Arguello v. Gutzman

I concur in the result affirming the summary judgment; however, I write to point out and attempt to reconcile a conflict in the law of medical malpractice and summary judgment.

The dissent persuasively cites the case of Davis v. Marshall, 603 S.W.2d 359, 361 (Tex.Civ.App. — Houston [14th Dist.] 1980, writ ref d n.r.e.) where a closely analogous fact situation was presented to a jury. In Davis, the plaintiff suffered a severe bum after a plaster cast had been applied to her leg. Id. It apparently was undisputed that the cause of the burn was either defective plaster or the misapplication of the…