Court of Appeals of Texas, Houston (14th Dist.).

James C. KINZER and Susan M. Kinzer, Appellants

v.

Glenn LANDON, M.D., P.A. and Baylor College of Medicine, Appellees.

No. 14-94-01068-CV.

|

June 27, 1996.

Before YATES, FOWLER, and O’NEILL, JJ.

OPINION

O’NEILL, Justice.

*1 This is an appeal from a summary judgment and an award of sanctions. Appellant James C. Kinzer (“Mr.Kinzer”) filed suit against Dr. Glenn Landon (“Dr.Landon”) and Baylor College of Medicine (“Baylor”), appellees, alleging medical malpractice and several other causes of action. Dr. Landon and Baylor filed a motion for summary judgment as to all of Mr. Kinzer’s claims, which the trial court granted. Further, based upon alleged misconduct by appellant Susan M. Kinzer (“Mrs.Kinzer”), Mr. Kinzer’s wife who was acting as his attorney, the trial court ordered the Kinzers to pay $75,000.00 in sanctions to Dr. Landon and Baylor. In this appeal, the Kinzers each bring six points of error complaining of the trial court’s actions. We affirm the summary judgment and reverse and remand as to the award of sanctions.

I. Background

On July 29, 1989, Mr. Kinzer suffered an on-the-job back injury. Mr. Kinzer sought advice and treatment from Dr. Cox, who diagnosed his problem as a large herniated disc and recommended surgery. Mr. Kinzer saw several other doctors, but eventually sought the opinion of a surgeon, Dr. Landon. Dr. Landon examined Mr. Kinzer, reviewed his records, and suggested that he might benefit from surgery if his pain became unbearable. After several months of conservative treatment, Mr. Kinzer contacted Dr. Landon’s office to schedule the surgery.

On February 14, 1990, Dr. Landon performed a microdiscectomy procedure on Mr. Kinzer. Dr. Landon was assisted by Dr. Sanders. After the surgery, Mr. Kinzer was discharged and placed in the care of Dr. Sanders. More than a year after the surgery, Mr. Kinzer had a magnetic resonance imaging (MRI) scan, which was interpreted by Dr. Samuel H. Baird, a radiologist. Dr. Baird concluded there was no definite evidence of recurrent disc herniation and noted that the scan indicated the presence of a small amount of “metallic artifact.”

On December 20, 1991, Mr. Kinzer, acting pro se, filed suit against Dr. Landon and Baylor in the Probate and County Court of Galveston County alleging numerous causes of action based upon the assertion that “metallic artifacts” were left in his body during the surgery. On August 10, 1992, the case was dismissed because the suit exceeded the county court’s subject matter jurisdiction. After the dismissal Mr. Kinzer, now represented by attorney George Neely,¹ filed suit in district court. Mr. Kinzer alleged the following causes of action against Dr. Landon: (1) civil conspiracy; (2) fraud; (3) lack of informed consent; (4) medical malpractice in pre-surgical, surgical, and post-surgical care; (5) violations of the DTPA; (6) patient abandonment and improper discharge; (7) gross negligence; (8) negligence per se; (9) breach of fiduciary duty; (10) breach of an implied warranty of fitness in medical records; (11) violations of the Racketeer Influenced & Corrupt Organizations Act (RICO); and (12) res ipsa loquitur. Mr. Kinzer alleged Baylor was liable under the doctrine of respondeat superior.

*2 Mrs. Kinzer intervened in the district court and asserted various causes of action, including fraud, conspiracy and violations of the DTPA. Landon and Baylor moved to strike the intervention or, alternatively, for summary judgment. On July 20, 1994, the trial court granted the motion to strike, and dismissed Mrs. Kinzer’s intervention.

Dr. Landon and Baylor filed a motion for summary judgment on all of Mr. Kinzer’s claims, which the trial court granted. In addition, on motion of Dr. Landon and Baylor, the trial court awarded $75,000.00 in sanctions against the Kinzers² pursuant to Texas Rules of Procedure 13 and 215(2)(b)(8) and § 17.50(c) of the Texas Business and Commerce Code. The Kinzers bring this appeal challenging the summary judgment and the award of sanctions. A brief was filed on behalf of Mr. Kinzer challenging the summary judgment; a separate brief was filed by Mrs. Kinzer challenging the sanctions award.

II. The Summary Judgment

Mr. Kinzer brings six points of error alleging the trial court erred in granting the motion for summary judgment. A summary judgment is not entitled to the same deference given a judgment following a trial on the merits. Biaza v. Simon, 879 S.W.2d 349, 352 (Tex.App.-Houston [14th Dist.] 1994, writ denied). When reviewing a trial court’s order granting a motion for summary judgment, an appellate court does not view the evidence in the light most favorable to the verdict; rather, the court must indulge every reasonable inference in favor of the non-movant. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant who moves for summary judgment is entitled to prevail if he negates as a matter of law at least one element of the plaintiff’s cause of action. Fisher v. Beach, 671 S.W.2d 63, 65 (Tex.App.-Dallas 1984, no writ). If the movant fails to meet its burden, the appellate court must reverse and remand the case for further proceedings in the trial court. Gibbs, 450 S.W.2d at 828-29.

The supreme court has set forth the proper standard for reviewing summary judgments as follows:

1. The movant must show there is no genuine issue of material fact and it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant must be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubt resolved in its favor.

Nixon, 690 S.W.2d at 548-49; Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).

A. Point of Error One

In point of error one, Mr. Kinzer contends the trial court erred in granting summary judgment because there were material fact issues controverting Dr. Landon’s summary judgment affidavit.

To recover in a medical malpractice case, a plaintiff must prove: (1) a duty requiring the doctor to conform to a certain standard of conduct; (2) the applicable standard of care; (3) breach of the applicable standard of care; (4) injury; and (5) a causal connection between the breach and the injury suffered. Pennington v. Brock, 841 S.W.2d 127, 128-29 (Tex.App.-Houston [14th Dist.] 1992, no writ); Elam v. Yale Clinic, 783 S.W.2d 638, 642 (Tex.App.-Houston [14th Dist.] 1989, no writ). In other words, the plaintiff most prove, by direct or circumstantial evidence, that: (1) the defendant doctor breached the standard of care, that is, he undertook a mode or form of treatment which a reasonable, prudent member of the medical profession would not have taken under the same or similar circumstances; and (2) the breach was the proximate cause of the plaintiff’s injuries, that is, there is a reasonable medical probability that the plaintiff’s injuries were caused by the negligence of the defendant. Bradley v. Rogers, 879 S.W.2d 947, 953 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (citing Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988)). Both of these elements are issues upon which the trier of fact must be guided solely by the opinion testimony of experts. Perez v. Cueto, 908 S.W.2d 29, 31 (Tex.App.-Houston [14th Dist.] 1995, no writ); Wendenburg, M.D. v. Williams, 784 S.W.2d 705, 706 (Tex.App.-Houston [14th Dist.] 1990, writ denied) (citing Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949)).

