Opinion
NO. 01-18-00360-CV
03-26-2019
PATRICK ROMBS AND CRYSTAL ROMBS, Appellants v. IVAN MEFFORD, M.D.; IVAN N. MEFFORD, M.D., PH.D., P.A.; AND ELIZABETH PRATHER, R.N., N.P., Appellees
On Appeal from the 434th District Court Fort Bend County, Texas
Trial Court Case No. 16-DCV-236728
MEMORANDUM OPINION
Appellants Patrick and Crystal Rombs appeal from the trial court's orders granting summary judgment in favor of Appellees Ivan Mefford, M.D.; Ivan N. Mefford, M.D., Ph.D., P.A.; and Elizabeth Prather, R.N., N.P. In their sole issue, the Rombses contend that the trial court erred in granting appellees' motions for summary judgment because it mistakenly concluded that the two-year limitations period for health care liability claims had run before the Rombses filed this suit or served pre-suit notice to toll the statute of limitations. We affirm.
Background
Patrick Rombs was pursuing a nurse-practitioner certification while working for Ivan N. Mefford, M.D., Ph.D., P.A., and Dr. Ivan Mefford (collectively, "Mefford"). Elizabeth Prather was an advanced nurse practitioner with Mefford's office. Rombs asked Mefford and Prather for a prescription medication to treat his attention deficit hyperactivity disorder. After Rombs saw Prather in an office visit, Mefford and Prather provided Rombs with a 30-day prescription of the medication, which, if taken once a day as directed, would have run out on November 9, 2014.
A nearby pharmacy contacted Mefford's office with information that Rombs was receiving multiple prescriptions for the same medication from multiple providers, which were being filled at that pharmacy and at other pharmacies.
Prather was concerned because Rombs was about to graduate from a program allowing him to become a nurse practitioner with the power to prescribe medications on his own. These concerns led her to contact the Texas Board of Nursing (the "Board"), which she did in a fax on October 27, 2014. The Rombses allege that the disclosure harmed Patrick Rombs's job prospects in the nursing field.
On November 1, 2016, the Rombses sued Mefford and Prather and sent them notices purportedly in compliance with Civil Practice & Remedies Code § 74.051. Their petition alleged several claims and asserted that the suit was "brought under the Medical Liability Act found in chapter 74 of the Texas Civil Practice and Remedies Code and under the common laws of the State of Texas."
Mefford and Prather moved for summary judgment on limitations grounds. They contended that the applicable two-year limitations period for health care liability claims began to run on October 27, 2014—the date of Prather's fax to the Board—because that was the ascertainable date of the alleged wrongdoing giving rise to all of the Rombses' claims. The Rombses responded that their claims accrued no earlier than the last date of the 30-day prescription that Mefford and Prather had provided to Patrick Rombs—November 9, 2014—which was less than two years before they filed suit on November 1, 2014.
The trial court granted Mefford's and Prather's motions, disposing of the entire suit.
Limitations
In their sole issue, the Rombses contend that the trial court erred by awarding Mefford and Prather summary judgments on limitations grounds. The Rombses argue that the summary judgment record raised a genuine issue of material fact about when their claims accrued. They contend that it was on the last day of the course of medication with which Mefford and Prather treated Rombs. Mefford and Prather respond that the claims accrued when Prather faxed to the Board information about Rombs's multiple prescriptions. The dispute can be resolved by examining what wrongful conduct and resulting harm were pleaded in plaintiffs' petition. See, e.g., Shah v. Moss, 67 S.W.3d 836, 842-45 (Tex. 2001); Rowntree v. Hunsucker, 833 S.W.2d 103, 104-08 (Tex. 1992); Estate of Magness v. Hauser, 918 S.W.2d 5, 7-8 (Tex. App.—Houston [1st Dist.] 1995, writ denied); Marchal v. Webb, 859 S.W.2d 408, 412-17 (Tex. App.—Houston [1st Dist.] 1993, writ denied).
