 of the Texas Civil Practice and Remedies Code; (2) Motiwala's motion to dismiss with prejudice; (3) Ghafoori's no-evidence motion for summary judgment; ⁽⁹⁾ and (4) Motiwala's no-evidence motion for summary judgment pursuant to former article 4590i, section 13.01(e). ⁽¹⁰⁾ See Tex. Civ. Prac. & Rem. Code Ann. § 74.401; former Tex. Rev. Civ. Stat. Ann., art. 4590i, § 13.01(e) (repealed 2003).

Garnett filed her first notice of appeal on March 13, 2006. ⁽¹¹⁾ The trial court granted Garnett's request for appeal on March 20, 2006. On April 26, 2006, Garnett filed a request with the trial court for findings of fact and conclusions of law. Ghafoori and Motiwala both contested Garnett's request. Subsequently, the trial court denied Garnett's request for findings of fact and conclusions of law on May 10, 2006. This appeal ensued. ⁽¹²⁾

  II. Standard of Review  

The standards for reviewing a motion for summary judgment are well established. See Tex. R. Civ. P. 166a(i); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). In an appeal of a no-evidence motion for summary judgment, this Court considers all evidence in the light most favorable to the nonmovant and disregards all evidence and inferences to the contrary. See Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); see also Los Cucos Mexican Cafe, Inc. v. Sanchez, No. 13-05-578-CV, 2007 Tex. App. LEXIS 3408, at *3 (Tex. App.-Corpus Christi May 3, 2007, no pet.).

A no-evidence summary judgment is essentially a pre-trial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence motion for summary judgment as we apply in reviewing a directed verdict. Mack Trucks v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006); King Ranch v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). A no-evidence motion for summary judgment must be granted if (1) the movant asserts that there is no evidence of one or more specified elements of a claim or defense on which the respondent would have the burden to prove at trial, and (2) the respondent produces no evidence raising a genuine issue of material fact on such elements. ABB Kraftwerke Aktiengesellschaft v. Brownsville Barge & Crane, Inc., 115 S.W.3d 287, 290-91 (Tex. App.-Corpus Christi 2003, pet. denied); see Tex. R. Civ. P. 166a(i).

In raising a genuine issue of material fact, the nonmovant must set forth more than a scintilla of probative evidence as to the essential elements of the nonmovant's claims in which the nonmovant would have the burden to prove at trial. See Havner, 953 S.W.2d at 711. If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Id. Less than a scintilla exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

When a trial court's order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); see also H.B. Turbo, L.P. v. Turbonetics Eng'g & Servs., No. 13-06-083-CV, 2007 Tex. App. LEXIS 4425, at **5-6 (Tex. App.-Corpus Christi June 7, 2007, pet. filed) (mem. op.) (noting that "because the trial court's order does not specify the ground(s) on which the summary judgment was granted, and because there are multiple grounds on which summary judgment may have been granted, HB [appellant] is required to negate all grounds on appeal").

III. Analysis

As a preliminary matter, because Garnett has failed to perfect her appeal as to Ghafoori's qualifications challenge and Motiwala's motion to dismiss, we overrule her second and fourth issues. See Parrish v. Rutherford, 159 S.W.3d 114, 117 (Tex. App.-Corpus Christi 2004, no pet.) ("Further, appellant's notice of appeal failed to specify they were appealing the October 3, 2001 order . . . .") (citing Tex. R. App. P. 25.1; 33.1). Additionally, we would not reach these issues in light of our disposition. See Tex. R. App. P. 47.1. We will now analyze the no-evidence motions for summary judgment filed by Ghafoori and Motiwala.

A. Ghafoori

On appeal, Garnett asserts that the trial court erred in granting Ghafoori's no-evidence motion for summary judgment because her summary judgment evidence raised fact issues regarding Graybill's qualifications, the appropriate standard of care for Ghafoori, and whether Ghafoori breached that standard of care. Conversely, Ghafoori contends that Graybill, an infectious disease expert, was not qualified to provide expert testimony pertaining to the standard of care for plastic surgeons. Ghafoori further argues that Garnett has not produced competent summary judgment evidence establishing (1) an appropriate standard of care applicable to plastic surgeons, (2) that Ghafoori breached the standard of care applicable to plastic surgeons, and (3) that Ghafoori's alleged breach of the standard of care proximately caused the damages sustained.

