Arguello v. Gutzman
838 S.W.2d 583
Tex. App.
1992
Check Treatment

*3 The trial appeal jurisdiction. for lack of BUTTS, BIERY, Before CHAPA and JJ. repre- subsequently ordered the false consent sentation and lack of informed OPINION negligence from the cause claims severed BUTTS, Justice. given of action and cause no. 88-CI-16341- appeal summary judg- This is an from a A. granted favor of Dr. Dennis Gutz- Arguellos’ point appeal The of error on malpractice man a medical action brought by Mercy Arguello. Pete and granting that the trial court erred in sum- they presented mary judgment because Arguello Pete Dr. on consulted Gutzman summary judgment sufficient evidence to 9, 1987, complaining April pain in his failed to create a fact issue and Gutzman right diagnosed knee. Gutzman condi- genuine fact issue prove that no material operat- tion as a torn medial meniscus and more of the essential April existed as to one or During surgery, ed on Dr. Arguellos’ Gutzman discovered a bucket handle tear elements of the cause of action. of the In attempt medial meniscus. A defendant who moves meniscus, repair the jaws one of the judgment proving has burden using instrument he was broke and went no issue of fact exists as to the material Arguello’s into knee. Unable to locate the plaintiff’s it is cause of action and that piece through arthroscopic broken visual- entitled to as a matter of law. x-rays, performed ization or Gutzman an Rowden, See v. 654 S.W.2d 435 Griffin and, arthrotomy. piece using He found the (Tex.1983); City Houston v. Clear posterior palpation, brought the in- broken 671 Authority, Creek Basin up Arguello strument to remove it. (Tex.1979); 166a(c). This TEX.R.CIV.P. hospital later, days released from the a few may accomplished by disproving as a physical therapy. and thereafter underwent or matter of law one more of the elements suit, Arguellos filed cause no. 88- plaintiff’s essential claims. CI-16341, Gutzman, against alleging mis- Snider, (Tex. 808 54 Anderson v. S.W.2d consent, representation, lack of informed 1991). Once the defendant establishes its in the use of the instrument law, entitlement to as a matter of inspect surgery. in failing prior it nonmovant, plaintiff, must Gutzman moved summary judgment proof to a establish genuine issue the basis that there was no Creek, fact issue. Clear 589 S.W.2d at any regarding as to fact two es- material deciding disputed whether a mate Arguellos’ sential elements of the precludes summary judg rial fact issue action, duty breach ment, reviewing affidavit court will take as true causation. Gutzman’s sum- favoring was filed in of the motion for all evidence the nonmovant. Nix mary judgment. Co., Property Management on v. Mr. 690 (Tex.1985); Montgomery S.W.2d Arguellos responded that Gutzman’s Kennedy, 669 v. supplemental affidavit and affidavit con- 1984). Every reasonable inference from conclusory tained and raised statements indulged in favor of the evidence will be genuine concerning fact issues Gutzman’s nonmovant, doubts will be affida- use of the instrument. Gutzman’s Nixon, vits, resolved in his favor. interroga- deposition, and answers to tories, affidavit, Arguellos’ Montgomery, 669 S.W.2d at 311. and Pete were plaintiffs knee, ligament If essential elements of reconstruction. are a duty cause action re during instrument should the sur- break quiring physician conform to cer requires gery, the standard of conduct; applicable tain standard surgeon in- to search for and remove the breach; injury; standard of care and its arthroscopic use of strument visualiza- and causal connection between breach x-ray. tion Gutzman referred to his standard care and harm. affidavit, previously executed and stated Clinic, Elam Yale v. “no undue traction was (Tex.App. [14th Dist.] —Houston by me while the menis- asserted ... writ); Goodall, Tilotta “my grabber” cus and that use of the (Tex.App. [1st Dist.] —Houston arthroscopic device in was in ac- denied); M.D., Gallegos, Pinckley appropriate cordance with standard *4 529, P.A., (Tex.App. 740 S.W.2d —San that it not care”. He further stated denied). Antonio writ See Hood orthopedic surgeon, his to responsibility, as

