
    Carmen C. GOMEZ, Elena Faz, Luis Carrasco, Pablo Carrasco, Jeronimo Carrasco, Jr., Ricardo Carrasco Individually and Guadalupe R. Carrasco Individually and as Representative of the Estate of Jeronimo Carrasco, Appellants, v. TRI CITY COMMUNITY HOSPITAL, LTD. d/b/a Tri-City Community Hospital, Appellee.
    No. 04-98-00613-CV.
    Court of Appeals of Texas, San Antonio.
    May 19, 1999.
    Rehearing Overruled July 6, 1999.
    
      Demetrio Duarte, Jr., Demetrio Duarte, Jr. and Associates, P.C., San Antonio, for appellant.
    Cynthia Day Grimes, Ruth Greenfield Malinas, Brendan K. McBride, Ball & Weed, P.C., San Antonio, for appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, CATHERINE STONE, Justice and SARAH B. DUNCAN, Justice.
   OPINION

Opinion by:

PHIL HARDBERGER, Chief Justice.

Appellants appeal a summary judgment in favor of appellee, Tri City Community Hospital, Ltd. (“Hospital”), in a medical malpractice action. The trial court granted a no-evidence summary judgment on the element of causation. Appellants assert that the trial court erred in granting the judgment. We reverse the trial court’s judgment and remand the cause to the trial court for trial.

Factual and PROCEDURAL History

On April 20, 1995, Jeronimo Carrasco (“Carrasco”) was taken to the emergency room of the Hospital by ambulance complaining of back pain. He was admitted for observation, then released on April 21, 1995. He was still complaining of back pain at the time of his release.

On April 22, 1995, Carrasco returned to the Hospital complaining of continued back pain and the inability to stand. Carrasco further complained that he had not had a bowel movement in four days. A chest x-ray was taken on April 22, 1995. The x-ray revealed a “significantly widened me-diastinum” and “an increase in the size of the cardiac silhouette.”

On April 24, 1995, a radiologist reviewed the x-ray and dictated his report. In addition to reporting what the x-ray revealed, the report stated: “In the setting of back pain consideration should be given for aortic dissection.” The report states: “Ward notified 4-24-95.”

Sometime on April 24, 1995, Carrasco’s condition deteriorated, and he was air lifted to Methodist Hospital in San Antonio. A CT scan revealed a type I dissecting aneurysm of the thoracic aorta. Carrasco underwent emergency surgery, and the surgeons found a ruptured dissecting aneurysm of the thoracic aorta. The surgeons were able to replace the ascending aorta with a synthetic graft, and the patient was fairly stable following the surgery. The following day, Carrasco suffered another pericardial effusion with tamponade. Emergency surgery was undertaken, and a new bleeding site into the pericardium was found with “abundant blood” in the left chest. Resuscitative efforts were not successful, and Carrasco died.

Appellants sued the Hospital and the emergency room physician. The appellants settled with the physician. The Hospital filed a motion for summary judgment asserting several grounds. The trial court’s judgment reflects that the Hospital advised the trial court at the hearing on its motion that it was waiving all summary judgment claims except its “no-evidence” claim. The no-evidence claim contained within the Hospital’s motion asserts that appellants failed to present any evidence of proximate cause between the Hospital’s alleged breach of the standard of care and appellants’ injuries. The trial court granted summary judgment on this ground, and appellants timely perfected this appeal.

Standard op Review

We apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.—San Antonio 1998, pet. denied); Judge David Hittner & Lynne Liberato, No-Evidence Summary Judgments Under the New Rule, in State Bar of Texas Prof. Dev. Program, 20 Advanoed Civil Trial Course D, D-5 (1997). We look at the evidence in the light most favorable to the respondent against whom the summary judgment was rendered, disregarding all contrary evidence and inferences. Moore, 981 S.W.2d at 269; Merrell Dow Pharmaceuticals, Inc. v. Havner, 958 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 989 (1998). A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Moore, 981 S.W.2d at 269; Tex.R. Civ. P. 166a(i). Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Havner, 953 S.W.2d at 711.

Evidence Before the Trial Court

The parties initially disagree regarding the evidence that was before the trial court. The appellants contend that the deposition testimony of Dr. Leah Raye Mabry, Diana Benad, and Dr. Raymond G. Armstrong was before the trial court based on the appellants’ notice of intention to use evidence not on file. The Hospital responds that the deposition testimony was not before the trial court because the appellants failed to file the discovery materials referenced in their notice prior to the trial court’s hearing. We agree with the Hospital.