*3 The granting of a motion for summary judgment may be based upon the uncontroverted testimonial evidence of an interested witness if the trier of fact must be guided solely by expert opinion testimony and if the evidence is: (1) clear, positive, and direct; (2) otherwise credible and free from contradictions and inconsistencies; and (3) capable of being readily controverted. Republic Nat’l Leasing Corp. v. Schindler, 717 S.W.2d 6006, 607 (Tex.1986); Davis v. Manning, 847 S.W.2d 446, 449 (Tex.App.-Houston [14th Dist.] 1993, no writ). See also Tex.R. Civ. P. 166a(c).

Mr. Kinzer contends appellees did not meet their burden of proof because they “did not successfully negate the element of breach in the standard of care.” He claims that material fact issues controvert Dr. Landon’s affidavit regarding whether there were any “left sided abnormal neurological findings” to support Dr. Landon’s contention that surgery, much less bilateral surgery, was warranted. Further, Mr. Kinzer contends there were fact issues regarding his post surgical condition, including left side scarring, which was proximately caused by the surgery and not the original injury. He also claims Dr. Landon’s affidavit is insufficient for summary judgment purposes because it is conclusory and because Dr. Landon’s credibility is at issue.

In his affidavit, Dr. Landon: (1) sets forth his qualifications; (2) states he is familiar with the standards of care applicable to a physician recommending a disc excision procedure, a surgeon performing such a procedure, and the post-operative care of a patient who has undergone such a procedure; (3) states the applicable standards of care in the relevant time frame; (4) describes the services he provided and details each examination, operative procedure, and treatment administered to Mr. Kinzer; (5) states that each act he performed was in accordance with the appropriate standard of care; (6) specifically denies the allegations of negligence; (7) states that Mr. Kinzer did not suffer any injury that was proximately caused by his care and treatment; and (8) states that all of his opinions are based upon a reasonable degree of medical probability.

We find that Dr. Landon’s affidavit meets the summary judgment criteria for testimony of an interested witness contained in Tex.R. Civ. P. 166a(c). It is clear, positive and direct, otherwise credible, and free from inconsistencies. Moreover, the affidavit could ave been readily controverted by appropriate medical expert testimony. See Tex.R. Civ. P. 166a(c). Dr. Landon set out the applicable standard of care and the treatment he provided, and stated that his treatment met the standard of care. Dr. Landon specifically denied Mr. Kinzer’s allegations, and swore that nothing he did caused any damage to Mr. Kinzer. All of Dr. Landon’s opinions were explicitly based upon reasonable medical probability. Dr. Landon’s affidavit was competent summary judgment evidence under Rule 166a(c), and was sufficient to negate at least one element of Mr. Kinzer’s medical malpractice claim. See Davis, 847 S.W.2d at 451.

*4 Once Dr. Landon negated the elements of the medical malpractice claim, the burden shifted to Mr. Kinzer to show, by controverting expert medical testimony, that Dr. Landon’s treatment or care was negligent and proximately caused his injuries. See Davis, 847 S.W.2d at 452; Wiggins v. Cameron, 763 S.W.2d 434, 4335 (Tex.App.-Houston [14th Dist.] 1988, writ denied). However, Mr. Kinzer failed to present any competent controverting evidence. First, much of the “evidence” relied upon to controvert Dr. Landon’s affidavit was stricken by the trial court as hearsay and was thus not considered. Second, even if the evidence were considered, Mr. Kinzer relies only upon his own analysis and conclusions drawn from the medical summaries, billing records, medical treatises, and other evidence. As already stated, the elements of breach and causation require expert medical testimony. Perez, 908 S.W.2d at 31; Wendenburg, 784 S.W.2d at 706. Mr. Kinzer provided no expert opinion or analysis of these documents. Therefore, the evidence relied upon by Mr. Kinzer was not competent to controvert the affidavit of Dr. Landon. Although Mr. Kinzer cites a line of cases requiring us to indulge every reasonable inference in favor of the non-movant, the documents submitted by Mr. Kinzer in response to the motion are not competent summary judgment evidence and, therefore, cannot support an inference that may be indulged.

Mr. Kinzer also points to the reports of several physicians who found only a right side pathology. He contends these reports create a fact issue concerning the necessity of bilateral surgery and support the contention that some of his injuries were caused by improper surgery for a condition that did not exist. However, the reports relied upon are not competent summary judgment evidence because they do not contain an opinion regarding the standard of care or the breach of that standard. Perez, 908 S.W.2d at 31; Wendenburg, 784 S.W.2d at 706. Additionally, Mr. Kinzer’s claim of improper surgery on the left side was dispelled by documents from his own expert, Dr. Fesler, who states that at the time of surgery the MRI did reveal bilateral herniations on both the left and right side.

Mr. Kinzer complains that Dr. Landon’s affidavit is not competent summary judgment proof because it is conclusory. In support of his argument, Mr. Kinzer relies upon three cases in which the court found various affidavits to be incompetent summary judgment proof because the affiant merely set forth conclusory opinions. See Anderon v. Snider, 808 S.W.2d 54, 55 (Tex.1991) (finding affiant in legal malpractice case only stated conclusions without stating basis therefor); Life Ins. Co. v. Gar-Dal, Inc., 570 S.W.2d 378, 381-82 (Tex.1978) (holding affidavit containing mere conclusion that company was not given credit for offsets insufficient; affiant should have specified what the offsets were and when paid); Weaver v. Robinson, 536 S.W.2d 243, 246 (Tex.Civ.App.-El Paso 1976), rev’d on other grounds, 550 S.W.2d 18 (Tex.1977) (holding affiant-doctor only stated conclusory opinion and failed to set forth standard of care and demonstrate his conduct was in conformity therewith). The cases cited by Mr. Kinzer are distinguishable in that they involved affidavits which were entirely conclusory. The affidavit submitted by Dr. Landon in the present case, far from being conclusory, is very detailed. The affidavit is seven pages long and details with specificity each treatment and procedure that Dr. Landon performed. We therefore reject Mr. Kinzer’s claim that Dr. Landon’s affidavit is conclusory.

