 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
McQueen v. University of Texas Medical Branch5/30/2000
al court abused its discretion in denying a rule 166a(g) motion for continuance, we customarily consider the length of time the case has been on file, the materiality of the discovery sought, and whether the party seeking the continuance has exercised due diligence in attempting to obtain the discovery sought. See J.E.M. v. Fidelity & Cas. Co., 928 S.W.2d 668, 676 (Tex. App.-Houston [1st Dist.] 1996, no writ). However, given our disposition of point of error two, in which we determined the trial court did not abuse its discretion in refusing to appoint a medical expert, the issues of continuance and discovery are moot. Even if the trial court erred in denying the motion and sustaining appellees' objections, additional time would not have overcome the lack of an expert opinion.
We overrule points of error five and seven.
Summary Judgment
In point of error six, McQueen contends the trial court erred in rendering summary judgment for the appellees because the judgment was based on legally insufficient evidence and because he raised a material fact issue.
In a suit for medical malpractice, summary judgment may be based upon the affidavit of a defendant doctor. Tex. R. Civ. P. 166a(c). Each affidavit submitted by appellees included proof of the expert's qualifications. Each affidavit was sufficient to show appellees complied with the standard of care because each (1) stated the affiant was familiar with the standard of care, (2) specified the examination and treatment performed, (3) stated that the physician's acts met the appropriate standard of care, and (4) stated there was no causal connection between the physician's acts and McQueen's injury . As a matter of law, then, the appellees negated each element of McQueen's cause of action.
As noted, a plaintiff who intends to pursue a malpractice claim must file a cost bond or an expert report; if he does not, his suit will be dismissed. Tex. Rev. Civ. Stat. Ann. art. 4590i, ยง 13.01(a)(3) (Vernon Supp. 2000.) An indigent plaintiff may avoid dismissal by filing an affidavit of indigency in lieu of a cost bond. Id. However, without an expert report, such a plaintiff cannot avoid summary judgment. Once the defendant doctor has negated the elements of the plaintiff's cause of action, the burden shifts to the plaintiff to introduce expert testimony to rebut the affidavit and prove the doctor's diagnosis or treatment was negligent and was a proximate cause of the injury . Mathew v. McCoy, 847 S.W.2d 397, 401 (Tex. App.-Houston [14th Dist] 1993, no writ). McQueen did not file a medical expert's report, and we have held he was not entitled to appointment of a medical expert. Accordingly, he did not meet his burden of proof sufficient to defeat summary judgment.
We overrule point of error six.
Substituted Service of Process
In point of error three, McQueen contends the trial court erred in denying his motion for substituted service or citation by publication of Jose Cobos.
Given our disposition of point of error six, the issue of service is moot.
We affirm the summary judgments.
Do not publish. Tex. R. App. P. 47.
|