Rule 166a(d) permits discovery products not on file with the clerk to be used as summary judgment evidence if a notice containing specific references to the discovery is filed and served on all parties together with a statement of intent to use the specified discovery as summary judgment proofs at least seven days before the hearing if such proofs are to be used to oppose the summary judgment. Tex.R. Civ. P. 166a(d). The comment to the rule states that such proofs must be filed in advance of the hearing in accordance with rule 166a. Tex.R. Civ. P. 166a cmt.1990. At least two courts of appeals have refused to consider such proofs if the appellate record did not demonstrate that the evidence was filed with the trial court when the trial court’s order on the motion for summary judgment was entered. See Salmon v. Miller, 958 S.W.2d 424, 427-29 (Tex.App.—Texarkana 1997, pet. denied); E.B. Smith Co. v. U.S. Fidelity & Guar. Co., 850 S.W.2d 621, 623-24 (Tex.App.—Corpus Christi 1993, writ denied); see also Timothy Patton, Summary Judgments in Texas § 6.04[1], at 74-75 & Supp. 46-49 (2d ed. 1995 & Supp.1998); but see Grainger v. Western Cas. Life Ins. Co., 930 S.W.2d 609, 613-14 (Tex.App.—Houston [1st Dist.] 1996, writ denied) (holding failure to object to method by which party submitted copies of excerpts waived party’s failure to file proofs with trial court). We agree with the reasoning of the Texar-kana and Corpus Christi courts of appeals and hold that the deposition testimony was not properly before the trial court for consideration.

Evidence of Proximate Causation

Having determined that the deposition testimony was not properly before the trial court, the only evidence the trial court could consider was the affidavits and medical records attached to the appellants’ response to the Hospital’s motion for summary judgment. We must now determine whether that evidence constituted more than a scintilla of probative evidence sufficient to raise a genuine issue of material fact as to the proximate cause element of the appellants’ cause of action.

In their petition, the appellants allege that the 'Hospital administered care that fell below the proper standard of care by failing to properly record Carrasco’s complaints and failing to timely report the results from the x-ray taken April 22, 1995. In its motion for summary judgment, the Hospital asserted that the appellants had failed to produce any evidence that these alleged actions proximately caused Carrasco’s death. The appellants filed a response to which two affidavits of Comer Roger Youmans, Jr., M.D. were attached, together with the medical records from the Hospital.

In his affidavits, Dr. Youmans asserts that Carrasco’s chance for success would be significantly better (greater than 90% to less than 50%) if the dissecting aneurysm was operated on under an elective basis as opposed to a post-rupture emergent basis. Dr. Youmans states: “There is no doubt that Mr. Carrasco would have a better chance for survival if the diagnosis óf the dissecting aneurysm had been established on April 22, or even two days previously when he was seen in the emergency room on April 20.... It is further apparent from the review that although the x-ray report was not dictated until April 24, 1995, there was no attempt by the hospital personnel to convey what should have been emergency type information to the attending physicians on the day of admission.” Dr. Youmans expresses his opinion that the Hospital “had the responsibility of seeing to it that the reports of the grossly abnormal chest x-rays were conveyed to the attending physician on an emergent basis.”

The Hospital states in its brief that Dr. Youmans does not explain what the missing “emergency type information” was in his affidavit. If the reference to the “emergency type information” in Dr. You-mans’ affidavit is read in context, however, it is clear that Dr. Youmans was referring to the results of the x-ray. In addition, the Hospital states that the affidavits do not suggest that the failure to properly diagnose the patient was the result of the failure to convey the emergency type information or that the attending physician would have made the correct diagnosis with the information. Since the x-ray report states: “In the setting of back pain consideration should be given for aortic dissection,” and since the diagnosis that led to Carrasco’s surgery was a dissecting aneurysm of the thoracic aorta, this is some evidence that the x-ray report would have led the attending physician to a correct diagnosis. In addition, after noting the Hospital’s failure to convey the emergency type information on the day of admission, Dr. Youmans states: “Subsequently, the correct diagnosis apparently was not suspected until the time the patient coded on April 24.” This statement links the Hospital’s failure to convey the x-ray information with the misdiagnosis. At the very least, the evidence rises to a level that would enable reasonable and fair-minded people to conclude that the absence of the x-ray report caused the improper diagnosis. Cf. Krishnan v. Garza, 570 S.W.2d 578, 583 (Tex.Civ.App.—Corpus Christi 1978, no writ) (noting hospital liable for failing to properly review x-rays).

