Opinion
02-23-00320-CV
06-20-2024
Monique Kusman, Appellant v. Biopro, Inc., Appellee
On Appeal from the 342nd District Court Tarrant County, Texas Trial Court No. 342-337038-22
Before Sudderth, C.J.; Womack and Walker, JJ.
MEMORANDUM OPINION
DANA WOMACK JUSTICE
I. Introduction
Appellant Monique Kusman complains that Appellee Biopro, Inc.manufactured defective screws that were used in medical procedures on both of her feet. Biopro moved for summary judgment, asserting that limitations barred the claim and that the evidence conclusively established that a Biopro product had not been used on Kusman's left foot. In two issues, Kusman appeals from the trial court's order granting Biopro's motion for summary judgment. We will affirm based on the statute of limitations.
As we noted in our earlier opinion in this cause, some portions of the record refer to the entity as "Biopro, Inc.," and others refer to it as "BioPro, Inc." We will refer to it simply as "Biopro" except where we are quoting from the record. See Kusman v. Biopro, Inc., No. 02-23-00320-CV, 2024 WL 46030, at *1, n.1 (Tex. App.- Fort Worth Jan. 4, 2024, no pet.) (mem. op. and order).
II. Background
A. Kusman has surgery on her feet, which includes the installation of screws.
In 2018, Kusman was suffering from pain due to bunions and arthritis in both feet when she sought treatment from Dr. Jeffrey P. Taylor, a podiatrist. According to Kusman, Taylor "proposed an aggressive surgery that would essentially fuse the distal and middle phalanges of [her] second toes."
On January 3, 2019, Taylor performed five surgical interventions on Kusman's right foot, using two 2.0 headed Biopro screws. According to Taylor, one screw was used to stabilize the osteotomy of Kusman's metatarsal, and the other screw was used to stabilize Kusman's second proximal interphalangeal joint.
On or about May 30, 2019, Taylor performed four surgical interventions on Kusman's left foot. For this procedure, the operative report showed the use of several screws. Taylor stated that he used a "2.0 headless screw from another company (Merete) and not the BioPro screw." To the contrary, Kusman said that Taylor used a "2.0 partially threaded cannulated Biopro Go-EZ' screw."
While Kusman's pleadings stated that the second surgery occurred on May 30, 2019, Kusman's and Taylor's declarations averred that it occurred on May 31, 2019. Because the medical records indicated that the second surgery was on May 30, 2019, we will use that date except where we quote from the evidence.
B. The Food and Drug Administration (FDA) recalls some Biopro screws, and Kusman learns that her screws have broken.
According to Kusman, within weeks of her surgeries, the FDA recalled the screws used in the surgeries. Kusman contended that although Taylor was informed of the recall, she was not.
Biopro disputed what was recalled and the reason for the recall. The following January 10, 2023 letter from Biopro's Director of Regulatory Affairs to Taylor sets out Biopro's position:
On June 24, 2019[,] during in-process testing, BioPro employees discovered a flaw in the manufacturer's seal of the Tyvek pouches that are used to package, among other items, the 6.5 Go-EZ Screw. BioPro initiated a recall of all potentially impacted products immediately. The 6.5 Go-EZ screw is the only size screw in the Go-EZ product line that is packaged in a double Tyvek pouch, all others are packaged in blisters with Tyvek lids. . . . The 2.0 Go-EZ screws are packaged in a double blister configuration and therefore were never suspect and were not included in the recall. The recall was specific to the Tyvek pouches purchased by BioPro and did not in any way involve the quality of the product contained within the pouches.Taylor swore that the 2.0 "Biopro screw and the Merete were not defective" and that "[t]here was no recall of the screws."
Kusman had several follow-up appointments with Taylor. In one of the appointments-on September 5, 2019-the medical records reflected that an x-ray revealed "internal fixation has been compromised 2nd digit but no loss of position/correction." Kusman contended that at another appointment-in June 2020-Taylor took x-rays but failed to show them to her. Taylor stated that, on August 4, 2020, he saw "in the x-ray of the right foot, that the screw in the second digit was compromised/broken" and "suggested removal of the screw from her 2nd metatarsal with a capsulotomy and distal digit screw removal if symptomatic in the future; which was ultimately refused."
