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Brantner v. Mihalick6/15/2000
This is an appeal from the trial court's grant of a no-evidence summary judgment in favor of Michael Mihalick, M.D. (Mihalick) and St Luke's Episcopal Hospital, The Texas Heart Institute, and Cardiac Catheterization Technologies (collectively referred to as "St. Luke's"). Branter contends that summary judgment was improper because she produced more than a scintilla of evidence on each element of her cause of action challenged by Mihalick and St. Luke's. Because we find that summary judgment was properly granted to Mihalick and St. Luke's, however, we affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The lawsuit underlying this appeal was a medical malpractice action arising from events alleged to have occurred during Brantner's stay at St. Luke's. According to Brantner, she was admitted to St. Luke's to undergo a PTCA procedure, a form of angioplasty. Prior to the surgery, she was administered two drugs to which she had previously had allergic reactions. Brantner claimed that she had informed hospital staff of her allergies during her admission, the hospital records clearly reflected these allergies, and she was wearing a bracelet listing these allergies. Despite these precautions, Brantner claims she was administered these drugs, suffered lacerations to her coronary artery during the angioplasty procedure, and consequently had open-heart bypass surgery to correct the injury to her artery. She filed suit against Mihalick, her cardiologist, as well as St. Luke's and others not parties to this appeal.
In her petition, Brantner alleged that Mihalick was negligent in failing to note or chart her medical history and in failing to follow the appropriate standard of care during her treatment. She also alleged that St. Luke's was negligent in failing to institute and enforce appropriate procedures which would have prevented her from being administered drugs to which she had known allergies. She also alleged St. Luke's was responsible for its nurses' negligence in administering the drugs to her when they were clearly informed of her allergic reactions to the medication
Three years after Brantner filed suit, St. Luke's and Mihalick moved for no-evidence summary judgments, alleging that Brantner had no proof of breach of the standard of care or causation. Brantner filed a response which incorporated the affidavit of Sharon VanRiper, a registered nurse. Brantner also filed an amended petition alleging res ipsa loquitur. The trial court granted Mihalick's and St Luke's motions in two general orders, and Brantner instituted this appeal.
STANDARD OF REVIEW
When reviewing a no-evidence summary judgment, we apply the same legal sufficiency standard that we apply in reviewing a directed verdict. See Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.-San Antonio 1998, pet. denied); see also Judge David Hittner & Lynne Liberato, No-Evidence Summary Judgments Under the New Rule, in STATE BAR OF TEXAS PROF. DEV. PROGRAM, 20 ADVANCED CIVIL TRIAL COURSE D, D-5 (1997). We look at the proof in the light most favorable to the non-movant, disregarding all contrary proof and inferences. S ee Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 118 S.Ct. 1799 (1998); see also Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 432 (Tex. App.-Houston [14 th Dist.] 1999, no pet.). A trial court cannot grant a no-evidence summary judgment if the respondent brings forth more than a scintilla of proof to raise a genuine issue of material fact. Moore, 981 S.W.2d at 26; TEX. R. CIV. P. 166a(i). Proof that is so weak that it only creates a mere surmise or suspicion of a fact is less than a scintilla. See Kin
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