*5 Mr. Kinzer also complains that Dr. Landon’s affidavit was not competent summary judgment proof because Dr. Landon’s credibility is at issue. To support this contention, Mr. Kinzer relies upon Casso v. Brand, 776 S.W.2d 551 (Tex.1989). In Casso, a defamation case, the supreme court examined an affidavit offered in support of a motion for summary judgment to determine whether it “could have been readily controverted.” Id. at 558. The court focused on the subjective nature of the defendant’s mere denial of actual malice, one of the elements of the plaintiff’s case. Id. The supreme court defined the phrase “could have been readily controverted” to mean the testimony is of a nature that can be effectively countered by opposing evidence. Id. Unlike the conclusory statement made in the Casso affidavit, the statements in Dr. Landon’s affidavit were not merely subjective, but were supported by objectively verifiable details regarding the treatment and care provided to Mr. Kinzer. As such, they could have been readily controverted.

Next, Mr. Kinzer invokes the spoliation of evidence doctrine and claims that he was not required to controvert the summary judgment proof presented by Dr. Landon and Baylor. See H.E. Butt Grocery Co. v. Bruner, 530 S.W.2d 340 (Tex.Civ.App.-Waco 1975, writ dism’d). Specifically, Mr. Kinzer claims that Dr. Landon’s failure to produce a film return form and answer certain interrogatories creates a presumption in his favor and obviates his need to provide controverting evidence.

The spoliation of evidence doctrine provides that the failure to produce evidence within a party’s control raises a presumption of probative force that if the evidence was produced, it would operate against the nonproducing party. As stated in H.E. Butt Grocery Co. v. Bruner, “intentional spoliation or destruction of evidence relevant to a case raises a presumption that the evidence would have been unfavorable to the cause of the spoliator.” 530 S.W.2d at 344. Relying on Bruner, Mr. Kinzer argues Dr. Landon’s failure to produce a film return form and answer certain interrogatories justifies a presumption that the evidence would be unfavorable to Dr. Landon. However, the film return form was produced in discovery and is found in numerous places in the record. It was clearly not kept from the Kinzers, nor was it destroyed. Further, the spoliation of evidence doctrine has never been applied to a failure to answer interrogatories. The rules of civil procedure provide other remedies for any such failure. See generally Tex.R. Civ. P. 215. We reject Mr. Kinzer’s argument regarding spoliation of the evidence.

Finally, Mr. Kinzer alleges summary judgment was improper because “gelfoam sponges are foreign objects and are subject to the learned intermediary doctrine.” Thus, Mr. Kinzer contends, the use of gelfoam sponges was “contraindicated.” The “learned intermediary doctrine” provides that a manufacturer has a duty to warn the physician, and the physician then assumes the duty to warn the patient, of any dangers associated with a particular prescribed drug. See Plummer v. Lederle Lab., 819 F.2d 349 (2d Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 232, 98 L.Ed.2d 191 (1987); Rolen v. Burroughs Wellcome Co., 856 S.W.2d 607, 609-10 (Tex.App.-Waco 1993, writ denied). However, the use of the doctrine has been expressly limited to the physician-patient relationship involving prescription drugs. Rolen, 856 S.W.2d at 609. Gel-foam sponges are not “prescription drugs” and, therefore, the doctrine is inapplicable.

*6 Mr. Kinzer also claims the package insert included with the gelfoam sponges set the required standard of care. In Davis v. Marshall, 603 S.W.2d 359, 362 (Tex.Civ.App.-Houston [14th Dist.] 1980, writ ref’d n.r.e.), this court held it was proper to allow the jury to consider a package insert as evidence of the standard of care where both doctors testified that the package insert did in fact set the standard of care. Id. In the present case, Dr. Landon’s testimony concerning the standard of care made no reference to the package insert, and Mr. Kinzer presented no expert testimony that the standard of care was set by the package insert.

We find that Dr. Landon and Baylor established their right to summary judgment as a matter of law, and that Mr. Kinzer failed to present competent controverting summary judgment proof sufficient to raise a fact issue precluding summary judgment. Point of error one is overruled.

B. Point of Error Two

In point of error two, Mr. Kinzer claims the trial court erred in granting summary judgment because the deposition testimony of Dr. Turpin raised material fact issues. Assuming the deposition evidence was properly before the court, and applying the relevant standard of review, we find the testimony of Dr. Turpin did not raise a fact issue.

While Mr. Kinzer states in his brief that Dr. Turpin is a qualified expert because he is a board certified surgeon who is familiar with the standard of care, Dr. Turpin never testified that he was familiar with the standard of care, what the standard was, or that Dr. Landon’s treatment violated that standard. Rather, Dr. Turpin set forth “his” standard of care and what “he” would have done under the same circumstances. Although Dr. Turpin provided specific criticisms of the treatment and care provided by Dr. Landon, these criticisms took the form of opinions about what Dr. Turpin “personally” does or would do. In a medical malpractice case, it is the plaintiff’s burden to prove that the defendant breached the applicable standard of care. E.g., Pennington, 841 S.W.2d at 128-29; Elam, 783 S.W.2d at 642. A testifying expert cannot establish the standard of care by simply stating what he would have done under the same or similar circumstances. Warner v. Hurt, 834 S.W.2d 404, 407 (Tex.App.-Houston [14th Dist.] 1992, no writ). We hold Dr. Turpin’s deposition testimony does not raise a material fact issue that would defeat summary judgment. Point of error two is overruled.

C. Point of Error Three

In his third point of error, Mr. Kinzer contends the doctrine of res ipsa loquitur defeats appellees’ motion for summary judgment. Though his argument is far from clear, Mr. Kinzer apparently claims his allegations that Dr. Landon left metal in his body and operated in the wrong area give rise to the application of res ipsa loquitur. We disagree.

Res ipsa loquitur, a common law doctrine meaning “the thing speaks for itself,” is applied in certain limited types of cases when the circumstances surrounding the accident constitute sufficient evidence of the defendant’s negligence to support such a finding. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex.1990). The doctrine only applies when: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Id. Res ipsa loquitur is merely a rule of evidence by which negligence may be inferred; it is not a separate cause of action. Id.

