Robert E. Spinks, Jr. and Stacey E. Spinks v. Marvin Brown, M.D., and Methodist Healthcare System of San Antonio, Ltd. d/b/a Southwest Texas Methodist Hospital--Appeal from 285th Judicial District Cou

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Laws-info.com » Cases » Texas » 4th District Court of Appeals » 2002 » Robert E. Spinks, Jr. and Stacey E. Spinks v. Marvin Brown, M.D., and Methodist Healthcare System of San Antonio, Ltd. d/b/a Southwest Texas Methodist Hospital--Appeal from 285th Judicial District Cou

State: Texas

Court: Texas Northern District Court

Docket No: 04-02-00045-CV

Case Date: 12/11/2002

Plaintiff: JOSEPH PATTERSON

Defendant: THE STATE OF TEXAS--Appeal from 130th District Court of Matagorda County

Preview:Robert E. Spinks, Jr. and Stacey E. Spinks v. Marvin
Brown, M.D., and Methodist Healthcare System of San
Antonio, Ltd. d/b/a Southwest Texas Methodist
Hospital--Appeal from 285th Judicial District Court of
Bexar County
No. 04-02-00045-CV
Robert E. SPINKS, Jr. and Stacey M. Spinks,
Appellants
v.
Marvin R. BROWN, M.D. and Methodist Healthcare System of San Antonio Ltd. d/b/a Southwest Texas Methodist
Hospital,
Appellees
From the 150th Judicial District, Bexar County, Texas
Trial Court No. 98-CI-16743
Honorable Michael P. Peden, (1) Judge Presiding
Opinion by: Paul W. Green, Justice
Sitting: Catherine Stone, Justice
Paul W. Green, Justice
Sarah B. Duncan, Justice
Delivered and Filed: December 11, 2002
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART
Appellants Robert E. Spinks, Jr. and Stacey M. Spinks claim that Robert was injured during a surgical catheterization.
They sued Dr. Marvin Brown, the physician who attempted to place the catheter, and Southwest Texas Methodist
Hospital ("Hospital"), the facility where the surgery occurred. The trial court rendered a summary judgment in favor of
the Hospital, leaving Dr. Brown as the sole defendant. At trial, the jury returned a take-nothing judgment in favor of
Dr. Brown. In this appeal, the Spinkses contend the trial court erred in granting the Hospital's summary judgment.
They also challenge the court's denial of their motion to substitute counsel. We affirm the trial court's summary
judgment order, but reverse the court's decision regarding the substitution of counsel and remand for a new trial against
Dr. Brown.
BACKGROUND
On December 12, 1996, Robert Spinks was admitted to Southern Methodist Hospital for a partial toe amputation, to be
performed by Dr. Marvin Brown. To aid in his recovery, Robert also had to undergo vascular surgery, a procedure
which required a catheter to be placed into his bladder.
The catheterization was to be performed by Sandra L. Devine, R.N. However, when Nurse Devine attempted to insert
the catheter, she was unable to get the tubing to pass into his bladder because of resistance within the urethra. Upon
encountering this problem, Nurse Devine made a second attempt, this time with a smaller tube. (2) Again, she was
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unable to pass the tubing into Robert's bladder. Nurse Devine then ceased all attempts to place the catheter and
deferred to Dr. Brown. Dr. Brown also tried to insert the catheter, this time using a guiding mechanism known as
"filiforms and followers." Because of the resistance, he, too, was unable to insert the tubing. Dr. Daniel Salzstein was
then called to remedy the problem. He was able to successfully complete the procedure by inserting a catheter above
the pubic bone rather than through the urethra.
Months later, while undergoing physical therapy for his foot, Robert was in the midst of a squatting exercise when he
"felt something pull." Following the incident, Robert noticed numerous symptoms which indicated an abnormality in
his urethra. Both Robert's symptoms and his subsequent test results indicated that a fistula, an abnormal passage
between two internal organs, had formed. Shortly thereafter, the Spinkses filed suit in district court against the
Hospital and Dr. Brown, asserting both negligence and gross negligence.