Phillips, 165-66 prior surgery. examine the devices to 1977); Bourdon, Bowles v. 148 Tex. (1949). Gutzman’s motion Arguello in his Pete testified affidavit summary judg averred his entitlement to supplemental and that as result affidavit a ment as a matter of law the because of incident, hospitalized he for concerning lack of fact a material issue the days, experiences knee several continuous proximate duty of breach of and elements pain, employment is unable or and to obtain cause. engage in recreational activities. Gutzman’s first set out edu- affidavit his deposition in his Gutzman testified professional background; cational and his Arguello diagnosis cartilage he of told his diagnosis Arguello’s as of condition a torn to damage. surgery Prior the instruments meniscus; medial the the details of normally operating are checked the procedure performed; post-oper- he and the room is uncommon the technician. It familiar He ative treatment. stated he was instruments to He listed break. several diagnosis the of for the with standard factors that can cause the instrument patient a Arguel- and treatment of such as instrument, position the break: of that, expert opinion lo and in his based particular procedure being performed, the upon degree medical proba- a reasonable itself, ar- bility, diagnosis treatment Ar- instrument and anatomical his and guello appro- rangement in accordance with of the patient. were When asked priate also standard care. Gutzman again to what cause the as can instrument not stated that the instrument did break as break, Gutzman testified there are two any action inaction his a result of possibilities: defect. misuse and part, he properly used instrument agree Arguellos that Gutzman’s affi- correctly, upon and that based a reasonable appropriate davits state standard degree probability, no of medical act However, granting care. they contend part omission on his caused or contributed summary judgment a that no basis Arguello. injuries suffered fact due to issue was created the lack supplemental affidavit details Gutzman’s expert testimony establishing that appropriate of care for the standard diagnosis treatment or of Gutzman consti- diagnosis patient a such and treatment of tuted and was Arguello. patient initially is evalu- Arguello’s injuries cause of was error. history through physical exami- ated argue Arguellos judg- summary surgeon orthopedic nation. sus- When that a issue evidence establishes fact a tom medi- pects patient suffers from applied Gutzman undue exists whether meniscus, surgeon propose an al should pressure or traction while the instru- mensicetomy. During arthroscopic medial ment in and that such issue was procedure, scope put into the knee is negated conclusively as a matter of law visualization, by probing, and followed cartilage evidence. damaged removal of the within right A complied movant s dence that he with standard proved solely can be on the un- care, negated thereby all fact issues expert controverted of an wit regarding elements of the essential breach subject ness if the matter is such that a and causation. “guided solely by trier of fact would be case, In a medical opinion testimony if experts, the evi requisite proof must be es clear, positive direct, dence is other through expert testimony. tablished wise credible and free from contradictions Herman, Shook v. inconsistencies, and could have been denied) (Tex.App.—Dallas (citing readily controverted”. Anderson v. Sni Phillips, Hood v. 165-66 der, 166a(c). 808 S.W.2d at Tex.R.Civ.P. (Tex.1977)). The shifted to the Ar- burden The affidavit of an expert interested wit guellos support produce controverting ness can other ex summary judgment if it requirements 166a, meets the pert Anderson, of Rule testimony. even expert if that party is a 55; Milkie, suit. S.W.2d at 658 S.W.2d at 681. Anderson, 808 S.W.2d at If an inter ested presents legally witness suffi Ipsa Loquitur Res cient evidence in of a motion for Expert testimony necessary when summary judgment, opposing party alleged negligence is of such a nature *5 produce expert must other testimony to experience layman. as not the within controvert the claims. Id. Allen, (Tex. Roark v. 633 S.W.2d 809 question is whether Gutzman’s The 1982), citing Phillips, Hood v. affidavits, deposition transcript, and inter Arguellos at Accordingly, 165. the had the rogatory negate answers were sufficient to presenting expert burden of medical testi at Arguel- least one of the elements of the mony controverting Gutzman’s evidence on Zamora, M.D., los’ claim. In Charles v. applicable the issues of of breach the stan (Tex.App.