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No. 05-02-00652-CV, 7/2/2003. Civil Litigation Click here for the full text of this decision FACTS:This is a medical malpractice case. Karen Mitchell challenges the summary judgment granted in favor of Baylor University Medical Center, Dallas Plastic Surgery Institute, and Henry Steven Byrd, M.D. on all her claims. HOLDINGReversed and remanded. No ground urged in the motions for summary judgment support the trial court’s judgment, and the court resolves all Mitchell’s issues in her favor. In his deposition, Dr. James Davidson stated he removed a “foreign body” from Mitchell; he was asked, “Did you recognize it as a sponge when you removed it?” to which he responded, “I did.” In reply and on appeal, the medical center and Byrd contend that Mitchell did not carry her burden to present controverting expert evidence to raise a fact issue because Davidson is a surgeon, not a pathologist, and is therefore not qualified to identify the mass he removed from Mitchell. Although the medical center and Byrd argued in their replies that Davidson was not qualified in forensic pathology, nothing in the record shows that the medical center and Byrd presented any conflicting evidence on Davidson’s qualifications or challenged the credibility of Davidson’s testimony on his qualifications. The court concludes that Mitchell carried her burden to provide proof of Davidson’s expert qualifications. The medical center and Byrd further contend that Davidson’s testimony was excluded from consideration in the summary judgment proceeding. They argue that the trial court impliedly granted the medical center’s motion to strike when it granted their motions for summary judgment. The medical center filed a motion to strike, limit or exclude Mitchell’s experts’ opinions, including Davidson, in which it challenged the admissibility of Mitchell’s experts. However, there is no record of a hearing on this motion or a written order granting or overruling this motion, nor is there a reporter’s record of the summary judgment hearing. The record does not show that the trial court sustained the medical center’s objections. Evidence that has been objected to remains part of the summary judgment proof unless an order sustaining the objection is reduced to writing, signed and entered of record. Thus, Davidson’s testimony raises a fact issue on whether the matter Davidson removed was a surgical sponge. The court concludes that summary judgment on all Mitchell’s claims was improper on grounds that the medical center and Byrd proved conclusively that no sponge was left in Mitchell. The court cannot conclude that Byrd proved as a matter of law that he had a duty to rely on the nurses’ sponge count. Mitchell contends that Byrd’s argument that, because the evidence showed that no sponge had been left in Mitchell, she could not show that any act by Byrd caused her injuries. Byrd’s argument was based on Davidson’s “conjecture” that the mass was a sponge. However, Davidson identified the mass as a sponge; further, he “guess[ed] it was one of the larger sponges” in response to a question if he knew “what size the sponge was when it was originally left in the body.” Thus, the court agrees with Mitchell that Byrd’s argument that causation could not be established because the evidence showed that Byrd did not cause a sponge to be left in Mitchell is without merit. Mitchell contends that the summary judgment in favor of Dallas Plastic Surgery Institute must be reversed because the institute did not move for summary judgment. An order that grants summary judgment to a party who did not move for summary judgment is erroneous and must be reversed. The institute did not file its own motion, nor does the record show that it joined another motion for summary judgment. Therefore, summary judgment for the institute is erroneous. OPINION:Rosenberg, J.; Whittington, Farris and Rosenberg, JJ.

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