The Hospital filed a traditional motion for summary judgment which was granted, leaving Dr. Brown as the sole
defendant. (3) Six days before going to trial against Dr. Brown, the Spinkses moved to replace their counsel of record
with a new attorney. The trial court denied the motion, and the case proceeded. The Spinkses now appeal to this Court,
claiming the trial court erred in granting the Hospital's motion for summary judgment and in denying their motion to
substitute counsel.
SUMMARY JUDGMENT
Standard of Review
In their first amended petition, the Spinkses allege negligence and gross negligence as the only theories of recovery,
complaining of seven specific acts of negligence. (4) In order to disprove these specific allegations of negligence, a
summary judgment movant has the burden of establishing that there are no genuine issues of material fact and that the
movant is entitled to judgment as a matter of law. Tex. R. Civ. Pro. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690
S.W.2d 546, 548 (Tex. 1985); Lopez v. Carrillo, 940 S.W.2d 232, 234 (Tex. App.--San Antonio 1997, writ denied). A
defendant moving for summary judgment must conclusively negate one or more elements of the plaintiff's cause of
action in order to prevail.Lopez, 940 S.W.2d at 234. We review the trial court's ruling de novo. Coleman v. Cintas
Sales Corp., 40 S.W.3d 544, 547 (Tex. App.--San Antonio 2001, pet. denied). That is, every reasonable inference must
be indulged in favor of the nonmovant and doubts resolved in that party's favor. Nixon, 690 S.W.2d at 548-49. If the
movant shows that no material fact issue exists and proves an entitlement to judgment, the burden then shifts to the
nonmovant who must raise a fact issue to avoid summary judgment. City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678 (Tex. 1979); Lopez, 940 S.W.2d at 234. If the nonmovant fails to raise a fact issue under those
circumstances, the summary judgment must be affirmed. Lopez, 940 S.W.2d at 234.
A defendant health care provider in a medical malpractice case is entitled to summary judgment if the summary
judgment proof negates one or more of the following elements of the plaintiffs' cause of action: (1) the duty to act
according to a certain standard of care; (2) a breach of that standard of care; (3) an injury; or (4) a causal connection
between the breach and the injury. Silvas v. Ghiatas, 954 S.W.2d 50, 52 (Tex. App.--San Antonio 1997, writ denied).
Establishing the right to summary judgment in a medical malpractice action, as well as negating that right, generally
depends on expert medical testimony. Lopez, 940 S.W.2d at 234. If a defendant-movant in a medical malpractice
action negates an element of a plaintiff's cause of action by competent summary judgment evidence, such as expert
testimony, the non-movant plaintiff is required to present controverting expert testimony in order to raise a fact issue.
Id.
Breach
In support of its motion for summary judgment, the Hospital presented expert testimony in the form of two affidavits
and three depositions. The affidavits were those of Nurse Devine and Dr. William P. Fitch, III, while the depositions
came from Dr. Brown, Dr. Saltzstein, and Dr. Michael F. Sarosdy.
Rule 166a(c)
The Spinkses claim the Hospital is not entitled to summary judgment because the affidavits they offered as evidence do
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not meet the requirements of Texas Rule of Civil Procedure Rule 166a(c). Specifically, the Spinkses argue the
affidavit of Nurse Devine is insufficient because it: (1) contradicts itself; (2) is not clear and direct; (3) is not free from
circumstances tending to discredit Nurse Devine; (4) is not readily controvertible; and (5) cites an "irrelevant" local
standard. The Spinkses' arguments have little merit.
First, this Court can find no way in which Nurse Devine's affidavit is contradictory. Second, Nurse Devine clearly
asserts the applicable standard of care and then describes how her actions complied with this standard. Lopez, 940
S.W.2d at 234. Third, although Nurse Devine is an interested witness, her affidavit is clear, credible, and consistent.
See Arguello v. Gutzman, 838 S.W.2d 583, 587 (Tex. App.--San Antonio 1992, no writ). Fourth, Nurse Devine's
reference to "a reasonable degree of nursing probability" is merely surplusage, because the requirement that a medical
expert's opinion be based on reasonable medical probability refers solely to the expert's opinion on causation.
