      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00435-CV



                                     Charles Ly, Appellant

                                                v.

                               Rodney Schmidt, M.D., Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
    NO. D-1-GN-06-001242, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Charles Ly appeals from the district court’s grant of summary judgment in favor of

Rodney Schmidt, M.D. Ly asserts that the evidence presents fact issues regarding standard of care

and causation. We affirm the judgment.


                                        BACKGROUND

               On June 1, 2001, Ly sued Seton Medical Center, Albert Horn, M.D., Sam S. Roberts,

M.D., Sara Austin, M.D., Kent Ellington, M.D., and Rodney Schmidt, M.D., alleging negligence

“during the course of medical treatment provided by the above named Defendants . . . beginning on

or about March 8, 1999 through March 14, 1999” after Ly suffered a stroke. Dr. Schmidt is a board-

certified neuroradiologist who interpreted a CT scan of Ly’s head taken on March 8. Ly alleged that

Dr. Schmidt misinterpreted the results of this scan and/or failed to properly communicate his

interpretation of the scan to Ly’s emergency room physicians. Ly contended that Dr. Schmidt’s acts
or omissions resulted in the administration of anti-coagulation medicine that Ly alleges caused him

to suffer a brain hemorrhage on March 14, 1999.

               On October 3, 2005, Dr. Schmidt filed a motion for summary judgment under rule

166a(c), alleging that the evidence conclusively establishes that Dr. Schmidt did not breach the

applicable standard of care in his interpretation of or communications regarding Ly’s CT scan and

that any alleged breach of the standard of care was not a proximate cause of Ly’s injuries. On

January 19, 2006, the district court granted Dr. Schmidt summary judgment without specifying the

grounds1 and subsequently overruled a motion for rehearing. The court later severed out Ly’s claims

against Dr. Schmidt, making the judgment final. Ly appeals from this summary judgment.2




       1
          The district court initially granted Dr. Schmidt’s summary judgment motion on January 16.
At the time, Ly, who was acting pro se, had not filed a response, although Dr. Schmidt’s motion had
been pending since October. The record also reflects that the district court had previously denied
Ly’s motion for continuance of the summary judgment hearing and that Ly had obtained several prior
postponements of dispositive proceedings in the litigation due in part to his difficulties in retaining
counsel. Following the district court’s summary judgment order, Dr. Schmidt’s counsel received
a copy of Ly’s summary-judgment response and motion for extension of time, and furnished a copy
to the district court. On January 19, the district court signed a first amended order granting
Dr. Schmidt’s summary judgment motion in which it acknowledged having considered Ly’s response
and motion for extension of time.
       2
         This is Ly’s third appeal arising from this litigation. See Ly v. Austin, No. 03-05-00516-
CV, 2007 Tex. App. LEXIS 5475 (Tex. App.—Austin July 13, 2007, no pet. h.) (mem. op.)
(affirming district court’s dismissal of Ly’s claims against defendants Austin and Ellington); Ly
v. Seton Medical Center, No. 03-05-00515-CV (Tex. App.—Austin Mar. 8, 2007) (granting joint
motion to dismiss appeal pursuant to settlement agreement).

                                                  2
                                           DISCUSSION

Standard of review

               We review the district court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott,

128 S.W.3d 211, 215 (Tex. 2003). When reviewing a summary judgment, we take as true all

evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any

doubts in the non-movant’s favor. Valence Operating Co., 164 S.W.3d at 661; Knott, 128 S.W.3d

at 215. Summary judgment is proper when there are no disputed issues of material fact and

the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Shell Oil Co. v. Khan,

138 S.W.3d 288, 291 n.4 (Tex. 2004) (citing Knott, 128 S.W.3d at 215-16). A movant who

conclusively negates at least one essential element of a cause of action is entitled to summary

judgment on that claim. Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).

Because the district court’s order does not specify the grounds for its summary judgment, we must

affirm the summary judgment if any of the theories presented to the district court are meritorious.

Knott, 128 S.W.3d at 216.


