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McQueen v. University of Texas Medical Branch5/30/2000
Synnachia McQueen, a prison inmate, experienced pain in his left knee for a number of years. When the prison medical staff were unable to relieve the pain, appellant was referred to the University of Texas Medical Branch (UTMB) in Galveston for evaluation and surgery. After the surgery, when the pain continued, McQueen sued UTMB and his treating physicians for malpractice. The trial court rendered summary judgments for the appellees, and this appeal ensued. We affirm.
Appointment of Counsel
In point of error one, McQueen contends the trial court erred by not appointing him counsel. McQueen filed a motion for appointment of counsel in which he declared his indigency and asked for appointed counsel because he was incarcerated and had filed a complex medical malpractice case.
A district judge may appoint counsel for an indigent party in a civil case. Tex. Gov't Code Ann. § 24.016 (Vernon 1988). However, the Texas Supreme Court has never held that a civil litigant must be represented by counsel for a court to carry on its essential, constitutional function. In some exceptional cases the public and private interests at stake are such that the administration of justice may best be served by appointing a lawyer to represent an indigent civil litigant. Travelers Indemnity Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996). The Medical Malpractice Act recognizes that some plaintiffs will not be represented by counsel; it provides that when an indigent plaintiff who is pursuing a medical malpractice claim without an attorney is unable to afford a cost bond, he may file an affidavit of indigency. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(o) (Vernon Supp. 2000). McQueen has not shown that his case was exceptional under section 24.016 of the Government Code; thus, the trial judge did not abuse his discretion in refusing to appoint counsel.
We overrule point of error one.
Appointment of Medical Expert
In point of error two, McQueen contends the trial court abused its discretion by not appointing an expert medical witness. McQueen filed a motion seeking the appointment of a medical expert to establish the proper standard of care, in which he informed the court that he was indigent. Although court-appointed medical experts in criminal proceedings are not uncommon, such appointments are not automatic. See, e.g., Elmore v. State 968 S.W.2d 462, 465 (Tex. App.-Eastland 1998, no pet.) (trial court did not abuse discretion in refusing to appoint medical expert to dispute intoxilizer results). McQueen cites no authority to suggest he has a right to appointment of a medical expert in this civil suit.
We overrule point of error two.
Presence at Summary Judgment Hearing
In point of error four, McQueen contends the trial court erred by not issuing a bench warrant compelling him to appear at the summary judgment hearing. A summary judgment hearing is conducted without oral testimony, thus McQueen's presence was irrelevant to the proceeding. See Tex. R. Civ. P. 166a(c).
We overrule point of error four.
Continuance & Discovery
In point of error five, McQueen contends the trial court abused its discretion when it did not grant a second continuance of the summary judgment hearing. In point of error seven, McQueen contends the trial court abused its discretion when it sustained appellees' objections to his discovery requests. Although the record contains a letter in which McQueen refers to his various motions to compel and asks the court to rule on these, neither the motions nor the rulings are included in the record before us.
In deciding whether a tri
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