*7 On August 29, 1977, the Texas Legislature enacted the Medical Liability and Insurance Improvement Act, which, inter alia, restricts the application of res ipsa loquiter in medical malpractice cases to “those cases to which it has been applied by the appellate courts of this state as of the effective date of this subchapter.” Tex.Rev.Civ. Stat. Ann. art. 4590i, § 7.01 (Vernon Pamph.1996). Thus, we must determine under what circumstances, if any, the doctrine was applied in medical malpractice cases before August 29, 1977. Haddock, 793 S.W.2d at 950.

Historically, res ipsa loquiter has been restrictively applied in medical malpractice cases: “There are only very, very few instances where a pleading of res ipsa loquitor is applicable in medical malpractice cases.” Haddock, 793 S.W.2d at 951 (citing Goodnight v. Phillips, 418 S.W.2d 862, 868 (Tex.Civ.App.-Texarkana 1967, writ ref’d n.r.e.); Stinnett v. Price, 446 S.W.2d 893, 895 (Tex.Civ.App.-Amarillo 1969, writ ref’d n.r.e.)). In Haddock, the supreme court applied the § 7.01 restriction and noted: “Texas courts have generally recognized that res ipsa loquitur is inapplicable in medical malpractice cases.” Id. (citations omitted). The one exception to this general rule applies when the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen and no expert testimony is required. Id. Examples of this exception include negligence in the use of mechanical instruments, operating on the wrong portion of the body, or leaving surgical instruments or sponges inside the body. Id. Relying on these examples, Mr. Kinzer argues that res ipsa loquitur applies because he has alleged that metallic artifacts were left in his body and Dr. Landon operated on the wrong level and on the wrong side. However, a plaintiff may not automatically rely upon res ipsa loquitur in every medical malpractice case that happens to fit one of the examples. Id. The doctrine may not be used when the negligence is not within the common knowledge of laymen. Id.

We find that Mr. Kinzer’s allegations do not give rise to application of the doctrine of res ipsa loquitur. The summary judgment evidence conclusively established that Dr. Landon did not leave metallic artifacts in Mr. Kinzer’s body. Dr. Baird, who interpreted an MRI scan on Mr. Kinzer’s spine, swore in his affidavit that the “metallic artifact” indicated on the MRI was nothing more than microscopic, invisible metal particles caused by bone drilling or cutting necessary to perform the surgical procedure. He further stated that the term “metallic artifact” on an MRI study does not indicate that a foreign body is present. He concluded that there was no indication of the presence of a foreign object left in Mr. Kinzer’s body after surgery. In addition, Dr. Landon swore in his affidavit that he did not “leave any foreign objects in the patient’s body.” Thus, the summary judgment evidence conclusively established that there were no foreign objects left in Mr. Kinzer’s body after surgery. The only evidence presented by Mr. Kinzer to the contrary is his own speculation based upon interpretation of medical bills, billing codes, and surgical labels.³ We find this evidence incompetent to controvert the summary judgment proof. Expert testimony was required to establish the significance of the “metallic artifact” finding, thus precluding the application of res ipsa loquitur. See Haddock, 793 S.W.2d at 951.

*8 Mr. Kinzer also alleged the surgery performed by Dr. Landon was on the wrong level and on the wrong side. However, this allegation alone does not automatically justify the application of res ipsa loquitur. In Wendenburg v. Williams, 784 S.W.2d 705, 707 (Tex.App.-Houston [14th Dist.] 1990, writ denied), a plaintiff alleged the application of res ipsa loquitur because the doctor operated on the wrong part of the body. The plaintiff claimed the defendant was supposed to perform surgery on the spine but ended up inflicting damage to blood vessels in the abdomen. Id. This court found res ipsa loquitur inapplicable and held that application of the doctrine to a “wrong body part” case requires that the doctor intentionally operate on the wrong part of the body under the mistaken impression that he was operating on the correct party of the body. Id.

We find Wendenburg analogous to the situation in this case. Mr. Kinzer’s actual contention is that Dr. Landon misdiagnosed his condition and this resulted in surgery at the wrong level and on the wrong side. He does not contend that Dr. Landon was supposed to operate on one side and mistakenly operated on the other, believing he was operating on the correct side. Additionally, the necessity and actual performance of a lamimotomy and disc excision with an operative microscope is obviously not within the common knowledge of laymen. See Haddock, 793 S.W.2d at 951. Thus, the trial court correctly determined that Mr. Kinzer’s invocation of res ipsa loquitur did not defeat appellees’ entitlement to summary judgment. Point of error three is overruled.

D. Point of Error Four

In point of error four, Mr. Kinzer contends the trial court erred in granting summary judgment on his causes of action for wrong level surgery, violations of the DTPA, lack of informed consent, breach of fiduciary duty, violations of the RICO statute, patient abandonment, and conspiracy to conceal. Mr. Kinzer claims appellees’ motion for summary judgment failed to address his cause of action for “wrong level surgery.” Second, he claims there are material fact issues as to the other causes of action which preclude summary judgment.

Mr. Kinzer’s claim that Dr. Landon performed surgery at the wrong level is nothing more than a specific allegation of medical malpractice. Dr. Landon clearly addressed this contention in his affidavit when he set forth the standard of care used to ensure that surgery is performed at the correct level. Dr. Landon set forth the standard of care and swore that he followed that standard. Once Dr. Landon negated this element of Mr. Kinzer’s medical malpractice claim, the burden shifted to Mr. Kinzer to prove, by expert medical testimony, that the treatment or care provided was negligent and proximately caused his injuries. See Davis, 847 S.W.2d at 452. Not only did Mr. Kinzer fail to offer any expert testimony to controvert Dr. Landon’s affidavit, his own expert, Dr. Fesler, stated that a reasonable surgeon would do exactly what Dr. Landon did to ensure surgery is performed at the correct location. Mr. Kinzer next argues that summary judgment should not have been granted because material fact issues exist on his DTPA claims. Mr. Kinzer’s DTPA claims are based upon alleged misrepresentations and breach of express warranty. Specifically, Mr. Kinzer alleged that another doctor told him Dr. Landon was the Chief of Orthopedics and generally only performed back surgeries. He claims this statement was confirmed by Dr. Landon, and that it was false. Next, Mr. Kinzer alleges he was the subject of a “bait and switch” scheme wherein Dr. Landon warranted that he would perform the surgery, but another doctor and a scrub nurse in fact assisted in the surgery. Mr. Kinzer claims he was not told of this arrangement. Finally, Mr. Kinzer argues that Dr. Landon misrepresented the benefits of fat tissue grafts, and expressly warranted “that fat tissue grafts reduced/eliminated scarring.”