In response to Ghafoori's no-evidence motion for summary judgment, Garnett produced (1) Graybill's expert reports dated February 25, 2004 and July 15, 2005, accompanied by his curriculum vitae, (2) her third amended original petition filed on April 5, 2005, (3) excerpts of the deposition testimony of Graybill dated October 13, 2005, and (4) the operative report compiled by Ghafoori on September 6, 2002. Graybill's curriculum vitae and reports establish that he is a professor in the division of infectious diseases at The University of Texas Health Science Center at San Antonio. Graybill received his medical degree from Cornell University in New York in 1966 and was certified by the American Board of Internal Medicine in 1972. Graybill has written extensively on infectious diseases and has served as an editor or ad hoc reviewer for numerous infectious diseases journals and periodicals. It is not clear from Graybill's curriculum vitae as to whether he was practicing medicine at the time the claim was filed. Graybill's curriculum vitae provides that his last non-professorial appointment was from 1989 to 1999 as a Chief in the Infectious Diseases Service at the Audie L. Murphy Memorial Veterans Hospital. It is clear, based upon Graybill's February 25, 2004 report, that he would be considered an expert in the field of infectious diseases.

Garnett, however, uses Graybill's reports and deposition testimony to establish the standard of care and breach of the standard of care by Ghafoori, a plastic surgeon. Graybill provides in his February 25, 2004 report that:

Once diagnosed, the standard of care for the appropriate management of the infection, would be antifungal agents, including amphotericin B or a variety of triazoles. Critically importantly, the prosthetic breast implants should have been removed and discarded. After an appropriate period of antifungal therapy, usually many months for this class of organisms, new implants could be considered . . . . The failure to remove the old implants on e [sic] the infection was diagnosed was a violation of the standard of care by Dr. Giovanna Ghafoori. As a result of not removing the implants in a timely manner, and not providing the appropriate antifungal therapy, Ms. Garnett was predisposed to continuing infection with Bipolaris. Such lack of treatment was a proximate cause of Ms. Garnett's continuing infection with Bipolaris.

In further support of Graybill's conclusions, Garnett relies heavily on opinions from the Fourteenth Court of Appeals in Blan v. Ali, 7 S.W.3d 741, 746-47 (Tex. App.-Houston [14th Dist.] 1999, no pet.) and the Texas Supreme Court in Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996).

In Blan, the appeals court held that a neurologist was qualified to testify regarding the standard of care applicable to any physician who undertakes to treat and care for a patient suffering from a stroke along with the neurological complications of lupus cerebrids. 7 S.W.3d at 744-47. "[A] medical witness who is not of the same school of practice may be qualified to testify if he or she has practical knowledge of what is usually and customarily done by other practitioners under circumstances similar to those that confronted the defendant charged with malpractice." Id. at 745. Moreover, "[i]f a subject of inquiry is substantially developed in more than one field, a qualified expert in any of those fields may testify." Id. (emphasis in original).

In Broders, the Texas Supreme Court held that an emergency room doctor was not qualified to testify about neurosurgery and the effectiveness of various head injury treatments. 924 S.W.2d at 153 (applying rule 702 of the Texas Rules of Evidence). ⁽¹³⁾ The court further noted that "there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question. Such a rule would ignore the modern realities of medical specialization." Id. at 152. The Broders court also noted that only "when a party can show that a subject is substantially developed in more than one field," can testimony "come from a qualified expert in any of those fields." Id.

Here, however, Graybill never states that the area of infectious diseases is substantially developed in the field of plastic and reconstructive surgery. Graybill notes in his July 15, 2005 report that "I am not a surgeon and do not deal with complications of breast prosthesis very much." ⁽¹⁴⁾ Furthermore, in his deposition, Graybill makes the following admissions:

Q: You understand, Dr. Ghafoori is a surgeon, plastic surgeon?

