Opinion
No. 04-04-00075-CV
Delivered and Filed: June 15, 2005.
Appeal from the 407th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-18350, Honorable Janet P. Littlejohn, Judge Presiding.
Affirmed
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Brent Erickson and Traci Erickson, individually, appeal the partial summary judgment of the trial court. Appellants raise three issues on appeal. We overrule all three issues and affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
In January and February of 1997, Dr. Deborah Neigut evaluated Caitlin Erickson, a five-month-old female with a history of severe congenital malformations and medical conditions, for bloody bowel movements and persistent constipation. Dr. Neigut performed suction rectal biopsies on Caitlin. The tissue samples were evaluated by pathologists Dr. Josefine Heim-Hall and Dr. Victor Saldivar at Santa Rosa Children's Hospital. Based upon their evaluations, Caitlin was diagnosed with Hirschsprung's disease of the lower colon. As a result, in February 1997, Dr. Francisco Cigarroa performed a preliminary diverting colostomy procedure for Caitlin, followed by a removal of the affected section of Caitlin's colon in April 1997.
Hirschsprung's disease is a congenital absence of ganglion nerve cells in the wall of the colon. The absence of these cells makes it very difficult for fecal material to be transported through the affected segment of the bowel. The diagnosis may be made by performing a biopsy of the rectum and examining the tissue for the presence (or absence) of ganglion cells. Treating Hirschsprung's disease requires surgery to remove the affected bowel and then join the healthy bowel segments.
Post-surgery, Caitlin continued to experience complications and irregular elimination patterns, however, and in October 2001, she was admitted to Methodist Children's Hospital of South Texas for abdominal pain and fever. During the hospitalization, Dr. Eduardo Ibarguen-Secchia, a gastroenterologist, obtained the original pathology slides and had them reviewed by the pathologists at Methodist. The results of the October 2001 review identified "no evidence of Hirschsprung disease."
As a result, on May 12, 2003, Brent and Traci Erickson, individually and as next friend of Caitlin, a minor, filed suit against Dr. Heim-Hall and Dr. Saldivar, alleging acts and omissions constituting medical malpractice. In an amended petition filed on September 8, 2003, the Ericksons added Dr. Neigut and Dr. Cigarroa as defendants to the suit. Specifically, the Ericksons allege that Dr. Neigut improperly performed rectal biopsies on Caitlin, leading to the misdiagnosis of Hirschsprung's disease. Additionally, the Ericksons contend that Dr. Cigarroa negligently performed unnecessary surgeries on Caitlin, including a colostomy and partial resection of Caitlin's colon.
Dr. Cigarroa and Dr. Neigut moved for partial summary judgment as to Brent and Traci Ericksons' individual claims on the ground that they were barred by the two-year statute of limitations contained within article 4590i, section 10.10 of the Texas Medical Liability and Insurance Improvement Act. After a hearing, the trial court granted the motion as to the parents claims only, and ordered that they take nothing on their claims against Dr. Cigarroa and Dr. Neigut. The trial court further severed that part of the cause from the Ericksons' action against Dr. Heim-Hall and Dr. Saldivar. The Ericksons appeal from the partial summary judgment of the trial court.
STANDARD OF REVIEW
The standard of review for a traditional summary judgment is well-established. The movant for summary judgment must show there is no genuine issue of material fact and that she is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant moving for summary judgment on a statute of limitations affirmative defense must prove conclusively that defense's elements. Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Nixon, 690 S.W.2d at 548-49. Because the propriety of a summary judgment is a question of law, we review the trial court's decision under a de novo standard. See Valores Corporativos, S.A. de C.V. v. McLane Co., 945 S.W.2d 160, 162 (Tex.App.-San Antonio 1997, pet. denied).
DISCUSSION
In three issues, the Ericksons contend that the trial court erred in rendering partial summary judgment in favor of Dr. Cigarroa and Dr. Neigut. Specifically, the Ericksons assert that the trial court erred in granting summary judgment because the two-year limitations period of article 4590i, section 10.01, as applied to their suit, violates the open courts provision of the Texas Constitution. For the following reasons, we disagree.
A. Limitations for Medical Negligence Claims
This case is governed by former article 4590i, section 10.01 of the Texas Medical Liability and Insurance Improvement Act. See TEX. REV. CIV. STAT. ANN. art. 4590i, § 10.01 (Vernon Supp. 2004-05). Under article 4590i, section 10.01, all health care liability claims are subject to a strict two-year statute of limitations regardless of when the injured party learns of the injury. Id.; see also Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996) (holding that the statute effectively abolishes the traditional discovery rule for medical malpractice claims). Moreover, where the precise date of the alleged negligence is known, the statutory two-year period begins to run on that date. Id.; Clements v. Conard, 21 S.W.3d 514, 519 (Tex.App.-Amarillo 2000, pet. denied) ("if the date of the negligence can be ascertained, then there are no doubts to resolve and limitations must be measured from the date of the tort").
This statute was superseded in 2003 by section 74.251 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. REM. CODE ANN. § 74.251 (Vernon Supp. 2004-05).
The discovery rule entailed postponing the accrual of the cause of action until the injured party discovered, or should have discovered through reasonable diligence, his cause of action. See Gaddis v. Smith, 417 S.W.2d 577, 580 (Tex. 1967); Desiga v. Scheffey, 874 S.W.2d 244, 247 (Tex.App.-Houston [14th Dist.] 1994, no writ). In application, therefore, article 4590i "simplifies the legal atmosphere of medical malpractice cases by eliminating the step of determining the nebulous question of when a plaintiff's cause of action accrued." See Desiga, 874 S.W.2d at 247; see also Black v. Wills, 758 S.W.2d 809, 815 (Tex.App.-Dallas 1988, no writ) (discussing lack of accrual language in Medical Liability Act).