The Hospital further asserts that “unless the aneurysm ruptured after the Hospital received the report, but while there was still time to do something to save the patient, the Hospital could not have caused any injury to the' decedent.” This statement ignores the appellants’ contention, supported by Dr. Youmans’ affidavit, that the Hospital had the duty to take steps to ensure that the results of the x-ray were relayed to the attending physician “on the day of admission.” Since Carrasco’s condition did not deteriorate until April 24, an inference can be made that the rupture occurred sometime on April 24. If the x-ray results had been relayed on April 22, the day of admission, the surgery could have been elective instead of emergent.

Conclusion

Dr. Youmans’ affidavit provides more than a scintilla of evidence that the Hospital’s failure to ensure that the x-ray was read and relayed to the attending physician on the day of admission was a proximate cause of the appellants’ injuries. The trial court’s judgment is reversed, and the cause is remanded for trial.

Dissenting opinion by: SARAH B. DUNCAN, Justice.

DUNCAN, Justice,

dissenting.

Like the majority, I conclude the summary judgment record does not encompass the deposition testimony referenced in Gomez’ Rule 166a(d), TexR. Crv. P., statement of intent. However, unlike the majority, I reach this conclusion because the statement was not accompanied by “a notice containing specific references to the discovery,” as expressly required by Rule 166a(d). I would thus leave for another day the broader issue addressed by the majority, that is, whether a complying statement and notice are sufficient, as indicated by the disjunctive “or” in the text of the rule, or whether they must be accompanied by the timely filing of the specifically referenced evidence, as suggested by the comment. Certainly I would not decide this question without carefully considering the rule’s history.

However, I must dissent from the majority’s judgment. The summary judgment record simply does not contain even a scintilla of evidence tending to establish Tri-City’s failure to promptly convey the April 22 x-ray results to Dr. Mabry was a “but for” cause of the delay in diagnosing Jeronimo Carrasco’s dissecting aneurysm.

As Gomez correctly recognizes in her brief, her appeal requires this court to determine whether the summary judgment record contains some evidence Tri-City’s “failure to promptly deliver the x-ray results of April 22, 1995 to the treating physician proximately cause[d] the death of Jeronimo Carrasco?” In other words, is there some evidence Tri-City’s failure to promptly deliver the x-ray results was “a substantial factor in bringing about [Car-rasco’s death] and without which [his death] would not have occurred.” Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 897, 400 (Tex.1993); see Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.1995). When considered in light of Gomez’ allegations against Tri-City, this burden required Gomez to produce some evidence (l)the delay in correctly diagnosing the dissecting aneurysm was a proximate cause of Carrasco’s death, and (2)the delay was itself proximately caused by Tri-City’s failure to deliver the April 22 x-ray results to Dr. Mabry promptly on April 22, rather than April 24.

Tri-City properly concedes Gomez produced some evidence Carrasco’s death was proximately caused by the delay in correctly diagnosing the dissecting aneurysm. But, Tri-City insists, there is no evidence the delay in diagnosing the dissection aneurysm was proximately caused by its failure to promptly deliver the April 22 x-ray results to Dr. Mabry. I agree. Dr. Youmans’ affidavits, set forth in the appendix, simply do not address this aspect of the requisite causal link.

Despite this evidentiary void, the majority reverses the summary judgment, stating there is “some evidence that the x-ray report would have led the attending physician to a correct diagnosis.” Slip op. at 6 (emphasis added). It may be reasonable to infer a correct diagnosis might have followed receipt of the radiologist’s report since it expressly stated “consideration should be given for aortic dissection.” But Gomez does not contend Tri-City failed to timely convey the report, nor could she do so since the report did not exist before April 24. Rather, Gomez alleges Tri City failed to promptly convey the x-ray results and, whatever “results” might mean, there is no evidence conveying the results would have led Dr. Mabry to a correct diagnosis. Similarly immaterial, in my view, is Dr. Youmans’ statement that “the correct diagnosis apparently was not suspected until the time the patient coded on April 24.” Nothing in this statement suggests the requisite causal link between Tri-City’s “failure to convey the x-ray information” and “the misdiagnosis.”

Because Gomez failed to produce some evidence Tri City’s failure to promptly convey the April 22 x-ray results was a cause in fact of Carrasco’s death, I would affirm the summary judgment and thus dissent from the majority’s judgment. 
      
      . The Hospital did not challenge either the duly or breach elements of the appellants’ claim in the no evidence portion of its motion for summary judgment.
     