I. Standard of Review and Applicable Law
We review a trial court's decision to grant a summary judgment de novo. See Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 71 (Tex. 2011). A defendant who moves for a traditional summary judgment has the burden of (1) showing that there is no genuine issue of material fact concerning one or more essential elements of the plaintiff's claims or (2) pleading and conclusively establishing each essential element of an affirmative defense, establishing that he or she is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Gross v. Kahanek, 3 S.W.3d 518, 520 (Tex. 1999) (per curiam); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam).
A defendant moving for a summary judgment on his or her affirmative defense of limitations has the burden of conclusively establishing that defense. Gross, 3 S.W.3d at 520. To do so, the defendant must (1) conclusively prove when the cause of action accrued and (2) negate the discovery rule if it applies and has been pleaded or otherwise raised. KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).
If the defendant establishes that limitations bars the action, the summary judgment burden shifts to the plaintiff, who must present summary judgment evidence raising a fact issue with regard to the statute of limitations. Id.
In determining whether there are disputed issues of material fact, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference in the nonmovant's favor. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
All parties presented this case as if the Rombses' petition pleads a health care liability claim. Consistent with the briefing, we will treat the Rombses' claims as health care liability claims, without so holding. Cf. Alajmi v. Methodist Hosp., 639 F. App'x 1028, 1031 (5th Cir. 2016) (per curiam) (holding that claim arising out of allegedly unlawful disclosure of confidential patient information was health care liability claim under Texas Medical Liability Act); Sloan v. Farmer, 217 S.W.3d 763, 767-69 (Tex. App.—Dallas 2007, pet. denied) (same). Health care liability claims are subject to a two-year statute of limitations, under the Medical Liability Act:
Notwithstanding any other law . . . , 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 . . . .TEX. CIV. PRAC. & REM. CODE § 74.251(a). This statute also abolishes the discovery rule for health care liability claims. Walters v. Cleveland Reg'l Med. Ctr., 307 S.W.3d 292, 298 n.28 (Tex. 2010); Chilkewitz v. Hyson, 22 S.W.3d 825, 829 (Tex. 1999).
When a cause of action accrues is a question of law, which we review de novo. See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990); Estate of Magness, 918 S.W.2d at 7. A health care liability claim accrues on one of three dates: (1) the occurrence of the alleged breach or tort, (2) the date that the relevant course of treatment was completed, or (3) the last date of the relevant hospitalization. See TEX. CIV. PRAC. & REM. CODE § 74.251(a); Shah, 67 S.W.3d at 841. The plaintiff may not choose the most favorable date to him or her from among the three options. If the first date is ascertainable, then limitations must begin on that date, and further inquiry into the second and third dates is unnecessary. Shah, 67 S.W.3d at 841, 843, 845; Marchal, 859 S.W.2d at 413.
Limitations may run from the second, course-of-treatment date "where the plaintiff's injury occurs during a course of treatment for a particular condition, and the only readily ascertainable date is the last day of treatment." Estate of Magness, 918 S.W.2d at 7 (citing Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987)). If a course of treatment by medication "is the direct cause of the injury," then the claim may accrue "from the date of the last drug treatment." Rowntree, 833 S.W.2d at 105; see also Estate of Magness, 918 S.W.2d at 7 ("There are some situations in which the statute would run from the date of the last drug treatment, if the course of that treatment is the direct cause of the injury."). Such a "date of last treatment is relevant only if a course of treatment has been established for the condition that is the subject of the claim." Rowntree, 833 S.W.2d at 105. II. The Rombses' claims, as pleaded, accrued on an ascertainable date—a date over two years before they filed suit.
On appeal, the Rombses describe their health care liability claims as ones that "arose from Patrick Rombs['s] treatment from [Prather] and [Mefford] of his attention deficit hyperactivity disorder." In the summary judgment briefing in the trial court, they described their claims as "involving prescription medications" and "aris[ing] from the treatment Plaintiff received" from Mefford and Prather.