Summary judgment grounds

               To establish negligence in a medical malpractice case, a plaintiff must show (1) a

legal duty, (2) a breach of that duty, and (3) damages proximately caused by the breach. IHS Cedars

Treatment Ctr. v. Mason, 143 S.W.3d 794, 798 (Tex. 2003); Columbia Med. Ctr. Subsidiary, L.P.

v. Meier, 198 S.W.3d 408, 414 (Tex. App.—Dallas 2006, pet. denied). In his motion for summary

judgment, Dr. Schmidt contended that the evidence conclusively established that he did not breach

                                                  3
the applicable standard of care and that, even if he did, such breach was not the proximate cause of

Ly’s hemorrhage. We agree with the district court that Dr. Schmidt is entitled to summary judgment

as to both elements.


       Standard of care

               The threshold question in a medical malpractice case is the standard of care. Jones

v. Miller, 966 S.W.2d 851, 854 (Tex. App.—Houston [1st Dist.] 1998, no pet.). In determining

that standard, the court must be guided solely by expert opinion. Armbruster v. Memorial Sw. Hosp.,

857 S.W.2d 938, 941 (Tex. App.—Houston [1st Dist.] 1993, no writ). A summary judgment may

be based on the uncontroverted affidavit of an interested witness if the testimony is clear, positive,

direct, otherwise credible, free from contradictions and inconsistencies, and capable of being readily

controverted. Tex. R. Civ. P. 166a(c); Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310

(Tex. 1997); Republic Nat’l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986); First

Nat’l Bank v. Lubbock Feeders, L.P., 183 S.W.3d 875, 881 (Tex. App.—Eastland 2006, pet. denied).

               In Dr. Schmidt’s affidavit, which he attached as evidence to his motion for summary

judgment, Dr. Schmidt explained the standard of care applicable to a neuroradiologist interpreting

CT studies of the head:


       Specifically, in reviewing a head CT scan such as that performed upon Charles Ly
       on March 8, 1999, the standard of care required a neuroradiologist to evaluate the
       entire film study for imaging abnormalities which may represent a possible cerebral
       vascular accident (i.e. stroke), and to timely report such findings to the patient’s
       treating physician. . . . The standard of care also requires the neuroradiologist to
       evaluate the entire film study for any signs of acute or ongoing hemorrhages or bleeds
       in the patient’s brain, and to timely report such findings to the patient’s treating
       physician.

                                                  4
       In diagnosing a potential hemorrhage, the standard of care requires a neuroradiologist
       to differentiate a potential hemorrhage in the patient’s brain from other benign
       findings such as dystrophic calcification which also shows up as a high brain density
       or white area on the head CT scan.


To summarize, Dr. Schmidt averred that the standard of care requires a neuroradiologist to evaluate

the entire CT scan, identify and investigate imaging abnormalities which might represent a stroke

or hemorrhage, and timely communicate any relevant findings to the patient’s treating physicians.

Ly does not dispute that this is the applicable standard of care for neuroradiologists.

               Dr. Schmidt’s affidavit shows that he followed this standard of care. Dr. Schmidt

stated that he examined the entire film, noted on his report the “absence of edema, mass effect, or

sulcal effacement,” and focused the computer onto an area of high density, performing measurements

on that critical area. Dr. Schmidt concluded:


       Based upon my review of the entire March 8, 1999 head CT film series . . . I made
       a determination and timely communicated to the emergency room physicians the
       following: “[s]ome high density in the basal ganglia favors dystrophic type
       calcification over petechial hemorrhage.” It is thus my expert opinion that my review
       and interpretation of Charles Ly’s head CT scan from March 8, 1999 met all
       applicable standards of care, and that I was not negligent in my care of Charles Ly.


               It is this interpretation, “favor[ing] dystrophic type calcification over petechial

hemorrhage,” that serves as the basis of Ly’s complaint against Dr. Schmidt. Ly asserts that the

results of the scan actually favored a hemorrhage, and that if Dr. Schmidt had properly interpreted

and/or communicated the results to Ly’s treating physicians, they would not have prescribed Ly the

anti-coagulation medication that Ly alleges caused him to suffer a hemorrhage.