A: I do.

Q: Who did the plastic surgery, breast reconstruction in this case?

A: Yes.

Q: Let me start kind of globally and then see where I need to go in more detail. Are you appearing in this case as an expert in the surgery, plastic surgery specifically?

A: By no means.

Q: Standard of care for breast reconstruction?

A: Not at all.

Q: In other words, you're not appearing in this case representing to the Court that you're an expert in the standard of care for plastic surgeons in breast reconstruction?

A: I do not do surgery.

. . . .

Q: Is it therefore correct that you would not--you agree you would not be giving opinions in this case as far as plastic surgery standard of care violations for Dr. Ghafoori?

A: That is true.

Moreover, in his deposition, Graybill does not comment on the interrelatedness of the medical fields of infectious diseases and plastic surgery. This Court will not automatically assume, without any evidence indicating otherwise, that two medical fields are so interrelated that a qualified expert in any of those fields may testify. See Olveda, 141 S.W.3d at 682-83; see also Garcia v. Rodriguez, No. 13-05-00747-CV, 2007 Tex. App. LEXIS 7193, at *14 (Tex. App.-Corpus Christi Aug. 30, 2007, pet. denied) (mem. op.). We therefore conclude that Garnett's summary judgment evidence fails to demonstrate that Graybill was qualified to opine on the standard of care, breach, and causation pertaining to Ghafoori. Accordingly, we overrule Garnett's first issue.

B. Motiwala  

On appeal, Garnett further asserts that the trial court erred in granting Motiwala's no-evidence motion for summary judgment because her summary judgment evidence raises fact issues on: (1) the appropriate standard of care for Motiwala; (2) Motiwala's alleged breach of the standard of care; and (3) that Motiwala's alleged breach proximately caused the damages Garnett sustained. Conversely, Motiwala claims that Garnett has failed to produce evidence establishing Motiwala's negligence entitling her to judgment as a matter of law.

1. Applicable Law  

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. Smith v. Mossbacker, 94 S.W.3d 292, 294 (Tex. App.-Corpus Christi 2002, no pet.); Krishnan v. Ramirez, 42 S.W.3d 205, 212 (Tex. App.-Corpus Christi 2001, pet. denied); Schorlemer v. Reyes, 974 S.W.2d 141, 147 (Tex. App.-San Antonio 1998, pet. denied).

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).

2. Discussion  

In response to Motiwala's no-evidence motion for summary judgment, Garnett produced (1) Graybill's expert reports dated February 25, 2004, and July 15, 2005, accompanied by his curriculum vitae, (2) her third amended original petition filed on April 5, 2005, (3) excerpts of the deposition testimony of Graybill dated October 13, 2005, and (4) the operative report compiled by Ghafoori on September 6, 2002. With respect to Graybill's expert reports, only his July 15, 2005 report makes reference to Motiwala. As such, we will focus on the July 15, 2005 report of Graybill, as it pertains to Motiwala.  

On appeal, Motiwala contends that the July 15, 2005 report itself does not establish that Graybill is qualified to opine on the standard of care, breach, and causation of an infectious disease specialist. However, we have already concluded that Graybill is qualified to opine on such matters. Therefore, we will analyze Graybill's July 15, 2005 report as a part of Garnett's summary judgment evidence.  

In asserting liability against Motiwala, Garnett relies heavily on an alleged intraoperative telephone conversation between Ghafoori and Motiwala during the breast reconstruction surgery done on September 6, 2002. In fact, Garnett contends that the operative report of Ghafoori establishes that Ghafoori consulted with Motiwala during an intraoperative telephone conversation that pertained to correct medication coverage for a suspected infection. ⁽¹⁵⁾ Garnett further contends that Motiwala, an infectious disease specialist, failed to recommend, in the alleged intraoperative telephone conversation, that Ghafoori remove the implants until the suspected infectious condition could be resolved. In support of these contentions, Garnett refers to Graybill's deposition testimony where Graybill noted that "[t]hat struck me as being surprising because this is a prosthetic device that was put in; and prosthetic devices, when they are infected, usually stay infected until they are taken out." Graybill further noted "I would have thought that Dr. Motiwala, had he been contacted during surgery as Dr. Ghafoori had noted, would have suggested that she leave the prosthesis out until this infection had completely healed." In his July 15, 2005 report, Graybill further notes:

In his plan of management, Dr. Motiwala agreed with extensive surgical debreidement and "exchanging the implant" and beginning the patient on IV itraconazole, to be changed later to an oral formulation, and continued 3-6 months. It is unclear to me why Dr. Motiwala would concur with "echanging [sic] the implant," at the time of active infection, because this would make it much more difficult to treat the patient successfully with a foreign body, either the same one or a new one, in place.

. . . .

Regarding the deposition of Dr. Motiwala, there are a few key issues:

1) page 40, line 11. A difference of recollection as to whether Dr. Motiwala was called during surgery--and agreed with the reimplantation of the prosthesis into the right breast then, or whether he saw her ex post facto at his office. This is important, as sight unseen, it might have been very difficult for him to argue with Dr. Ghaffori [sic] to take out the implant. Lines 14 and 15, reuse of the prosthetic device is very surprising, at the least.

2) p43, lines 9-24. This is key. If Dr. Motiwala had seen the patient he might have asked for the prosthesis to be removed.

3) Page 46. Dr. Motiwala's comments on joint prostheses are appropriate.

4) page 50. Although Dr. Motiwala noted the patient appeared well, she still had a drain in place, potential source for more cultures and appropriate stains for Bipolaris. . . . If Dr. Motiwala was convinced enough of a problem to give her 6 months of itraconazole, he might have suggested that Dr. Ghafoori remove the implant.

Based on the foregoing summary judgment evidence, Garnett asserts that material fact issues remain as to the essential elements of the medical malpractice claim against Motiwala, thus precluding the trial court's granting of Motiwala's no-evidence motion for summary judgment.

On the other hand, Motiwala, in his no-evidence motion for summary judgment, highlights Ghafoori's deposition testimony, taken on June 30, 2005, where the following exchange took place:

Q: All right. And then was it at that time that you called Dr. Motiwala?

A: Yeah. At the time of--at the time--I can't tell you where I was, where was I standing at the time that I called him. Is that your question?

Q: But it was mid-surgery?

A: No.

Q: And I'm referring to your note. It says--on page 4 of that, "Intraoperative consultation was made with Dr. Motiwala to provide appropriate adequate coverage."

A: . . . When I say "interoperative consultation," I mean--really, what occurred and what I mean is, you know, I have that--I have the patient there. I'm not actually operating on her at the time I'm calling him. I mean, this is--I'm in there, I'm writing my notes. We've paged him. You know, I'm in there, I see fluid, I know she is going to need antibiotics until we find out what's going on. Put in a call in to Dr. Motiwala. Dr. Motiwala calls back--

Q: So was this actually before the surgery?

A: No, no, no, no. Once I see the fluid, and in my differential is possible infection, we have got a possible chronic or subacute infection, and I want to make sure, number one, that this patient secures followup [sic], okay, because if this is an infection, and if she elects to continue to try to salvage the implant--again, I don't know what her answer is going to be. I made--I had to kind of make a decision for her interoperatively.

. . . .

Q: Okay. Well, were you able to consult with him on the decision of whether or not to--to leave the implants in or to replace the implants?

A: That wouldn't even have been a consideration. That's a surgical decision to make. But, no, the surgery had been done at that point.

Q: You didn't view that as a--an infectious disease question as to whether or not--

A: One, I don't have a known diagnosis of infection. Two, it's definitely, at least, clinically--other than fluid, she had no symptoms. It was--you know, clinically, it was innocuous at this point. All I had was a finding of fluid.

Motiwala further highlights his own deposition testimony, taken on June 23, 2005, where the following exchange occurred:

Q: Did you then, in your view of the matter, reform a relationship when Dr. Ghafoori called you for a consultation in 2002?