*9 The failure of a physician to disclose the risks and hazards involved in the medical care or surgical procedure rendered is a negligence cause of action. McKinley v. Stripling, 763 S.W.2d 407, 409 (Tex.1989); Tex.Rev.Civ. Stat. Ann. art. 4590i, § 6.02 (Vernon Pamph.1996). Section 6.02 of the Act specifically provides as follows:

In a suit against a physician … involving a health care liability claim that is based on the failure of the physician … to disclose or adequately to disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician … the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.

Tex.Rev.Civ. Stat. Ann. art. 4590i, § 6.02 (Vernon Pamph.1996). A “health care liability claim” under the Act is defined as a cause of action for “treatment, lack of treatment, or other claimed departure from accepted standards of medical care or safety which proximately results in injury to or death of the patient.” Tex.Rev.Civ. Stat. Ann. art. 4590i, § 1.03(a)(4).

There can be no DTPA claim against a physician for damages for personal injury or death if the damages result from the physician’s negligence. Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994). Section 12.01(a) of the Medical Liability and Insurance Improvement Act (“the Act”) specifically provides as follows:

Notwithstanding any other law, no provisions of Sections 17.41-17.63, Business & Commerce Code [the DTPA], shall apply to physicians or health care providers as defined in Section 1.03(3) of this Act, with respect to claims for damages for personal injury or death resulting, or alleged to have resulted, from negligence on the part of any physician or health care provider.

Tex.Rev.Civ. Stat. Ann. art. 4590i, § 12.01 (Vernon Pamph.1996). However, if the DTPA claim is not based on the physician’s breach of the accepted standard of care, § 12.01(a) does not preclude suit for violation of the DTPA. Id. The underlying nature of the claim determines whether § 12.01(a) prevents suit for DTPA violations. Id. “Claims that a physician … was negligent may not be recast as DTPA actions to avoid the standards set forth in the Medical Liability and Insurance Improvement Act.” Id.

The allegations asserted by the plaintiff in Gormley v. Stover, 907 S.W.2d 448 (Tex.1995) are similar to those asserted by Mr. Kinzer in the present case. In Gormley, the plaintiff brought suit against her dentist for negligence in connection with skin graft surgery, and also asserted claims under the DTPA based upon the following alleged misrepresentations: (1) that the dentist could perform the surgery with no problems; (2) that a skin graft would work as well as a bone graft; (3) that after surgery she would be referred to another dentist to be fitted for dentures, which would fit well and which she would have no problems wearing; and (4) that her post-surgery pain and numbness would cease in several months. The supreme court held that all of these alleged misrepresentations had to do with whether the dentist’s selection of the surgical procedure and performance of it met the standard of care for dentists in such circumstances. Thus, the court held the alleged misrepresentations were “nothing more than an attempt to recast [plaintiff’s] malpractice claims as a DTPA action,” which is prohibited under the Act. Id. at 450.

*10 Mr. Kinzer claims there was a fact issue as to whether Dr. Landon made misrepresentations to him and warranted the results and outcome of the treatment. He claims he was told the surgery had certain benefits that it did not. However, Dr. Landon stated in his affidavit that he never expressly warranted he had an ability to cure Mr. Kinzer or that his services were of a certain type or caliber. A DTPA cause of action against a doctor or other health care provider is permitted only where there is an express warranty by a doctor that warrants a particular result. Sorokolit, 889 S.W.2d at 242-43. Mr. Kinzer admits in his brief that Dr. Landon provided him with no guarantees, and there is nothing in the record to controvert Dr. Landon’s statement that he never expressly warranted his services or the results.

Moreover, all of Mr. Kinzer’s purported DTPA claims are based upon Dr. Landon’s alleged failure to inform him of the risks associated with the surgery and are thus negligence causes of action subsumed under the Act. Drennan v. Community Health Inv. Corp., 905 S.W.2d 811, 823 (Tex.App.-Amarillo 1995, writ denied)(op. on rehr’g)(citing McKinley v. Stripling, 763 S.W.2d at 409 (Tex.1989)); Tex.Rev.Civ. Stat. Ann. art. 4590i, § 6.02 (Vernon Pamph.1996). The misrepresentations and warranties alleged by Mr. Kinzer all concern whether Dr. Landon’s selection and performance of the surgical procedure met the standard of care for surgeons in such circumstances. Gormley, 907 S.W.2d at 450. Therefore, they are nothing more than an attempt to recast Mr. Kinzer’s malpractice claims as a DTPA action, which is prohibited under the Act. Id.

Mr. Kinzer next complains the trial court should not have granted summary judgment on his informed consent claim because he was not informed of the risks of the surgery as required by the Act. However, the record is replete with evidence to the contrary. For example, the record shows Mr. Kinzer met with Dr. Landon’s physician assistant, Ronald Fernau, a week before the surgery. In his affidavit, Mr. Fernau testified he met with Mr. Kinzer for the express purpose of apprising him of the risks and benefits of surgery. He lists in his affidavit the numerous risks and possible outcomes of the surgery which he explained to Mr. Kinzer. He finally states Mr. Kinzer was given an opportunity to ask questions, but Mr. Kinzer stated he understood the risks and wished to proceed. Dr. Landon also stated in his affidavit that he fully informed Mr. Kinzer of the risks of surgery. Finally, Mr. Kinzer signed an informed consent form the day before the surgery, affirming that he understood the risks of the surgery. Nothing in Mr. Kinzer’s own affidavit indicates he was not fully informed of the risks of the planned surgery. There is absolutely nothing to controvert the summary judgment evidence showing there was informed consent.

Mr. Kinzer claims the trial court erred in granting summary judgment on his breach of fiduciary duty claim. He contends Dr. Landon breached his fiduciary duty by failing to inform him and the workers’ compensation carrier of the “surgical acts omitted from the operative report and other medical records.” See Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex.1983) (holding doctor has duty to disclose negligence). Apparently, Mr. Kinzer is arguing that Dr. Landon breached his fiduciary duty by failing to disclose the acts which Mr. Kinzer alleges were negligent. However, as already discussed, Dr. Landon’s summary judgment proof negated Mr. Kinzer’s negligence claim as a matter of law. Having negated the existence of negligence, there was nothing for Dr. Landon to disclose.

