Timothy E. Thompson and Pamela Thompson v. Bradley O. King, M.D.

                                                                NO. 12-06-00059-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TIMOTHY E. THOMPSON §                      APPEAL FROM THE 114TH

AND PAMELA THOMPSON,

APPELLANTS

V.        §                      JUDICIAL DISTRICT COURT OF

BRADLEY O. KING, M.D.,  AND

MICHAEL WILLIAMS, M.D.,

APPELLEES §                      SMITH COUNTY, TEXAS

MEMORANDUM OPINION

            Timothy E. Thompson and Pamela Thompson filed a motion for rehearing and a motion to strike a portion of the supplemental clerk’s record filed on January 16, 2007.  Both motions are overruled.  The court’s opinion of March 7, 2007 is withdrawn, and the following opinion is substituted in its place.

            Timothy E. Thompson (“Thompson”) and his wife, Pamela Thompson (collectively the “Thompsons”) appeal the trial court’s order granting summary judgment in favor of Bradley O. King, M.D. and Michael Williams, M.D. The Thompsons raise five issues on appeal.  We affirm.

Background

            On May 12, 2002, Thompson went to the East Texas Medical Center (“ETMC”) emergency room complaining of pain on the lower left side of his chest and was examined by King. King ordered a chest x-ray, reviewed the x-ray, and diagnosed Thompson with an acute chest wall contusion/strain. King then prescribed medication to Thompson and discharged him.

            Thompson’s chest x-ray was also reviewed by a radiologist. In his report, the radiologist noted, “[A] 4 x 5 cm right apical lung mass is worrisome for lung carcinoma.” He further noted in his report that Williams was notified by phone of the findings.  Although Williams worked in the ETMC emergency room, he had not been involved Thompson’s care.  Neither King nor Williams disclosed the radiologist’s findings to Thompson.  It was later determined that the mass in Thompson’s right lung was cancerous.

             The Thompsons brought a medical malpractice suit against King, Williams, and ETMC. Subsequently, King filed no evidence and traditional motions for summary judgment.  Williams filed a no evidence motion for summary judgment.  The no evidence motions each alleged that there was no evidence to support the essential element that King or Williams respectively breached the standard of care. 

            On January 11, 2006, the Thompsons filed a response and attached the affidavit of Pedro T. Zevallos, a practicing physician specializing in pulmonary diseases.  Zevallos’s affidavit was the only supporting evidence from an expert witness relating to whether King and Williams had breached the standard of care.

            On January 18, 2006, the trial court conducted a hearing on the matter.  That same day, King and Williams filed joint objections to Zevallos’s affidavit arguing that Zevallos was neither timely nor properly designated and, further, that he was not qualified to provide opinions regarding the standard of care owed to Thompson by King and Williams.¹  On January 24, 2006, the trial court sustained King and Williams’s objections to Zevallos’s affidavit, found that Zevallos was not qualified to render expert opinions as to King and Williams, and granted summary judgment in King and Williams’s favor.  Thereafter, the  trial court severed the Thompsons’ claims against King and Williams. This appeal followed.

Timeliness of Objection to Summary Judgment Evidence

            In their first issue, the Thompsons claim that King and Williams’s objections to Zevallos’s affidavit were untimely.  To preserve a complaint for appellate review, a party is required to present the complaint to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the party sought from the trial court with sufficient specificity to make the trial court aware of the complaint.  See Tex. R. App. P. 33.1(a).  This rule ensures that the trial court has had the opportunity to rule on matters for which parties later seek appellate review.  In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 936 (Tex. App.–Tyler 2005, orig. proceeding).  In the case at hand, the Thompsons failed to object to the trial court that King and Williams’s objections to  Zevallos’s affidavit were untimely.  Therefore, the Thompsons waived the error, if any, of which they now complain.  The Thompsons’ first issue is overruled.

Expert Witness Designation

            In their second issue, the Thompsons argue that Zevallos was timely designated as an expert witness.  In their third issue, the Thompsons contend that Zevallos was qualified to offer opinions regarding the standard of care owed by King and Williams.

            Summary judgment evidence must be admissible under the rules of evidence.  See Doncaster v. Hernaiz, 161 S.W.3d 594, 601 (Tex. App.–San Antonio 2005, no pet.).  A trial court’s evidentiary rulings related to a motion for summary judgment are reviewed for an abuse of discretion.  Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.–Dallas 2006, no pet.). The trial court abuses its discretion when it acts without regard for any guiding rules or principles.  Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). The appellant bears the burden of bringing forth a record that demonstrates the trial court abused its discretion in ruling on the appellee’s objections to summary judgment evidence. See Cantu, 195 S.W.3d at 871. The trial court’s evidentiary ruling must be upheld if there is any legitimate basis for the ruling.  Malone, 972 S.W.2d at 43.