A: In 2002, when she called me to see this patient, to be honest with you, I did not remember the patient by name.

Q: Okay.

A: I just accepted it.

Q: And so basically she called you during surgery; is that right?

A: No. What she called me for was to notify me that she would like me to see the patient and to follow [sic] in my office as an outpatient. That's the only conversation we had.

Q: What was that date?

A: September the 6th of 2002.

Q: Okay. Well, I guess what I want to ask you about is, she did not intraoperatively, according to your recollection, call you and ask you what to do while she was in surgery?

A: Absolutely not.

Q: And I haven't taken Dr. Ghafoori's deposition yet, you understand, but my understanding from the records is that it will be her position that she needed your advice during surgery and she called you to find out what--the appropriate thing to do as far as reusing an implant.

A: No. Only--my recollection is, the only thing that she notified me was that--"Dr. Motiwala," you know, "I have this patient that I have operated on, and I'd like you to see her in your office as an outpatient." I said, "That's fine; send her in."

Q: And your understanding was that that was after surgery that she--

A: Probably yes. Yes, that's my understanding, that it was after she finished. She notified me of the consultation that I would be seeing in my office.

We conclude that Garnett has failed to establish the essential elements of her claim by more than a scintilla of evidence. See Hightower, 54 S.W.3d at 389; Keeton, 53 S.W.3d at 25. Neither Graybill's July 15, 2005 report nor his oral deposition clearly establish the standard of care Motiwala owed to Garnett, much less breach or proximate causation. Essentially, Graybill's entire expert opinion as to Motiwala's liability hinges on the alleged intraoperative telephone conversation between Ghafoori and Motiwala. ⁽¹⁶⁾ However, the deposition testimony of Ghafoori and Motiwala establishes that the telephone conversation took place after the surgery was completed not during surgery as alleged and solely involved follow-up care for Garnett to treat any suspected infections. Furthermore, Garnett has failed to provide competent summary judgment evidence establishing that Motiwala failed to recommend to Ghafoori that she remove and replace the implants after it was suspected that they were infected during the surgery and that such a failure was a proximate cause of Garnett's damages. Graybill, in his deposition testimony, also opines that Motiwala was reasonable in his follow-up treatment of Garnett. ⁽¹⁷⁾ The record does not contain additional summary judgment evidence provided by Garnett as to Motiwala. Therefore, after indulging every reasonable inference and resolving any doubts in Garnett's favor, without disregarding evidence supporting the motion, we conclude that Garnett did not raise a material fact issue as to the essential elements of her medical malpractice claim against Motiwala. See Hightower, 54 S.W.3d at 389; Keeton, 53 S.W.3d at 25. We further conclude that the trial court did not err in granting Motiwala's no-evidence motion for summary judgment. Accordingly, we overrule Garnett's third issue.

IV. Conclusion  

Having overruled all of Garnett's issues on appeal, we affirm the judgment of the trial court.

__________________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 28th day of February, 2008.

1. In her original notice of appeal and in her second amended notice of appeal, which is now contained in the record, Garnett states that:

Now comes CATHRYN LISA GARNETT, Plaintiff in the above styled and numbered cause, and gives this written notice of appeal to the Court of Appeals of the State of Texas from the judgment herein rendered against CATHRYN LISA GARNETT by Summary Judgment on behalf of GIOVANNA GHAFOORI, M.D. AND MUHAMMAD MOTIWALA, M.D.

(Emphasis added.) It is clear from the language contained in the notices of appeal filed by Garnett that we need only focus on the no-evidence summary judgment motions filed by Ghafoori and Motiwala, as the remainder of Garnett's complaints were not perfected on appeal. See Parrish v. Rutherford, 159 S.W.3d 114, 117 (Tex. App.-Corpus Christi 2004, no pet.) ("Further, appellant's notice of appeal failed to specify they were appealing the October 3, 2001 order . . . .") (citing Tex. R. App. P. 25.1; 33.1).