Hernandez v. Calle, 963 S.W.2d 918, 920 (Tex. App.--San Antonio 1998, no pet.). Finally, the Spinkses fail to cite any
authority which states the standard of a reasonable and prudent physician or nurse differs from that of a local
physician or nurse. In addition, a cited trend away from local standards, see Hood v. Phillips, 554 S.W.2d 160, 165
(Tex. 1977), does not support the conclusion that Texas has completely abrogated the locality rule. See Hickson v.
Martinez, 707 S.W.2d 919, 925 (Tex. App.--Dallas 1985, writ ref'd n.r.e); see also Huff v. Hall, 957 S.W.2d 90, 101
(Tex. App.--Texarkana 1997, pet. denied). Nurse Devine's affidavit is clearly satisfactory under Rule 166a(c).
Similarly, the Spinkses claim that Dr. Fitch's affidavit does not meet the requirements of Rule 166a(c), because the
affidavit: (1) is not clear and direct; (2) is not readily controvertible; and (3) addresses only the local standard. As with
Nurse Devine's affidavit, we hold Dr. Fitch's affidavit meets all of the rule's requirements. Lopez, 940 S.W.2d at 944;
see Hickson, 707 S.W.2d at 925. Both affidavits are uncontradicted, clear, direct and positive, free of circumstances
tending to discredit or impeach, and readily controvertible. Tex. R. Civ. P. 166a(c).
Material Issues of Fact
Because we find the Hospital's affidavits to be in compliance with Rule 166a(c), we now address whether the Hospital
met its burden of proof. In order to negate the Hospital's negligence and support a summary judgment, the Hospital's
expert testimony must identify the relevant standard of care, establish that the expert is familiar with that standard, and
demonstrate that the medical care provided complied with that standard. Silvas, 954 S.W.2d at 52. The affidavits of
both Nurse Devine and Dr. Fitch describe the respective affiant's qualifications as an expert in the field of medicine,
relate the appropriate standard of care with sufficient specificity, and describe how the immediate treatment
administered by Nurse Devine complied with this standard of care. These affidavits demonstrate that no material issue
of fact exists with regard to the Hospital's alleged breach. The affidavits, alone, or in combination with the deposition
testimony offered by the Hospital, (5) are sufficient to shift the burden to the Spinkses. In order to avoid a summary
judgment in the Hospital's favor, the Spinkses must produce controverting expert medical testimony, thereby raising a
genuine issue of material fact. See Pinckley v. Gallegos, 740 S.W.2d 529, 531-32 (Tex. App.--San Antonio 1987, writ
denied).
In an attempt to raise a genuine issue of material fact, the Spinkses submitted excerpts from the depositions of Nurse
Devine, Dr. Brown, Dr. Saltzstein, Dr. Stephen Lapin, who treated Spinks in the year following the incident, and Dr.
David Mozersky, who performed the vascular procedure. The Spinkses' proof also included selected medical records of
Robert Spinks. In order to raise a fact issue, the plaintiffs' expert testimony should: (1) specifically identify the
standard of care applicable to the procedure; (2) demonstrate that the expert is familiar with the standard of care and
the treatment in question; and (3) thoroughly explain why the treatment rendered breached the applicable standard of
care. Keeton v. Carrasco, 53 S.W.3d 13, 25 (Tex. App.--San Antonio 2001, pet. denied).
The Spinkses failed to introduce any standard of care other than that provided by the Hospital. They also failed to
introduce any evidence that Nurse Devine did not follow the standard of care laid out in the Hospital's affidavits. As
such, the Spinkses' evidence does not raise a fact issue as to whether Nurse Devine breached the standard of care.
Because the Hospital successfully negated its liability on the element of breach, we do not need to reach its evidence
regarding causation. We affirm the summary judgment in favor of the Hospital.
