Opinion
No. 04-05-00535-CV
Delivered and Filed: July 26, 2006.
Appeal from the 166th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-16113, Honorable Janet Littlejohn, Judge Presiding.
Affirmed in Part; Reversed and Remanded in Part.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Kathleen Lecce and her sons appeal the trial court's granting of summary judgment in favor of South Texas Oncology and Hematology, P.A. and Dr. Ronald Drengler. Lecce asserts that the trial court erred in granting summary judgment in favor of the appellees because the appellees did not prove their affirmative defense of limitations as a matter of law and the appellees failed to negate Lecce's assertion of fraudulent concealment. We affirm the summary judgment in part, and reverse in part. We remand the cause to the trial court for further proceedings.
Background
On August 20, 2001, Jerry Lecce was admitted to the hospital for surgery relating to colorectal cancer. The surgery was successful, and a small tumor was removed from Jerry's colon. While in the hospital, Dr. Drengler examined Jerry and prescribed further treatment with adjuvant chemotherapy. Jerry was released from the hospital on September 5, 2001. On September 20, 2001, Jerry received his first dose of chemotherapy, to which he had a very bad reaction. On September 27, 2001, Jerry received a second dose of chemotherapy, which significantly increased his adverse reaction. On September 30, 2001, he was readmitted to the hospital. At that time, Drengler began treatment with a colony-stimulating factor to increase Jerry's blood cell count. Jerry remained hospitalized until he died on October 16, 2001 from multi-organ failure and septic shock due to the toxic level of chemotherapy drugs in his blood.
On October 9, 2003, Lecce sued Drengler and his employer, South Texas Oncology and Hematology, P.A., for negligence. In her original petition, Lecce alleged nineteen negligent acts or omissions committed by Drengler, including: failure to advise of the risks associated with chemotherapy; selecting dosage and combination of drugs utilized in chemotherapy; failure to timely and properly obtain enzyme studies; failure to determine the cause of the adverse reaction to the initial chemotherapy treatment; proceeding with the second chemotherapy treatment; failure to properly monitor, modify, or suspend the chemotherapy treatments; failure to timely and properly diagnose the cause of the adverse reaction to the chemotherapy treatments; and failure to timely and properly treat Jerry's condition during his hospitalization beginning on September 30, 2001 and continuing until his death on October 16, 2001. The appellees moved for summary judgment based on the two-year statute of limitations set out in section 74.251 of the Texas Civil Practice and Remedies Code. The trial court granted summary judgment and Lecce appealed.
Summary Judgment Standard of Review
We review a summary judgment ruling under a de novo standard of review. Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex.App.-San Antonio 2000, no pet.). A traditional motion for summary judgment is properly granted only when the movant establishes that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law on a ground expressly set forth in the motion. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing the grant of a summary judgment, we indulge every reasonable inference and resolve any doubts in favor of the non-movant. Nixon, 690 S.W.2d at 549. Additionally, we assume all evidence favorable to the non-movant is true. Id. at 548-49.
A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense by proving when the cause of action accrued and negating the discovery rule, if it applies and has been pleaded. KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). If the movant establishes that the statute of limitations bars the action, the nonmovant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. Id.
Discussion
In their motion for summary judgment, the appellees contend that all of Lecce's claims are time-barred because the second and final chemotherapy treatment was administered to Jerry on September 27, 2001, more than two years before Lecce filed suit. The undisputed relevant time line is as follows:
8-20-2001: Jerry Lecce undergoes colorectal surgery
8-24-2001: Dr. Drengler examines Jerry for the first time and prescribes chemotherapy
9-05-2001: Jerry is released from the hospital
9-20-2001: Jerry receives first round of chemotherapy and has adverse reaction
9-27-2001: Jerry receives second round of chemotherapy; adverse reaction intensifies
9-30-2001: Jerry is hospitalized for adverse reaction to chemotherapy; Drengler begins treatment with colony-stimulating factor
10-16-2001: Jerry dies
10-08-2003: Plaintiffs send notice of claim letters to defendants
10-09-2003: Plaintiffs file lawsuit
Texas law imposes a two-year statute of limitations on medical negligence claims. Tex. Civ. Prac. Rem. Code § 74.251(a) (Vernon 2005). The limitations period is measured from one of three dates: (1) the occurrence of the breach or tort, (2) the last date of the relevant course of treatment, or (3) the last date of the relevant hospitalization. Id.; Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001). If the date the alleged tort occurred is ascertainable, limitations must begin on that date, and further inquiry into the second and third categories is unnecessary. Shah, 67 S.W.3d at 841; Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998). The Texas Supreme Court has repeatedly held that a plaintiff may not choose the most favorable date falling within the three categories. See Shah, 67 S.W.3d at 841; Husain, 964 S.W.2d at 919; see also Gilbert v. Bartel, 144 S.W.3d 136, 141 (Tex.App.-Fort Worth 2004, pet. denied).