—Corpus S.W.2d 174 Christi dard of care and its causal connection to denied), neg doctor accused of injury or harm. ligence moved for judgment on Arguellos pleaded generally as to the basis that his appro treatment met the orthoscopic the doctor’s use of the in device priate standard of care and that he had not question, negli- “because the nature of the duty breached his appellant. to In his affi gence plainly is davit, within the common knowl- doctor set forth the standard showed, edge (sic), Layman care and specificity, with his com doctrine of res pliance treating ipsa loquitur with that standard in applicable.” is It was further plaintiff. respond The defendant failed to alleged by that the instrument used controverting with expert testimony. The the doctor when it broke and would not court held that the affidavit sufficient negligence have occurred without on his negate to the elements of breach of the part. applicable standard of care and a causal ipsa loquitur Res is a rule of connection between the breach of care and evidence, often referred to as a doctrine. the harm suffered. Id. at 177. See also case, malpractice In a medical plaintiff Metni, Milkie v. 658 S.W.2d 678 consistently required prove has been App.—Dallas 1983, writ). duty proximate breach of causation Similarly, Gutzman’s affidavits delineate Perdue, testimony. medical Jim M. Res necessary using the standard of care in Ipsa Loquitur: Applicability Malprac grabber removing meniscus and in it Texas, tice Cases in 10 Tex.Tech.L.Rev. during surgery. should it break He lists (1979). The article states: specific performed acts he while plaintiff present expert cannot [I]f operation. in expert it Gutzman’s testi proper that a violation of the clear, direct, positive, monial is evidence proxi- medical standard has occurred and free from contradictions and inconsis causing injuries, mately his he has failed readily tencies and controvertible. Tex. 166a(c). produced present Gutzman evi- sufficient to be sub- R.Civ.P. in jury. ipsa loquitur mitted Because this bi- of the res doctrine of res approach, doctrine situation limited.” Perdue at would be furcated ipsa loquitur generally has been held 374-75. inapplicable be in Texas medical mal- proper In the case the use cases, added). practice (emphasis arthroscopic grabber, of a meniscus an de non-applicabil- rationale for the doctrine’s orthopedic surgeons, employed by is vice ordinary ity negli- is medical that plainly not a matter within the common gence complex case involves issues be- knowledge laymen. Consequently, yond knowledge laymen. the common must duty breach and causation article, Id. at 373. As noted an testimony. proved by previous medical As exception may exist where the stated, ly Arguellos failed to controvert alleged is in the use of mechanical instru testimony of the medical Gutzman ments, wrong part operating on care, issues of standard of breach and caus body, leaving equipment inside al connection. body. Rayner See John Buist Chester (Tex.Civ. sp., Ho The statements Gutzman’s affi n.r.e.). App.—Waco How writ ref’d readily could davits have been controverted ever, Texas courts medical Moreover, testimony. required cases have possibility negli mere act of proximate proved testi cause be gence might have been the mony and held that the doctrine of res have sup damages cause of is not sufficient to loquitur inapplicable ipsa except when Tilotta, port recovery. S.W.2d at alleged malpractice injuries are possibilities Proof of mere will not plainly knowledge within the common Yelin, fact issue. See Duffv. Perdue, laymen. supra, See (Tex.1988). Conflicting inferences ques use of instrument *6 deposition, interroga arise the do not from plainly tion must be a matter within the answers, the The tories’ affidavits. laymen. knowledge common of Irick v. produce Arguellos wholly failed to contro Andrew, (Tex.Civ.App.— verting expert medical evidence to rebut n.r.e.). Houston writ ref 'd [14th Dist.] presented the Banowsky, In 563 S.W.2d 702 v. Williford by defendant. were Gutzman’s affidavits ref’d (Tex.Civ.App.