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Estate of Frank G. Puente6/24/1998
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 94-CI-13142
Honorable David Peeples, Judge Presiding
AFFIRMED
Plaintiffs sued an anesthesiologist for negligent failure to diagnose lung cancer while preparing his patient for a kidney transplant. We affirm the granting of a summary judgment.
The deceased, Frank Puente, underwent a successful kidney transplant procedure on July 2, 1992. X-rays taken before the transplant showed a small mass in one lung; this is also noted in the written report accompanying this X-ray. However, lung cancer would not be diagnosed for another six months.
The defendant in this case, Dr. Scott Kercheville, was anesthesiologist for that kidney transplant procedure. Kercheville did not examine the X-rays taken before the operation; as part of post- operative procedure, Kercheville used a portable X-ray machine to determine that various catheters were in the correct place. Puente's survivors contend Kercheville's failure to read the X-ray before the operation was a breach of duty toward Puente for which Kercheville should be held liable.
After discovery, Kercheville moved for summary judgment. While he filed more than 850 pages of evidence in support of his motion, the crucial item is his own five-page affidavit. In response to the summary judgment motion of Kercheville and others, Plaintiffs filed an affidavit from her expert, Dr. Robert J. Awe, in an effort to controvert this evidence. The trial court granted summary judgment in favor of Kercheville on the breach of duty question. After this and other summary judgments were granted, the action settled; the plaintiffs appeal only on the question of whether the grant of summary judgment in favor of Kercheville was proper.
In one point of error the plaintiffs argue the trial court erred in granting summary judgment because Kercheville's evidence did not negate the duty element, and instead established his breach; and that their summary judgment evidence established Kercheville's breach of duty. We affirm the judgment of the trial court.
Standard of Review
The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. p. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex. 1985). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the nonmovant; every reasonable inference from the evidence will be indulged in favor of the nonmovant, and any doubts will be resolved in his favor. Nixon, 690 S.W.2d at 549. A defendant who conclusively negates at least one of the essential elements of each of the plaintiff's causes of action is entitled to summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993).
The testimony of an interested witness may support a summary judgment if it is clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies, and susceptible to being readily controverted. Tex. R. Civ. P.166a(c).
In a medical malpractice cause of action, the plaintiff must prove by competent testimony that the defendant's negligence proximately caused the plaintiff's injury. Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988). The plaintiff must show four elements: 1) a duty by the physician to act according to a certain standard; 2) a breach of the applicable standard of care; 3) an injury; and 4) a causal connection between the breach of care and the injury. Pinckley v. Gallegos, 740 S.W.2d 529,
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