                                                  5
                However, Dr. Schmidt provided summary judgment evidence conclusively

establishing that his interpretation was proper. During his deposition, Dr. Albert Horn, M.D., a

board-certified neurologist who was also a defendant in the original action, was asked if he believed

that the area of high density favored calcification over hemorrhage. Dr. Horn testified that he was

“absolutely 100 percent certain” that it did. Furthermore, Dr. Sara Austin, M.D., another board-

certified neurologist and also a defendant, testified during her deposition that the area of high density

identified by Dr. Schmidt was consistent with what she had visualized in Ly’s previous radiological

films.3 Dr. Austin also testified that she agreed that the area of high density was not an acute

hemorrhage and “would have had to have been there for at least two more years.”

                Additionally, Ly’s own neuroradiological expert, Dr. Philip Shalen, M.D., testified

during his deposition that although he disagreed with Dr. Schmidt’s interpretation of the CT scan,

he thought that Dr. Schmidt’s interpretation was reasonable and satisfied the applicable standard of

care:


        Q:      Do you disagree with the interpretation that Dr. Schmidt made in that March
                8, 1999 CT scan?

        A:      Yes.4

        3
          As will be discussed in more detail below in our discussion of proximate cause, Ly was
treated for a brain injury at Brackenridge Hospital in January 1997. The previous films were related
to the 1997 injury.
        4
           In his deposition, Dr. Shalen originally said, “No.” However, he amended his deposition
to reflect that he did disagree with Dr. Schmidt’s interpretation. Dr. Shalen made other amendments
to his deposition, none of which are relevant to this appeal. There is some dispute about whether
Dr. Shalen’s amended deposition answers were admissible. We need not resolve that dispute,
because even if the amended answers were admissible, they do not change Dr. Shalen’s ultimate
conclusion that, even though he disagreed with Dr. Schmidt’s interpretation of the CT scan, he
thought that Dr. Schmidt’s interpretation was reasonable and met the standard of care.

                                                   6
       Q:      Okay. Do you think his interpretation was reasonable and met the standard
               of care?

       A:      Yes.

       Q:      And that’s for a neuroradiologist practicing in Austin, Texas in 1999; would
               that be correct?

       A:      Yes.

       ....

       Q:      Let me back up to a few things you’ve said. One is you said there’s more on
               these images than he’s put in the report.

       A:      Correct.

       Q:      But you do not feel that it was a breach of the standard of care, correct?

       A:      No, because people disagree as to what’s on a scan.

       ....

       Q:      My question to you, though, is are you going to say at the time of trial or at
               the time of the hearing in this case that it was a breach of the standard of care
               for Dr. Schmidt to have not included additional information that you feel
               exists on those images in the report?

       A:      I don’t think it’s the breach of the standards of care [sic].


               Ly further asserts that even if Dr. Schmidt’s interpretation of the scan did not breach

the standard of care, Dr. Schmidt’s failure to communicate the possibility of a hemorrhage to Ly’s

treating physicians did. However, Dr. Schmidt provided summary judgment evidence that he

communicated that possibility to the emergency room doctors. Again, Ly’s own expert, Dr. Shalen,

provided testimony that actually supports Dr. Schmidt’s position:




                                                  7
       A:      My only issue with this case is the reporting of the possibility that
               hemorrhage might exist.

       Q:      And you agree that was reported in the dictated report?

       A:      It was in the dictated report.

       Q:      And if normal practice had been followed - or strike that. You don’t have
               any evidence to contradict Dr. Schmidt’s testimony that that’s also what he
               would have communicated to the emergency room doctor?

       A:      No, I don’t have any evidence that, you know, he wouldn’t communicate the
               same thing that he typed.

       Q:      That’s - that’s normally the way it goes?

       A:      That’s normally the way we do it.


Dr. Shalen further testified that oral communication of the findings was important:


       Q:      . . . [Y]ou’ve testified earlier you feel the standard would have been met if Dr.
               Schmidt had reported the findings on his radiology report to the emergency
               room physician?

       A:      Right. And I’d - if you’d allow me. You know, I put that in writing and said
               if a determined attempt was made by the neuroradiologist to orally
               communicate the CT findings, then no breach in the standard of medical care
               occurred.

       Q:      And do you still agree with that?

       A:      I still agree with that.


