Opinion
No. 05-03-00751-CV
Opinion Filed June 15, 2004.
On Appeal from the 298th District Court, Dallas County, Texas, Trial Court Cause No. 03-3984-M.
Affirm.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
MEMORANDUM OPINION
Appellants Kemble White, individually and as executor for the estate of Daphne White, Kemble White IV, and Morgan White appeal a summary judgment granted in favor of appellee Paul K. Anderson, M.D. based on limitations. In two points of error, appellants generally contend the trial court erred in granting the motion for summary judgment. For the following reasons, we affirm the trial court's judgment.
In this health care liability case, the question presented is whether appellants' suit is barred by limitations. Appellants sued Anderson for negligence asserting he failed to timely diagnose Daphne White with pancreatic cancer. They asserted the delayed diagnosis allowed the cancer to spread resulting in her death. Anderson filed a motion for summary judgment based on limitations. According to Anderson, appellants' cause of action accrued at the latest on March 13, 1998, the last date he treated Daphne. He asserted appellants' suit was barred by limitations because appellants did not give him notice of the suit until March 20, 2000, more than two years after any possible negligent acts. The trial court granted Anderson's motion.
When a defendant moves for summary judgment based on the affirmative defense of limitations, he must conclusively establish each element of the defense as a matter of law. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 80-81 (Tex. 1989); Parsons v. Turley, 109 S.W.3d 804, 807 (Tex. App.-Dallas 2003, pet. denied). When reviewing a summary judgment, we take evidence favorable to the nonmovant as true and indulge every reasonable inference in his favor. Parsons, 109 S.W.3d at 807.
Under section 10.01 of article 4590i of the revised civil statutes, a health care liability suit must be commenced within two years from the date the claim accrued. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2052 (repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at Tex. Civ. Prac. Rem. Code Ann. § 74.251 (Vernon Supp. 2004)). However, if a plaintiff sends a notice of claim within two years of the claim's accrual, limitations is tolled for seventy-five days. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2048 (repealed 2003) (current version at Tex. Civ. Prac. Rem. Code Ann. § 74.051 (Vernon Supp. 2004)); De Checa v. Diagnostic Center Hospital, Inc. 852 S.W.2d 935, 937 (Tex. 1993).
Because appellants' claims were filed before the repeal of article 4590i, they are governed by the provisions of article 4590i in effect at the time suit was filed. Act of June 11, 2003, 78th Leg., R.S., ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 847, 899.
The statute of limitations begins to run 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. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2052 (repealed 2003) (current version at Tex. Civ. Prac. Rem. Code Ann. § 74.251 (Vernon Supp. 2004)); Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001). A plaintiff may not, however, choose the most advantageous date. Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998). Rather, if the date the alleged tort occurred is ascertainable, limitations must begin on that date. Shah, 67 S.W.3d at 841 (Tex. 2001).
On March 20, 2000, appellants gave Anderson a 4590i notice of a health care liability claim which, if timely, tolled limitations for seventy-five days. They subsequently filed suit within seventy-five days of the notice. Thus, the question presented is whether the trial court properly concluded that, as a matter of law, appellants' claim accrued before March 20, 1998.
The undisputed summary judgment evidence shows that in March 1997, Daphne received a heart transplant. As a result of her heart transplant, she was under the care and supervision of a team of doctors at Medical City in Dallas. One of Daphne's doctors ordered a CT scan of Daphne's abdomen. Although Daphne's abdomen was normal, the CT scan showed Daphne had what appeared to be an enlarged pancreas.
Daphne was referred to Anderson, a gastroenterologist. Anderson first saw Daphne on December 15, 1997. Anderson diagnosed Daphne with pancreatitis, but could not rule out the possibility that she also had a pancreatic tumor. Anderson recommended a second CT scan. The second CT scan was performed on January 29, 1998. The CT scan showed no improvement in Daphne's pancreas. Thus, a pancreatic tumor still could not be excluded.
On February 13, 1998, an MRI showed a possible tumor on Daphne's pancreas. The radiologists reviewing the MRI recommended "a needle biopsy for further assessment and/or possible ERCP with brushings." These tests were necessary to obtain a tissue sample to determine whether Daphne had a cancerous tumor.
On March 4, 1998, Anderson performed an ERCP, but did not obtain a brushing or tissue sample. Thus, Anderson could not make a diagnosis concerning whether Daphne had a cancerous tumor. On March 13, 1998, Anderson had a phone conversation with Daphne. Appellants concede Anderson recommended a biopsy at that time and that Daphne was "leaning" towards a biopsy. A biopsy was performed on April 21, 1998 and Daphne was diagnosed with pancreatic cancer two days later. She died on November 30, 1999.
Anderson moved for summary judgment asserting appellants' claims were barred by limitations because the last date of any possible negligence was on March 13, 1998, the last date he had any contact with Daphne. According to appellants, the trial court erred in granting summary judgment because Anderson's course of treatment occurred until at least March 25, 1998. On that date, one of Daphne's other doctors noted on her "Chart Update" that Anderson was going to discuss Daphne's case with the Transplant committee so that it could give Daphne a final recommendation. The Chart Update was copied to Dr. Anderson. According to appellants, the Chart Update, made by another doctor, showed that Anderson continued to treat Daphne after March 25, 1998, although Anderson neither saw nor spoke to her again after March 13, 1998. Thus, they assert their March 20, 2000 notice was timely.
We begin by noting that appellants claims arise out of Anderson's failure to obtain a tissue sample sooner, from which an earlier definitive cancer diagnosis could have been made. It is undisputed that Anderson recommended a biopsy on March 13, 1998, more than two years before appellants gave their 4590i notice. The summary judgment evidence shows Anderson committed no acts of negligence after that date. Specifically, appellants' only expert, Dr. Daniel Lehane, stated by deposition that his only criticisms of Anderson were that he should have (1) biopsied the lesion in the pancreas in the last two days of January or the first two days of February 1998, and (2) should have obtained a brushing during the March 4, 1998 ERCP. He opined that Anderson "missed the opportunity to do biopsies, make a definitive diagnosis, and proceed with treatment all during that time." Dr. Lehane did not voice any criticism of Anderson's actions after he performed the ERCP and or in how Anderson subsequently advised Daphne when he recommended the biopsy on March 13, 1998.
We conclude Anderson conclusively established that all of the alleged acts of negligence occurred more than two years before appellants gave notice of their claims. Thus, the trial court property granted Anderson's motion for summary judgment. We affirm the trial court's judgment.