Negligent Chemotherapy Treatment Claims
A. Limitations
When the date of the alleged tort or breach is ascertainable, limitations begins to run from that date. Shah, 67 S.W.3d at 843; Husain, 964 S.W.2d at 919. If the date the doctor's alleged negligence took place can be ascertained, then there are no doubts to resolve and we must measure limitations from that date. Shah, 67 S.W.3d at 843; Husain, 964 S.W.2d at 919. Here, because the alleged negligent chemotherapy treatment dates are ascertainable, and because Lecce did not file suit within two years of that date, section 74.251(a) of the Texas Civil and Practice Remedies Code bars Lecce's negligent chemotherapy treatment claims. B. Fraudulent Concealment
Even though pleadings, as a general rule, do not qualify as competent summary judgment proof, see Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995), they may constitute summary judgment evidence when they contain statements rising to the level of admitting a fact. See Withrow v. State Farm Lloyds, 990 S.W.2d 432, 436 (Tex.App.-Texarkana 1999, pet. denied). We note the dates pleaded in Lecce's petition establish the fact that the chemotherapy treatments undisputedly occurred on September 20, 2001 and September 27, 2001.
Lecce argues that limitations does not bar her negligent chemotherapy treatment claims because Drengler fraudulently concealed the actual cause of Jerry's death. In a medical negligence case, fraudulent concealment estops a health care provider from relying on limitations to bar a plaintiff's claim. Shah, 67 S.W.3d at 841. The plaintiff must show the health care provider actually knew a wrong occurred, had a fixed purpose to conceal the wrong, and did conceal the wrong from the patient. Id. If this burden is met, fraudulent concealment will toll limitations until the plaintiff discovers the fraud or could have discovered the fraud with reasonable diligence. Id. To avoid summary judgment on limitations grounds, the plaintiff asserting fraudulent concealment must raise a fact issue that would support this assertion. Id. at 846; see also Earle v. Ratliff, 998 S.W.2d 882, 888 (Tex. 1999); Desiga v. Scheffey, 874 S.W.2d 244, 253 (Tex.App.-Houston [14th Dist.] 1994, no writ) (noting that a claimant must set out "extremely specific facts" to prevail on a fraudulent concealment claim). "[M]erely pleading fraudulent concealment in a summary judgment response will not preclude summary judgment. Reliance on conclusory affidavits accusing the defendant of lying or deceiving the plaintiff regarding the existence of a cause of action will be similarly unavailing. Rather, the plaintiff must file competent proof that the defendant was aware that he had committed a fraud or other tort, then lied about his misconduct or failed to disclose his misconduct when he was under a duty of disclosure." See Timothy Patton, Summary Judgments In Texas § 9.04[5][b] (2005) (citations omitted).
In her second amended original petition, Lecce alleges that while Jerry was hospitalized (from September 30 through October 16, 2001) Drengler advised her that Jerry's severe reactions to the chemotherapy treatments were due to the fact that he did not have the enzyme Dihydropyrimidine Dehydrogenase (DPD) known to be responsible for breaking down chemotherapy drugs, thus causing Jerry to receive the full cumulative effect of the chemotherapy drugs. Lecce asserts that although Drengler advised her there were no tests to determine whether a person has this particular enzyme, an enzyme test was in fact performed on the tumor tissue removed from Jerry's colon during the September surgery. Lecce alleges Drengler failed to advise her of the existence of or contents of a report from Response Genetics concerning the enzyme levels found in Jerry's tumor, even though he knew Jerry's tumor sample did show a trace amount of this particular enzyme. Lecce further alleges Drengler knew that Jerry did not lack this enzyme but advised her Jerry lacked the enzyme for the sole purpose of concealing the actual causes of Jerry's death. Lecce contends the earliest date she received the genetic testing report was October 15, 2001, and therefore limitations should be tolled until that date.
Although when asked at the summary judgment hearing when he had discovered that the enzyme test had in fact been performed, Lecce's counsel admitted he did not have "an exact date."
The only evidence Lecce relies upon to support the fraudulent concealment allegation is her own affidavit. Lecce's affidavit, however, does not allege any facts suggesting that Drengler knew he was negligent in his treatment of Jerry and that he concealed the contents of the genetic report in an attempt to deceive her as to the actual cause of Jerry's death. See Earle, 998 S.W.2d at 888 (proof of fraudulent concealment requires evidence that physician actually knew the plaintiff was wronged and concealed that fact to deceive the plaintiff).
