*1 lineup appellant the detention of the authority of this commitment.
under M. BROWN and Sharon Daniel Individually Consequently, lineup conducted Next Friend of challenged ar- by ‘exploitation’ Hobbs, Appellants, of the not Michael David distinguish- ‘by sufficiently means rest but taint’. purged primary to be able M.D., BETTINGER, Appellee. Jerry opinion is unclear While Johnson No. 09-93-326 CV. magistrate, taken it seems the actions “committing magistrate” to indicate Texas, Appeals Court probable cause made some determination of Beaumont. type issued some of “commitment”. clear the of the Peace did Here it is Justice April 1994. Submitted rights in nothing more than read Malone Sept. Decided accordance with TexCode Crim.PROC.Ann. (Vernon set bail. Supp.1994) art. 15.17 notes an not been The form affidavit has the court. notes the
filed with It further unconditionally should be released accused charge compliant a criminal unless Clearly approximately filed within 48 hours. appearance magistrate was this before the nothing warnings by than more the Miranda person “commitment”
a different and not a as envisioned Johnson. why the There is no evidence to show prepare probable officers did affidavit between time of the arrest taking Malone to the of the Peace. Justice hours;
This alone took three five and one- receiving half hours since the confidential Monday, a October 1991was information. day. The Peace office work Justice of the was across the street Port Arthur from the
police station. There no evidence of una-
vailability support, of secretarial unavailabili- attorneys
ty of assistant district or unavaila- bility magistrate. It is inconceivable 14-years’ ex-
that Detective Robertson with experi- perience 21-years’ as a detective and ence law enforcement was untrained disregard “arrest law”. total area of compliance police law miscon- with shows the flagrant.
duct is of error and would sustain Malone’s remand a new trial. reverse and *2 Houston, appellants. Cryer,
Linda G. Hanen, Spalding, & E. Alexander John Burnham, Timothy Riley, Ralph D. Spalding, Houston, Riley, appellee. Floyd, Taylor & WALKER, C.J., and Before BURGESS, JJ. BROOKSHIRE
OPINION
BURGESS, Justice. summary judgment case. We
This is Kay Daniel M. Brown and Sharon reverse. Brown, Individually as Next Friend of Browns”) (“the Hobbs, filed Michael David Jerry against Dr. Bet- original action their 11, 1992, M.D.,1 September tinger, as a result of damages allegedly sustained malpractice. The Browns negligent in his care and Bettinger was September treatment of Sharon Bettinger filed a motion for Sum- 1990. Dr. granted on Octo- mary Judgment which was first treated 1993. ber September 1990. She Brown on Sharon emergency room of examined had been Conroe, Texas, Hospital in Medical Center Connor, requested Dr. by Dr. who John Brown’s case. consult on Ms. headaches, complained of severe Ms. Brown nausea, Dr. Bet- vomiting and double vision. Ms. history from tinger took a medical physical ex- proceeded with Brown and then Following physical examina- amination. tion, diagnostic Bettinger reviewed the performed previously been which had studies scan, Brown, including an MRI blood on Ms. court level. Hospital at the trial was severed Center against Medical A co-defendant suit may have Bet- which trial court urinalysis. According to Dr. tests therefore, affidavit, summary judgment and because the Browns were informed necessary specify rule spinal tap that a would be court’s order does the trial hemorrhage. Betting- grounds, particular out subarachnoid that, provides per- prior upheld any supportable grounds. er’s affidavit also must be *3 forming tap, the were spinal the Browns point a argument, the is suffi- As to last complications potential of associ- advised the to attention of the court cient if directs the having spinal tap with a and that this ated complaint is made. the error about which undergo knowledge, Ms. Brown elected to Tex.R.App.P. 74(d). Furthermore, a substan- spinal tap procedure. the in compliance rules will suffice with the tial tap Tex.R.App.P. Bettinger attempted spinal first a 74(p). justice. interest of the interspace, LA-5 but unable to at the was sufficiently out point points The Browns’ space. Bettinger enter the subarachnoid qualified Oppenheim was their belief tap spinal then moved the to the L5-S1 the affidavit out as an and his set space, but still unable access the to care, the causa- of the