Kusman returned to Taylor on August 26, 2020, for what the medical records described as "F/U of Painful hardware." In addition, the records reflected that Kusman "wishe[d] additional surgical counseling for possible surgical intervention to attempt to provide increased relief of continued pain" and that the "surgical procedure(s) was/were discussed in great detail."
Seeking a second opinion, Kusman saw Dr. Pat Peters on September 16, 2020. Peters also took x-rays, noted in the medical records that screws were broken ("Both screws are broken in second toe."), and referred Kusman to his colleague, Dr. Ryan Mulligan, for a consultation. According to Kusman, on September 25, 2020, Mulligan reviewed the x-rays and informed her that the screws were broken. Mulligan's records stated that "[t]hree views of the right foot taken in clinic on 9/16/2020 show[ed] . . . broken hardware in the 2nd toe."
C. Kusman sues, and Taylor and his professional association move for and are granted summary judgment based on limitations.
On September 23, 2022, Kusman filed suit against Biopro alleging a products liability cause of action. A couple of months later, Kusman amended her petition to add certain negligence claims against Taylor and his professional association. Among other defenses, all defendants pleaded the statute of limitations. In response, Kusman pleaded the discovery rule and "fraudulent concealment of negligence by a doctor or if the injury itself could not be detected."
Taylor and his association moved for summary judgment based on limitations, and the motion was granted by the trial court. Kusman, 2024 WL 46030, at *1. That order was eventually severed and became final. See id. at *1-2.
D. Biopro moves for summary judgment, which is originally denied, and then granted after Biopro files a motion for reconsideration.
Biopro moved for traditional summary judgment based on the statute of limitations and the fact that "there is no BioPro screw in her left foot." Kusman responded to the motion, and the trial court initially denied the motion. Later, Biopro filed a motion for reconsideration of the denial of its motion for summary judgment. Kusman again responded and objected to reconsideration. After a hearing on the motion and the filing of letter briefs, the trial court signed an order granting summary judgment for Biopro. Kusman appealed from that order.
III. Discussion
In two issues, Kusman contends that the trial court erred by granting traditional summary judgment (1) on Biopro's "statute of limitations defense, where the Discovery Rule has been pled and there is evidence that [Kusman] could not have discovered the defect until a date within two years from filing suit because her doctor concealed it from her" and (2) "with respect to the screw in her right foot based on [Biopro's] reference to a demonstrably false declaration by another interested defendant incorrectly asserting that his records reflect a different manufacturer for the screw in [Kusman's] right foot."
A. Standard of Review and Applicable Law
We review a summary judgment de novo. Helena Chem. Co. v. Cox, 664 S.W.3d 66, 72 (Tex. 2023); Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). With regard to a traditional motion for summary judgment, we will affirm summary judgment only if the record establishes that the movant has conclusively proved all essential elements of the movant's cause of action (or defense, as the case may be) as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); see Frost Natl Bank v. Fernandez , 315 S.W.3d 494, 508-09 (Tex. 2010); see also Tex. R. Civ. P. 166a(b), (c).
We recently outlined the law regarding summary judgment based on a party's assertion of a limitations defense:
A defendant seeking traditional summary judgment on a limitations defense must establish "(1) when the cause of action accrued, and (2) that the plaintiff brought its suit later than the applicable number of years thereafter-i.e., that 'the statute of limitations has run.'" Levinson Alcoser Assoc, L.P. v. El Pistolón II, Ltd., 670 S.W.3d 622, 626 (Tex. 2023) (citing Draughon v. Johnson, 631 S.W.3d 81, 89 (Tex. 2021) (quoting Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003)))). Therefore, as the party moving for summary judgment, [Appellee] bore the burden to conclusively establish that the statute is applicable, including the date on which the statute began to run, which is the date the causes of action accrued. See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005); Provident Life & Accident Ins. Co., 128 S.W.3d at 220.
Determining when a cause of action accrued is a question of law. Provident Life & Accident Ins. Co., 128 S.W.3d at 221. Generally, a cause of action accrues, and the statute begins to run, "when a wrongful act causes a legal injury, regardless of when the plaintiff learns of that injury or if all resulting damages have yet to occur." Id. (citing S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996)). The statute begins to run on the accrual date even if the injury is not discovered until later or all damage resulting from the injury has not yet occurred. Id.