Dr . Shalen concluded that if Dr. Schmidt made a telephone call and communicated with the ER

doctor, there would be no breach:




                                                   8
       Q:      Okay. But we can agree, can we not, that what’s important is that the call
               was made?

       A:      It is important that the call was made.

       Q:      Well, that - No. That’s everything because if Dr. Schmidt made that call and
               spoke to an ER doctor, then you’ve told me he has met his standard of care.

       A:      If Dr. Schmidt made the call and spoke to the ER doctor, then he’s, you
               know, he’s done the right thing as far as I’m concerned.


               The evidence further established that Dr. Schmidt indeed made that call and spoke

to an emergency room physician. In his affidavit, Dr. Schmidt testified:


       Following my interpretation of Charles Ly’s head CT scan on March 8, 1999, and
       prior to dictating my report herein, I made a contemporaneous telephone call to the
       emergency room to discuss the pertinent findings on Charles Ly’s head CT scan. In
       reference to Charles Ly’s March 8, 1999 head CT scan, I communicated the pertinent
       findings to either Dr. Roberts or another emergency room physician. Specifically,
       my communications to such physician included all pertinent portions of my dictated
       report including, but not limited to the following: (a) I communicated my differential
       diagnosis favoring dystrophic calcification over hemorrhage; (b) I communicated the
       fact I could not absolutely rule out a hemorrhage in Charles Ly; and (c) I
       recommended further MRI imaging to follow up on this patient.


Dr. Shalen’s testimony confirms that Dr. Schmidt made the call:


       Q:      The report specifically says “Preliminary results of this study were telephoned
               to the ER upon its completion contemporaneously,” correct?

       A:      That’s what it says.

       ....

       Q:      Okay. Can you point to any evidence in this case that indicates the statement
               “Preliminary results of this study were telephoned to the ER” was incorrect?

       A:      No.

                                                 9
                Ly provided no competent summary judgment evidence to controvert the above

evidence establishing that Dr. Schmidt satisfied the applicable standard of care. Ly attached to

his response to the motion for summary judgment Dr. Shalen’s affidavit. The affidavit identifies

the applicable standard of care for a neuroradiologist, but it does not state that the standard of care

was breached. Dr. Shalen states that “there is no indication in the ER notes that either doctors

Roberts or Austin were aware that the CT findings included the possibility of hemorrhage,” but this

is not evidence of Dr. Schmidt’s negligence. In fact, Dr. Shalen does not even refer to Dr. Schmidt

in the affidavit.

                Ly also attached to his response to the motion for summary judgment (and to his

appellate brief) copies of his CT scans and medical articles, essentially asking the district court and

now this Court to independently determine that Dr. Schmidt’s interpretation of the results of the CT

scan was incorrect. However, we are judges, not doctors, and we cannot make such a determination

in the absence of expert testimony. See Williams v. Huber, 964 S.W.2d 84, 86 (Tex. App.—Houston

[14th Dist.] 1997, no pet.) (“In a medical malpractice case, both the establishment and preclusion

of summary judgment are dependent upon expert testimony.”).

                Ly also attached to his response an affidavit by Ralph Lilly, M.D., a board-certified

neurologist.5 However, rule 166a requires affidavits to conform to section 312.011(1) of the

government code. Hall v. Rutherford, 911 S.W.2d 422, 425 (Tex. App.—San Antonio 1995,

writ denied). Section 312.011(1) defines an affidavit as “a statement in writing of a fact or facts


        5
           Prior to the summary judgment hearing, Dr. Schmidt objected to the qualifications of
Dr. Lilly. The district court sustained Dr. Schmidt’s objection and excluded any testimony by
Dr. Lilly regarding the standard of care.