breach and standard space. subarachnoid Ms. Brown was tion. radiology department the where taken to reviewing The a sum bloody fluoroscopic guidance, with the aid of judgment mary as established in Nixon spinal According Dr. fluid was obtained. to Property Management, 690 Mr. Bettinger, complica- Ms. Brown suffered (Tex.1985): provides three 548-549 tions, legs, was able to move her and had summary requirement, pronged a movant for sensory in disturbance other than soreness showing that judgment has burden of punctures. her back from the needle genuine issue of material fact and there is affidavit, According Ms. Brown’s to judgment movant is to as that entitled Bettinger performed spinal separate three law; deciding is a of in whether there matter taps. Ms. Brown contends that when precluding disputed fact issue sum- material time, “I spinal needle inserted a second mary judgment, evidence favorable to excruciating experienced pain my in lower true; every will taken as non-movant be my leg back and down the back of left entire in fa- indulged must be reasonable inference my immediately began hollering in feet. I any re- doubts vor of the non-movant pain. finally When Dr. able to in their solved favor. Betting- remove the needle it was bent. Dr. Texas of Civil Pursuant Rule spinal then asked another er needle. 166a(c), motion for Procedure a defendant’s Bettinger then inserted the needle a third granted if should then, By pain it. time removed establishes, as a evidence my lower back and down the of the left back law, genuine of there is no issue matter that leg throbbing.” respect any fact to one or material with single bring of error: Browns more of the essential elements of Bet- Appellee “The Court erred of First National action. Citizens Summary Judgment Motion for be- Co., Exploration Bank v. Cinco 540 S.W.2d testi- cause there was medical (Tex.1976); v. General Motors Gibbs mony Appellee as whether breached (Tex.1970). Corp., creating genu- care applicable standards of establishes, as a matter Where movant fact.” Dr. ine issue material law, any plain essential element of that one responds separate reply points via con- three exist, the mov- tiffs cause of action does by tending: proof his burden of show- met prevail on its motion ant is entitled to ing genuine of material fact existed issue judgment. summary See Rosas v. Buddies regard Browns’ cause of
with
to the
(Tex.1975).
Store,
Food
action;
judgment
summary
proof
offered
support
his mo
Bettinger,
by
adequately
failed to
contro-
the Browns
summary judgment, submitted
summary judgment proof; and the
tion for
vert his
evi-
possible grounds
personal
all
affidavit as
Browns failed to address
testimony
Bettinger affidavit. Dr.
defendant/physieian’s
dence.
For
competent summary judg Oppenheim’s affidavit reads as follows:
to be considered
evidence,
ment
such affidavit must state:
My
Oppenheim,
B.
MD. I
name is Elliott
qualifications;
per
physician’s
the services
Washington
was licensed
State
patient
treatment
formed for the
over the
practiced med-
between 1974 and 1992 and
physician met the standard
period; that the
emergency
family physician
icine as a
care;
specific
that
the affidavit contains
physician
years.
I was
between those
allegations
negli
denials of each of
Board of
Board Certified
the American
gence
appellants’ petition;'
contained in
Family Practice.
physician’s opinion
be based
a rea
following
records: an
have reviewed the
degree
probability;
sonable
her
affidavit of Sharon Brown
version
physician’s
that no act or omission on the
*4
leading
injury
up
of the events
to her
any damage
plaintiff.
part caused
See
1990,
12,
September
records
the medical
(Tex.
Horning,
Duncan v.
471
587 S.W.2d
Brown,
Bettinger
Medi-
on Dr.
on Sharon
writ).
1979,
Civ.App.
no
Dr. Bet
—Dallas
Hospital
cal Center
records on Sharon
specifically
each
addressed
subsequent
medical treatment
every allegation
negligence
asserted
University of Tex-
Brown at the
Sharon
by appellants.
My opinions
Branch.
ex-
as Medical
degree of med-
pressed are to a reasonable
prevail
In order to
in a medical
probability.
ical
case,
malpractice
plaintiff
must establish:
duty
provider to
requiring the health care
applicable
I am familiar with the
standard
conduct;
conform to a
standard of
certain
diagnosis and treatment
of care for the
applicable
of care and its
standard
symptoms
Brown exhib-
[sic] of
Sharon
breach;
injury;
reasonably
an
and a
close
applicable
ited.