In certain narrow cases, the discovery rule defers accrual until a plaintiff "knew or, exercising reasonable diligence, should have known of the facts giving rise to a cause of action." HECI Expl. Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998). The party moving for summary
judgment on the basis of limitations must negate the discovery rule if it applies and has been pleaded by the nonmoving party. Env't Procs., Inc. v. Guidry, 282 S.W.3d 602, 622 (Tex. App.-Houston [14th Dist] 2009, pet. denied) (op. on reh'g).Prince v. Weleba, No. 02-23-00085-CV, 2023 WL 6476009, at *3-4 (Tex. App.-Fort Worth Oct. 5, 2023, no pet.) (mem. op.); see Regency Field Servs., LLC v. Swift Energy Operating LLC, 622 S.W.3d 807, 814 (Tex. 2021) (stating that, generally, once the defendant's wrongful conduct causes a legal injury, the injured party's claims based on that conduct accrue and the limitations period begins to run even if (1) the claimant does not yet know that a legal injury has occurred; (2) the claimant has not yet experienced, or does not yet know the full extent of, the legal injury; (3) the claimant does not yet know the specific cause of the injury or the party responsible for it; (4) the wrongful conduct later causes additional injuries; or (5) the claimant has not yet sustained or cannot yet ascertain any or all of the damages resulting from the legal injuries).
B. Analysis
1. Biopro moves for summary judgment based on limitations, and Kusman pleads the discovery rule.
In its motion for summary judgment, Biopro set out the following facts:
1. On January 3, 2019, Taylor performed a McBride bunionectomy, Lapidus fusion, second proximal interphalangeal joint arthrodesis, second flexor digitorum longus tendon on the Plaintiffs right foot.
2. During this operation, Taylor installed two 2.0 headed BioPro screws to stabilize the osteotomy of Kusman's second metatarsal and to stabilize her second proemial interphalangeal joint.
3. On May 31, 2019, Taylor performed surgery on Kusman's left foot, removing a bunion, correction of the source of that bunion with a corrective fusion of her midfoot, a tendon transfer of her second digit to stabilize the source of her ball pain, and a fusion of her second digit to stabilize the deformity long term.
4. Taylor used a 2.0 headless screw manufactured by Merete during the May 31, 2019 operation.
5. On August 4, 2020, Taylor notes observing the BioPro screw in Kusman's right second toe was compromised. Taylor discussed the poor indication and suggested to Kusman that the screw could be removed, but Kusman declined at that time.
6. On September 16, 2020, Kusman sought a second opinion from Dr. Pat Peters, who took his own x-ray and discovered that one of the two screws in Kusman's right foot was broken. Peters advised her of this and "asked her to go ahead and get another opinion" from another foot and ankle specialist.
7. Plaintiff instituted this action against BioPro on September 23, 2022, and against Dr. Taylor on November 28, 2022, alleging products liability claims against BioPro and medical negligence against Dr. Taylor.
8. On May 5, 2023, this court granted summary judgment in favor of Dr. Taylor on his limitations defense arising out of the same facts stated herein.
We have removed the record references from this quotation and altered the indentation.
In support of its motion, Biopro attached several exhibits, including Plaintiffs Original Petition, Plaintiffs Second Amended Petition, Taylor's declaration, North Texas Orthopedics and Sports Medicine records (which included records of Peters and Mulligan), and the Order Granting Summary Judgment for Taylor and his professional association.
In its motion for summary judgment, Biopro alleged that the summary judgment evidence established that Kusman knew of the broken left screw as early as September 2019 and the broken right screw as early as August 4, 2020. According to Biopro, even if Kusman disputed that Taylor told her of the broken screws at those times, Peters discovered the broken screws no later than September 16, 2020. Therefore, Biopro contended that Kusman knew or should have known through the exercise of reasonable diligence of the existence of the broken screws no later than September 16, 2020, when Peters discovered the fact that the screws were broken.
On appeal, Biopro contends that Kusman, in the exercise of reasonable diligence, knew or should have known of her cause of action by either "(1) August 26, 2020, when she went to a pre-operation history and physical in advance of a revision of the second metatarsal surgery in both her feet with hardware removal (scheduled for September 3, 2020)"; or "(2) not later than September 16, 2020, when she sought a second opinion from another physician."
