Bessie Winston and James Winston v. William H. Peterek M.D.

• Court: Court of Appeals of Texas
• Decided: April 8, 2004
• Docket: 14-03-00624-CV
• Status: Published

Opinion

Majority and Dissenting Opinions filed April 8, 2004

Majority and Dissenting Opinions filed April 8, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00624-CV

BESSIE WINSTON AND JAMES WINSTON, Appellants

V.

WILLIAM H. PETEREK, M.D., Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 02CV0006-A

D I S S E N T I N G   O P I N I O N

I respectfully disagree with the majority=s conclusion that the claims of the Winstons are barred by limitations.  As the majority noted, Texas law imposes a two-year statute of limitations on health-care claims.  Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983) (per curiam).  Importantly, if the date of the alleged tort or breach is ascertainable, the limitations period runs from that date, and the ascertainable date controls regardless of whether there was an established course of treatment.  Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001).  In his motion for summary judgment, Dr. Peterek argued he was entitled to relief on the sole ground that April 3, 1998, was the ascertainable date of breach because it was the day Bessie Winston last visited his office.  Because he received notice of the Winstons= claims on October 20, 2000Cmore than two years after April 3, 1998CDr. Peterek contended the claims of the Winstons were barred by the statute of limitations.  In order to prevail, Dr. Peterek had the burden to prove that the ascertainable date of breach was prior to October 20, 1998.  Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983) (per curiam).  I believe Dr. Peterek failed to meet this burden.

In response to Dr. Peterek=s motion for summary judgment, the Winstons attached an affidavit from their expert, Dr. Arthur Hadley, who stated in relevant part as follows:

Additionally, on April 13, 1998, Mrs. Winston complained of nausea, vomiting and headache . . . . Dr. Peterek renewed Mrs. Winston=s Procardia prescription three times after his last examination.  The first was on August 31, 1998, the second on February 9, 1999 and the third was on October 5, 1999 . . . . According to Mrs. Winston=s daughters Mrs. Winston complained to Dr. Peterek of other headaches that were located in the area of her temple to the back of her head with pain radiating down her neck to her shoulders.  The headaches were described as the worst she had ever experienced.  Even after those warnings Dr. Peterek=s treatment of Mrs. Winston=s hypertension continued to be the prescriptive medicine Procardia. 

(emphasis added).  The expert further opined that nausea, vomiting, and headaches are symptoms of subarachnoid hemorrhaging.  Dr. Hadley further stated that Dr. Peterek should have determined the etiology of those symptoms as is dictated by the standard of care and practice for the treatment and management of hypertension. 

The affidavit of Dr. Hadley indicates that on April 13, 1998, Mrs. Winston complained to Dr. Peterek of symptoms that could be signs of subarachnoid hemorrhaging.  The testimony also suggests that after April 13, 1998, Mrs. Winston complained of other headaches, and despite the complaints, Dr. Peterek continued to prescribe Procardia.  The affidavit does not provide a date for the additional conversation or conversations between Mrs. Winston and Dr. Peterek.  From the context of the paragraph, the conversations appear to have taken place sometime between April 14, 1998, and October 5, 1999.  According to the record before us, Dr. Peterek did not make any objections to the affidavit nor did he offer any evidence to provide a time-line for the purported conversations.  Dr. Peterek responded that his last office visit with Mrs. Winston was on April 3, 1998.

Dr. Peterek and the majority rely on Shah, Bala v. Maxwell, 909 S.W.2d 889 (Tex. 1995), and Rowntree v. Hunsucker, 833 S.W.2d 103 (Tex. 1992), to conclude that the date of Mrs. Winston=s last office visit is the ascertainable date of breach.  I do not find that the reasoning of those cases necessitates the majority=s conclusion.  In concluding a patient=s negligent follow-up treatment claim was barred by the statute of limitations, the Texas Supreme Court found in Shah Athat the dates on which the physician=s alleged negligence took place were readily ascertainable because the physician did not perform the necessary exams during specific office visits.@  67 S.W.3d at 843B45.  The court found that the last date the physician could have breached his alleged duty to provide follow-up care was the last day he actually saw the patient because Athe last time [he] could have ordered additional weekly or monthly office visits was during the last recheck visit . . . .@  Id. at 844B45.^[1]  In dismissing another patient=s claim that her physician breached a duty to perform proper examinations that would have detected occluded arteries, the court determined in Rowntree the statute of limitations began to run Afrom the date of the alleged wrongful act.@  833 S.W.2d at 108.  The court found that the date of the alleged wrongful act was ascertainable from the facts of the case because the physician Acould have breached this duty only on those occasions when he had opportunity to perform such examinations.@  Id.  The court noted that, although the patient had refilled her hypertension medication at the pharmacy within the statutory period, the physician had provided no regular examinations or Aother services@ during that time.  Id.  In Bala, the court held the statute of limitations barred the patient=s claim because the last time the patient had seen the physician prior to the visit that led to her diagnosis of breast cancer was more than two years prior to the patient=s filing of her lawsuit.  909 S.W.2d at 891B92.  Again, the court held that the physician could only have been negligent when he had an opportunity to conduct follow-up treatment.  Id. at 892.

These cases stand for the proposition that an ascertainable date of breach in a negligent follow-up treatment case is the date on which the physician could have conducted follow-up procedures, or more precisely, the last date of treatment.  In the aforementioned-cases and likely in most cases, this date is the date of the patient=s last office visit.  However, to find that a physician can treat a patient only in person is to overlook the undeniable fact that physicians can and do treat patients in many ways, using a variety of mediums. 

In this case, the Winstons alleged a physician-patient relationship existed between Dr. Peterek and Mrs. Winston, and sued Dr. Peterek, claiming that he failed to, among other things, properly perform necessary medical treatment, examine Mrs. Winston upon presentment of her symptoms, and conduct proper diagnostic procedures in connection with those symptoms.  The Winstons= expert opined that Dr. Peterek had a duty to provide careful follow-up treatment when Mrs. Winston made additional complaints of headaches, and that the standard of care dictated further examination of her symptoms.  We must take this evidence as true.  See Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).  Applying the duty the alleged standard of care imposes, I would conclude that the statute of limitations began to run on the date of the last alleged wrongful actCthe last day that Dr. Peterek treated Mrs. Winston and could have provided follow-up treatment.  The Winstons= expert appears to allege that Mrs. Winston discussed problems associated with her hypertension with Dr. Peterek after April 13, 1998, and possibly during the statutory period.  There is some evidence that Mrs. Winston discussed her complaints of headaches with Dr. Peterek or his staff after her last office visit, and that Dr. Peterek may have failed to establish appropriate follow-up treatment or order additional office visits at that time.  Viewing the summary-judgment evidence in the light most favorable to the Winstons, Dr. Peterek failed to establish under the facts of this case that Mrs. Winston=s last office visit was the last date he had the opportunity to provide follow-up treatment for her or that her last office visit was the last day of treatment.

I conclude that, because Dr. Peterek, in moving for summary judgment on the affirmative defense of limitations, failed to establish as a mater of law that the statute of limitations barred the suit against him, he is not entitled to summary judgment.  For these reasons, I dissent.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Majority and Dissenting Opinions filed April 8, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

---

^[1]  The dissent in Shah disagreed with the majority=s finding of an ascertainable date of breach in a negligent follow-up treatment claim.  67 S.W.3d at 848 (O=Neill, J., dissenting).  Justice O=Neill pointed out that finding an ascertainable date of breach in a follow-up treatment case led to the anomalous result that the limitations period began to run on the patient=s claim before he suffered an injury.  Id.  In this case, the result is the same.