—Eastland writ the of negate sufficient both elements n.r.e.), patient for a cut dental sued applicable breach standard of high- received the dentist a when was and a causal connection between the breach speed rotary ap instrument. The court of of care the harm suffered. The trial ruling peals upheld of the trial court— properly granted court motion Gutzman’s instructing a the defendant. verdict summary The judgment. point is over plaintiff argued that the doc under ruled. loquitur of res ipsa trine fact appellate disagreed, was raised. The court Arguellos filed of their notice holding excep recognized that none of the appeal under cause number 88-CI-16341- necessity of of requirement tions to A, given the cause number severed testimony “The applicable. medical were undisposed issues this case. Gutzman’s rotary proper high-speed use instru of therefore, court, cross-point is in a is no more dental treatment have jurisdiction appeal. does not over the plainly matter the common knowl within In City Rodriguez, Antonio San x-ray edge laymen than the use of an (1992), appellants time- 828 S.W.2d 417 Thus, proper machine.” use appeal proper ly filed a notice of in the matter particular instrument must be a wrong style court with correct but knowledge of plainly within common cause number. The court held that a court laymen. a rare situa “Because it would be appeals appeal jurisdiction has over an medical proper in which use of a tion appellant files an when the instrument instrument would be a matter within attempt appellate knowledge laymen, application is “a bona fide invoke common jurisdiction.” (quoting By Id. Grand way potential of further conflict in Indep. law, Prairie Sch. Dist. v. Southern this area of the is the case of Haddock Inc., Imports, Parts Arnspiger, 500 v. (Tex.1991)). 1988), App. aff'd, 793 S.W.2d 948 —Dallas (Tex.1990). Haddock, a different medi In previously granted This court has cal instrument was involved—a flexible co- Arguellos’ motion to amend the notice of lonoscope. case, ques Similar to this appeal transcript and denied Gutz- tion involved whether excessive man’s motion to dismiss. All requirements applied in the use of the flexible except notice were met the use of the colonoscope resulting perforation in the cause number. Dr. Gutzman was not dis- plaintiff’s colon. Id. at 16. In Had advantaged or misled in manner. The dock, there was no motion for cross-point is overruled. The plaintiff as both the and the de affirmed. presented fense testimony in favor respective positions. of their jury re BIERY, Justice, concurring. conflicting solved the I concur in affirming the result the sum- physician. favor of the Id. mary judgment; however, point I write to appear, therefore, It would at first blush out attempt to reconcile a conflict that Davis v. Marshall would lead one to law of medical and sum- the conclusion that a fact issue exists in mary judgment. this case thereby precluding summary The dissent persuasively cites the case of judgment. I note however that Davis v. Marshall, Davis Marshall was rendered 1980 with the (Tex.Civ.App. [14th Dist.] —Houston trial of the presumably being matter some- n.r.e.) ref d closely where a analogous where in period. the 1978 time Prior to presented fact situation was jury. to a In 1978, Texas courts held that the affidavit Davis, plaintiff suffered a severe bum an interested or witness would plaster after a cast applied had been to her a summary judgment. See, leg. Id. It apparently undisputed e.g., Gibbs v. Corp., General Motors that the cause of the burn was either defec- (Tex.1970). 828-29 Rule plaster tive or the misapplication of the 166a(c) Texas Rules of Civil Proce- cast physician. material Id. dure was amended in specifically 1978 to us, case before the cause of the broken *7 permit granting of a motion for sum- instrument was either a defective instru- mary judgment based on the uncontrovert- ment or the misuse of the instrument from ed testimonial evidence of an interested applying pressure too much physi- witness, witness, expert or of an if the trier cian. Davis, plaintiff In did not have guided of fact must be solely by opin- expert an testifying on her behalf. Id. ion testimony experts subject as to a Rather, us, as in the case before the defen- matter. 166a(c), Under the rule new dant doctor and expert his medical witness summary judgment evidence must: both concluded and testified physi- that the 1) clear, direct; Be positive and cian misapply did not the cast material. 2) Be otherwise credible and free from Nevertheless, jury found in favor of inconsistencies; contradictions and and plaintiff appeals the court of in controverted, 3) readily Be (emphasis jury Davis held the reject was free to added) assertion alleged negligence that did not occur. Implicit Id. at 362. in judicial the The policy using expert reason for Davis v. Marshall proposition case is the opinion testimony at the summary judg- that, notwithstanding expert the lack of stage requiring ment plaintiff that a medical on plain- present behalf of the controverting expert testimony at tiff, a fact issue jury existed for the to summary judgment stage is to test upon resolve based jury whether the early litigation be- in the particular whether a lieved or disbelieved the and, so, defendant doctor claim or defense is frivolous if and his expert. early disposition allow before pro- a cause