Kusman's response to the motion stated that while she was "obviously 'aware of her pain,' she was not aware that the product surgically implanted into the toe bones of both feet (i.e., Biopro screws) were broken." In addition, Kusman asserted that her causes of action were inherently undiscoverable until September 25, 2020. On that date, she contended that "Dr. Ryan Mulligan reviewed [her] x-rays and immediately informed her of the broken screws." Attached to Kusman's response were her declaration, Taylor's declaration, and medical records from Mulligan and Peters.
2. We apply the discovery rule to the facts of this case.
Both parties agree that the statute of limitations for this personal injury claim is two years. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (suit for personal injury must be brought "not later than two years after the day the cause of action accrues"); see also id. § 74.251(a) (providing that, generally, "no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed"); Verticor, Ltd. v. Wood, 509 S.W.3d 488, 490 (Tex. App.-Austin Nov. 13, 2015, pet. denied) (holding that a personal injury claim against a medical-device manufacturer was not a "health care liability claim" within the meaning of the Texas Medical Liability Act). However, they dispute whether the discovery rule applies, and if it does apply, whether Kusman exercised "reasonable diligence" in discovering her claim. See Marcus & Millichap Real Est. Inv. Servs. of Nev., Inc. v. Triex Tex. Holdings, LLC, 659 S.W.3d 456, 462 (Tex. 2023) (stating that, when the discovery rule applies, "[consistent throughout our cases is the requirement of reasonable diligence").
Based on Kusman's pleading invoking the discovery rule, Biopro had the burden at summary judgment to negate its application by conclusively establishing that (1) the discovery rule does not apply, or (2) if it does apply, the summary judgment evidence negates it. Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 834 (Tex. 2018) (citing Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223-24 (Tex. 1999)). Here, the summary judgment evidence showed that, following foot surgeries on January 3 and May 30, 2019, Kusman visited Taylor complaining of foot pain on August 4, 2020. At that time, Taylor stated that he "saw, in the x-ray of the right foot, that the screw in the second digit was compromised/broken and that her 2nd metatarsal phalangeal joint had become narrowed" and "suggested removal of the screw from her 2nd metatarsal with a capsulotomy and distal digit screw removal if symptomatic in the future; which was ultimately refused." While Kusman attested that she saw Taylor again on August 26, 2020, that he took x-rays of her foot, that she was diagnosed with "painful hardware and joint pain," and that they "discussed surgery to fix [her] left big toe," she stated that the x-rays "were not shown to [her]."
Although Kusman and Taylor dispute what was said during her post-operative visits, the medical records established that on September 16, 2020, Kusman visited Peters "for evaluation of her bilateral foot pain" and noted that she had a "history of multiple surgeries to her bilateral feet for bunion removal and hammer toe corrections performed by an outside podiatrist." After taking x-rays, Peters made the following entry in Kusman's medical records:
5 radiographs of the bilateral feet show . . . . Both screws are broken in second toe. Appears [to] have avascular necrosis to the second metatarsal heads.
She had multiple surgical procedures on both feet. Her most pertinent problem at this time is a painful hallux varus she has of her left great toe. She is actually scheduled to have a soft tissue reconstruction
done by a local podiatrist and was here for second opinion. . . . She has other problems in her feet including . . . screw breakage . . . .
Kusman acknowledged that, on September 16, 2020, she sought a second opinion from Peters, that he "informed [her] there were 'other issues,'" and that "he recommended that [she] get another opinion from another foot and ankle associate." While Kusman did not specifically deny that Peters told her about the x-ray results, she stated that it was not until September 25, 2020, that she saw Mulligan and she "first learn[ed] what exactly was going on with [her] feet and toes, that the hardware was broken and the extent of it, and what (if anything) could be done to correct Dr. Taylor's surgeries."
