Arguello v. Gutzman

BIERY, Justice,

concurring.

I concur in the result affirming the summary judgment; however, I write to point out and attempt to reconcile a conflict in the law of medical malpractice and summary judgment.

The dissent persuasively cites the case of Davis v. Marshall, 603 S.W.2d 359, 361 (Tex.Civ.App. — Houston [14th Dist.] 1980, writ ref d n.r.e.) where a closely analogous fact situation was presented to a jury. In Davis, the plaintiff suffered a severe bum after a plaster cast had been applied to her leg. Id. It apparently was undisputed that the cause of the burn was either defective plaster or the misapplication of the cast material by the physician. Id. In the case before us, the cause of the broken instrument was either a defective instrument or the misuse of the instrument from applying too much pressure by the physician. In Davis, the plaintiff did not have an expert testifying on her behalf. Id. Rather, as in the case before us, the defendant doctor and his medical expert witness both concluded and testified that the physician did not misapply the cast material. Nevertheless, the jury found in favor of the plaintiff and the court of appeals in Davis held the jury was free to reject the assertion that the alleged negligence did not occur. Id. at 362. Implicit in the Davis v. Marshall case is the proposition that, notwithstanding the lack of expert medical testimony on behalf of the plaintiff, a fact issue existed for the jury to resolve based upon whether the jury believed or disbelieved the defendant doctor and his medical expert.

By way of further potential conflict in this area of the law, is the case of Haddock v. Arnspiger, 763 S.W.2d 13, 15 (Tex.App. — Dallas 1988), aff'd, 793 S.W.2d 948 (Tex.1990). In Haddock, a different medical instrument was involved — a flexible co-lonoscope. Similar to this case, the question involved whether excessive pressure was applied in the use of the flexible colonoscope resulting in the perforation of the plaintiff’s colon. Id. at 16. In Haddock, there was no motion for summary judgment as both the plaintiff and the defense presented medical testimony in favor of their respective positions. The jury resolved the conflicting medical testimony in favor of the physician. Id.

It would appear, therefore, at first blush that Davis v. Marshall would lead one to the conclusion that a fact issue exists in this case thereby precluding summary judgment. I note however that Davis v. Marshall was rendered in 1980 with the trial of the matter presumably being somewhere in the 1978 time period. Prior to 1978, Texas courts held that the affidavit of an interested or expert witness would not support a summary judgment. See, e.g., Gibbs v. General Motors Corp., 450 S.W.2d 827, 828-29 (Tex.1970). Rule 166a(c) of the Texas Rules of Civil Procedure was amended in 1978 to specifically permit the granting of a motion for summary judgment based on the uncontrovert-ed testimonial evidence of an interested witness, or of an expert witness, if the trier of fact must be guided solely by the opinion testimony of experts as to a subject matter. Under the new rule 166a(c), the summary judgment evidence must:

1) Be clear, positive and direct;

2) Be otherwise credible and free from contradictions and inconsistencies; and

3) Be readily controverted, (emphasis added)

The judicial policy reason for using expert opinion testimony at the summary judgment stage and requiring that a plaintiff present controverting expert testimony at the summary judgment stage is to test early in the litigation whether a particular claim or defense is frivolous and, if so, to allow early disposition before a cause proceeds to trial and perhaps be disposed of at the instructed verdict stage.

Given the Texas Supreme Court’s recent pronouncement on res ipsa loquitur in Haddock v. Arnspiger, 763 S.W.2d at 15, I concur that res ipsa is not applicable to the case before us and therefore expert testimony is required of the plaintiff. Since the nature of the occurrence involves the breaking of a metal instrument, it seems that it might be appropriate to have a metallurgist or engineer give an opinion as to whether too much pressure was applied to this particular instrument or whether it was defective in its design or manufacture. That question, of course, is not before us because the plaintiff had no controverting expert testimony at all.

I conclude, therefore, that the apparent conflict between Davis v. Marshall and the evolution of the current summary judgment practice in the expert testimony area can be reconciled when one realizes that Davis v. Marshall was developed and tried prior to or at about the same time as the 1978 amendment to rule 166a(c).

Because the plaintiff did not present any controverting expert medical or engineering testimony, and because the defendant’s opinions and conclusions could have been readily controverted, I concur in the affir-mance of the summary judgment.