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Carrillo v. Hirsch8/31/2001
s, which can, in turn, result in death. In light of these facts, we cannot say that either the issue of standard of care or the issue of causation was uncontroverted, and therefore find that summary judgment under a traditional standard was improper.
Under a no-evidence summary judgment, the movant asserts that there is no evidence of one or more essential elements of the non-movant's claims upon which the non-movant would bear the burden of proof at trial. Tex. R. Civ. P. 166a(i); General Mills Restaurants, Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.-Dallas 2000, no pet. h.). The burden then shifts to the respondent to present enough evidence to raise a genuine fact issue on the challenged elements. See Tex. R. Civ. P. 166a. The trial court will be reversed if the respondent brought forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Tex. R. Civ. P. 166a(i); see also Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). More than a scintilla exists when the evidence would permit reasonable and fair-minded people to differ in their conclusions. Havner, 953 S.W.2d at 711; Zapata v. The Children's Clinic, 997 S.W.2d 745, 747 (Tex. App.-Corpus Christi 1999, pet. denied).
In considering this summary judgment on the issues of proximate cause and standard of care under a no-evidence standard, we find that more than a scintilla of evidence exists on both issues, based on the previously mentioned affidavit and deposition testimony of Dr. Rosen. Therefore, appellant carried her affirmative burden under the no-evidence motion, and summary judgment was issued improperly.
Because we reverse the summary judgment based on the facts before us, we do not need to reach appellant's third point of error regarding the trial court's decision to grant appellee's leave to file additional summary judgment evidence, namely the deposition testimony of Dr. Trick.
Conclusion
In sum, we hold that it is not necessary in every case that an expert witness in a medical malpractice suit under article 4590i testifying as to the standard of care be in the same field as the defendant doctor. Instead, the trial court should look to whether that expert has knowledge of the standard of care applicable in the particular circumstances of that case, particularly where the particular issue as to which a doctor is testifying is developed in more than one field or intertwined between two fields. The plaintiff's expert, Dr. Rosen, works closely with surgeons in determining whether to go forward with surgery. His testimony indicated that he possessed knowledge of the standard of care that both anesthesiologists and surgeons use in determining to go forward with surgery. His testimony was sufficient to raise a fact issue as to whether the appellee breached the standard of care and was a proximate cause of Margarita Colunga's death. Therefore, the trial court erred in striking the plaintiff's expert witness and erred in issuing summary judgment. We reverse the summary judgment of the trial court, vacate the order striking the plaintiff's expert witness, and remand to the trial court.
Do not publish. TEX. R. APP. P. 47.3.
Opinion delivered and filed this 31st day of August, 2001.
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