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Cunningham v. Columbia/St. David's Healthcare System10/13/2005
Cherrie Cunningham, individually and as the next friend of her late father, Troy Conaster, filed suit against appellant Columbia/St. David's Healthcare System, L.P., ("Columbia") on May 29, 2003, alleging that the hospital's medical negligence caused her father's death. The trial court granted a no-evidence summary judgment in favor of Columbia, dismissing each of Cunningham's medical malpractice claims. She now appeals, urging that (1) although her expert was not timely designated, the trial court should have considered the expert's affidavit as summary judgment evidence and (2) alternatively, the trial court should have granted her motion for continuance. We will affirm.
DISCUSSION
A defendant moving for summary judgment under Rule 166a(i) must establish that "after adequate time for discovery . . . there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial." Tex. R. Civ. P. 166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 98 (Tex. 2004). The plaintiff then carries the burden to put forth enough probative evidence to raise a genuine issue of material fact on each of the challenged elements. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002).
To preclude summary judgment in a medical malpractice case, the plaintiff must offer expert testimony on the essential elements of its claim, including the standard of care, breach, and causation. American Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873, 876 (Tex. 2001); Shelton v. Sargent, 144 S.W.3d 113, 124 (Tex. App.--Fort Worth 2004, pet. denied); see also Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003) (generally discussing plaintiff's burden in no-evidence summary judgment); Krishnan v. Ramirez, 42 S.W.3d 205, 212 (Tex. App.--Corpus Christi 2001, pet. denied) (discussing elements of medical malpractice claim).
In order for a trial court to consider the plaintiff's expert's testimony as summary judgment evidence, the plaintiff must have timely designated that expert as a testifying witness. See Tex. R. Civ. P. 193.6. According to Texas Rule of Civil Procedure 195.2, a plaintiff may satisfy this designation requirement by furnishing the information listed in Rule 194.2(f) in response to a request for disclosure. Id. 194.2(f); 195.2. Although a plaintiff may have supplied some information about its expert by filing an expert report, as is statutorily required in medical malpractice cases, the filing of such a report does not satisfy the procedural requirement of "designating" an expert. Coleman v. Woolf, 129 S.W.3d 744, 748 (Tex. App.--Fort Worth 2004, no pet.); Patriacca v. Frost, 98 S.W.3d 303, 304 (Tex. App.--Houston [1st Dist.], no pet.).
A plaintiff's expert will be considered designated "timely" if the requested information is provided either 90 days before the end of the discovery period or as otherwise ordered by the court, such as in a Level III scheduling order. See Tex. R. Civ. P. 190.4; 195.2. If a party fails to timely designate an expert witness--i.e., fails to timely provide an adequate response to the Rule 194.2(f) request--then testimony from that expert will be excluded unless the trial court determines that the party seeking to introduce the evidence established either (1) the existence of good cause for its failure or (2) that it would not unfairly surprise or prejudice the other parties to admit the evidence despite the inadequate discovery response. Id. 193.6(a), (b). Even if the party seeking to admit the evidence is unable to establish either good cause or a lack of unfair surprise or prejudice, the trial court has discr
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