*11 Next, Mr. Kinzer claims the trial court should not have granted summary judgment on his RICO claim. To recover under RICO, a plaintiff must show that a person engages in a pattern of racketeering activity connected to the acquisition, establishment, conduct, or control of an enterprise. Ocean Energy II, Inc. v. Alexander & Alexander, Inc., 868 F.2d 740, 742 (5th Cir.1989) See also 18 U.S.C.A.1961-1968 (1984). The plaintiff must also show injury to his business or property in order to recover. See 18 U.S.C.A.1964(c) (1984). The object of all civil and criminal RICO actions is the RICO “person,” the defendant. Delta Truck & Tractor, Inc. v. J.I. Case Co., 855 F.2d 241, 242 (5th Cir.1988), cert. denied, 489 U.S. 1079, 109 S.Ct. 1531, 103 L.Ed.2d 836 (1989). RICO defines “person” broadly to include “any individual or entity capable of holding a legal or beneficial interest in property;” however, the RICO “person” must be one who either poses or has posed a continuous threat of engaging in acts of racketeering. Id. (quoting 18 U.S.C.1961(3)). A person engaged in a single lawful project of finite scope is not a RICO person. See Delta Truck & Tractor, 855 F.2d at 244.

The summary judgment proof established that Dr. Landon was involved in the single lawful project of treating Mr. Kinzer. In his affidavit, Dr. Landon states that he intended to provide care and surgical treatment to Mr. Kinzer and engaged in acts necessary to see that he received proper medical care. He stated this was his only goal with reference to Mr. Kinzer. Dr. Landon’s treatment of Mr. Kinzer was clearly finite in scope and duration, and Mr. Kinzer presented no summary judgment proof to the contrary. Therefore we find that Dr. Landon was not a “person” for purposes of the RICO statute.

The second element of a RICO claim is a pattern of racketeering activity. A pattern of racketeering requires “at least two acts of racketeering activity.” 18 U.S.C.A.1961(5) (1984). Mr. Kinzer relies upon the following two acts of alleged racketeering activity: (1) mail fraud when Dr. Landon used the mail to send his allegedly improper bills; and (2) commercial bribery when Dr. Sanders and Nurse Adamik assisted Dr. Landon in the surgery. Mail fraud requires that a defendant participate in a scheme to defraud and use the mail to execute the scheme. The summary judgment proof negated this element of Mr. Kinzer’s RICO claim. In his affidavit, Dr. Landon states unequivocally that he never used the United States mail system to send any statement to Mr. Kinzer, or to anyone else in this case, which contained a misrepresentation. Dr. Landon further swore that any statement sent by mail was true when it was made. These statements were not controverted by Mr. Kinzer, except by a vague reference to charges of $25.00 and $50.00 for “special reports” on some medical bills, which are not a part of the record. Apparently, Mr. Kinzer claims these charges were fraudulent because “it is not within the normal course of the health care trade to charge additional fees for preparing these required reports.” However, Mr. Kinzer presented no competent summary judgment evidence to support this claim. Mr. Kinzer’s vague and unsupported statement was insufficient to controvert Dr. Landon’s summary judgment proof.

*12 Mr. Kinzer relies upon § 32.43 of the Texas Penal Code to support his commercial bribery claim. Under this section, a person who is a fiduciary commits an offense if, without the consent of his beneficiary, he intentionally or knowingly solicits, accepts, or agrees to accept any benefit from another person on agreement or understanding that the benefit will influence the conduct of the fiduciary in relation to the affairs of his beneficiary. Tex. Penal Code Ann. § 32.43 (Vernon 1994). Mr. Kinzer contends the statute was violated because: (1) Dr. Landon, Danforth Hospital and Dr. Sanders entered into an agreement to admit Mr. Kinzer to the hospital, and Danforth Hospital accepted a financial benefit by the admission despite the fact that Dr. Landon had no privileges at the hospital to perform spinal surgery; and (2) Dr. Landon, Danforth Hospital, and Dr. Sanders entered into an agreement to allow Nurse Adamik and Dr. Sanders to perform surgery on Mr. Kinzer and, as a result, Dr. Landon would obtain referrals and surgical fees. As to the first alleged violation, Mr. Kinzer argues that by his admission to the Danforth Hospital, the hospital obtained a financial benefit. However, the statute requires the fiduciary, in this case Dr. Landon, to obtain some benefit that would influence his conduct. See Tex. Penal Code Ann. § 32.43(a)(1) & (2) (Vernon 1994). Because the hospital is not the fiduciary, there is no violation of the commercial bribery statute as a matter of law.

As to the second alleged violation of the commercial bribery statute, Dr. Landon specifically stated in his affidavit that he performed Mr. Kinzer’s surgery, and that those who “assisted” in the surgery were adequately skilled and trained. The only purported “evidence” provided by Mr. Kinzer to controvert this clear statement was a reference to the medical bill which showed three surgical gowns were used, and Dr. Landon’s assertion of privilege in response to a discovery request. The fact that three surgical gowns were used is no evidence that Dr. Sanders or Nurse Adamik performed surgery on Mr. Kinzer. Rather, the obvious import of the use of three gowns is that Dr. Landon was assisted during the surgery, as stated in his affidavit. Dr. Landon’s claim of privilege in response to a discovery request similarly evidences nothing in this regard. We find that appellees negated Mr. Kinzer’s claims of a pattern of racketeering as a matter of law.

The third element of a RICO claim is the existence of an enterprise. See Ocean Energy II, 868 F.2d at 742. Mr. Kinzer claims that Baylor, Dr. Landon, P.A. Orthopedic Specialists, Inc., Mark Sanders, M.D., P.A., Danforth Hospital, Inc., MRI/Kirby, Ltd., and GreenPark Radiology are an enterprise, but offers no explanation as to how these entities are connected and function together. An enterprise must be proved by evidence of an ongoing organization and by evidence that the various associates function as a continuing unit. United States v. Turkette, 452 U.S. 576, 583 (1981). Dr. Landon stated in his affidavit he has never been involved with any entity, outside of providing medical care and treatment to his patients. He testified there is no organization with a hierarchical or consensual decision making structure. In other words, Dr. Landon specifically denied there was an ongoing organization that functioned as a continuing unit. Mr. Kinzer provided nothing whatsoever to controvert these assertions.

*13 Because appellees’ uncontroverted summary judgment evidence negated each element of Mr. Kinzer’s RICO claim as a matter of law, the trial court properly granted summary judgment on that claim. It is therefore unnecessary to address the remaining RICO elements regarding effect on interstate commerce and RICO injury.

