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Monroe v. Maxwell6/11/1996
Filed June 11, 1996
OPINION
Rose Monroe appeals from a summary judgement granted in favor of Dr. Clinton Maxwell, M.D. Monroe sued Maxwell for medical malpractice, alleging misdiagnosis and negligent treatment of injuries she received from a fall. In a single point of error, Monroe contends the trial court erred in granting summary judgement for Maxwell. Because Monroe failed to raise an issue of material fact after Maxwell submitted an affidavit sufficient to establish the absence of causation, we affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Monroe underwent surgery to fuse vertebrae in her back. Following the surgery, Maxwell admitted her to Plano Rehabilitation Hospital for rehabilitation. Maxwell was her primary physician. Maxwell ordered Monroe to walk only with assistance. Monroe walked with a nurse's assistance to the bathroom. While the nurse was outside the bathroom, Monroe tried to get up on her own, slipped, and fell. Monroe claims she called several times for assistance before she got up on her own. Monroe alleges she injured her back, shoulders, ribs, and head as a result of the fall.
Shortly after the fall, Maxwell examined Monroe and noticed bruising and redness on her left hip. Monroe complained of pain in her left leg. Maxwell ordered left hip x-rays and a bone scan of the hip and pelvis. Based on the radiology report, Maxwell ordered ultrasound and heat treatment of Monroe's hips. Because Monroe improved after treatment, Maxwell ordered no additional tests or treatment. Physical and occupational rehabilitation continued.
Monroe moved to New York. She was admitted to a hospital in New York City. Monroe alleges that physicians in the New York hospital discovered multiple rib fractures, fractures to the left clavicle, and a fractured sacrum, which she contends resulted from the fall.
Monroe sued Maxwell, alleging his treatment violated his duty of care to her and caused her serious and permanent injuries. Specifically, Monroe contends Maxwell's failure to follow up the initial bone scan with a second scan twenty-four to forty-eight hours later was contrary to accepted medical practice. Monroe also sued the radiologist, the nurse, Plano Rehabilitation Hospital, and HCA Medical Center of Plano.
Maxwell filed a motion for summary judgement based on the grounds that Monroe could not prove (1) he failed to conform with the standard of care; or (2) the treatment and services provided by him to Monroe caused the injuries allegedly suffered by her. Maxwell relies on his affidavit as Monroe's primary physician in support of his motion for summary judgment.
Monroe filed a response to the motion for summary judgment, in which she contends that issues of material fact exist on the elements of standard of care and causation. Monroe's response relies on an affidavit from her daughter, Evelyn Shukat, a physician licensed in Arkansas and New York. Monroe contends Shukat's affidavit sufficiently controverts Maxwell's affidavit and creates issues of material fact about breach of the standard of care and causation. Maxwell filed numerous written objections to Shukat's affidavit. The record does not contain written rulings on his objections. The trial court granted Maxwell's motion for summary judgment.
SUMMARY JUDGMENT
Standard of Review
The function of summary judgement is not to deprive a litigant of the right to a full hearing on the merits of any real issue of fact but to eliminate patently unmeritorious claims and untenable defenses. See Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex. 1952). The purpose of the summary-
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