However, Mefford point outs that "[n]owhere in their live petition do Appellants allege that their claims . . . concern improper course of treatment or improper prescribing of medication." Instead, Mefford says, the Rombses' claims relate to the allegation of "unauthorized disclosure of Patrick Rombs' healthcare information to the Texas Board of Nursing . . . ." Prather argues similarly. Statements in the Rombses' own summary judgment briefing support Mefford's and Prather's position: " . . . Prather had disclosed confidential patient information about [Patrick Rombs] to the Board of Nursing without his consent. This unauthorized disclosure damaged Plaintiff by delaying him obtaining his advanced practice nursing license. This delay prevented him from obtaining a position which he had been offered."
Resolving this dispute requires us to examine the Rombses' allegations. We are to determine whether the petition gives "fair and adequate notice of the facts upon which the pleader bases his claim." See SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 354 (Tex. 1995) (quoting Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)); see also TEX. R. CIV. P. 47(a) (requiring a pleading "to give fair notice of the claim involved").
The Rombses' petition describes their claims in several ways. They pleaded:
¦ Prather "did disclose Plaintiff Patrick Rombs['s] healthcare information without his consent" and that, "[a]s a result of the unauthorized disclosure of healthcare information, Plaintiffs suffered serious financial injury and mental anguish. Plaintiff Patrick Rombs' licensing was delayed[,] and he lost a career position due to the delay."
¦ Dr. Mefford was negligent by (i) failing to properly supervise Prather, (ii) "permitting the unauthorized disclosure of patient healthcare information," and (iii) failing to enforce procedures "that prevent the unauthorized disclosure of a patient[']s healthcare information."
¦ Mefford's business was negligent by failing to (i) "develop, employ, monitor and follow appropriate policies and procedures with regard to the assessment, treatment, management and oversight of patients with abnormal laboratory test results"; (ii) "assess the competence of medical staff, including but not limited to physicians such as Defendant Mefford and Defendant Prather"; (iii) "monitor and oversee the quality of treatment rendered by medical staff members, including but not limited to Defendant Prather"; and (iv) "develop, employ and monitor policies and procedures to prevent the unauthorized disclosure of a patient[']s healthcare information."
¦ Prather was negligent by (i) "disclosing a patient[']s healthcare information without their consent," (ii) "making false accusations," (iii) "failing to verify information before disseminating it," (iv) "failing to properly consult Defendant Mefford prior to disclosing Plaintiff[']s healthcare information," and (v) "failing to obtain Plaintiff's consent to make a disclosure of his healthcare information."
¦ The Rombses suffered damages in the form of mental anguish, loss of past earnings, "medical expenses and other pecuniary losses due to the false allegations," exemplary damages, and loss of consortium.
We conclude that all but two of the petition's statements concern only claims that Mefford and Prather either disclosed or allowed the disclosure of Patrick Rombs's confidential prescription information to the Board. Allegedly due to the disclosure, the Rombses were damaged in the form of negative effects on Patrick Rombs's job prospects in the nursing field, and not due to any physical suffering or medical problem with Patrick Rombs. The "direct cause of the injur[ies]" pleaded is the disclosure to the Board. See Rowntree, 833 S.W.2d at 105; Estate of Magness, 918 S.W.2d at 7. The disclosure, and not the treatment by medication, is "the subject of the claim." See Rowntree, 833 S.W.2d at 105.
As for the other two statements, the Rombses pleaded that Mefford was negligent by (1) failing to "develop, employ, monitor and follow appropriate policies and procedures with regard to the assessment, treatment, management and oversight of patients with abnormal laboratory test results" and (2) failing to "monitor and oversee the quality of treatment rendered by medical staff members, including but not limited to Defendant Prather."
Neither the record nor the briefing reveals what "abnormal laboratory test results" may be referring to, what these alleged abnormal test results were, or how or why abnormal test results were involved in any allegedly wrongful act by Mefford or Prather leading to injury to the Rombses. The silence in the record about this statement provides no guidance how this can constitute a separate claim. See SmithKline Beecham, 903 S.W.2d at 354. We conclude that the "abnormal laboratory test results" statement fails to give fair or adequate notice of any claim beyond the claims that are premised on disclosure of prescription information to the Board. See TEX. R. CIV. P. 47(a); SmithKline Beecham, 903 S.W.2d at 354.