590 Nixon, perhaps disposed Montgomery, at ceeds trial and be at Therefore, stage. the instructed verdict 669 S.W.2d at 311. the issue summary judgment is appeal case Supreme Given the Texas Court’s recent for met his whether movant burden ipsa pronouncement loquitur on res Had by establishing that summary judgment 15, Arnspiger, dock v. 763 I S.W.2d genuine exists of material there no issue ipsa is not applicable concur that res as fact and that he is entitled to case before us and therefore testi City v. a matter law. Houston Clear mony required plaintiff. Since the 671, Auth., 589 678 Creek Basin S.W.2d nature of the involves the occurrence (Tex.1979); 166a(c). Tex.R.Civ.P. instrument, breaking of a metal it seems it a me might appropriate summary judgment to have evi reviewing dence, tallurgist engineer give opinion as it is well established that sworn applied ad pleadings requests whether too much and denials to for summary particular missions are evi instrument or whether it not Motel, design v. in its dence Texas. Americana Inc. was defective or manufacture. Johnson, (Tex.1980). course, 143 610 As question, That is not before us S.W.2d such, is a controverting had motion plaintiff because the no pleading may not be considered expert testimony at all. summary judgment evidence, Kendall therefore, conclude, apparent I that the 751, Inc., Whataburger, 759 754 conflict Davis v. and the between Marshall (Tex.App. no [1st Dist.] —Houston summary judg- evolution the current writ), response summary judg nor is practice expert testimony ment in the area competent summary judgment evi can be realizes reconciled when one Fort dence. Rhodes v. Bank Interfirst developed Davis v. Marshall tried Worth, N.A., 719 S.W.2d prior to or at about the same time as the 1986, writ). App. no Worth Howev —Fort 166a(c). to rule amendment er, affidavits, depositions, interrogatories, plaintiff Because did not proper summary judg and admissions are engineer- controverting expert incorpo ment evidence when referred to or ing testimony, and because the defendant’s summary judgment, rated the motion for opinions and conclusions could have been Leasing Corp., Stewart U.S. controverted, readily I affir- concur in the (Tex.App. Dist.] [1st —Houston summary judgment. mance of the writ), citing, no First Fed. Sav. & Bustamante, Loan Ass’n v. Justice, CHAPA, dissenting. (Tex.Civ.App. Antonio —San summary I respectfully dissent. The writ), may but trial court receive judgment should be reversed. evidence, extrinsic either oral or documen tary, hearing at the for sum motion judg party moving mary judgment. Easley, State v. showing ment has the that no burden (Tex.1966); Citizens State exists genuine issue of material fact *8 Shapiro, v. 575 Bank Dickinson S.W.2d matter that it is entitled to as a 1978, (Tex.Civ.App Tyler ref’d 375 writ — Manage Mr. Property of law. Nixon v. n.r.e.). in Statements contained a brief Co., 546, (Tex.1985); 548 690 S.W.2d do not also constitute 64, 488 67 Smiley Hughes, v. S.W.2d Corp. English, Fin. proof. Nationwide 1972); 166a(c). deciding In Tex.R.Civ.P. 458, (Tex.Civ.App. Tyler 463 604 S.W.2d — pre disputed fact issue whether material 1980, moot). dism’d as reviewing summary judgment, cludes favoring opposing will as true all must Supporting court take and affidavits Nixon, 549; knowledge at on and set personal the nonmovant. 