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Bottoms v. Smith5/30/1996
filed May 30, 1996.
OPINION
This is an appeal from a summary judgement in favor of appellees in a medical malpractice action. In one point of error, appellants argue that summary judgement was improvidently granted because there exist genuine issues of material fact. We reverse and remand for a trial on the merits.
I. Background
On June 16, 1986, Sammie R. Bottoms, the decedent, underwent an out-patient colonoscopy to the cecum, which included the removal of an 8mm sessile polyp in the ascending colon and a 3mm hyperplastic lesion in the rectum. The decedent was seen on September 28, 1987, by Dr. Charles E. Smith, M.D. ("Dr. Smith"), appellee, who noted in the decedent's medical chart that she had a history of polyps and needed a follow-up colonoscopy. No follow-up colonoscopy was performed at that time. The decedent returned to appellee for medical care throughout 1988 and 1989 for unrelated problems. On January 25, 1989, the decedent complained to appellee about stomach pain which radiated around her side and into her back. Although Dr. Smith noted the need to schedule a pap smear, mammogram and follow-up on the colon polyps, a follow-up colonoscopy was not done at that time.
On September 12, 1989, a colonoscopy was performed on the decedent which did not cover the entire colon. The results were normal to fifty centimeters. On November 9, 1989, the decedent complained to Dr. Smith about fever and pain in her right side. She was then seen in the emergency room at St. Luke's Episcopal Hospital, where she was diagnosed with a pelvic cystic mass later determined to be an ovarian cystic tumor. The decedent was subsequently found to have cancer of the colon, with metastasis to the ovaries and liver. At that point, the decedent had a zero percent chance of survival. The decedent died on June 11, 1991.
Appellants filed the above action against Dr. Smith and KelseySeybold Clinic, P.A., appellees, alleging that they were negligent in failing to perform a follow-up colonoscopy in 1987, proximately causing the decedent's death. Appellees moved for summary judgment claiming the appellants had failed to raise a fact issue because their expert did not establish that Dr. Smith's conduct fell below the recognized standard of care or, alternatively, was the proximate cause of the decedent's death. The trial court granted summary judgement in favor of appellees.
II. Standard of Review
The Texas Supreme Court has clearly articulated the appropriate standard to be applied when reviewing summary judgments:
"1. the movant for summary judgement has the burden of showing that no genuine issue of material fact exists and that the movant is entitled to judgement as a matter of law;"
"2. in deciding whether a disputed material fact issue precludes summary judgment, the court must take evidence favorable to the non-movant as true; and"
"3. the court must indulge every reasonable inference in favor of the non-movant and resolve any doubts in its favor." Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Karl v. Oaks Minor Emergency Clinic, 826 S.W.2d 791, 794 (Tex. App.-Houston [14th Dist.] 1992, writ denied). When an order granting summary judgement does not specify the grounds upon which it is granted, as in the present case, the judgement will be affirmed on appeal if any of the grounds raised in the motion are meritorious. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
III. Discussion
In their single point of error, appellants claim the trial court erred in granting appellees' motion for summary judgement because material
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