The "quality of treatment" statement also falls short of giving fair and adequate notice of any claim beyond unlawful disclosure. The Rombses' claim is that they were injured when Patrick Rombs lost out on employment opportunities. It was the disclosure to the Board that led to that injury, and there are no allegations, or evidence, how "quality of treatment" had any effect on those damages. This second statement is not notice of a separate claim. See SmithKline Beecham, 903 S.W.2d at 354; see also King v. Lyons, 457 S.W.3d 122, 126 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ("Though we liberally construe a petition to include claims that may reasonably be inferred from the language used, we may not use a liberal construction of the petition as a license to read into the petition a claim that it does not contain." (internal quotation omitted)).
This leaves only claims stemming from the disclosure of information to the Board. Those claims accrued on the date of disclosure if the summary judgment evidence conclusively establishes an ascertainable date for that disclosure.
Mefford's and Prather's summary judgment evidence showed that Prather made the disclosure in a fax to the Board on October 27, 2014. Also, Prather averred that the October 27, 2014 fax "was the last communication [she] provided regarding Patrick Rombs' treatment or healthcare status," save for documents sought by the Board via subpoena or documents exchanged during this suit. In her deposition testimony, she testified that she "no longer had anything to do with" the issue with the Board after the October 27, 2014 fax. By adducing this evidence, Mefford and Prather carried their initial summary judgment burden to conclusively prove when the claims accrued. See KPMG Peat Marwick, 988 S.W.2d at 748.
The burden then shifted to the Rombses to raise a fact issue on an ascertainable date, or lack thereof, for the disclosure. But their briefing and evidence do not suggest a disclosure of confidential information after October 27, 2014. They have not raised a fact issue about their claims accruing either on a later date or on no ascertainable date at all. See id. Because Mefford and Prather conclusively proved an ascertainable accrual date for the Rombses' claims, the Rombses' assertion that we must undertake a course-of-treatment analysis is unavailing. See Shah, 67 S.W.3d at 841, 843, 845; Marchal, 859 S.W.2d at 413.
The Rombses also contend that the limitations period was tolled for seventy-five days because they sent Mefford and Prather a notice of claim in compliance with Civil Practice & Remedies Code § 74.051(c). That statute allows an otherwise-compliant notice to "toll the applicable statute of limitations to and including a period of 75 days following the giving of the notice . . . ." TEX. CIV. PRAC. & REM. CODE § 74.051(c). However, the Rombses sent the notice on the day they filed suit, November 1, 2016, more than two years from October 27, 2014. See id. § 74.251(a). There was no longer a limitations period for the Rombses' notice to toll "following the giving of the notice." See id. § 74.051(c).
The Rombses' appellate briefing also includes a reference to our state constitution's Open Courts provision: "Appellants['] claims were timely filed within the statute of limitations based upon accrual of their cause of action on the last date of Appellees' continuing course of treatment and, alternatively, were timely filed pursuant to the Open Courts provision of the Texas Constitution." The Rombses, however, failed to provide any citations to the record or to authorities in support of this statement. They have therefore forfeited any claim of error based on the Open Courts provision. See TEX. R. APP. P. 38.1(i); Valdez v. Robertson, No. 01-14-00563-CV, 2016 WL 1644550, at *6 (Tex. App.—Houston [1st Dist.] Apr. 26, 2016, no pet.) (mem. op.) (holding Open Courts issue was forfeited by failure to comply with Rule 38.1(i)); Slagle v. Prickett, 345 S.W.3d 693, 700-01 (Tex. App.—El Paso 2011, no pet.) (same, in opinion affirming summary judgment on time-barred health care liability claim). We overrule the Rombses' sole issue.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Justices Lloyd, Kelly, and Hightower.