            To properly support a claim for medical malpractice, the plaintiff must offer expert testimony on the element of breach of the standard of care.  See Cunningham v. Columbia/St. David’s Healthcare System, 185 S.W.3d 7, 10 (Tex. App.–Austin 2005, no pet.).  For an expert witness’s testimony to be considered as summary judgment evidence, the party must timely designate the expert as a testifying witness.  Cunningham, 185 S.W.3d at 10-11; see also Tex. R. Civ. P. 193.6.  It is not enough for the party to simply file the expert report statutorily required of plaintiffs in medical malpractice claims by Texas Civil Practice and Remedies Code, section 74.351.  See Cunningham, 185 S.W.3d at 11.  Additionally, it is not sufficient to simply list the witness as an expert and provide the areas on which the witness will testify.  Id.  Instead, to properly designate an expert witness, the party must disclose all information under Texas Rule of Civil Procedure 194.2(f).  See Tex. R. Civ. P. 195.2.  If the party does not timely designate the expert, the testimony must be excluded unless the party can establish that (1) there was good cause for the failure or (2) the failure will not unfairly surprise or unfairly prejudice the other parties.  See Tex. R. Civ. P. 193.6(a),(b). Alternatively, the trial court, in its discretion, may grant a continuance to allow the late designation and to allow opposing parties to conduct additional discovery necessitated by the new information presented.  See Tex. R. Civ. P. 193.6(c).

            Here, Zevallos’s affidavit was the sole expert testimony relating to the standard of care element upon which the Thompsons relied in their response to King’s and Williams’s respective motions for summary judgment.  However, the record does not indicate that the Thompsons properly designated Zevallos.  Although the Thompsons listed Zevallos as an expert witness, they failed to provide the general substance of Zevallos’s mental impressions and opinions as well as a brief summary of the basis therefor.  See Tex. R. Civ. P. 194.2(f)(3).  The Thompsons further did not satisfy the requirement that they provide the “documents, tangible things, reports, models, or data compilations that [had] been provided to, reviewed by, or prepared by or for Zevallos in anticipation of testimony.”  See Tex. R. Civ. P. 194.2(f)(4)(A). Therefore, we hold that the trial court acted within its discretion in sustaining King and Williams’s objections Zevallos’s affidavit.  The Thompsons’ second issue is overruled.²

No Evidence Summary Judgment

            In their fourth issue, the Thompsons argue that they need not bring forth evidence that King’s and Williams’s actions were committed with willful and wanton negligence.  In their fifth issue, the Thompsons contend that, even if willful and wanton negligence is the proper standard, they brought forth evidence that would create a fact issue as to whether King’s and Williams’s conduct amounted to a willful and wanton breach of the standard of care.

            After adequate time for discovery, a party without presenting summary judgment evidence may also move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.  Tex. R. Civ. P. 166a(i).  The motion must state the elements for which there is no evidence.  Id.  The court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact.  Id.  The movant need not produce any proof in support of its no evidence claim.  See id.; see also Judge David Hittner and Lynne Liberato, Summary Judgments in Texas, 34 Hous. L. Rev. 1303, 1356 (1998).  The motion must be specific in alleging a lack of evidence on an essential element of a cause of action, but need not specifically attack the evidentiary components that may prove an element of the cause of action. See Denton v. Big Spring Hosp. Corp., 998 S.W.2d 294, 298 (Tex. App.–Eastland 1999, no pet.).  Once a no evidence motion has been filed in accordance with Rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that raises a fact issue on the challenged evidence.  See Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 316–17 (Tex. App.–Houston [14th Dist.] 1999, no pet.).  A no evidence motion is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial.  See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997).  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.  See id.  Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

            On appeal, we will uphold a no evidence summary judgment only if the summary judgment record reveals no evidence of the challenged element, i.e., (a) there is a complete absence of evidence as to the challenged element; (b) the evidence offered to prove the challenged element is no more than a mere scintilla; (c) the evidence establishes conclusively the opposite of the challenged element; or (d) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove the challenged element.  See Taylor-Made Hose, Inc. v. Wilkerson, 21 S.W.3d 484, 488 (Tex. App.–San Antonio 2000, pet. denied) (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L. Rev. 361, 362-63 (1960)).

            Without expert testimony of breach, a plaintiff’s claim in a medical malpractice action fails.  See Cunningham, 185 S.W.3d at 10.  Other than Zevallos’s affidavit, the Thompsons did not present any expert testimony relating to the element of breach of the standard of care. Because the Thompsons failed to present evidence that King and Williams breached the standard of care, they also failed to present evidence of a willful and wanton breach.  Therefore, the trial court’s grant of summary judgment was proper.  See Tex. R. Civ. P. 166a(i).  The Thompsons’ fifth issue is overruled.³

Disposition

            Having considered only the Thompsons’ first, second, and fifth issues and overruled them, we affirm the trial court’s judgment.

                                                                                                    BRIAN HOYLE   

                                                                                                               Justice

Opinion delivered April 11, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

                                                                                                (PUBLISH)

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¹ The trial court had ordered the Thompsons to designate all expert witnesses by August 1, 2005.  The deadline was subsequently extended by agreement of the parties to August 19, 2005.  The Thompsons had submitted a report by Zevallos to satisfy the requirements of an expert report for the prosecution of a medical malpractice claim pursuant to Texas Civil Practice and Remedies Code, section 74.351 and had listed Zevallos in their expert witness designation along with a list of general topics he would address.  However, they did not provide information related to his opinions in response to King and Williams’s request for disclosure.

² Having sustained the Thompsons’ second issue, we need not consider their third issue.

³ Because the Thompsons failed to raise any evidence to properly support the element of breach of the standard of care, we need not consider their fourth issue.