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Noriega v. Mireles5/23/1996
Carlota Noriega and Roberto Noriega, Jr. appeal a summary judgment against them in their suit against Dr. Ruy Mireles and Dr. Robert Pardo for medical malpractice. The Noriegas claim that Dr. Mireles and Dr. Pardo were negligent in the diagnosis and treatment of Roberto Noriega, Sr., leading to his death. We reverse and remand.
Mr. Noriega's wife and son sued Dr. Mireles and Dr. Pardo for negligence, lost chance of survival or cure, and negligent infliction of emotional distress. The appellants allege that the physicians were negligent in their treatment of Mr. Noriega, causing them to miss a diagnosis of neurosyphilis, and allowing the disease to progress to a point to cause Mr. Noriega to suffer seizures. Mr. Noriega was prescribed Dilantin for his seizures. The Noriega's suit alleged that the Dilantin caused Mr. Noriega to develop Stevens-Johnson syndrome, which eventually led to his death. They further assert that if Mr. Noriega's neurosyphilis had been diagnosed and treated in time he would not have had seizures, would not have been treated with Dilantin, would not have developed Stevens-Johnson syndrome as a result of taking the Dilantin, would not have developed complications as a result of the Stevens-Johnson syndrome, and therefore would not have died.
Dr. Mireles and Dr. Pardo filed expert witness affidavits on their own behalf denying that they strayed from the acceptable standard of care in treating Mr. Noriega, and moved for summary judgment. The plaintiffs responded with an affidavit from Dr. Ralph Lilly, who stated that Dr. Mireles and Dr. Pardo failed to adhere to the appropriate standard of care in Mr. Noriega's case. In his affidavit, Dr. Lilly states that he is a licensed physician specializing in neurology, and that he maintains a private medical practice in that specialty. He states that he reviewed the medical records of Mr. Noriega from the defendants and the hospitals in which Mr. Noriega was treated, as well as the depositions of Dr. Pardo and Dr. Mireles. In his six-page affidavit, Dr. Lilly traces the treatment Mr. Noriega received, states that he is familiar with the applicable standard of care, and opines that the treatment provided by Drs. Pardo and Mireles fell below that standard in several particulars and that the failure of those doctors to provide proper medical care was a proximate cause of Mr. Noriega's death. The trial court granted a general summary judgement in favor of Dr. Mireles and Dr. Pardo, and this appeal ensued. Arguments on Appeal In their fourth point of error, appellants argue that summary judgment was improper because the controverting affidavit of their expert witness, Dr. Ralph Lilly, was not defective. Although appellees filed objections to Dr. Lilly's affidavit in the trial court, the court never ruled on those objections. We first determine if Dr. Lilly's original affidavit was defective.
1. Sufficiency of Dr. Lilly's Affidavit
Appellees argue that Dr. Lilly's affidavit was fatally defective in form and substance and failed to raise a fact issue with regard to the alleged negligence. Appellees have three complaints about Dr. Lilly's affidavit: the jurat is defective, the affidavit is not based on personal knowledge, and those medical records and portions of depositions that Dr. Lilly relied on in reaching his conclusions were not attached to his affidavit.
A. Sufficiency of the Jurat
The appellees argue that Dr. Lilly's affidavit was defective because it was sworn to as "true and correct to my best knowledge and belief." Appellees argue that since he added the word "belief," Dr. Lilly is not stating that he knows the facts related in the affidavit to be true. Appellees asser
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