DISSENT; and Opinion Filed August 22, 2019.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-01457-CV
CHARLES CHANG, M.D., Appellant V. ASHLEY DENNY, Appellee
On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-02470-2013
DISSENTING OPINION By Justice Schenck On July 21, 2006, Dr. Charles Chang performed a right frontal craniotomy to remove
Ashley Denny’s benign neurocytoma. Denny’s CT scan the next day did not show any
abnormalities, nor did the other five scans done before Denny was discharged from the hospital,
or the MRIs and CT scans taken over the next five years. It was not until May 11, 2011, that
doctors detected a change in Denny’s scan, noting an increase in the size of two cystic structures
in her brain. As a result, Denny underwent a second surgery with Dr. Chang on May 26, 2011.
Dr. Chang anticipated finding and extracting a benign tumor but, instead, he found a cotton ball
that had not been removed during the first surgery.
Immediately after the surgery, Dr. Chang informed Denny’s parents of the foreign cotton
ball he found and extracted during the surgery. Denny was told by her parents a few days later
about the cotton ball. Within a month, Denny hired legal counsel to pursue a medical liability claim. However, Denny’s legal counsel did not file suit until July 25 or 26, 2013, about seven
years after the initial surgery and more than two years after Denny had been notified the foreign
material had been left in her brain during the first surgery. Initially, the trial court dismissed
Denny’s claims against Dr. Chang as being barred by statute of limitations. Thereafter, Denny
convinced the trial court to grant a new trial. At trial, a jury, in addition to being asked to determine
whether Dr. Chang’s negligence caused injury to Denny, was asked to determine whether Denny
had diligently prosecuted her claim and suit, so as to avail herself of the open courts defense to
limitations. The jury found Denny diligently pursued her claim and that Dr. Chang’s negligence
caused Denny injury. Dr. Chang moved for Judgment Non Obstante Veredicto (JNOV) claiming,
in part, that the evidence was legally insufficient to establish Denny used due diligence and filed
suit within a reasonable time following discovery of her injury. The trial court denied Dr. Chang’s
motion and entered judgment on the verdict. This appeal followed.
In one of his issues, Dr. Chang challenges the trial court’s denial of his motion for JNOV
on Denny’s open courts defense. The majority concludes there is more than a scintilla of evidence
to support the jury’s finding of diligent prosecution. For the reasons set forth herein, I find myself
unable to join in that conclusion. Accordingly, I respectfully dissent.
I.
I begin with a brief discussion of the statute of limitations before addressing the open courts
doctrine. The statute of limitations is one of the first hurdles that the filing party must clear before
continuing with the suit, and the lawsuit is barred if the party cannot clear that hurdle. Former
Chief Justice Marshall of the United States Supreme Court said in Clementson v. Williams, 12 U.S.
(8 Cranch) 72, 74 (1814), that a statute of limitations, even though necessarily arbitrary when set,
becomes an objective standard of fairness entitled to the same level of respect as every other statute
the Legislature passes to prevent parties from being forced to argue against stale and ancient
–2– claims. The Legislature necessarily makes a value judgment when it enacts a statute of limitations,
and legislators together decide when the interests of a complaining party’s right to its day in court
end and the interests of not prosecuting stale claims begin. Johnson v. Ry. Express Agency, Inc.,
421 U.S. 454, 464–65 (1975). All parties are thereafter on notice of claims processing deadlines.
When the statute of limitations is raised as an affirmative defense, courts must apply it to
determine whether, as a matter of law, the case may proceed. The statute applicable here is
contained in Section 74.251(a) of the Texas Civil Practice and Remedies Code, which provides a
medical liability claim must be 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, is completed.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a).
While limitations are creatures of statute, established by the Legislature, the open courts
doctrine is a constitutional mandate. TEX. CONST. art. I, § 13. The open courts provision of the
Texas Constitution provides: “All courts shall be open and every person for an injury done him, in
his lands, goods, person or reputation, shall have remedy by due course of law.” Id. This
requirement “guarantees that a common law remedy will not be unreasonably abridged.” Tex.
Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 521 (Tex. 1995). This guarantee operates
quite differently from a tolling provision. Yancy v. United Surgical Partners Int’l, Inc., 236
S.W.3d 778, 784 (Tex. 2007). Tolling provisions generally defer accrual of a claim until the
plaintiff knew, or in the exercise of reasonable diligence should have known, the facts giving rise
to the claim. Id. (citing HECI Expl. Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998)). Thus, in cases
where a tolling provision applies, the statute of limitations does not begin to run, in the first
instance, until the plaintiff knew, or in the exercise of reasonable diligence should have known,
the facts giving rise to the claim. The Legislature did not include a tolling provision for medical
–3– liability claims, including those that are inherently incapable of discovery within the period of
limitations.
