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Boren v. Bullen6/4/1998
William Boren sued Michael Bullen for medical malpractice. The trial court granted Dr. Bullen's motion for summary judgment and Mr. Boren appeals by one point of error. We affirm.
Mr. Boren challenges the trial court's determination that the summary judgment evidence presented no genuine issue of material fact. He complains Dr. Bullen's testimony in his own behalf was insufficient to prove his actions comported with the appropriate standard of care and that Dr. Bullen's testimony was controverted by Dr. Robert Kilian, Mr. Boren's expert. In reply, Dr. Bullen contends his testimony by affidavit was sufficient to prove he was not negligent, as a matter of law, and that Dr. Kilian was not qualified as an expert competent to testify in this lawsuit; therefore, the trial court properly granted summary judgment on Dr. Bullen's uncontroverted affidavit.
To prevail on a summary judgment motion, a movant must establish that no genuine issue about any material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a (c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam). In a medical malpractice suit, the trier of fact must be guided by the opinion testimony of experts. Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex. 1965). A defendant who conclusively negates at least one of the essential elements of each of the plaintiff's causes of action or who conclusively establishes all of the elements of an affirmative defense is entitled to a summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984). A defendant physician can obtain summary judgment based on his uncontroverted expert testimonial evidence "if the evidence is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted." Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986); Noriega v. Mireles, 925 S.W.2d 261, 266 (Tex. App.--Corpus Christi 1996, writ denied). The party offering an expert's testimony bears the burden of proving the witness is qualified under rule of evidence 702. Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996). In reviewing a summary judgment, we must accept as true evidence in favor of the non-movant, indulging every reasonable inference and resolving all doubts in the non-movant's favor. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Hartman v. Urban, 946 S.W.2d 546, 548 (Tex.App.--Corpus Christi 1997, no writ). When a trial court's order granting summary judgment does not specify the ground or grounds relied on for its ruling, an appellate court will affirm a summary judgment if any of the theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Urban, 946 S.W.2d at 548.
In Dr. Bullen's summary judgment affidavit, he described his medical training and experience in the field of infectious diseases establishing himself as an expert qualified to testify in his own behalf. He states, as a specialist in infectious diseases, he is familiar with the standard of care for the diagnosis, management, and treatment of patients like Mr. Boren. He then specifically sets out that standard of care. He provides a sufficiently detailed account of his treatment of Mr. Boren, and describes how this treatment conformed to the standard of care. We find Dr. Bullen's affidavit is clear, positive, direct, credible, free from contradictions and inconsistencies, and could have been readily controverted. We hold Dr. Bullen's affidavit sufficiently disproved the elements of breach of duty and proximate cause to shift the burden to Mr. Boren to offer expert testimony contradicting Dr
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