Price v. Divita

42 Citing cases

  1. Landry v. Tex. Dept. of Criminal Justice

    CIVIL ACTION NO. H-17-370 (S.D. Tex. Dec. 8, 2017)

    To survive a motion to dismiss a medical-malpractice claim, the plaintiff must specifically allege sufficient facts that, if proven would show that: (1) the defendant had a duty to comply with a specific standard of care; (2) the defendant breached that duty of care; (3) the plaintiff was injured; and (4) the defendant's breach proximately caused the plaintiff's injury. See Price v. Divita, 224 S.W.3d 331, 336 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (citing IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004)).

  2. Am. Nat'l Ins. v. Deutsche Bank Sec.

    No. 01-08-00791-CV (Tex. App. Jun. 4, 2009)   Cited 1 times
    Holding summary judgment must be affirmed when one possible basis for judgment not challenged on appeal

    When, as here, a summary judgment does not specify the grounds on which it was granted, the appealing party must demonstrate on appeal that none of the proposed grounds is sufficient to support the judgment. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2001); Price v. Divita, 224 S.W.3d 331, 336 (Tex.App. [1st Dist.] 2006, pet. denied); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex.App. 2002, no pet.). We may affirm on any ground offered that has merit and was preserved for review.

  3. Aggarwal v. Trotta

    NO. 01-19-00012-CV (Tex. App. Jun. 11, 2019)   Cited 3 times

    A physician's or health care provider's breach is a foreseeable cause of the plaintiff's injury if a physician or health care provider of ordinary intelligence would have anticipated the danger caused by the negligent act or omission. See Price v. Divita, 224 S.W.3d 331, 336 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). The expert report is not required to prove the plaintiff's case but only to provide notice of the conduct forming the basis of the plaintiff's claim.

  4. Curnel v. Hous. Methodist Hosp.-Willowbrook

    562 S.W.3d 553 (Tex. App. 2018)   Cited 21 times
    Holding the trial court abused its discretion in denying motion for extension to cure deficient expert reports and motion for reconsideration

    A physician’s or health care provider’s breach is a foreseeable cause of the plaintiff’s injury if a physician or health care provider of ordinary intelligence would have anticipated the danger caused by the negligent act or omission. SeePrice v. Divita , 224 S.W.3d 331, 336 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). The plaintiff may serve reports of separate experts regarding different physicians or health care providers or regarding different issues arising from the conduct of a single physician or health care provider.

  5. KIPP v. DYNCORP TECH. SERV.

    No. 01-06-00906-CV (Tex. App. Nov. 8, 2007)   Cited 3 times
    Affirming no-evidence summary judgment on premises-liability claim because, in trial court, movant asserted no evidence was produced by non-movant on each element of claim, but, on appeal, non-movant did not address two elements

    When the trial court's judgment does not specify which of several grounds proposed was dispositive, we affirm on any ground offered that has merit and was preserved for review. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000) (stating general rule); see Price v. Divita, 224 S.W.3d 331, 336 (Tex.App.-Houston [1st Dist.] 2006, pet. denied) (applying rule to Tex. R. Civ. P. 166a(i) motion) (citing State Farm Fire Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993) (applying rule to Tex. R. Civ. P. 166a(c) motion); Taylor v. Carley, 158 S.W.3d 1, 8 (Tex.App.-Houston [14th Dist.] 2004, pet. denied) (applying rule to Tex. R. Civ. P. 166a(i) motion)). If the appealing party does not assert a broad challenge to rendition of summary judgment or fails to challenge a ground on which the movant asserted a right to summary judgment in the trial court, we must affirm — without considering whether the summary judgment was rendered properly or improperly on the unchallenged ground.

  6. Lumpkin v. Kaufman Cnty. Sheriff's Office

    3:21-CV-1842-N (BH) (N.D. Tex. Mar. 15, 2023)   Cited 2 times

    Nor does he appear to allege any injury that was caused by his medical care, which is fatal to his malpractice claim. See, e.g., Price v. Divita, 224 S.W.3d 331, 336 (Tex. App.-Houston [1st Dist.] 2006, pet. denied) (citing IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004)) (listing elements of Texas medical malpractice claim, including injury). It is not clear whether Plaintiff is also suing Major for medical malpractice under state law.

  7. Louzi v. Fort Bend Cnty.

    Civil Action 4:18-CV-04821 (S.D. Tex. Feb. 1, 2022)

    Meeting that burden requires proof of the following elements: (1) that Defendants had a duty to comply with a specific standard of care; (2) that Defendants breached that standard of care; (3) that Akueir was injured; and (4) that there was a causal connection between the breach of the standard of care and the injury. Price v. Divita, 224 S.W.3d 331, 336 (Tex. App.-Houston [1st Dist.] 2006, pet. denied).

  8. Louzi v. Fort Bend Cnty.

    CIVIL ACTION NO. 4:18-CV-04821 (S.D. Tex. Aug. 26, 2020)

    To state a claim of medical malpractice, Louzi must show that: (1) the individual medical defendants had a duty to comply with a specific standard of care; (2) the defendants breached that standard of care; (3) Akueir was injured; and (4) the breach of the standard of care caused the injury. Price v. Divita, 224 S.W.3d 331, 336 (Tex. Civ. App. 2006). The individual medical defendants contend that "the Complaint does not identify what standard of care" is applicable or how each individual medical defendant "failed to comply with the standard of care."

  9. Landry v. Tex. Dep't of Criminal Justice

    CIVIL ACTION NO. H-17-370 (S.D. Tex. Jun. 10, 2020)

    A medical-malpractice claim under Texas law requires the plaintiff to show that: (1) the defendant had a duty to comply with a specific standard of care; (2) the defendant breached that duty of care; (3) the plaintiff was injured; and (4) the defendant's breach proximately caused the plaintiff's injury. See Price v. Divita, 224 S.W.3d 331, 336 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (citing IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004)). A defendant is the cause-in-fact of a plaintiff's injury only if the defendant's breach of the standard of care "was a substantial factor in causing the injury 'without which the harm would not have occurred.'"

  10. Yates-Williams v. Nihum

    268 F.R.D. 566 (S.D. Tex. 2010)   Cited 3 times
    Concluding that because the Chapman court did not discuss the applicability of § 74.351, the court's "reference to § 74.351 was not necessary to the holding, making it dicta."

              Under Texas law, the plaintiff in a medical malpractice action must prove four elements: (1) a physician's duty to comply with a specific standard of care; (2) a breach of the standard of care; (3) an injury; and (4) a causal connection between the breach of care and the injury. Price v. Divita, 224 S.W.3d 331, 336 (Tex.App.-Houston [1st Dist.] 2006, pet. denied). The standard of care must be established by expert testimony unless the mode or form of treatment is a matter of common knowledge or is within lay experience.