While Kusman argued that her pain did not tell her that screws were broken, "the law does not require that the particular injury be discovered." See Grimes v. Cesar, No. 07-05-0309-CV, 2006 WL 1547767, at *2 (Tex. App.-Amarillo June 7, 2006, no pet.) (mem. op.). The question for determination is not whether a plaintiff has actual knowledge of the particulars of a cause of action, but whether the plaintiff has knowledge of facts that would cause a reasonable person to diligently make inquiry to determine his or her legal rights. See id. (citing Bell v. Showa Denko K.K., 899 S.W.2d 749, 754 (Tex. App.-Amarillo 1995, writ denied)). "The discovery of the injury- not the identification of an alleged wrongdoer-initiates the accrual." Ryan v. TX RCG, LLC, No. 05-21-00382-CV, 2022 WL 17261158, at *4 (Tex. App.-Dallas Nov. 29, 2022, no pet.) (mem. op.). And, while it is generally a fact question as to when a plaintiff discovers or should have discovered the cause of the injury, if reasonable minds could not differ about the conclusion to be drawn from the facts, the date the limitations period commences may be determined as a matter of law. Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998).
Kusman argues that the case of Chang v. Denny, No. 05-17-01457-CV, 2019 WL 3955765 (Tex. App.-Dallas Aug. 22, 2019, pet. denied) (mem. op.), demonstrates the "reasonableness" of her efforts to discover her injury. In Chang, Dr. Chang mistakenly left a nonradiopaque (not x-ray detectable) cotton ball in Denny's brain following surgery. Id. at *1. Over the next five years, Denny continued follow-up care with Chang and finally had an MRI that appeared to show a "slight enlargement" in the "residual tumor." Id. After a second surgery by Chang, the lump turned out to be the cotton ball which had been unknowingly left behind in the previous surgery. Id. Seven years after the cotton ball was left in her brain, Denny sued Chang, and he asserted that her claims were barred by the statute of limitations. Id. at *1-2. At trial, Denny gave a number of reasons for her delay in filing suit. Id. at *3. A jury found in Denny's favor, awarded her damages, and found that she had prosecuted her claim with diligence after discovering the injury. Id. at *1. Ruling on an open-courts challenge, the Dallas Court of Appeals found that a fact question existed as to whether Denny prosecuted her claim and suit with the degree of diligence that an ordinary prudent person would have exercised under the same or similar circumstances. Id. at *8.
Unlike in Chang, Kusman knew that hardware was implanted in both of her feet during the 2019 surgeries, and the summary judgment evidence showed that the broken hardware appeared on x-rays taken by both Taylor and Peters no later than September 16, 2020. Therefore, assuming without deciding that the discovery rule applies, Biopro established that Kusman, through the exercise of reasonable diligence, should have discovered the broken screws at the latest by September 16, 2020, when Peters took x-rays showing the broken screws. By that time-at the latest-Kusman had actual knowledge of her injuries. See Marcus & Millichap Real Est. Inv. Servs. of Nev., Inc., 659 S.W.3d at 462 (stating that "the discovery rule does not linger until a claimant learns of actual causes and possible cures" and it does not "defer accrual until the plaintiff knows the 'specific nature of each wrongful act that may have caused the injury' or 'the exact identity of the wrongdoer'" (case citations omitted)).
Kusman also argues that her case is akin to a latent occupational disease, which is governed by the discovery rule. See Childs, 974 S.W.2d at 37. While we agree that "a latent injury or disease is the epitome of the type of injury that is often inherently undiscoverable within the applicable limitations period," the same "compelling reasons" requiring application of the discovery rule to those cases- "injury and its etiology are difficult to diagnose and ascertain because of the lengthy latency period, the many potential causes of the specific symptoms, and some physicians' lack of education and experience in identifying occupational diseases"-do not exist here. See id. at 37-38.
3. We apply the fraudulent concealment doctrine to the facts of this case.
Even when the defendant's limitations defense is established by the record as a matter of law, a plaintiff may rely on fraudulent concealment to avoid application of the statute of limitations. Id. at 463. Kusman raised the defense of fraudulent concealment in her second amended petition, wherein she stated in a footnote, "Plaintiff affirmatively pleads the discovery rule, which may apply to healthcare liability claims that could not be found by the patient-claimant despite reasonable care due to the fraudulent concealment of negligence by a doctor or if the injury itself could not be detected."