2. Former article 4590i is commonly referred to as the Texas Medical Liability and Insurance Improvement Act ("MLIIA"). See Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039 (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. "Article 4590i has been replaced by House Bill 4 (now Chapter 74 of the Texas Civil Practice and Remedies Code), which governs health care liability claims commenced on or after September 1, 2003." Olveda v. Sepulveda, 189 S.W.3d 740, 741 n.1 (Tex. 2006) (O'Neill, J., dissenting).

3. Other physicians performed the cosmetic breast augmentation with implant placement and the subsequent mastectomy in 1996 and 1999, respectively. These physicians are not parties to this appeal.

4. Garnett further alleges that she had several problems with her breasts due to infection and possible leakage prior to the September 6, 2002 breast reconstruction surgery. It is because of these problems that Garnett decided to undergo the second breast reconstruction surgery.

5. Betadine is "used for a preparation of povidone-iodine." Merriam-Webster: Medline Plus Online Medical Dictionary, available at

http://www2.merriam-webster.com/cgi-bin/mwmednlm?book=Medical&va=

betadine (last visited Jan. 22, 2008). Povidone-iodine is "a solution of polyvinylpyrrolidone and iodine used as an antibacterial agent in topical application (as in preoperative prepping or a surgical scrub)." Merriam-Webster: Medline Plus Online Medical Dictionary, available at http://www2.merriam-webster.com/cgi-bin/mwmednlm?book=Medical&va=povidone-iodine (last visited Jan. 22, 2008). However, Ghafoori, in her deposition, claimed that she soaked the implants in Bacitracin and that she rarely uses Betadine.

6. These allegations are hotly contested. Ghafoori and Motiwala both contend that Garnett's breast implants were removed and replaced during the September 6, 2002 surgery and that Ghafoori did not make an intraoperative call to Motiwala during the surgery. Motiwala argues that his involvement in this action commences when he examined Garnett after the September 6, 2002 surgery for follow-up treatment.

7. Ghafoori notes that at the time of surgery, there was no diagnosis of infection. In fact, Graybill, in his July 15, 2005 report, admitted that "[o]ne problem, in general is that this uncommon fungus often does not manifest itself by the usual signs of fever, tenderness, foul smelling pus, high white blood count, etc. That clearly made it difficult for Dr. Ghafoori to decide upon an infection on the spot."

8. In her first and second amended petitions, Garnett alleges that Ghafoori and Motiwala violated the appropriate standards of care and that these violations proximately caused her injuries and damages.

9. In the order granting Ghafoori's no-evidence motion for summary judgment, the trial court stated that "IT IS FURTHER ORDERED that all claims against Defendant Giovanna Ghafoori, M.D. are herewith dismissed with prejudice."

10. In the order granting Motiwala's no-evidence motion for summary judgment, the trial court stated that "IT IS, THEREFORE, ORDERED that said Defendant Muhammad Motiwala, M.D.'s No-Evidence Motion for Summary Judgment is GRANTED, and that the Plaintiff's entire cause of action is dismissed with prejudice against Muhammad Motiwala, M.D. only." At this time, the trial court also granted a motion to dismiss and a motion for summary judgment filed by Valley Baptist Medical Center

, neither of which are the subject of this appeal.

11. Garnett's March 13, 2006 notice of appeal was defective because it did not provide the date of the judgment or order of which she desired to appeal. See Tex. R. App. P. 25.1(d)(2). As contained in Motiwala's brief as "Exhibit 2," Garnett apparently filed a first amended notice of appeal with the trial court on August 29, 2006. In her first amended notice of appeal, Garnett stated her desire to appeal the summary judgments rendered against her on behalf of Ghafoori and Motiwala and for this appeal to be accelerated and restricted. In support of these designations, Garnett represented that she did not participate personally or through counsel in the hearing that resulted in the judgment being appealed and that she had not "filed any timely post-judgment motions, request for findings of fact and conclusions of law, or notice of appeal." See Tex. R. App. P. 28, 30. However, the record reflects that Garnett did file (1) a previous notice of appeal on March 13, 2006, and (2) a request for findings of fact and conclusions of law on April 26, 2006. Thus, this appeal is neither accelerated nor restricted. See Tex. R. App. P. 28, 30.