                                                  10
signed by the party making it, sworn to before an officer authorized to administer oaths, and

officially certified to by the officer under his seal of office.” Tex. Gov’t Code Ann. § 312.011(1)

(West 2005). Dr. Lilly’s affidavit is unsworn. Thus, it is not proper summary judgment evidence

and is not to be considered. See Bernsen v. Live Oak Ins. Agency, Inc., 52 S.W.3d 306, 310

(Tex. App.—Corpus Christi 2001, no pet.) (holding that “an unsworn statement that purports to be

an affidavit” will not support summary judgment); Coastal Cement Sand v. First Interstate Credit

Alliance, 956 S.W.2d 562, 567 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (“Without the

notarization or jurat, the unsworn statement is not an affidavit, and it is not proper summary

judgment evidence.”).6

               In the absence of any controverting evidence, we hold that Dr. Schmidt’s evidence

conclusively establishes that he did not breach the applicable standard of care. Accordingly,

Dr. Schmidt was entitled to summary judgment on that ground.


       Proximate cause

               The evidence also conclusively establishes that Dr. Schmidt’s actions were not

the proximate cause of Ly’s injury. The two elements of proximate cause are cause in fact and




       6
          We also note that in his brief, Ly for the first time makes allegations concerning a
conversation between his daughter and Dr. Roberts, one of the emergency room physicians. We will
not consider these allegations as they were not raised in the trial court and the alleged conversation
is not competent summary judgment evidence. See City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671, 676 (Tex. 1979); Four Bros. Boat Works v. S & SF, Inc., 55 S.W.3d 12, 17-18
(Tex. App.—Houston [1st Dist.] 2001, pet. denied); see also Tex. R. Civ. P. 166a(c) (“Issues not
expressly presented to the trial court by written motion, answer or other response shall not be
considered on appeal as grounds for reversal.”). Additionally, any statements made by Dr. Roberts
to Ly’s daughter are inadmissible hearsay. See Tex. R. Evid. 802.

                                                 11
foreseeability. IHS Cedars Treatment Ctr., 143 S.W.3d at 798. These elements cannot be satisfied

by mere conjecture, guess, or speculation. Id. at 799. Cause in fact is established when the act or

omission was a substantial factor in bringing about the injuries, and without it, the harm would

not have occurred. Id. In a medical malpractice case, plaintiffs are required to show evidence of

a “reasonable medical probability” or “reasonable probability” that their injuries were proximately

caused by the negligence of one or more defendants. Park Place Hosp. v. Estate of Milo,

909 S.W.2d 508, 511 (Tex. 1995).

               Furthermore, “[t]o raise a fact issue on causation . . . . if there are other plausible

causes of the injury or condition that could be negated, the plaintiff must offer evidence excluding

those causes with reasonable certainty.” Merrell Dow Pharms. v. Havner, 953 S.W.2d 706,

720 (Tex. 1997); see Lette v. Baptist Health Sys., 82 S.W.3d 600, 601-02 (Tex. App.—San Antonio

2002, no pet.); Gillie v. Boulas, 65 S.W.3d 219, 224 (Tex. App.—Dallas 2001, pet. denied).

In other words, if Schmidt’s evidence established that there were other plausible causes of

Ly’s brain hemorrhage, or that Ly was simply “one of the unlucky patients” who was going to

suffer a hemorrhage no matter what his treating physicians did, in order to survive summary

judgment, Ly needed to offer controverting evidence that excluded with reasonable certainty

Dr. Schmidt’s alternative theories of causation. See Helm v. Swan, 61 S.W.3d 493, 497-98

(Tex. App.—San Antonio 2001, pet. denied).

               Ly alleges that he suffered a brain hemorrhage because his treating physicians

administered anti-coagulation medicine to him based on Dr. Schmidt’s interpretation of Ly’s CT

scan. However, Dr. Schmidt produced summary judgment evidence establishing that the hemorrhage



                                                 12
could have occurred whether or not Ly was prescribed anti-coagulation medicine. The defendants

deposed Ly’s neurology expert, Michael Katz, M.D. In his deposition, Dr. Katz testified as follows:


       Q:      An ischemic stroke can transform into a hemorrhagic process, can it not?

       A:      A very well-known phenomena [sic].

       Q:      And typically it transforms into that and bleeds into generally the area that
               there were ischemic problems originally. Right, sir?

       A:      Not all the time, but in general that’s true.

       ....

       Q:      We already established a person with an ischemic stroke can develop a
               hemorrhage or hemorrhagic component to that stroke. Is that right, sir?

       A:      That is correct.

