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Brush v. Fustok12/14/1995
Lorie A. Brush, appellant, appeals from a take-nothing summary judgment rendered in a medical malpractice suit brought against Dr. Abdel K. Fustok. Under the first point of error, we must decide whether Brush's claim is barred under the two-year statute of limitations found in article 4590i of the Texas Medical Liability Insurance Improvement Act (the "Act"). TEX. REV. CIV. STAT. ANN. art. 4590i, Section(s) 10.01 (Vernon Supp. 1995). Next, we must determine the status of Brush's claim under the Deceptive Trade Practices Act, TEX. BUS. & COMM. CODE ANN. Section(s) 17.41-.63 (Vernon 1987 & Supp. 1995) (DTPA), and her claim that Fustok did not inform her of the risks associated with silicone breast implants. Under the third point of error, we must determine whether Fustok's affidavit established treatment in accordance with the applicable standard of care, and if so, whether Brush's controverting affidavit created a question of material fact.
We reverse and remand.
Background
The standard of appellate review of a summary judgement order requires us to take as true all evidence and reasonable inferences favorable to Brush, the nonmovant. Chambers v. Conaway, 883 S.W.2d 156, 157 (Tex. 1993); Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex. 1985). Using this standard, we set out the following chronology of facts.
On April 21, 1987, Fustok initially examined Brush for a six-year history of severe, recurrent breast cysts that drained "foul smelling pus." After his initial assessment of Brush, Fustok's treatment plan included performing a bilateral subcutaneous mastectomy followed by reconstructive surgery when the infection resolved.
During the next one and a half years, Fustok operated on Brush seven times. First, on April 27, 1987, Fustok performed a bilateral subcutaneous mastectomy and inserted tissue expanders beneath each breast muscle. Brush left the hospital three days later.
Second, on May 18, 1987, Fustok surgically explored Brush's right breast and drained and cultured a collection of serous fluid from the right breast area. Due to an infection, Fustok removed the right tissue expander and prescribed "appropriate antibiotic therapy" for Brush. Fustok continued to see Brush in his office.
Third, on July 15, 1987, because the right breast incision continued to drain and was healing slowly, Fustok again surgically explored Brush's right breast area. Fustok found an infection, which he irrigated with an antibiotic solution. Brush left the hospital with a prescription for a different antibiotic.
On August 27, 1987, Fustok operated on Brush a fourth time during which he inserted a new right tissue expander and relocated the left tissue expander, which had dislocated from under the breast muscle. After August 27, 1987, Fustok injected saline into the tissue expanders every one to two weeks.
On December 2, 1987, Fustok operated on Brush a fifth time to replace the dislocated left tissue expander. For five months after the fifth surgery, Fustok injected saline into the tissue expanders every one to two weeks. According to the medical records, however, Brush complained of feeling ill and of feeling pain and numbness in her left arm.
The sixth operation was on May 19, 1988, when Fustok again replaced the left tissue expander because a seroma had developed at the left breast area. From June 8, 1988 to October 3, 1988, Fustok examined Brush in his office every one to three weeks.
The seventh and final operation was on November 9, 1988, when Fustok removed the tissue expanders and inserted silicone breast implants. The last time Fustok examined
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