
NO. 07-06-0073-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MAY 17, 2007

______________________________


DENNIS BRYAN, APPELLANT

V.

KURT J. SHERICK, M.D., APPELLEE


_________________________________

FROM THE 242ND DISTRICT COURT OF SWISHER COUNTY;

NO. B10509-03-10; HONORABLE ED SELF, JUDGE

_______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


OPINION


	Appellant, Dennis Bryan, appeals from the granting of a no-evidence motion for
summary judgment in favor of appellee, Kurt Sherick, M.D.  By one issue, Bryan contends
that summary judgment was improper because there was more than a scintilla of evidence
on the issue of causation of Bryan's injuries.  We affirm.
Background
	This is a medical malpractice lawsuit wherein Bryan claims that Sherick's failure to
properly advise him regarding treatment for a high pressure hydraulic puncture injury to his
finger resulted in the amputation of the finger.  Bryan was injured while working on farm
equipment near Tulia, Texas.  Upon sustaining the injury, he was taken to Swisher County
Memorial Hospital and subsequently directed to see Sherick at the Tulia Rural Clinic next
door.  The parties disagree about what was said at the clinic, however, that disagreement
is not germane to this appeal.  However, Sherick examined Bryan's injury briefly in the
hallway of the clinic.  The parties agree that, following the meeting with Sherick, Bryan
returned home and applied heat to his hand.  Later that day, Bryan's hand began to swell
and became more painful so he sought additional medical treatment at a hospital in
Amarillo.  As a result of the puncture injury, Bryan eventually had to have the finger
partially amputated.  Bryan's contention is that the failure of Sherick to properly examine,
diagnose, and treat his injury resulted in the amputation to his finger.
	After a proper amount of time for discovery, Sherick filed a motion for summary
judgment claiming Bryan could produce no evidence of causation between Sherick's
alleged acts of negligence and the damages suffered by Bryan.  Bryan filed a response. 
The trial court granted the no-evidence motion for summary judgment on the ground that
there was no evidence from a qualified witness that any breach of the standard of care by
Sherick proximately caused the partial amputation of Bryan's finger.  Bryan filed a motion
for new trial that was overruled by operation of law, and this appeal followed.
Standard of Review

 A no-evidence summary judgment is essentially a pretrial directed verdict, and we
apply the same legal sufficiency standard in reviewing a no-evidence summary judgment
that we apply in reviewing a directed verdict.  See Aguirre v. S. Tex. Blood & Tissue Ctr,
2 S.W.3d 454, 456 (Tex.App.-San Antonio 1999, pet. denied); Roth v. FFP Operating
Partners, L.P., 994 S.W.2d 190, 195 (Tex.App.-Amarillo 1999, pet. denied).  When
reviewing a no-evidence summary judgment, we must determine whether the non-movant
produced any evidence of probative force to raise a fact issue on the element challenged
by the movant.  See Roth, 994 S.W.2d at 195.  In deciding whether there is a material fact
issue precluding summary judgment, evidence favorable to the non-movant will be taken
as true.  Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984).  Every reasonable
inference from the evidence must be indulged in favor of the non-movant and any doubts
resolved in his favor.  Id.  A no-evidence summary judgment is improperly granted if the
non-movant presents more than a scintilla of probative evidence to raise a genuine issue
of material fact as to the element on which the motion is based.  Roth, 994 S.W.2d at 195. 
More than a scintilla of evidence is found when the evidence is enough to allow reasonable
and fair-minded people to differ in their conclusions.  Forbes, Inc. v. Granada Biosciences,
Inc., 124 S.W.3d 167, 172 (Tex. 2003).  
Analysis
	In this medical malpractice case, Bryan must prove: (1) a duty requiring Sherick to
conform to a certain standard of conduct; (2) the applicable standard of care and its
breach; (3) resulting injury; and (4) a causal connection between the alleged breach of the
standard of care and the alleged injury.  Blan v. Ali, 7 S.W.3d 741, 744 (Tex.App.-Houston
[14th Dist.] 1999, no writ).  To meet these requirements, Bryan was required to produce
expert testimony to establish the causal connection between the injury Bryan suffered and 
Sherick's alleged breach of the applicable standard of care.  Am. Transitional Care Ctrs.
of Tex., Inc. v. Palacios, 46 S.W.3d 873, 876 (Tex. 2001).  To provide evidence of the
causal connection required in a medical malpractice case, the expert witness must be
qualified by knowledge, skill, experience, training, or education to testify about the
examination, diagnosis, and treatment of Bryan's finger, how that action fell below the
standard of care, and how this breach caused the injury complained of.  See Tex. R. Evid.
702. 
	Bryan submitted the deposition testimony of Ronald Jacoby, M.D., to support his
allegation of injury resulting from Sherick's breach of the standard of care.  Jacoby is an
emergency room physician, but his curriculum vitae indicates no specific surgical training
nor does he have any experience in treating high pressure injection injuries.  Jacoby
opined that the failure of Sherick to immediately refer Bryan to a surgeon proximately
caused the amputation of the finger.  Jacoby testified that delay in treating a high pressure
injection injury can lead to the complications of necrosis and gangrene of the affected area
and that this is what happened in Bryan's situation.  However, upon deposition cross-examination, Jacoby testified that he could not say that Bryan would not have required an
equal amount of amputation even if he had been immediately referred to a surgeon.  The
trial court ruled that there was no evidence from a qualified witness that any breach of the
standard of care by Sherick proximately caused the amputation suffered by Bryan.  Having
reviewed the summary judgment evidence, we agree with the trial court that there is no
evidence from a qualified expert that any breach of the standard of care by Sherick
proximately caused the amputation suffered by Bryan.   Palacios, 46 S.W.3d at 876.
Conclusion
	The judgment of the trial court granting Sherick's no-evidence motion for summary
judgment is affirmed. 

							Mackey K. Hancock
							         Justice
 
 