Res Ipsa Loquitur
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In the alternative, the Spinkses argue that res ipsa loquitur should apply in this case. The doctrine of res ipsa loquitur is
used only in certain limited cases when the circumstances surrounding an incident constitute sufficient circumstantial
evidence of a defendant's negligence to support such a finding. Schorp v. Baptist Mem'l Health Sys., 5 S.W.3d 727,
735 (Tex. App.--San Antonio 1999, no pet.). The doctrine of res ipsa loquitur only applies when two factors are
present: (1) the character of the incident is such that it would not ordinarily occur in the absence of negligence; and (2)
the instrumentality causing the injury is shown to have been under the management and control of the defendant. Id.
(citing Haddock v. Arnspiger, 793 S.W.3d 948, 950 (Tex. 1990)). As a matter of law, the doctrine may apply only "in
those cases to which it has been applied by the appellate courts of this state as of" August 29, 1977. Tex. Rev. Civ.
Stat. Ann. art. 4590i, 7.01 (Vernon Supp. 2002); Haddock, 793 S.W.2d at 950. Following this rule, there are only three
situations in which a Texas court may permit an inference of negligence from the type of injury incurred in a medical
malpractice case: "negligence in the use of mechanical instruments, operating on the wrong portion of the body, or
leaving surgical instruments or sponges within the body." Haddock, 793 S.W.2d at 951.
The Spinkses argue that the first scenario, negligence in the use of mechanical instruments, is applicable here, and the
negligence of the Hospital should therefore be inferred without expert testimony. The Spinkses, however, have
overlooked a prerequisite to the application of res ipsa loquitur. The doctrine may not be applied in those
circumstances where the use of the mechanical instrument is a matter not within the common knowledge of laymen.
Schorp, 5 S.W.3d at 735 (citing Haddock, 793 S.W.2d at 951). In past cases, such as Schorp and Haddock, courts have
found many medical procedures outside the purview of the layman. For example, in Schorp, this Court concluded that
the insertion of an arterial line into the radial artery of a plaintiff's left arm and any subsequent corrective action was
not within a "juror's common sense." 5 S.W.3d at 735-36. Likewise, in Haddock, the Texas Supreme Court held that
the use of a flexible colonoscope for a proctological examination was not a matter within the common knowledge of
laymen. 793 S.W.2d at 954.
In the present case, the Spinkses fail to address the issue of a layman's knowledge of the catheterization procedure.
Instead, they rely on the fact that the Hospital's experts describe the procedure of inserting a Foley catheter as routine
and not requiring specialized urological training. While the catheterization may be routine to a circulator nurse or an
operating surgeon, it is certainly not commonplace for the average juror. In addition, the fact that no specialized
urological training is required does not mean that no training is required at all. As such, medical expert testimony is
required to aid a fact finder in drawing his conclusions, and the doctrine of res ipsa loquitur is clearly inapplicable to
the Spinkses' cause of action.
SUBSTITUTION OF COUNSEL
In their next issue, the Spinkses assert that the trial court abused its discretion in failing to grant their motion to
substitute counsel. They argue their motion to substitute was denied solely because of their plans to file for a
continuance once the substitution was granted. The Spinkses further assert that denial on this basis is an abuse of the
trial court's discretion because they have a fundamental right to be represented by the counsel of their choice.
The decision to grant or deny a request for substitution of counsel is a matter within the discretion of the trial court.
See Cotrone v. Bryan Prod. Credit Ass'n., 502 S.W.2d 954, 956 (Tex. Civ. App.--Waco 1973, writ ref'd n.r.e.) The
court's ruling, therefore, will not be disturbed absent a showing of a clear abuse of discretion. See id. Under an abuse
of discretion standard, an appellate court may reverse the decision of a trial court only if the trial court's ruling was
without reference to any guiding rules or principles. See Metropolitan Life Ins. Co. v. Syntek Fin. Corp., 881 S.W.2d
319, 321 (Tex. 1994)(citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).
A party has the right to be represented by the counsel of its choice. Keller Indus., Inc. v. Blanton, 804 S.W.2d 182, 185
(Tex. App.--Houston [14th Dist.] 1991, orig. proceeding). The right to counsel is a valuable right, and its unwarranted
denial is fundamental error. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). There is little published case law
regarding a trial judge's abuse of discretion in denying a motion to substitute counsel. The judge's discretion must be
balanced against the party's right to be represented by the counsel of its choice.