Furthermore, the deposition testimony of Leece's own expert, Dr. Fredric, establishes that the testing on the tumor tissue cannot be correlated to the presence of the enzyme in Jerry's blood. Fredric unequivocally stated that it is not currently clinically practical to test for enzyme deficiency prior to the administration of the chemotherapy drug 5FU. "I've never seen anyone correlate [enzyme levels in tissue samples with the levels in blood samples] which are reported in entirely different units, so I'm not sure how one would add apples and oranges. In other words, you're measuring the same enzyme, but you're using two different techniques in two different sites in the body." This testimony invalidates Lecce's theory that Drengler lied by telling her that testing could not be done to determine enzyme deficiency. Lecce is confusing testing of the tumor sample with testing of blood samples. Drengler was in fact correct in explaining to Lecce that testing could not be done to confirm enzyme deficiency. Because Lecce did not raise a fact issue to support her fraudulent concealment claim, the limitations period was not tolled. See Shah, 67 S.W.3d at 846. Accordingly, Lecce's claims relating to the chemotherapy treatments are barred by the statute of limitations.
Negligent Follow-Up Treatment Claims
The Texas Supreme Court has made it clear that in medical negligence cases, a separate statute of limitations exists for complaints relating to negligent follow-up treatment. In Shah v. Moss, Moss sued his doctor, alleging two claims: negligent surgery and negligent follow-up treatment. 67 S.W.3d at 839. The court held that limitations barred Moss's negligent-surgery claim because the surgery occurred on a readily ascertainable date and thus limitations runs from that date for any resulting injuries. Id. at 844. The court recognized that a separate cause of action existed for the negligent follow-up treatment claim and therefore a separate statute of limitations applied. Id. Refusing to apply a course-of-treatment analysis, the court held that limitations began to run from the date of Moss's last post-surgery recheck visit because this was the last date that Dr. Shah could have ordered additional office visits. Id. at 844-45. Moss's claims were nonetheless barred, because the last recheck visit occurred outside of the two-year limitations period. Id. at 845.
Moss had argued that limitations should run from the date of his last yearly exam with Dr. Shah. The court rejected this argument, stating that it was unnecessary to apply a course-of-treatment analysis when the date the alleged tort or breach took place is ascertainable. Shah, 67 S.W.3d at 843.
In Earle v. Ratliff, the Texas Supreme Court likewise acknowledged that a separate limitations exists for both negligent surgery and negligent follow-up treatment:
Nor does our conclusion suggest that limitations on claims of post-surgical negligence runs from the date of surgery. If treatment is negligent following surgery, then . . . limitations begins to run from the date of the breach or tort or from the date that treatment was completed. Thus, limitations on a claim that a physician has improperly treated a patient's infection following surgery does not begin to run on the date of surgery merely because the infection would not have occurred but for the surgery.
998 S.W.2d at 887; see also Scott v. Kant, No. 14-98-01025-CV, 2000 WL 330088 at *3 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (not designated for publication) ("We interpret Earle to mean limitations for surgical negligence begins separately from limitations for post-surgical negligence."). Because the plaintiff in Earle did not allege misdiagnosis or mistreatment after surgery, however, limitations began to run from the date the surgery was performed.
In this case, Lecce has pled causes of action relating not only to the chemotherapy treatments, but also to the follow-up care Jerry received between September 28 and October 16, 2001. Lecce alleged in her petition that Drengler failed to timely and properly diagnose the cause of Jerry's reaction to the chemotherapy treatments and also failed to timely and properly treat Jerry's condition during his hospitalization from September 30 to October 16, 2001. Despite these allegations, the appellees only moved for summary judgment on the basis that limitations began to run from the date of the last chemotherapy treatment. Cf., Shook v. Herman, 759 S.W.2d 743, 746 (Tex.App.-Dallas 1988, writ denied) (summary judgment proper where defendant also asserted he was entitled to summary judgment on the ground that he was not negligent in his follow-up care and treatment of patient after surgery). Therefore, it was improper for the trial court to grant summary judgment regarding Lecce's claims of negligent follow-up treatment. See Gormley v. Stover, 907 S.W.2d 448, 450 (Tex. 1995) (summary judgment only proper if evidence establishes as a matter of law that no actionable negligence occurred after surgical treatment was completed); see also Marchal v. Webb, 859 S.W.2d 408, 415 (Tex.App.-Houston [1st Dist.] 1993, writ denied) (citing Jones v. Cross, 773 S.W.2d 41, 43 (Tex.App.-Houston [1st Dist.] 1989, writ denied)) (summary judgment improper where court's liberal construction of the pleadings raised an issue of negligence during appellant's post-operative period).
Conclusion
Lecce untimely filed her claims for negligent chemotherapy treatments, and she failed to raise a fact issue on fraudulent concealment. Accordingly, summary judgment was proper with regard to Lecce's claims relating to the chemotherapy treatments occurring on September 20, 2001 and September 27, 2001. However, Lecce also pleaded negligent follow-up treatment claims, which have a different limitations period. The appellees failed to move for summary judgment based on the post-chemotherapy treatment claims. Therefore, the appellees were only entitled to a partial summary judgment on limitations. We affirm the portion of the summary judgment relating to Lecce's claims for negligent chemotherapy treatments. We reverse the portion of the summary judgment relating to Lecce's claims alleging post-treatment negligence. The cause is remanded to the trial court for further proceedings.