I am also familiar with the
causal connection between the breach of that
proce-
of care for the medical
standard of care and the harm. Tilotta v.
provided for
dures
Goodall,
160,
(Tex.App.—
752
161
S.W.2d
Hospital.
Brown at Medical Center
Sharon
denied);
1988,
Houston
writ
[1st Dist.]
Sep-
12
Dr.
Mrs. Brown saw
Aldama-Luebbert, 707
Wheeler v.
S.W.2d
from extreme
tember 1990. She suffered
1986,
213,
(Tex.App.
[1st Dist.]
217
—Houston
nausea,
headache,
vi-
vomiting,
and double
writ).
cases,
In medical
such
eye
lateral-
right
and the
was deviated
sion
case,
present
guided
trier of fact is
as our
ly.
Bettinger performed a series of
solely by
opinions
experts.
See Hart
tap,
spinal taps. During the second
three
(Tex.
Zandt,
791,
399
792
v. Van
S.W.2d
pain
patient experienced lower back
866,
1965);
Jefferson,
v.
802 S.W.2d
Cedillo
posterior aspect of her
radiating down the
1991,writ
(Tex.App.
[1st Dist.]
869
—Houston
patient
leg extending to her feet. The
left
denied).
pro
Expert testimony, even when
suffering
throb-
subsequently began
from
enough
party,
an
to
vided
interested
pain
her back and into her left
bing
down
v.
support summary judgment. See White
leg.
Wah,
312,
(Tex.App.
317
789 S.W.2d
—Hous
traumatic series of
As a result of this
1990,
To defeat Dr.
ton
[1st Dist.]
an herni-
spinal taps,
patient
sustained
Summary Judgment,
Bettinger’s Motion for
disc which necessitated
L5-S1
ated
required
produce compe
the Browns were
to
April,
diskectomy
laminectomy in
testimony controverting the ex
tent
1991,
laminectomy in Febru-
with another
Bettinger.
v.
pert opinion of Dr.
See Shook
ary, 1993.
Herman,
743,
(Tex.App.—
747
denied).
requires that when a
The standard of care
response
In
to Dr.
writ
Dallas
inserted,
ap-
it
Summary Judgment,
spinal needle is
should
Bettinger’s Motion for
positioned
that
the needle
propriately
so
response and attached the
filed a
the Browns
the sub-
may pass without trauma into
M.D. The
Oppenheim,
Elliott B.
affidavit of
space. This was not done
arachnoid
Oppenheim’s
affida
Browns contend that
This was
injury
patient.
to this
resulted
adequate expert
vit constituted
physician
failing
for
against
osteopathic
an
a breach
the standard of care
plaintiffs wife. The
X-ray the
of the
caused the herniated disc.
head
allopathic physician as an
plaintiff
an
used
Bettinger argues
Oppenheim’s
that
appeals
stated
expert witness.
court
competent
judgment
summary
affidavit is not
it
general rule of “same school” but noted
qualifica-
it fails
evidence for
to establish his
“unnecessary
to test the
incom
expert.
supports
tions as an
He
this conclu-
testimony”
petency
“[H]is
because
tes
Oppenheim’s
sion
based
failure
timony
not have
taken as whole would
“any training
state he had
whatsoever
findings
supported jury’s
that
failure
neurology
per-
field
or
has ever
X-ray
...
pictures
take
tap.”
his
spinal
formed a
He also couches
cause_”
Herman, 759
Shook v.
While
argument
in terms
“same school
at
was a
S.W.2d
practice” requirement
controverting evi-
case,
plaintiff
it was
where the
filed
one
dence.
Likewise,
expert controverting affidavit.
Ti
requirement
enunciated
Goodall,
v.
at
was a
lotta
Bourdon,
Tex.
