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Hinojosa v. Koen

Court of Appeals of Texas, Fourth District, San Antonio

November 6, 2019

Aundria HINOJOSA and Florencio Hinojosa, V, Individually as Wrongful Death Beneficiaries of Florencio Hinojosa, VI, Deceased and on Behalf of the Estate of Florencio Hinojosa, VI, Deceased, Appellants
v.
Sophia Anita KOEN, M.D.; Sophia A. Koen, M.D., P.A.; and Christus Spohn Health System Corporation d/b/a Christus Spohn Hospital Alice, Appellees

          From the 79th Judicial District Court, Jim Wells County, Texas Trial Court No. 15-07-54935-CV Honorable Richard C. Terrell, Judge Presiding

          Patricia O. Alvarez, Justice Irene Rios, Justice Beth Watkins, Justice.

          MEMORANDUM OPINION

          Irene Rios, Justice.

         Aundria and Florencio Hinojosa (the "Hinojosas") appeal a no-evidence summary judgment granted in favor of Sophia Anita Koen M.D. and Sophia A. Koen M.D., P.A. (the "Koen Defendants") and Christus Spohn Health System Corporation d/b/a Christus Spohn Hospital Alice ("Christus"). We affirm the trial court's judgment.

         Background

         The Hinojosas, as surviving parents, filed a health care liability action against the Koen Defendants and Christus, alleging the Koen Defendants were negligent in the care and treatment of their son, Florencio Hinojosa VI, through the acts and omissions of Dr. Koen. They alleged Christus, acting through its agents, employees, and hospital staff, including Dr. Koen, was negligent in the care and treatment of their son. The Hinojosas further alleged the negligence of the Koen Defendants and Christus proximately caused their injuries and damages.

         The Koen Defendants and Christus separately moved for no-evidence summary judgment, requiring the Hinojosas to produce evidence that the Koen Defendants were willfully and wantonly negligent[1] and, in the alternative, that the Koen Defendants engaged in ordinary negligence, that is, breached an applicable standard of care and the breach proximately caused the Hinojosas' injuries. Christus also moved for no-evidence summary judgment on the basis that Dr. Koen was not an actual or ostensible agent or employee of Christus. The Hinojosas filed a single response to the no-evidence summary judgment motions and attached the following exhibits: the written report of Terrance Baker M.D. and the depositions of Aundria Hinojosa, Florencio Hinojosa V, Sophia Anita Koen M.D., Heather Gibson Elizondo R.N., and Kimberly Morris R.N. Additionally, the Hinojosas filed a motion for late designation of Dr. Baker as an expert, which was granted by the trial court.

         The Koen Defendants and Christus lodged some of the same objections to the Hinojosas' summary judgment evidence. Both the Koen Defendants and Christus objected to Dr. Baker's report on the ground that it was improper summary judgment evidence because it was unsworn, and both objected to the remaining summary judgment evidence on the ground that the Hinojosas' response failed to specifically identify the portions of the summary judgment evidence that they were relying on to support their claims.

         The trial court sustained all the Koen Defendants and Christus's objections to the Hinojosas' summary judgment evidence, except objections that Dr. Baker was not timely designated as an expert.[2] The trial court granted the no-evidence summary judgment motions. The Hinojosas appealed.

         Issues Presented

         The Hinojosas present two issues on appeal. In their first issue, the Hinojosas contend the trial court erred by granting no-evidence summary judgment against them because the evidence they submitted raised genuine issues of material fact as to the elements of their medical negligence claims. In their second issue, the Hinojosas contend the trial court erred in sustaining some of the Koen Defendants and Christus's objections to the summary judgment evidence and in excluding this evidence from the summary judgment record.

         Before determining if the trial court erred in granting no-evidence summary judgment, we determine if the trial court erred in excluding evidence from the summary judgment record.

         Evidentiary Rulings

         On appeal, the Hinojosas present two complaints about the trial court's evidentiary rulings. First, the Hinojosas argue the trial court erred in excluding Dr. Baker's written report because it qualified as an unsworn declaration which may be used in lieu of a sworn affidavit. See Tex. Civ. Prac. & Rem. Code Ann. ยง 132.001. Second, the Hinojosas argue the trial court erred in ...


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