On further review, it was discovered that Garnett's August 29, 2006 notice of appeal was also defective because Garnett indicated that she desired to appeal the trial court's orders signed on "February 15, 2005" when in fact the orders were signed on February 15, 2006. On January 11, 2008, this Court gave Garnett notice of the defective notice of appeal and ordered her to cure the defect within ten days of receipt of the notice. See Tex. R. App. P. 2, 25.1(f), 37.1 & 44.3. On January 28, 2008, Garnett filed a second amended notice of appeal with the proper date of the trial court's orders, February 15, 2006. In her second amended notice of appeal, Garnett continued to request that the appeal be accelerated and restricted; however, we have already determined that this appeal is neither accelerated nor restricted.

12. On appeal, Garnett filed her brief with this Court on October 30, 2006. Her brief was devoid of any citations to the record. Motiwala brought this deficiency to the attention of this Court and asked to substitute his statement of facts for Garnett's pursuant to Texas Rule of Appellate Procedure 38.1 and asserted that Garnett had waived all her arguments for failing to include record citations in her appellate brief. See Tex. R. App. P. 38.1(h). Usually, a brief that does not contain citations to appropriate authorities and to the record for a given issue waives that issue. See Abdelnour v. Mid Nat'l Holdings, Inc., 190 S.W.3d 237, 241 (Tex. App.-Houston [1st Dist.] 2006, no pet.); see also San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.-Houston [14th Dist.] 2005, no pet.) (stating that despite liberal interpretation of the Texas Rules of Appellate Procedure, "parties asserting error on appeal still must put forth some specific argument and analysis showing that the record and the law supports their contentions . . . ."). Garnett, however, filed a first amended appellate brief on March 19, 2007, which included appropriate citations to the record. As a result, we conclude that Garnett has not waived her issues on appeal. See Tex. R. App. P. 38.1(h); see also Abdelnour, 190 S.W.3d at 241; Crawford, 171 S.W.3d at 338.

13. Rule 702 of the Texas Rules of Evidence requires that experts be qualified "by knowledge, skill, experience, training, or education," and that their testimony "assist the trier of fact." Tex. R. Evid. 702. The parties do not make an argument pertaining to the admissibility of Graybill's expert reports within the context of rule 702. However, we are mindful of the requirements of rule 702. Id.

14. Graybill's July 15, 2005 report does address Ghafoori and her treatment of Garnett. Therefore, it is within the scope of this inquiry.

15. Ghafoori's operative report specifically provides that: "Intraoperative consultation was made with Dr. Matawalla [sic] to provide appropriate adequate coverage, and he will see her in his office to follow-up."

16. Graybill even admits the following in his deposition:

Q: Isn't it fair to say that the evidence in this case establishes that Dr. Ghafoori simply did not call Dr. Motiwala during the procedure? Isn't that your impression of the testimony that you just heard?

MR. STAPLETON: I'll object to the form of the question.

A: That is the conclusion that one would reach if one were accepting all the words of that testimony. And I understand that is was given under oath and all that. I'm clear on that.

. . . .

Q: So, it is reasonable to conclude then, based on both Dr. Ghafoori's testimony and Dr. Motiwala's testimony, under oath, that Dr. Ghafoori did not call him during the procedure, fair?

A: Fair.

Q: So, that being the case, you are not critical of Dr. Motiwala at all because he didn't get a phone call during the procedure. Isn't that right?

A: Yes.

17. Graybill further mentions in his deposition:

Q: All right, sir. My question was whether or not Exhibits 2 or 3 state that Dr. Motiwala was negligent or that he breached the standard of care.

A: I do not believe that Dr. Motiwala in taking his actions in the treatment that he initiated with the itraconazole--medically chose the wrong agent. I think it was, it was a suboptimal choice. So, for the selection of itraconazole, I think that one might have done better.