Bowles
summary
original
judgment case. The
mo
(1949),
when
court
“It
stated:
was denied but
tion
definitely
patient
settled with us that a
has
later
on a
motion
reconsider.
against
action
cause of
doctor
*5
plaintiff
no
The
had
affidavit
malpractice ...
proves by
he
a doctor
unless
any
hearsay
expert.
only
She
had a
from
the
practice
of
dant_”
same school of
as the defen-
deposition
statement in her
that two doctors
however,
case,
at
The
Id.
surgery performed by
told her the
the
had
competency
expert
did
turn on the
not
thyroid damage.
tes
defendant caused
witnesses,
on
but
them failure to establish
timony
objected
was
to in the
motion
proximate cause.
an
reconsider. Thus this became
uncontro-
Zandt,
The
case of
later
Hart v. Van
399
testimony
expert
case. Cedillo v.
verted
Jef
791,
S.W.2d at
the
It
a
discussed
issue.
a
ferson, 802
at 866 involved motion
S.W.2d
malpractice
laminectomy
arising
case
of a
out
a
for continuance of
plain-
and disk removal. At the close of the
hearing
get
expert.
in
a medical
order
evidence,
tiffs
the
trial court instructed
controverting expert
There was no
affidavit
osteopath
verdict for the defendant. An
had
the
of
properly before the court and
court
plaintiff.
the
The
testified for
defendant’s
held
was no
of
appeals
there
abuse
discretion
motion raised the
the
of
issue of
“doctor
failing
grant
the continuance. Nail v.
in
practice
same
school
as
The
defendant.”
Laros,
250,
(TexApp.—
854
252-253
S.W.2d
court
Bowles
the
cited
“same school
writ),
1993,
summary judg
Amarillo
no
requirement.
They
practice”
cited
malpractice
ment case
where
82,
Puryear,
Porter v.
Tex.
262
153
S.W.2d
orthopedic surgeon
post
due to
against an
933,
(1953),
aside,
Tex.
936
set
153
plaintiff
upon
The
relied
operative infection.
82,
(1954),
the proposition
in had never done heart had ment does not or past experience coronary ruling, summary judgment treatment of relied for its any by-pass surgery appeal if disease and that was out of will be affirmed on ruling his field. Before on the motion for theories are meritorious. This advanced summary judgment, recognized rule Appeals the trial court held the Ninth Court of Bank, family physician competent testify was not Netterville v. Interfirst expert coronary by-pass surgery. (Tex.App. as an —Beaumont granting When an order care; Oppenheim states the standard of specify particular judgment does not unfortunately, he does not “trauma”. define sustained, grounds appeal, the trial court However, does; dictionary trauma is “an summary judgment opponent must de injury body by living or wound to a caused summary judgment ground urged feat each application of external or force violence.” movant, appellate otherwise the court THIRD NEW WEBSTER’S INTERNATIONAL DIC- any uphold summary judgment on must certainly It is a rea- (UnabRidged). TIONARY ground support. that finds Goston v. Hutch Oppenheim sonable inference that Dr. has ison, (Tex.App. —Houston knowledge experience spinal taps some or Carr, writ), citing [1st Dist.] if he is familiar with the standard of care. S.W.2d at 569. Furthermore, objec- the defendant leveled no Oppen- tions before the trial court as to Dr. case, present In the the Trial Court’s Or- any qualifications heim’s as an or to summary judgment in der favor of portion of his affidavit. specify grounds did not Bettinger argues Oppenheim upon which the Op- failed to establish cause. Dr. of error is based. The Browns’ sole penheim’s quite statement clear: “This the trial court limited to the contention that *6 injury....” summary judgment was not done granting and resulted erred in referring properly controverting expert He is to the failure to testi- because there was position mony relating applicable the needle into the subarachnoid standard of causing space injury to Mrs. Brown. While Proximate cause is one of the essential care. magic are not words of elements of used, Appellants a reasonable inference from the word do not address cause of action. may possibility trial court have “result” is causation. that the prox- appellants failed to establish found Oppehheim’s affidavit to We hold cause, imate an essential element of their evidence; competent summary judgment cause of action. Where successfully Bettinger’s af controverts Dr. may ground specifi- on a have been based fidavit, genuine are issues of therefore there cally challenged by appellant, the review- material fact. The ing required to let the court is reversed and remanded.. stand, general assignment of if there is no REMANDED. REVERSED AND that the trial court erred error summary judgment. Company Electric TEC WALKER, Justice, dissenting. Chief Corporation, 581 v. AMFAC Distribution (Tex.Civ.App. Tyler respectfully dissent to the reversal and S.W.2d — affirm sum- remand of this cause and would mary judgment. possi-
Appellants to address all have failed may grounds which the trial court ble summary judgment. In Carr have (Tex.1989), Brasher, held that when a Supreme our Texas Court granting summary judg- trial court’s order