The trial court in the Spinkses' case gave no reason for the denial of the motion to substitute counsel other than the
implication (6) that the court was attempting to avoid a delay. There is nothing in the record to indicate the granting of
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the Spinkses' motion, alone, would have delayed the trial. Although a delay may have been caused by the forthcoming
motion for continuance, the motion to substitute was likely to have little effect on the trial date. The continuance was a
matter separate from the substitution, and the trial court was free to deny the motion for continuance when and if it was
filed. The possibility of a delay resulting from a motion that had yet to be filed does not justify the denial of the
Spinkses' motion to substitute counsel. The trial court's decision resulted in an unwarranted denial of the Spinkses'
right to be represented by the counsel of their choice. Therefore, the trial court abused its discretion in denying the
Spinkses' motion. (7) We sustain the Spinkses' issue on substitution of counsel, reverse the trial court's order denying
the motion to substitute, and remand the case for a new trial against Dr. Brown.
CONCLUSION
We hold that the trial court abused its discretion in denying the Spinkses' motion to substitute counsel. Accordingly,
we reverse the trial court's order denying substitution of counsel. We also reverse the trial court's judgment in favor of
Dr. Brown and remand for a new trial. However, considering the totality of the summary judgment evidence submitted,
we affirm the summary judgment in favor of the Hospital.
PAUL W. GREEN,
JUSTICE
PUBLISH
1. Although Judge Peden presided over the trial, the Honorable Pat Boone signed the order granting the summary
judgment, and the Honorable Janet Littlejohn presided over the hearing on the motion to substitute counsel.
2. Nurse Devine first attempted to place a 16 French latex rubber Foley catheter into the urethra. When this did not
work, she tried a smaller tube, a 12 French coude catheter. The numbers indicate the tube's diameter.
3. Following the granting of its motion for summary judgment, the Hospital's case was severed from the Spinkses'
remaining cause of action against Dr. Brown. The Spinkses filed a timely motion for new trial, and the Hospital's case
was reconsolidated for purposes of appeal.
4. The Spinkses claim the Hospital is not entitled to summary judgment because it failed to negate the negligence of
any employee other than Nurse Devine and, in addition, did not address every theory of liability in the motion for
summary judgment. The Spinkses fail to introduce evidence that any employee other than Nurse Devine was involved
in Robert Spinks's catheterization. Therefore, the Hospital did not need to negate the negligence of any other
employee. Additionally, a hospital can not practice medicine, and, as such, can not be held directly liable for any acts
or omissions that constitute medical functions. See Tex. Occ. Code Ann. 151.002(a)(13) & 155.001(Vernon Supp.
2002)(defining "practicing medicine" and requiring a license to "practice medicine"); Williams v. Good Health Plus,
Inc., 743 S.W.2d 373, 375-77 (Tex. App.--San Antonio 1987, no writ). Thus, as a matter of law, the Hospital could not
have been liable under every theory of liability claimed by the Spinkses. Accordingly, the Hospital fully addressed all
possible parties and acts of negligence for which it may be held liable.
5. In their depositions, Drs. Brown, Saltzstein, and Sarosdy each indicate that they believe Nurse Devine's actions met
the standard of care for a circulator nurse attempting to place a Foley catheter.
6. In the order denying the Spinkses' motion to substitute counsel, the trial court mentioned that the Spinkses indicated
they would file a motion for continuance should the substitution be permitted.
7. Dr. Brown also asserts that the Spinkses waived their right to complain about the trial court's ruling on the motion
for substitution of counsel by announcing ready for trial. This rule of waiver generally applies to situations in which a
party files a motion for continuance, has the motion denied, and then announces ready for trial. See, e.g. Rangel v.
State Bar of Texas, 898 S.W.2d 1 (Tex. App.--San Antonio 1995, no writ). We fail to see a compelling reason for
extending this rule to situations involving motions to substitute counsel. The Spinkses did not waive their right to
appeal this issue.
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