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Chatman v. Fowler

Court of Appeals of Texas, Twelfth District, Tyler

May 31, 2018


          Appeal from the 145th District Court of Nacogdoches County, Texas (Tr. Ct. No. C1631963)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.



         Tonika Chatman appeals from the trial court's order granting both traditional and no evidence summary judgment in favor of Sidney Fowler, DDS and Diagnostic Dental (Dr. Fowler). In two issues, Chatman argues the trial court erred because Dr. Fowler failed to meet his burden to show that no genuine issues of material fact exist and because Chatman presented sufficient evidence of causation to support her medical malpractice claim against Dr. Fowler. We affirm.


         On April 1, 2014, Chatman presented to Dr. Fowler, a dentist, complaining of pain in her lower right wisdom tooth, pain in her lower and upper jaw, pain in her ear, and difficulty swallowing. Chatman filled out a check box medical history indicating she suffered from high blood pressure, allergies to "penicillin/sulfa drugs, " pain or discomfort in her mouth, and that she had a family history of diabetes.[1] Dr. Fowler performed an x-ray and took Chatman's vital signs. He diagnosed Chatman with severe tooth decay and slight swelling of the periodontal membrane and pulpitis of the tooth. After obtaining consent from Chatman, Dr. Fowler extracted the painful tooth. Dr. Fowler did not prescribe any medication, but instructed Chatman to take ibuprofen as needed for pain.

         Two days later, Chatman presented to Fowler's office complaining of extreme jaw pain, increased swelling, earaches, and difficulty opening her mouth. Fowler's office prescribed antibiotics for these symptoms. Chatman returned to Fowler's office the next day because her symptoms had not subsided. Dr. Fowler's dental assistant examined Chatman, and noted that Chatman's mouth was swollen and difficult to access. Dr. Fowler prescribed an antibacterial rinse, pain medication, and an increased dosage of antibiotics.

         That evening, Chatman's symptoms caused her to go to the emergency room where she received an injection for pain. Chatman continued to have pain and swelling over the weekend and began to experience shortness of breath and difficulty breathing. On Saturday April 5, Dr. Fowler prescribed Chatman a different antibiotic. The following Monday, Chatman presented to Dr. Fowler's office in severe pain. After consulting Dr. Fowler by phone, his staff recommended Chatman go to the emergency room. Dr. Fowler arrived at the emergency room and performed surgery on Chatman, removing part of her jaw bone. Chatman was left with a scar and facial deformity, for which she later underwent plastic surgery.

         On April 5, 2016, Chatman brought a healthcare liability claim for damages against Dr. Fowler. Chatman designated Dr. James Bates, an oral and maxillofacial surgeon, as her expert witness and served Dr. Fowler with his report. Dr. Bates stated in his report that it was possible Chatman already had an infection when she presented to Dr. Fowler on April 1, and if she had an infection, antibiotics should have been administered to her preoperatively or, at the very least, postoperatively. Dr. Bates further stated that even with prophylactic antibiotics, patients can still develop serious infections, and the administration of antibiotics to Chatman may not have prevented the serious sequela.[2] On April 25, 2017, Dr. Bates gave a deposition and testified that he believed Chatman had an infection when she presented on April 1, and should have received preoperative antibiotics. However, Dr. Bates admitted that he could not say within a reasonable degree of medical probability that the administration of antibiotics would have prevented or reduced the severity of her infection or eliminated the need for her subsequent hospitalization and surgery.

         Dr. Fowler moved for summary judgment on no evidence and traditional summary judgment grounds and argued to the trial court that (1) after an adequate time for discovery, Chatman failed to present any admissible evidence to support the causation element of her claim, and alternatively that (2) Chatman was unable to meet her burden of proof because Dr. Bates' testimony was insufficient to prove causation. In support of his motion, Dr. Fowler attached Dr. Bates' deposition and Chatman's second amended petition.

         Thereafter, Chatman sought leave from the court to file amended pleadings, and subsequently filed a third and fourth amended petition, as well as a response to Dr. Fowler's summary judgment motion. In her response, Chatman argued that Dr. Fowler "failed to treat Plaintiff preoperatively and post-operatively with antibiotics as well as failed to irrigate and curette the extraction site which led to her hospitalization and further debilitation post tooth extraction…Dr. Fowler was negligent in his treatment of Plaintiff which either (1) caused the injury she complains of or (2) exacerbated her condition." Chatman attached deposition testimony from Dr. Bates, Dr. Fowler, and Dr. Nathaniel Tippit, Dr. Fowler's retained expert, as well as a copy of her fourth amended petition, her medical intake form from Dr. Fowler's records, and Dr. Bates' medical expert report.

         The trial court granted Fowler's motion, and this appeal followed.

         No Evidence Summary Judgment

         In two issues, Chatman argues that the trial court erred in granting Dr. Fowler's no evidence and traditional summary judgment motion. Chatman argues that the evidence she submitted to the trial court in response to Dr. Fowler's motion was sufficient to create a fact issue regarding causation. Dr. Fowler responds that Chatman presented no evidence to create a genuine issue of material fact and is merely reciting the conclusory allegations set forth in her petition. Further, Dr. Fowler argues that the determination of causation in this case is not within the purview of the fact-finder, and requires expert testimony.

         Standard of Review and Applicable Law

         After adequate time for discovery, a party without the burden of proof at trial may move for summary judgment on the ground that the non-movant lacks supporting evidence for one or more essential elements of its claim. Tex.R.Civ.P. 166a(i). Once a no evidence motion has been filed, the burden shifts to the non-movant to present more than a scintilla of probative evidence to raise a genuine issue of material fact supporting each element challenged in the motion. Id.; Timpe Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). A genuine issue of material fact exists if the evidence "rises to a level that would enable reasonable and fair minded people to differ in their conclusions." Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). The evidence does not create an issue of material fact if it is ...

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