Next, Mr. Kinzer claims the trial court should not have granted summary judgment in favor of appellees on his “patient abandonment” and “conspiracy to conceal” claims. Appellees moved for summary judgment based upon, inter alia, the two-year statute of limitations contained in article 4590i and the two-year statute governing conspiracy claims. See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 10.01 (Vernon Pamph.1996) (stating no health care liability claim may be commenced unless action is filed within two years from occurrence of breach or tort); Coppock & Teltschik v. Mayor, 857 S.W.2d 631, 640 (Tex.App.-Houston [1st Dist.] 1993, writ denied) (holding two-year statute of limitations applicable to civil conspiracy claims). When a summary judgment does not specify the grounds upon which it was granted, as in the present case, the reviewing court will affirm the judgment if any one of the theories advanced in the motion is meritorious. State Farm Fire & Casualty Co. v. S. S., 858 S.W.2d 374, 380 (Tex.1993). Mr. Kinzer has failed to bring a point of error or argument contending the trial court erred in granting summary judgment on limitations grounds. Because the trial court could have granted summary judgment based upon appellees’ statute of limitations defense, Mr. Kinzer’s failure to raise a point of error on this issue waives any complaint. See Allright, Inc. v. Pearson, 735 S.W.2d 240, 240 (Tex.1987) (holding courts of appeals may not consider or review unassigned error).

Point of error number four is overruled.

E. Point of Error Five

In his fifth point of error, Mr. Kinzer raises two complaints. First, he contends the trial court erred in striking his summary judgment evidence. However, Mr. Kinzer failed to bring a point of error in his original brief regarding the striking of his summary judgment evidence. When this court allowed the Kinzers to file new briefs to correct briefing deficiencies, we specifically stated that no new points of error could be added. Mr. Kinzer concedes this point in his reply brief. Moreover, Mr. Kinzer has failed to provide this court with evidence of what was stricken, thereby failing to preserve error. Tex.R.App. P. 74(f). For these reasons we decline to review Mr. Kinzer’s new point of error concerning the trial court’s decision to strike his summary judgment evidence.

Second, Mr. Kinzer contends the trial court erred in granting summary judgment on his claims for violations of the DTPA, pre-surgical negligence, post-surgical negligence, and informed consent based on the statute of limitations. However, we addressed the substance of these claims under point of error four, and found that the trial court properly granted summary judgment thereon. It is therefore unnecessary to address the propriety of the summary judgment based upon the statute of limitations.

*14 Point of error five is overruled.

F. Point of Error Six

In point of error six, Mr. Kinzer appears to argue that there was a concealment of his medical records. His argument references property records and UCC records, but this court is unable to discern the relevance of these records to any claim alleged by Mr. Kinzer. Further, Mr. Kinzer has not cited this court to where in the record these documents might be found. If Mr. Kinzer is arguing the existence of false medical records, he fails to explain how it might affect this case. Such a bare allegation is insufficient to raise a point of error or, in and of itself, to create a fact issue. See Pinckley v. Gallegos, 740 S.W.2d 529, 534 (Tex.App.-San Antonio 1987, writ denied). Point of error six is overruled.

We note that Mr. Kinzer has failed to raise a point of error or present argument contesting the grant of summary judgment in favor of Baylor. Thus, Mr. Kinzer has waived any issue on appeal concerning Baylor. See Bayliss, 773 S.W.2d at 387. In any event, Mr. Kinzer’s claim as to Baylor was based upon respondeat superior and was thus derivative in nature. Drooker v. Saeilo Motors, 756 S.W.2d 394, 396 (Tex.App.-Houston [1st Dist.] 1988, writ denied). Because we have found Dr. Landon was entitled to judgment as a matter of law, the grant of summary judgment in favor of Baylor was also proper.

III. The Sanctions Order

After appellees obtained a summary judgment against Mr. Kinzer, they moved for sanctions against Mr. and Mrs. Kinzer. Appellees sought recompense for the attorney’s fees and expenses they incurred as a result of the suit filed on behalf of Mr. Kinzer. On July 11, 1994, the trial court assessed sanctions against the Kinzers in the amount of $75,000.00.

Initially, appellees contend Mr. Kinzer has waived any error on appeal with regard to the award of sanctions. Specifically, appellees claim that Mrs. Kinzer acted as counsel for her husband on appeal and chose to file two briefs: one for her husband, which complained about the summary judgment, and a second one for herself, which complained about the sanctions award. Mr. Kinzer’s brief does not contain a point of error or argument contesting the sanctions award. Therefore, appellees contend, Mr. Kinzer has waived error on appeal. Although separate briefs were filed, Mrs. Kinzer’s brief complains about the sanctions on behalf of herself and Mr. Kinzer. In addition, Mrs. Kinzer’s brief identifies Mr. Kinzer in the list of parties as “Plaintiff and Appellant in this appeal.” Though no specific point of error complaining about the sanction award was included in the brief filed on behalf of Mr. Kinzer, we find the points raised by Mrs. Kinzer on behalf of herself and her husband are sufficient to allow review of the sanctions award as to both appellants. See Tex.R.App. P. 74(p) (stating that briefing rules are to be liberally construed).

In point of error three, Mrs. Kinzer contends she is entitled to a “new trial” on the sanctions award because part of the court reporter’s transcript of the sanctions hearing is missing. Mrs. Kinzer’s argument is based upon Rule 50(e) of the Texas Rules of Appellate Procedure, which provides in pertinent part as follows:

*15 If the appellant has made a timely request for a statement of facts, but the court reporter’s notes and records have been lost or destroyed without appellant’s fault, the appellant is entitled to a new trial unless the parties agree on a statement of facts.

Tex.R.App. P. 50(e). There is no dispute between the parties that at some point during the sanctions hearing the court reporter’s shorthand machine malfunctioned. Because the court reporter’s notes were unreadable, he was unable to prepare the last thirty pages from the hearing.⁴

This court has previously held that an appellant is entitled to a new trial if (1) he has made a timely request for a statement of facts, (2) the court reporter’s notes and records have been lost or destroyed without appellant’s fault, and (3) the parties cannot agree on a statement of facts. Owens-Illinois, Inc. v. Chatham, 899 S.W.2d 722, 732 (Tex.App.-Houston [14th Dist.] 1995, writ dism’d) (citing Tex.R.App. P. 50(e)). The record reflects that appellants timely requested a statement of facts from the sanctions hearing. Further, we find the word “lost,” defined as “beyond reach or attainment,” sufficiently broad to encompass the missing notes in this case. See Webster’s New Collegiate Dictionary (1979). Thus, we conclude the court reporter’s notes were “lost or destroyed” for purposes of Rule 50(e). Finally, the parties have not agreed on a statement of facts. Therefore, appellants’ contention fits squarely within the confines of Rule 50(e). In response, appellees argue that (1) Rule 50(e) does not apply to the sanctions hearing in this case, and (2) the missing portion of the record cannot alter the outcome of the case and, therefore, appellants are not entitled to a new trial.