       Q:      And that can happen whether or not a patient is on anticoagulants. Right, sir?

       A:      Yes, that is true.


               The defendants also obtained similar testimony from Dr. Shalen:


       Q:      In other words, a patient can come in and have an ischemic infarct [a stroke]
               and can have studies, a CT study done which shows no evidence of
               hemorrhage or anything else that would contraindicate the giving of Heparin;
               Heparin can be given to the patient appropriately under those circumstances,
               but the patient can have this hemorrhagic transformation where the blood
               brain barrier breaks down over time and you end up with a bleed four, five,
               six days later, correct?

       A:      Okay.

       Q:      Do you agree or not?

       A:      Yes.

                                                 13
       Q:      Okay. And there is just an unfortunate set of patients that, regardless of what
               the physicians do, that this hemorrhagic transformation is going to occur;
               would you agree with that?

       A:      I’d agree.

       Q:      And Heparin can be given or Heparin cannot be given, but the hemorrhagic
               transformation can still happen?

       A:      Correct.

       Q:      And would you agree with me that in this case, based on the evidence that we
               have and everything we know about it today, that Mr. Ly could have been one
               of those unfortunate individuals that even if he had ischemic infarct
               beginning or even if he had hemorrhagic infarct at the beginning, that this
               hemorrhagic transformation could have occurred and he would have had the
               same injury he had on the 14th, regardless of what the doctors did?

       A:      It’s possible.

       Q:      In other words, everything could have been done by the book as - under your
               opinion in this case when Mr. Ly came in, and Heparin would have been
               withheld or MRI studies would have been done, and on the basis of those
               Heparin would have been withheld and the result still could have been the
               same?

       A:      It’s possible.

       Q:      Yes, sir. And there’s no way for you to rule that out sitting here today, is
               there?

       A:      No.


               Ly offered no summary judgment evidence controverting this testimony. Thus,

this evidence conclusively establishes that Ly’s injury plausibly could have occurred regardless

of whether or not he was prescribed anti-coagulation medicine as a result of Dr. Schmidt’s

interpretation of Ly’s CT scan.



                                                 14
               Additionally, Dr. Schmidt offered summary judgment evidence indicating that even

if the anti-coagulation medicine was the cause of Ly’s hemorrhage, one of Ly’s treating physicians

would have prescribed the medicine regardless of what information Dr. Schmidt may have

communicated about the results of the CT scan. The neurologist who ordered the anti-coagulation

therapy was board-certified neurologist Dr. Sara Austin, M.D., another one of the doctors whom Ly

sued. Dr. Austin was also deposed and testified that it was her standard practice to independently

review the results of a patient’s CT scan prior to ordering anti-coagulation therapy:


       Q:      Okay. What was the routine practice back in March or so of 1999 . . . . for
               communicating the information and results of a CT scan?

       A:      You know, often when the emergency room doctor would call me to admit
               a patient, they would say, you know, we have a patient with a stroke. The CT
               scan shows this; you know would you come see him. That was part of it. But
               my routine practice is to go find the scan and look at it, and I do that 90 or 95
               percent of the time, look at the scan. Almost always. . . .

       Q:      So, if I understand you, in terms of getting a communication from the
               neuroradiologist, you rarely talked directly to the neuroradiologist?

       A:      Yeah.

       ....

       Q:      All right. And so take it one step further than that. . . . Is it your standard
               practice 90 to 95 percent of the time to personally review a patient’s head CT
               scans before you would prescribe Heparin for that patient?

       A:      Yes.

       Q:      And do you have any reason to believe that you deviated from your standard
               practice in Mr. Ly’s case on March 8, 1999?

       A:      No.



                                                  15
       Q:      Okay. And kind of as a background, are you qualified to review head CT
               scans? Is that something you’ve had training and experience doing?

       A:      Yes.


               Dr. Austin went on to testify that although it was her standard practice to do so, she

could not recall if she had examined Dr. Schmidt’s report prior to ordering the anti-coagulation

therapy. After reviewing the report during the deposition, Dr. Austin acknowledged that Dr. Schmidt

had recommended follow-up MRI studies. Dr. Austin further testified that she would have ordered

anti-coagulation therapy regardless of Dr. Schmidt’s recommendation regarding an MRI:


       Q:      Okay. So do you understand this [Dr. Schmidt’s report] to suggest that an
               MRI would be helpful?