In Shah v. Moss, the Texas Supreme Court concluded section 75.251(a) violated the
Constitution’s open courts guarantee as applied to a plaintiff with an inherently undiscoverable
condition, affording such a plaintiff additional time to act with “due diligence” and file a claim.
67 S.W.3d 836, 846–47 (Tex. 2001). It is unclear why the Legislature has remained silent for the
past 18 years in the wake of this holding, leaving courts to tailor-make a remedy in each case.
It is equally unclear whether the question of diligence, in connection with an open courts
determination, is one of fact for the jury to decide, or one of law for the court.1 Shah did not
directly answer that question—although other Texas courts2 have treated the due diligence
question as a legal question for the court on summary judgment.3 Treating it as a question of fact,
as the majority does, has the potential to dilute the purpose of a dispassionate and objective
conclusion on the timing of suit. Treating it in this manner risks the issue’s disappearing into the
amorphous slurry of jury deliberations, and subsuming into jurors’ sense of who should win. It
eliminates a dispassionate, objective conclusion of the issue and is contrary to the purpose behind
limitations, that being certainty, equality, and predictability.
Free access — add to your briefcase to read the full text and ask questions with AI
DISSENT; and Opinion Filed August 22, 2019.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-01457-CV
CHARLES CHANG, M.D., Appellant V. ASHLEY DENNY, Appellee
On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-02470-2013
DISSENTING OPINION By Justice Schenck On July 21, 2006, Dr. Charles Chang performed a right frontal craniotomy to remove
Ashley Denny’s benign neurocytoma. Denny’s CT scan the next day did not show any
abnormalities, nor did the other five scans done before Denny was discharged from the hospital,
or the MRIs and CT scans taken over the next five years. It was not until May 11, 2011, that
doctors detected a change in Denny’s scan, noting an increase in the size of two cystic structures
in her brain. As a result, Denny underwent a second surgery with Dr. Chang on May 26, 2011.
Dr. Chang anticipated finding and extracting a benign tumor but, instead, he found a cotton ball
that had not been removed during the first surgery.
Immediately after the surgery, Dr. Chang informed Denny’s parents of the foreign cotton
ball he found and extracted during the surgery. Denny was told by her parents a few days later
about the cotton ball. Within a month, Denny hired legal counsel to pursue a medical liability claim. However, Denny’s legal counsel did not file suit until July 25 or 26, 2013, about seven
years after the initial surgery and more than two years after Denny had been notified the foreign
material had been left in her brain during the first surgery. Initially, the trial court dismissed
Denny’s claims against Dr. Chang as being barred by statute of limitations. Thereafter, Denny
convinced the trial court to grant a new trial. At trial, a jury, in addition to being asked to determine
whether Dr. Chang’s negligence caused injury to Denny, was asked to determine whether Denny
had diligently prosecuted her claim and suit, so as to avail herself of the open courts defense to
limitations. The jury found Denny diligently pursued her claim and that Dr. Chang’s negligence
caused Denny injury. Dr. Chang moved for Judgment Non Obstante Veredicto (JNOV) claiming,
in part, that the evidence was legally insufficient to establish Denny used due diligence and filed
suit within a reasonable time following discovery of her injury. The trial court denied Dr. Chang’s
motion and entered judgment on the verdict. This appeal followed.
In one of his issues, Dr. Chang challenges the trial court’s denial of his motion for JNOV
on Denny’s open courts defense. The majority concludes there is more than a scintilla of evidence
to support the jury’s finding of diligent prosecution. For the reasons set forth herein, I find myself
unable to join in that conclusion. Accordingly, I respectfully dissent.
I.
I begin with a brief discussion of the statute of limitations before addressing the open courts
doctrine. The statute of limitations is one of the first hurdles that the filing party must clear before
continuing with the suit, and the lawsuit is barred if the party cannot clear that hurdle. Former
Chief Justice Marshall of the United States Supreme Court said in Clementson v. Williams, 12 U.S.
(8 Cranch) 72, 74 (1814), that a statute of limitations, even though necessarily arbitrary when set,
becomes an objective standard of fairness entitled to the same level of respect as every other statute
the Legislature passes to prevent parties from being forced to argue against stale and ancient
–2– claims. The Legislature necessarily makes a value judgment when it enacts a statute of limitations,
and legislators together decide when the interests of a complaining party’s right to its day in court
end and the interests of not prosecuting stale claims begin. Johnson v. Ry. Express Agency, Inc.,
421 U.S. 454, 464–65 (1975). All parties are thereafter on notice of claims processing deadlines.
When the statute of limitations is raised as an affirmative defense, courts must apply it to
determine whether, as a matter of law, the case may proceed. The statute applicable here is
contained in Section 74.251(a) of the Texas Civil Practice and Remedies Code, which provides a
medical liability claim must be 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, is completed.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a).
