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Civil Litigation No. 03-02-00639-CV, 5/8/2003. Click here for the full text of this decision FACTS: Kelli and Rogelio Hinojosa, individually and as representatives of the estate of their son Bryan, who died during the labor and delivery process, brought suit against the hospital, Columbia/St. David’s d/b/a South Austin Hospital, their attending physician, Dr. Paul Locus, and his practice group, Central Texas Obstetrics and Gynecological Associates, for negligent treatment during Kelly Hinojosa’s labor and delivery. Among other things, they brought claims under the wrongful-death and survivorship statutes. The trial court granted the appellees’ traditional motion for partial summary judgment, which averred that, because Bryan did not survive live birth, his death did not fall within the two statutory claims. The trial court severed the partial summary judgment, creating this final judgment. On appeal, the parents argue that: 1. there exists a material fact issue precluding the grant of summary judgment on the issue of whether Bryan survived live birth; and 2. the requirement that a fetus survive live birth to recover under the wrongful-death and survivorship statutes is unconstitutional on these facts and should be revisited. Among the evidence produced during the summary judgment proceedings, the parents provided a death certificate, signed by Dr. Locus, indicating that Bryan had survived live birth and listing his life span at 20 minutes. HOLDING: Reversed and remanded. The appellees, relying on McConnell v. Southside Independent School District, 858 S.W.2d 337 (Tex. 1993), argue that the effect of the death certificate was not properly brought to the trial court’s attention and therefore cannot support the parents’ issue on appeal. The term ” prima facieevidence” is ambiguous at best; it sometimes entitles the producing party to an instructed verdict, absent contrary evidence, and sometimes means that a party has produced sufficient evidence to go to the trier of fact on the issue. Under either interpretation, Texas Health and Safety Code �191.052 establishes that the contents of a properly filed death certificate are sufficient to raise a fact issue to survive summary judgment and be presented to the trier of fact. Bryan’s death certificate was filled out on a VS-112 form, with an annotation listing duration of life at 20 minutes. Dr. Locus signed and verified the information. By itself, the fact that a VS-112, rather than a VS-113, form was used creates a reasonable inference that Bryan survived live birth. By statute, when Dr. Locus signed the VS-112, it became prima facieevidence of the information contained therein. Although the death certificate is only prima facieevidence of life, and therefore subject to rebuttal or explanation at trial, it constitutes proof conflicting with the evidence provided by the appellees and is therefore sufficient to raise a question of fact as to whether Bryan survived birth. The appellees respond to the information contained in the death certificate by arguing that the issue was not specifically raised before the trial court in a written motion, answer or other response to be considered on appeal. Texas Rule of Civil Procedure 166a(c). The parents’ response to the motion for partial summary judgment raised the issue of whether Bryan had been born alive. The death certificate was attached to the response. The appellees appear to argue that the parents’ response to the motion for partial summary judgment is insufficient to preserve an argument based on the death certificate because the written motion does not specifically rely on the death certificate’s statutory significance. The appellees’ position confuses the requirement that all issuesbe raised in a motion before the trial court with an assessment of all the evidenceproduced in the summary-judgment proceedings. An issue is a proposition specifically addressed to the cause of action or claim that, if found to be true, directly requires that summary judgment be either granted or denied. Issues must be set out specifically in a motion, answer, or other response. Evidence, on the other hand, comprises the documents and other materials included in the record that tend to make the proposition at issue more or less probable. Evidence attached to these motions for the court to consider in determining the propriety of summary judgment need not be set out specifically. A nonmovant need not set out the exact evidence on which it relies or explain with specificity how this evidence supports the issues it raises; summary judgment is not a trial by affidavit or deposition. Evidence need only be referenced or attached for a court to consider it. Because the parents argued that Bryan was born alive in their motion, they presented the issueof Bryan’s live birth to the trial court with sufficient specificity to satisfy the requirements of rule 166a and McConnell. The death certificate serves as evidenceon the issue of live birth. The parents were not required to explain with specificity exactly how each document supported their contention, nor were they required to argue their evidence for the trial court to consider it. The court is faced with two sets of evidence: 1. expert conclusions drawn from objective indicia, indicating that Bryan was not alive at birth; and 2. an official record, which by statute constitutes prima facieevidence of its contents and which was signed by one of the defendants, indicating that Bryan was born alive, coupled with additional observations by the parents of voluntary movements after birth. The contradiction between the two is sufficient to raise a material fact issue. OPINION: Kidd, J.; Kidd, Yeakel and Patterson, JJ. Concurring opinion by Justice Patterson.

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