Once pleaded, it was Kusman's "burden . . . to come forward with proof raising an issue of fact with respect to fraudulent concealment . . . [to] defeat [defendant's] right to a summary judgment." See id. at 464 (citing Draughon, 631 S.W.3d at 93 (quoting Nichols v. Smith, 507 S.W.2d 518, 521 (Tex. 1974))). To show entitlement to the estoppel effect of fraudulent concealment, Kusman needed to show that (1) the defendant had actual knowledge of the wrong, (2) a duty to disclose the wrong, and (3) a fixed purpose to conceal the wrong. See Booker v. Real Homes, Inc., 103 S.W.3d 487, 493 (Tex. App.-San Antonio 2003, pet. denied). With regard to a healthcare provider, the plaintiff must show that the healthcare provider actually knew a wrong occurred, had a fixed purpose to conceal the wrong, and did conceal the wrong from the patient. Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001).
Here, the summary judgment evidence included Kusman's declaration that Taylor took post-operative x-rays of her right foot on or about February 21, 2019, and she "could see the capsule was still inside." And, according to Kusman, when she asked him "what if it breaks," Taylor "responded not to worry about that and that it would never happen." She also swore that other x-rays were taken by Taylor following her surgeries, "but they were not shown to me." She contended that when, on October 21, 2020, Kusman went back to see Taylor, "[h]e proceeded to show me an x-ray of my left foot from December 2019, which was a mere six months after the surgery on my left foot." At that time, Kusman stated that she "could immediately see that the screw was broken" and asked Taylor "if he knew the screws were broken and why he wouldn't tell me." According to Kusman, "[h]is response was that he didn't think it was necessary to tell me."
Assuming without deciding that these facts constitute some evidence of fraudulent concealment as to Taylor, Kusman neither alleged nor pleaded any such facts as to Biopro. And, in any event, there was no summary judgment evidence that Biopro fraudulently concealed the broken screws from her. Once Biopro conclusively established the affirmative defense of limitations, the burden remained with Kusman "to come forth with proof that raise[d] a fact issue regarding the elements of fraudulent concealment." See Casey v. Methodist Hosp., 907 S.W.2d 898, 903 (Tex. App.-Houston [1st Dist] 1995, no writ) (citing Nichols, 507 S.W.2d at 521).
On appeal, Kusman acknowledges that she only pleaded fraudulent concealment against Taylor and his association and that her "claim against Appellee for products liability, however, is separate and distinct from her medical negligence claims against [Taylor and his association]."
Even if fraudulent concealment applied here, the doctrine "does not extend the limitations period indefinitely." See Marcus & Millichap Real Est. Inv. Servs. of Nev., Inc., 659 S.W.3d at 464 (citing Valdez v. Hollenbeck, 465 S.W.3d 217, 230 (Tex. 2015) (quoting Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 623 (Tex. 2011))). Instead, the limitations period is tolled only until "a party learns of facts, conditions, or circumstances which would cause a reasonably prudent person to make inquiry, which, if pursued, would lead to the discovery of the concealed cause of action. Knowledge of such facts is in law equivalent to knowledge of the cause of action." Id. (citations omitted). Here, assuming Taylor fraudulently concealed the facts of the case from her, Kusman makes no such allegations as to Peters, who took x-rays showing the broken screws on September 16, 2020, documented that fact in Kusman's medical records, and informed Kusman that there were "other issues" with her feet. Therefore, assuming any concealment by Taylor, a question we do not need to decide, Kusman learned of facts on September 16, 2020, that, if pursued, would have led to the discovery of the broken screws. See Grimes, 2006 WL 1547767, at *1 (affirming summary judgment for first doctor after finding fraudulent concealment tolled limitations against him until second doctor examined appellant and "told her that something was wrong and that she needed additional surgery"); see also Schlumberger Tech. Corp., 544 S.W.3d at 834 (stating that the discovery rule "does not turn on whether the injured person knows the exact identity of the tortfeasor or all of the ways in which the tortfeasor was at fault in causing the injury" and "[n]or does it turn on when the full effects of the injury became known or developed").
4. Kusman's claim is time barred.
Because the summary judgment record establishes that Kusman's cause of action accrued, at the very latest, on September 16, 2020, and she did not file suit within two years of that date, her claim is time barred. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a). Accordingly, the trial court did not err by granting Biopro's motion for summary judgment. We overrule Kusman's first issue. Because the first issue disposes of claims to both feet, we need not address Kusman's second issue that only addresses one foot. See Tex. R. App. P. 47.1.
IV. Conclusion
After overruling the first issue and not needing to address the second issue, we affirm the trial court's judgment.