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 242 DISTRICT COURT OF SWISHER COUNTY; ND

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.
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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.
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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
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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

[14 Dist.] 1999, no writ). To meet these requirements, Bryan was required to produce th

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 crossexamination, 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
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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