       A:      Dr. Schmidt thinks it would be helpful, yes.

       ....

       Q:      Going back to the MRI, the recommendation or the suggestion, I suppose, of
               an MRI in Dr. Schmidt’s dictation on Page 70 of these Seton records, if you
               had known that Dr. Schmidt suggested an MRI, would that have changed at
               all your decision to go forward with Heparin therapy?

       A:      No.


               Assuming that the anti-coagulation therapy was the cause of Ly’s hemorrhage, the

above testimony, which was uncontroverted, establishes that Dr. Austin’s independent decision to

order anti-coagulation therapy was a superseding cause of Ly’s injury. See Phan Son Van v. Pena,

990 S.W.2d 751, 754 (Tex. 1999) (listing factors that are to be considered in determining whether




                                                16
intervening force rises to level of superseding cause, including “the fact that the intervening force

is operating independently of any situation created by the actor’s negligence”).

               Finally, Dr. Schmidt provided summary judgment evidence indicating that, in his

expert opinion, the hemorrhage that Ly suffered was not related to and/or proximately caused by the

stroke for which Ly was treated. Instead, the hemorrhage may have been the result of a brain injury

suffered two years prior to Ly’s stroke. In his affidavit, Dr. Schmidt averred:


       In reviewing the head CT scan of Charles Ly dated March 8, 1999, a crescent-shaped
       area of high density was identified in the putamen of the basal ganglia. . . .

       Since the beginning of this litigation, I have had the opportunity to review several
       previous radiological studies performed upon Charles Ly. Specifically, I have
       reviewed the films and report of a head CT scan performed upon Charles Ly at
       Brackenridge Hospital on January 5, 1997. The report from this study indicated “[a]
       streak of increased attenuation is seen along the right lateral margin of the basal
       ganglia that could be parenchymal hemorrhage from a shearing type injury. A thick
       streak of calcium could also produce this appearance.” This “streak” of increased
       density brain matter reported in January 1997 is located in the exact same portion of
       the brain in which the high density area was noted on Charles Ly’s March 8, 1999
       head CT scan.

       ....

       Based upon the age of the crescent-shaped high density area of calcification, as well
       as its far-removed location in the putamen of the patient’s basal ganglia, it is my
       expert opinion that Charles Ly’s hemorrhage in the right front intraparenchymal
       region of his brain on March 14, 1999 was not related to and / or not proximately
       caused by the aforementioned crescent-shaped high density area of calcification.
       Specifically, the high density area in the patient’s basal ganglia was still present and
       not contiguous to the area of hemorrhage on March 14, 1999. This would lead me
       to conclude the crescent-shaped area of high density was not indeed a hemorrhage,
       and was not a proximate cause of Charles Ly’s eventual hemorrhage on March 14,
       1999.




                                                 17
               This evidence establishes a plausible alternative cause of Ly’s hemorrhage, and

although Ly disputed some of the conclusions in Dr. Schmidt’s affidavit, Ly did not provide any

summary judgment evidence controverting this alternative theory of causation.7

               For these reasons, we hold that the summary judgment evidence conclusively negates

the essential element of proximate cause. Therefore, Dr. Schmidt was also entitled to summary

judgment on that ground.


                                        CONCLUSION

               We affirm the judgment of the district court.




                                             ____________________________________________

                                             Bob Pemberton, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: August 28, 2007




       7
          In fact, the only evidence concerning proximate cause that Ly provided in his response to
Dr. Schmidt’s motion for summary judgment was the statement of Dr. Ralph Lilly, who concluded
that “the initial and continued application of [the anti-coagulation medicine] caused the extension
of a pre-existing hemorrhagic infarct.” However, as we discussed earlier, Dr. Lilly’s affidavit
is unsworn and is not competent summary judgment evidence. See Coastal Cement Sand v. First
Interstate Credit Alliance, 956 S.W.2d 562, 567 (Tex. App.—Houston [14th Dist.] 1997,
pet. denied).

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