As to appellees’ first argument, we note that Rule 50(e) has been applied to lost or destroyed records from hearings or other judicial proceedings that were not actual trials on the merits.⁵ E.g., Kirby v. State, 883 S.W.2d 669 (Tex.Crim.App.1994) (lost or destroyed notes from plea proceeding); Emery v. State, 800 S.W.2d 530 (Tex.Crim.App.1990) (lost or destroyed notes from pretrial proceedings in capital murder case); Duran v. State, 868 S.W.2d 879 (Tex.App.-El Paso 1993, pet. ref’d) (lost or destroyed notes from plea proceeding); Silva v. States, 831 S.W.2d 819 (Tex.App.-Corpus Christi 1992, no pet.) (lost or destroyed notes from hearing on motion for mistrial); Wynne v. State, 831 S.W.2d 513 (Tex.App.-Amarillo 1992, pet. ref’d) (lost or destroyed notes from change of venue hearing); Martinez v. State, 802 S.W.2d 105 (Tex.App.-Amarillo 1990, no pet.) (lost or destroyed notes from initial plea proceeding). Additionally, a “trial” is defined as a “judicial examination and determination of issues between parties to an action, whether they be issues of law or of fact, before a court that has jurisdiction.” Black’s Law Dictionary 1504 (6th ed.1990). We believe this broad definition encompasses the sanctions hearing conducted in the present case, and that Rule 50(e) is applicable to the issue presented.

*16 Appellees next argue that, even if Rule 50(e) applies, a new trial is not automatically mandated by the rule. Appellees cite Richards v. Suckle, 871 S.W.2d 239 (Tex.App.-Houston [14th Dist.] 1994, no writ) in support of their argument. In Richards, the appellant claimed she was entitled to a new trial under Rule 50(e) because several exhibits were left out of the statement of facts. Id. at 242-43. The missing exhibits were clearly identified in the record by an “index of exhibits” and included several pleadings, a notice of lis pendens, a certified copy of a deed of trust, appraisal and tax rates, and various letters. Id. at 243. This court held that appellant was not entitled to a new trial because she failed to timely request a statement of facts as required by Rule 50(e). Id. This court went on to state that, even if she had timely requested a statement of facts, appellant would not be entitled to a new trial under Rule 50(e) because the portion lost could not change the outcome of the case:

We simply do not read Rule 50(e) to mean that in every instance where a part of the record has been lost that the aggrieved party is entitled to a new trial. If the portion of the record which is lost cannot change the outcome of the case, to remand the cause for a new trial would not be judicially economical.

Id.

In the present case, appellees claim the missing portion of the statement of facts “could not possibly change the outcome of this case,” and therefore a new trial under Rule 50(e) would be inappropriate. However, we believe that Richards is distinguishable from the present case based upon the record presented. In Richards, the missing portion of the statement of facts was clearly identifiable. For example, the court noted that the most significant missing exhibit was appellant’s deed of trust. The testimony showed that the appellant’s deed of trust came into existence after the appellee’s deed of trust was created. Thus, the record before the court clearly demonstrated that the appellee had a superior lien and that appellant’s exhibits would not have changed the outcome of the appeal. In the present case, however, the record does not reflect what is missing from the statement of facts. Absent this information, we are unable to determine whether the missing portion could affect the outcome of the case.

We realize that reversal and remand for a new sanctions hearing will prolong what has already been a protracted proceeding. We also recognize that a remand will result in further inconvenience and expense for the parties. However, our rules dictate that appellate records meet certain minimum requirements, one of which is an accurate and complete statement of facts when one is requested. See Owens-Illinois, Inc. v. Chatham, 899 S.W.2d 722, 733-35 (Tex.App.-Houston [14th Dist] 1995, writ dism’d). Therefore, we sustain the Kinzers’ third point of error.

In light of our decision, it is unnecessary to review the Kinzers’ remaining contentions concerning the sanctions order.

*17 We affirm the summary judgment of the trial court in favor of appellees. Pursuant to Rule 50(e), we reverse the trial court’s order sanctioning the Kinzers, and remand the case for a new sanctions hearing.

	Footnotes
1		Mr. Neely withdrew from the case and Mrs. Kinzer, after passing the bar, took over her husband’s representation.
2		On September 19, 1994, the trial court severed the remaining defendant George Neely, Mr. Kinzer’s former attorney, from the main suit. Thus, the judgment became final at that time. Mr. Neely had intervened in the suit to recover his attorney’s fees for the time he represented Mr. Kinzer. The dispute between Mr. Neely and Mr. Kinzer is not part of this appeal.
3		Again, Mr. Kinzer tries to use the spoliation doctrine to create a presumption in his favor. This time he claims some surgical labels were not produced and, again, that Dr. Landon refused to answer certain interrogatories. We rejected this argument in point of error one, and the argument raised in point of error three provides nothing additional. The spoliation doctrine is irrelevant to any claim raised by Mr. Kinzer because all of the evidence complained of was produced and is in the record.
4		In his affidavit certifying the statement of facts from the sanctions hearing, the court reporter stated: I, PAUL J. PORTER, OFFICIAL COURT REPORTER IN AND FOR THE 122ND JUDICIAL DISTRICT COURT OF GALVESTON COUNTY, STATE OF TEXAS, DO HEREBY CERTIFY THAT THE ABOVE AND FORGOING [sic] CONTAINS A TRUE AND CORRECT TRANSCRIPTION OF ALL THE PROCEEDINGS (WITH THE EXCEPTION OF THE FINAL 30 PAGES NOT INCLUDED IN THE STATEMENT OF FACTS DUE TO MALFUNCTION OF MY SHORTHAND MACHINE UNREADABLE SHORTHAND.)
5		Although in some of these cases the court ultimately declined to reverse and remand for a new trial or “hearing,” Rule 50(e) was used to analyze the issue of lost or destroyed records.