Date: 04-07-2017

Case Style: Jay Gannaway and Stephanie Gannaway, Individually and as Next Friends of B.D.G., a Minor Child v. Pedro Nelson Chavez, M.D., and Covenant Medical Group

Case Number: 07-16-00031-CV

Judge: Brian Quinn

Court: Texas Court of Appeals, Seventh District on appeal from the 237th District Court of Lubbock County

Plaintiff's Attorney: Tommy Turner

Defendant's Attorney: Courtney Boes, Jim Hund, Elizabeth M. Fraley, Linda Russell, Heather Kanny

Description: Appellants, Jay and Stephanie Gannaway, individually and as next friends of B.D.G., a minor child, appeal the trial court’s grant of the no-evidence summary judgment motion of appellees, Pedro Nelson Chavez, M.D., and Covenant Medical Group. The Gannaways had sued Chavez and Covenant for negligence or medical malpractice. Chavez and Covenant joined issue and eventually filed a no-evidence motion for summary judgment. They contended in their motion that there was no evidence (1) by a qualified expert of any standard of care breached by Chavez; (2) that
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Chavez was negligent; and (3) that any act or omission of Covenant or Chavez
proximately caused harm, injury, or damage to any of the plaintiffs. The Gannaways
responded to the motion with argument, discovery responses, and the report of their
expert, Dr. Nelms. Covenant and Chavez filed original and supplemental objections to
all the evidence, including Nelms’s report. Thereafter, the trial court sustained the
objections and granted the no-evidence summary judgment.
On appeal, the Gannaways contend that the trial court erred in granting summary
judgment because (1) neither of their opponents should have been surprised by the use
of Nelms’s report and (2) Nelms presented evidence creating a material issue of fact on
each element of negligence. We affirm.
In a health care liability claim, the claimant must prove that the physician had a
duty to act according to a certain standard of care, that standard was breached, and
that breach proximately caused the complainant to sustain injury. Hamilton v. Wilson,
249 S.W.3d 425, 426 (Tex. 2008) (per curiam); Winegeart v. Cone, No. 07-14-00427-
CV, 2015 Tex. App. LEXIS 5531, at *5 (Tex. App.—Amarillo June 1, 2015, no pet.)
(mem. op.). Establishing the existence of those elements normally requires expert
testimony. Nelson v. Martinez, No. 07-15-00430-CV, 2016 Tex. App. LEXIS 7421, at
*6–7 (Tex. App.—Amarillo July 12, 2016, pet. denied) (mem. op.); see Jelinek v. Casas,
328 S.W.3d 526, 533 (Tex. 2010) (stating that, in medical malpractice cases, expert
testimony regarding causation is the norm unless the issue is within the common
knowledge and experience of jurors).
Here, no one argued that the pertinent standard of care, its breach, and the
causative link, if any, between the breach and resulting injuries were matters within the
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common knowledge and experience of jurors. Rather, the Gannaways attempted to establish those elements of their claim through the expert testimony of Nelms. Yet, Covenant and Chavez urged differing grounds underlying their objections to Nelms’s report. More importantly, the trial court granted the objections, did so without specifying that it relied on any particular ground, and excluded the report. So, unless Gannaway illustrated to us that the trial court’s decision to exclude the evidence was wrong, the report is not available for use in determining whether the Gannaways presented evidence on each element of their claim sufficient to defeat summary judgment. And, to carry that burden, they had to illustrate why none of the grounds urged by Covenant and Chavez supported the trial court’s ruling. See, e.g., Trahan v. Lone Star Title Co. of El Paso, Inc., 247 S.W.3d 269, 284 (Tex. App.—El Paso 2007, pet. denied) (noting that when an appellant fails to challenge each basis for a trial court’s exclusion of evidence, he “waives any error by not challenging all possible grounds for the trial court’s ruling”). They did not do that. For instance, they did not address why the trial court could not have excluded the report because it consisted of hearsay or ipse dixit, as alleged by Covenant and Chavez.
Without showing that the trial court’s decision to exclude Nelms’s report was error, they had no expert evidence to create issues of fact on the elements of (1) the standard of care, (2) its breach, and (3) causation. Consequently, we cannot say that the trial court erred in granting the no-evidence summary judgment. See Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003) (stating that a no-evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact); Ramirez v.
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Garcia, No. 07-11-00385-CV, 2016 Tex. App. LEXIS 550, at *6 (Tex. App.—Amarillo Jan. 20, 2016, no pet.) (mem. op.) (stating that a no-evidence summary judgment will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite fact).

Outcome: The sole issue raised by the Gannaways is overruled, and the summary judgment is affirmed.

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Defendant's Experts:

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