690 S.W.2d be made 309, in Kennedy, S.W.2d facts would be admissible Montgomery v. 669 forth which 166a(f). (Tex.1984). Every infer State- 311 reasonable evidence. Tex.R.Civ.P. in mere con- indulged in ments an affidavit which are ence from evidence will be nonmovant, represent or the affiant’s any doubts clusions which favor of the Dal- opinion are insufficient. See nonmovant’s favor. Wise will be resolved 591 Corp., instruments, las Southwest Media operating 596 S.W.2d of mechanical on 533, 1979, (Tex.Civ.App. wrong body, leaving 536 portion —Beaumont n.r.e.). surgical sponges writ ref’d The affidavit must set instruments or within the facts, legal body” requirement forth conclusions. such cases the Beta “[i]n eliminated, is Supply, Inc. v. G.E.A. medical but Cooling Power Inc., 541, necessity proof negligence remains.” Sys., (Tex.App.— 748 S.W.2d 542 1988, denied); Rayner Houston Id. see also v. John Buist writ [1st Dist.] 637, Dev., Hospital, 526 639 Seaback, Chester S.W.2d Heights Harbour Inc. v. 1975, (Tex.Civ.App. ref’d 296, 596 (Tex.Civ.App. S.W.2d 297 —Waco —Hous- n.r.e.). 1980, writ). ton no Hearsay [14th Dist] statements contained in an affidavit are not In v. Arnspiger, Haddock 793 S.W.2d controverting sufficient Youngs- evidence. stated; (Tex.1990), the court Penn, town Sheet & Tube Co. v. Historically, ipsa loquitur res has 230, (Tex.1962); Hink, S.W.2d Lopez v. restrictively applied been in medical mal- 451 (Tex.App.—Houston practice only very, cases: ‘There are 1988, writ); no Butler v. Hide- [14th Dist.] very instances pleading few where a A-Way Club, Inc., Lake ipsa res loquitur applicable is in medical 411 (Tex.App. 1987, writ ref’d —Eastland malpractice cases.’ Goodnight v. Phil- n.r.e.). lips, 418 (Tex.Civ.App.— n.r.e.)_ In Texarkana malpractice cases, medical writ ref’d “[ordinari- fact, Texas courts ly generally recog- have what constitutes reasonable is a ipsa loquitur nized that res is jury.” inapplica- for the Krchnak, Harle v. malpractice ble in medical cases.... (Tex.Civ.App. —Hous- However, exception recognized n.r.e.). ton is writ ref d Fur- [1st Dist.] ther, alleged when the nature of the “[o]rdinarily malprac- negligence both injuries tice and plainly are cause within proven by must be knowledge common laymen, requiring testimony,” and ipsa doctrine of res “[t]he expert testimony. Examples of this loquitur generally is held Texas courts exception negligence include in the use inapplicable to be malpractice instruments, of mechanical operating on However, cases.” Id. at 814-15. ex- “[an] wrong portion body, leaving ception to these has been rec- [both rules] surgical sponges instruments or within ognized where the alleged nature of the body.... malpractice injuries are plainly within the common knowledge of laymen, (citations as omitted; Id. at 9511 emphasis in where the alleged original). is the use concurring opinion misplaces

