Court of Appeals of Texas, Twelfth District, Tyler
from the 145th District Court of Nacogdoches County, Texas
(Tr. Ct. No. C1631963)
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
T. WORTHEN, CHIEF JUSTICE
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.
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. 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.
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
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.
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. 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.
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.
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.
trial court granted Fowler's motion, and this appeal
Evidence Summary Judgment
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.
of Review and Applicable Law
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 ...