Here, it is undisputed that the conduct alleged against Dr. Cigarroa and Dr. Neigut occurred no later than April of 1997-more than six years before the Appellees were joined in this suit. See Winkle v. Tullos, 917 S.W.2d 304, 310 (Tex.App.-Houston [14th Dist.] 1995, writ denied) (holding that limitation period began on the date of surgery in a case in which the plaintiff's only complaint was that the surgery was unnecessary and inappropriate); see also Desiga v. Scheffey, 874 S.W.2d 244, 248 (Tex.App.-Houston [14th Dist.] 1994, no writ) (holding that applicable date for running the statute of limitations was the date of surgery where plaintiff complained of negligence arising out of the surgery). Therefore, because the Ericksons did not file suit within two years of the date of the alleged negligent acts, article 4590i, section 10.01 bars the Ericksons' claims unless they can establish a reason why the two-year statute of limitations period does not apply.
The Ericksons first sued Dr. Cigarroa and Dr. Neigut on December 26, 2002, but that suit was voluntarily dismissed on March 23, 2003. Their filing of the dismissed suit, however, did not stop the running of limitations. See Clary Corp. v. Smith, 949 S.W.2d 452, 459 (Tex.App.-Fort Worth 1997, writ denied) (holding that limitations are calculated to run from the time the cause of action accrued until the date that the claim was refiled).
B. Open Courts Provision
In response, the Ericksons argue that article 4590i, section 10.01, as applied to their claims, violates the "open courts" provision of the Texas Constitution. The open courts provision guarantees that persons bringing common-law causes of action will not unreasonably or arbitrarily be denied access to the courts. See TEX. CONST. art. I, § 13 ("[a]ll courts shall be open, and every person for every injury done him, and his lands, goods, person or reputation shall have remedy by due course of law"). Courts have used this provision to defeat the strict application of a statutory bar to the extent it purports to cut off an injured person's right to sue before the person has a reasonable opportunity to discover the wrong and bring suit. See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355 (Tex. 1990); Nelson v. Krusen, 678 S.W.2d 918, 921 (Tex. 1984) ("[t]he common thread of this court's decisions construing the open courts provision is that the legislature has no power to make a remedy by due course of law contingent on an impossible condition").
The limitations provision in article 4590i, section 10.01 does not violate the open courts provision, however, if the plaintiff had a reasonable opportunity to discover the alleged wrong and bring suit before the limitations period expired. See Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). Here, it was the Ericksons' burden to raise a fact issue demonstrating that they did not have a reasonable opportunity to discover the alleged wrong before the limitations period expired. Id. However, the Ericksons' summary judgment response failed to offer any evidence regarding Caitlin's condition or treatment during the two-year period following her surgery, as well as whether it would have been impossible or exceedingly difficult for them to discover their claims at that time. See id. Nevertheless, even if we take as true the Ericksons' assertion on appeal that they could not have discovered the basis for their suit until October 2001, when they were purportedly told by a physician that Caitlin's colon surgery had been unnecessary, the open courts provision does not save the Ericksons' claims. A plaintiff may not obtain relief under the open courts provision if he does not use due diligence and sue within a reasonable time after learning about the alleged wrong. Id. at 847; Voegtlin v. Perryman, 977 S.W.2d 806, 812 (Tex.App.-Fort Worth 1998, no pet.). Here, the summary judgment evidence shows that the Ericksons were told about the alleged misdiagnosis and unnecessary surgery at least twenty-three months before they added Dr. Cigarroa and Dr. Neigut as defendants to their suit. The Ericksons offer no explanation, other than the Appellees' alleged delay in providing medical records, about why they waited in bringing suit against Dr. Cigarroa and Dr. Neigut. See James v. Persona Care of San Antonio, 954 S.W.2d 113, 114 (Tex.App.-San Antonio 1997, no writ) (holding that defendant's delay in providing medical records did not extend the medical malpractice limitation period). Accordingly, we conclude that, as a matter of law, the Ericksons did not file suit within a reasonable time after discovering the alleged wrong. See Hall v. Dow Corning Corp., 114 F.3d 73, 77 (5th Cir. 1997) (applying Texas law to hold that a fifteen-month delay was excessive as a matter of law); see also Shah, 67 S.W.3d at 847 (holding seventeen-month delay unreasonable as a matter of law).
The Ericksons first sued Dr. Cigarroa, Dr. Neigut, Dr. Heim-Hall, and Dr. Saldivar, on December 26, 2002. The Ericksons soon served notice of their desire to non-suit, however, and that suit was voluntarily dismissed in March 2003. However, even if we measure from the date this first suit was filed, we still find that the Ericksons failed to exercise reasonable diligence as a matter of law. See Fiore v. HCA Health Servs. of Tex., Inc., 915 S.W.2d 233, 237-38 (Tex.App.-Fort Worth 1996, writ denied) (holding that suit was untimely, as a matter of law, where plaintiffs waited more than one year to bring suit after discovering doctor's misdiagnosis).
CONCLUSION
Therefore, while we do not dispute or discount the seriousness of the Ericksons' allegations, we conclude that article 4590i, section 10.01 bars the Ericksons' individual claims against Dr. Cigarroa and Dr. Neigut. The Ericksons did not raise a fact issue establishing that they did not have a reasonable opportunity to discover the alleged wrong and bring suit within the limitations period, or that they sued within a reasonable time after discovering the alleged wrong. Accordingly, we overrule all issues and affirm the partial summary judgment of the trial court.