1. The its reliance conceded that the instrument broke while he Haddock, controlling appellant’s piece it on knee and that a appellant’s of the instrument knee, opinion, here. As set out in the remained in the text of this required subsequent, which more severe recognized exceptions Haddock operation appellant. which harm to the ipsa loquitur caused applicable wherein res is in medi- Further, controlling Haddock is not because it cases, cal and this case falls within easily distinguished from the case before us. 1) exceptions: the three the nature of the mal- 1) Haddock, Unlike the allegations case: practice knowledge falls within the common alleged negligent were directed at an 2) laymen; there was in the use of proctological examination which the claimant instrument; 3) part surgi- of a rupture, allega- contended caused a whereas the body. cal instrument was left within the Id. at tions in the case before us were directed at the handling doctor’s of the instrument which Clearly, it does not take a medical knee, caused it to break in the claimant’s leav- *9 surgical supposed know that a instrument is not knee; ing 2) piece of the instrument in the in whole, part to break and remain either in or Haddock, colonoscope during the flexible used Further, body. appellee inside the the doctor break, procedure the medical part ant; did not nor did question conceded that since the instrument in body of it remain inside the of the claim- normally except through did not break Haddock, misuse 3) clearly in the evidence dis- defect, patients or he did not advise his of the closed that the instrument involved was a "so- possibility might that the instrument in phisticated medical instrument which re- contending break. Without quire[d] ever that the instru- training experience extensive and defective, appellee proper ment was plainly the doctor also use” and was “not a matter with- hospi- as well as likely piece, most of the remove the broken Where “the cause cast plaster either or not have been other- bum was defective talization which would [the] by misapplication necessary. of the cast material” the wise doctor, denial doctors that the the two summary judgment evidence indicat- “not con- misapplied material was was cast 1) deny that appellee: ed that did not not mis- evidence that the cast was clusive ap- procedures other were available opposing medical applied” even without appellant; or that the pellant, he so advised jury’s testimony, is the function “[i]t 2) prac- it a that he did not make conceded the doc- thereafter to determine whether his of the risk of a patients tice to advise standard tor’s acts conformed to the instrument, did not nor- since that broken care,” jury reject any free to and “the was occur; 3) he had mally conceded that ad- alleged assertions that the doctor’s] [the arthroscopic appellants the that the vised not occur.” Davis v. Mar- did meniscectomy procedure originally medial shall, (Tex.Civ.App.— ordinarily planned appellant for the would n.r.e.); ref’d Houston Dist.] [14th require long hospi- not not take and would Bennett, see Williams talization; 4) that he never exam- conceded Williams, (Tex.1980); Bronwell inspected surgical ined or the instruments (Tex.Civ.App. 546-47 —Amaril- 5) during conceded that the surgery; used n.r.e.). 1980, writ ref’d lo using during grabber he was the meniscus allega- regard to With the proce- arthroscopic meniscectomy medial tions, appellants the at the sum- contended he appellant on the broke while was dure negli- appellee that the was mary it, normally only which occurred 1) failing proce- gent in to offer alternative defect; 6) through misuse failed to con- or 2) failing properly appellants; to to dures defective, that the was tend instrument risks appellants of all the in- inform leaving question of thereby only the his 3) surgical fail- procedures; with the volved instrument; 7) conceded misuse of the appellants’ ing adequately to answer all of piece remained because the instrument appel- falsely misleading the inquiries and appellee appellant, in the knee of the was concerning consequences lants perform and required to an additional more 4) failing to examine surgery; properly surgical known as an procedure, difficult prior that failed inspect the device arthrotomy, piece to from the remove 5) misusing the instrument surgery; knee; 8) appellant’s conceded this causing inside during surgery, it to break difficult, procedure caused more additional as- appellant’s Appellants knee. further appellant surgery, additional endure ipsa loquitur serted that the doctrine of res consequences hospitalization and related that broke applied since instrument necessary normally not for the which were appel- during surgery, while use original arthroscopic meniscectomy medial lee, ordinary course of would procedure. negligence on events have broken without Although appellee never contended Moreover, appel- appellee. part defective, grabber in his meniscus was negli- lants maintained that because appellee attempted satisfy affidavits appellee, caused the gence of the which allegations regard to the his burden with knee, appellant’s to break in the instrument grabber stating: misuse of meniscus undergo addi- required was appellant times, 1) properly correctly all I tional, surgery in order to “At more serious engineer give metallurgist laymen,” have a knowledge whereas ate to in the common pre- was opinion as to too much was no such whether case; regarding this particular sented instrument applied instrument or whether to this summary judgment 4) Haddock not a design or manufacture.” was defective in its it case. Certainly, appellant not be this should denied Moreover, concurring opinion concedes day in court because he failed his us does not issue in the case before that the engineer testimony metallurgist of a at the all, testimony necessity

