In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-04-167 CV ____________________ MARY MARTHA DOWNING, Appellant V. MARK D. LARSON, M.D., P.A., and MARK D. LARSON, M.D., Appellees On Appeal from the 60th District Court Jefferson County, Texas Trial Cause No. B-163,596 OPINIONPage 1 of 72/4/2005file://C:\Documents%20and%20Settings\jdunham\My%20Documents\new%20opins\pdfs\1...Mary Martha Downing sued Mark D. Larson, M.D., P.A., and Mark D. Larson, M.D., (collectively, "Larson") for medical malpractice in the performance of an open reduction/ internal fixation of a left orbital blow-out fracture. Downing alleged Dr. Larson was negligent in performing two surgeries to correct the entrapment of the inferior rectus muscle in her left eye. We hold the trial court erred in striking the plaintiff's expert evidence, and reverse the summary judgment. A "no evidence" motion for summary judgment challenged the qualification of the appellant's expert plastic surgeon and her evidence of causation. See Tex. R. Civ. P. 166a(i). Larson argued that Martin L. Bell, M.D., is not familiar with the standard of care applicable to a board certified plastic surgeon using a Synthes mesh to repair an orbital blowout fracture because it has been over fifteen years since Dr. Bell has treated an orbital blowout fracture and he has never used Synthes mesh. The appellees based the causation argument on Dr. Bell's testimony that he does not know whether Downing has any residual problems due to the surgeries done by Dr. Larson and on his admission that some residual can remain even when the surgery is done properly. In response, Downing submitted a telefacsimile affidavit from Dr. Bell, the doctor's medical report and curriculum vitae, and thirty-six pages from his deposition. She also included eight pages of Dr. Larson's deposition. The appellees obtained a favorable ruling on their objections to Downing's summary judgment evidence, and the trial court struck the opinions and testimony of Dr. Bell, effectively leaving the plaintiff without any evidence with which to satisfy Rule 166a(i). On appeal, Downing argues that the trial court erred in striking her evidence. The appellees raised six objections to Downing's evidence. First, Larson objected to a copy of the affidavit. A duplicate is admissible to the same extent as an original unless a question is raised as to the authenticity of the original or circumstances would make it unfair to admit the duplicate. Tex. R. Evid. 1003. Downing supplied the original affidavit in response to Larson's objection to the facsimile. Therefore, the exclusion of the appellant's summary judgment evidence is not affirmable on this ground. Second, the appellees contend Dr. Bell's opinions were conclusory because they do not reveal his reasoning, the proper standard of care, how the standard was breached, and how the breach was a cause of damages. To raise a fact issue sufficient to defeat a no-evidence summary judgment in a medical malpractice case, the controverting expert evidence must identify the standard of care, establish the expert's familiarity with that standard, and explain why the treatment rendered by the doctor breached the applicable standard of care. Silvas v. Ghiatas, 954 S.W.2d 50, 53 (Tex. App.--San Antonio 1997, writ denied). In his report and in deposition, Dr. Bell opined that in the first surgery, Dr. Larson failed to completely delineate the full extent of the fracture and to dissect and cover the posterior aspect of the fracture with the implant, so as to prevent residual or recurrent entrapment of the orbital muscle. The report observes Downing's post-operative symptoms and the CT scan that revealed a "persistent bony defect behind the metal plate with continued partial entrapment of muscle." Dr. Bell's report also expresses his opinion that in the second surgery, Dr. Larson dissected the orbital floor more extensively and observed no entrapment, but he failed to replace the implant into the orbital floor to protect against recurrent entrapment post-operatively. The report notes that Dr. Larson "did not note any entrapment of muscle." Dr. Bell describes a third surgery by a new doctor, who "encountered dense scar tissue along the orbital floor and around the inferior rectus muscle" and "discovered Page 2 of 72/4/2005file://C:\Documents%20and%20Settings\jdunham\My%20Documents\new%20opins\pdfs\1...that the fractured bone fragments in the back of the orbit were not separated, and so he removed some fragments of bone." He reports that the third surgery substantially improved the appellant's vision. Dr. Bell explained with particularity what the standard of care was and explained how Dr. Larson failed to meet it and how damage resulted. Thus, the evidence is not conclusory for the reasons asserted by the appellees. Third, Larson claimed a particular deposition excerpt consisted of hearsay because the opinion of Dr. Bell was based upon the opinion of Dr. Rudasill, a person whose affidavit was not attached. The deposition excerpt consists of Dr. Bell's testimony that he had been apprised of Dr. Rudasill's report that day, and that he had not been apprised of the report when he prepared his expert report, but that the Rudasill report suggests Downing's injury is permanent. Downing supplied Dr. Rudasill's report in a court-authorized supplement. Therefore, the exclusion of the appellant's summary judgment evidence is not affirmable on this ground. Fourth, Larson objected that certain opinions articulated by Dr. Bell during the deposition were inadmissible because they had been adduced through leading questions by Downing's attorney. Counsel for Larson did not object to the questions on the ground that they were leading, as required by rule. Tex. R. Civ. P. 199.5(e). On appeal, Larson suggests that counsel had agreed that an objection to form would cover all objections in the depositions. No such agreement appears in the record, and the appellees do not cite us to where it might be located. The exclusion of the appellant's summary judgment evidence is not affirmable on this ground. Fifth, Larson challenged Dr. Bell's qualifications as an expert. The appellees contend Downing failed to meet the burden of proving that Dr. Bell meets the requirements of Section 14.01, Article 4590i of the Texas Revised Civil Statutes. That article, since repealed, provided as follows, in pertinent part: (a) In a suit involving
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