Brewster v. COLUMBIA MED. CENTER, MCKINNEY

269 S.W.3d 314
CourtCourt of Appeals of Texas
DecidedNovember 14, 2008
Docket05-08-00227-CV
StatusPublished

This text of 269 S.W.3d 314 (Brewster v. COLUMBIA MED. CENTER, MCKINNEY) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brewster v. COLUMBIA MED. CENTER, MCKINNEY, 269 S.W.3d 314 (Tex. Ct. App. 2008).

Opinion

269 S.W.3d 314 (2008)

Roger W. BREWSTER and Annetta P. Brewster, Appellants,
v.
COLUMBIA MEDICAL CENTER OF McKINNEY SUBSIDIARY, L.P., d/b/a Medical Center of McKinney and Amer Suleman, M.D., Appellees.

No. 05-08-00227-CV.

Court of Appeals of Texas, Dallas.

November 14, 2008.

*315 William A. Newman, Dallas, TX, Les Weisbrod, Anjel Kerrigan Avant, Miller, Curtis & Weisbrod, L.L.P., Dallas, TX, for Appellants.

James Walker, Michael A. Yanof, Stan Thiebaud, Stinnett, Thiebaud & Remington, L.L.P., James J. McGoldrick, Jeffrey F. Wood, Jones, Carr, McGoldrick, L.L.P., Dallas, TX, for Appellees.

Before Justices MORRIS, WHITTINGTON and O'NEILL.

OPINION

Opinion by Justice O'NEILL.

Roger and Annetta Brewster appeal[1] summary judgments granted to Columbia *316 Medical Center of McKinney Subsidiary, L.P., d/b/a Medical Center of McKinney ("Hospital") and Amer Suleman, M.D. ("Doctor") on their affirmative defense of limitations. The Brewsters raise two issues contending claims raised in their amended petition ("new claims") are not barred because either they arise out of the same transaction as claims alleged in a timely filed original petition, or the new claims were actually alleged generally in the original petition. For the reasons set out below, we conclude the trial court did not err and affirm its summary judgments.

Background

On November 17, 2003, Roger Brewster ("Patient") was transferred to the Hospital for treatment of shortness of breath and chest pain. The Doctor was his attending physician. The Patient was first admitted to the Progressive Care Unit ("PCU") for treatment of atrial fibrillation and congestive heart failure. At approximately 2:30 p.m. on the day that he was admitted, his conditioned worsened and he went into cardiac arrest.[2] After being sedated and stabilized, he was transferred from the PCU to the Hospital's ICU where he remained until his discharge on December 6, 2003. While in the ICU, he developed pressure ulcers and other skin problems.

On January 24, 2006, the Brewsters filed suit against, among others, the Doctor and the Hospital. The Original Petition alleged specific acts of negligence with respect to skin ulcers the Patient acquired in the ICU, and a general allegation that each defendant "fail[ed] to meet the minimal standards of medical practice." In the section of the Original Petition entitled Procedural Requirements, the Brewsters state that they attach the original reports and curriculum vitae of Lige B. Rushing, Jr., M.D. and Kathy Martinez, R.N. ("Nurse's Report") "in compliance with Section 74.351 of the Texas Civil Practices and Remedies Act." TEX. CIV. PRAC. & REM. CODE ANN. § 74.351 (Vernon 2005 & Supp. 2008)[3]. Dr. Rushing's report related solely to the patient's skin problems. However, the Nurse's Report not only criticized the treatment of Mr. Brewster's skin problems, it also contained specific allegations of the violation of the standard of care for his cardiac condition ("cardiac claims"). Neither of the reports was incorporated into the pleading and thus are not part of the Original Petition. Their sole purpose was to satisfy the expert reports requirement in Section 74.351(a) of the Statute.

Fifteen months after filing the Original Petition and over a year after limitations had run, the Brewsters filed their First Amended Petition containing specific allegations of negligence in the treatment of the Patient's heart problems. In order to comply with the Statute, they added as an attachment, the expert report of a board-certified cardiologist, Paul W. Dlabal, M.D. In contrast to the Original Petition, the *317 Brewsters' amended pleading "incorporates [the expert reports] as if fully set out in length."

Both the Hospital and Doctor filed motions for summary judgment on the ground that limitations had run before the First Amended Petition was filed and the Brewsters were barred from bringing the cardiac claims. The trial court granted the motions and severed the cardiac claims from the ongoing lawsuit. The Brewsters appeal the summary judgments which struck the cardiac claims as being barred by limitations.

Standard of Review

Summary judgment is appropriate when there is no genuine issue as to any material fact and judgment should be granted in favor of the movant as a matter of law. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.2005) (citing KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999)). We review the trial court's decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 220 (Tex.2003). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 445 (Tex.1982). If the movant establishes that the statute of limitations bars the action, the nonmovant must then present summary judgment evidence raising a fact issue in avoidance of the statute of limitations. Id.; Kang v. Hyundai Corp.(U.S.A.), 992 S.W.2d 499, 501 (Tex. App.-Dallas 1999, no pet.); Palmer v. Enserch Corp., 728 S.W.2d 431, 435-36 (Tex. App.-Austin 1987, writ ref'd n.r.e.).

Discussion

The Brewsters seek reversal on the ground that the cardiac claims were timely filed because either (1) the cardiac claims arise out of the same transaction or occurrence as the skin allegations and thus the cardiac claims in the First Amended Petition "relate back" to the timely filed Original Petition under Section 16.068 of the Texas Civil Practice and Remedies Code, or (2) the Original Petition's general claim of negligence coupled with specific criticisms contained in the Nurse's Report adequately plead the cardiac claims. Neither argument persuades us.

A. The skin allegations and the cardiac claims arise from different transactions

The two-year limitations period set out in Section 74.251 of the Statute governs health care liability claims. The Brewsters, however, contend that the cardiac claims are not barred because the Patient was brought to the Hospital to alleviate his heart problems, his skin ulcers and cardiac claims are all part of the same transaction, and, accordingly, the relation back provision found in Texas Civil Practice and Remedies Code § 16.068 applies. TEX. CIV. PRAC. & REM.CODE ANN. § 16.068 (Vernon 2008). Section 16.068 provides that new facts or claims raised in a subsequent pleading relate back to a timely filed pleading and are not barred unless the amendment or supplemental pleading "is wholly based on a new, distinct, or different transaction or occurrence." Id.

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