involve the of medical prem- hearing, based nature of the suggesting instead that "[s]ince required ise that breaking of a involves metal occurrence malpractice case. instrument, might appropri- it seems that it *10 Further, arthroscopic question”; used the clearly device at 548. this case S.W.2d 2) “I would further state that no undue “the use of mechanical instru- involves by or traction was asserted me ments,” “leaving part and the a [of a] grabber while I was the meniscus on surgical body.” instrument within the 3) Arguello”; my Pete “It is Thus, at 639. Rayner, 526 S.W.2d this opinion that the instrument was not mis- exceptions gen- case falls within the me, by used and it did not break because of rule, requirement eral which eliminates the neglect any my part.” on Clearly, these testimony, permits applica- of medical support are conclusions which will not a ipsa loquitur, ques- tion of res and leaves Wise, summary judgment. 596 S.W.2d at jury’s tions of fact for the determination. Although appellants properly ob- Davis, 361; at at Id. jected conclusions, to these the summary Moreover, judgment granted. was nevertheless presented to the court failed to eliminate summary judgment, his motion for appellee’s all issues of fact as to whether appellee contends that he is entitled to a negligence caused the uncontradicted con- summary judgment because: sequential damages by appel- suffered Summary basis this Motion for resulting breaking lants from the of the Judgment genu- is two-fold: there is no surgical instrument at the hands of the any ine issue as to regard- material fact appellee during surgical procedures ing two essential elements of Plaintiffs’ Nixon, performed. 690 S.W.2d at negligence action, duty breach of Wise, point at 536. The should First, cause. the Defen- granted. dant, Gutzman, M.D., Dennis did not fall below the standard of for physicians majority concurring opinions practicing orthopedic surgery, treating leave claimants these circumstances be- operating upon Arguello. Pete Sec- place. tween a rock and a things hard Two ond, Gutzman, the actions of Dennis 1) absolutely are clear: if the doctor had M.D. did not cause injury to the left the entire instrument in the knee in- Plaintiff. piece instrument, just stead of of the no It is appellant uncontested that the required medical evidence would have been additionally damaged during surgery appellant to avoid the performed by appellee because the in- judgment; 2) claimant, as between the strument broke being while used doctor, manufacturer, only and the appellee during procedure. It is also alleged claimant any negli- to be free of uncontested damages that the additional gence, having nothing done provide but his appellant were in the form of an addi- leg. tional, more procedure severe doctor, According to the the harm to the required which piece to remove the claimant through was caused either appellant’s knee, the instrument still in hos- instrument, doctor’s misuse of the or be- pitalization, and other related conse- cause the defectively instrument was made Therefore, quences. only remaining by the manufacturer. The manufacturer question as to this cause of action is wheth- undoubtedly position will take the that the appellee er the doctor and, instrument was not defective there- damages caused the appel- suffered fore, it Consequently, must have been misuse being summary lants. this the doc- case, dispositive Although issue is tor that caused the harm. appellee whether the has established his required claimant will have been showing genuine burden of issues merely day medical evidence have his of material fact exist to his doctor, against the manufacturer and that he is entitled to as a simply point will to the doctor’s own state- Nixon, matter of law. 690 S.W.2d at 548. attempting ment in escape liability with- presenting any out Initially, appellee we note that has relied Somehow, objected all. my to conclusions disturbs sense of which will not Wise, summary judgment. justice. *11 remain, of fact this sum- Because issues and re- judgment should be reversed

mary trial.

manded for CONTRERAS, Aka Manuel

Manuel Contreras, Appellant,

Vela Texas, Appellee.

The STATE 13-90-406-CR, 13-90-405-CR, 13-

Nos. and 13-90-408-CR.

90-407-CR Texas, Appeals of

Court of

Corpus Christi. 25, 1992.

June Sept.

Rehearing Overruled (Appellant)

Discretionary Refused Review 27, 1993.

Jan. (State)

Discretionary Refused Review

Jan.