While limitations are creatures of statute, established by the Legislature, the open courts
doctrine is a constitutional mandate. TEX. CONST. art. I, § 13. The open courts provision of the
Texas Constitution provides: “All courts shall be open and every person for an injury done him, in
his lands, goods, person or reputation, shall have remedy by due course of law.” Id. This
requirement “guarantees that a common law remedy will not be unreasonably abridged.” Tex.
Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 521 (Tex. 1995). This guarantee operates
quite differently from a tolling provision. Yancy v. United Surgical Partners Int’l, Inc., 236
S.W.3d 778, 784 (Tex. 2007). Tolling provisions generally defer accrual of a claim until the
plaintiff knew, or in the exercise of reasonable diligence should have known, the facts giving rise
to the claim. Id. (citing HECI Expl. Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998)). Thus, in cases
where a tolling provision applies, the statute of limitations does not begin to run, in the first
instance, until the plaintiff knew, or in the exercise of reasonable diligence should have known,
the facts giving rise to the claim. The Legislature did not include a tolling provision for medical
–3– liability claims, including those that are inherently incapable of discovery within the period of
limitations.
In Shah v. Moss, the Texas Supreme Court concluded section 75.251(a) violated the
Constitution’s open courts guarantee as applied to a plaintiff with an inherently undiscoverable
condition, affording such a plaintiff additional time to act with “due diligence” and file a claim.
67 S.W.3d 836, 846–47 (Tex. 2001). It is unclear why the Legislature has remained silent for the
past 18 years in the wake of this holding, leaving courts to tailor-make a remedy in each case.
It is equally unclear whether the question of diligence, in connection with an open courts
determination, is one of fact for the jury to decide, or one of law for the court.1 Shah did not
directly answer that question—although other Texas courts2 have treated the due diligence
question as a legal question for the court on summary judgment.3 Treating it as a question of fact,
as the majority does, has the potential to dilute the purpose of a dispassionate and objective
conclusion on the timing of suit. Treating it in this manner risks the issue’s disappearing into the
amorphous slurry of jury deliberations, and subsuming into jurors’ sense of who should win. It
eliminates a dispassionate, objective conclusion of the issue and is contrary to the purpose behind
limitations, that being certainty, equality, and predictability.
In any event, I find it unnecessary, in this case, to determine whether the question presented
is one of fact or law as the same outcome obtains regardless. Controlling precedent establishes
Denny failed to exercise diligence, as a matter of law,4 and no reasonable jury could find Denny
1 See Sparf v. United States, 156 U.S. 51, 106 (1895) (juries decide fact questions and courts decide legal questions). 2 Shah did not directly answer the question, though it affirmed a summary judgment resolving the question. Shah, 67 S.W.3d at 846–47; Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 704 (Tex. 2014) (summary judgment affirmed and no due diligence as a matter of law after waiting seven-and-a-half years to file suit); Yancy, 236 S.W.3d at 785 (summary judgment affirmed and no due diligence as a matter of law after waiting nineteen months to file suit); Garcia v. Palestine Mem’ l Hosp., No. 14-00-01144-CV, 2002 WL 192359, at *1 (Tex. App.—Houston [14th Dist.] Feb. 7, 2002, no pet.) (not designated for publication) (summary judgment affirmed and no due diligence as a matter of law after waiting sixteen months to file suit). 3 Shah applies an earlier holding in Neagle v. Nelson, 685 S.W.2d 11 (Tex. 1985). In that case, one Justice, Justice Kilgarlin, writing for himself suggests that the open courts’ remedial question of due diligence should be treated as a question of fact for the jury. Id. at 15. 4 See Rivera, 445 S.W.3d at 704; Yancy, 236 S.W.3d at 785; Garcia, 2002 WL 192359, at *1; Shah, 67 S.W.3d at 846–47.
–4– exercised due diligence in pursuing her claim. Indeed, I am aware of no case that has held a delay
as long as this to constitute an exercise of due diligence. Cf. Garcia v. Palestine Mem’ l Hosp.,
No. 14-00-01144-CV, 2002 WL 192359, at *1 (Tex. App.—Houston [14th Dist.] Feb. 7, 2002, no
pet.) (not designated for publication) (delay of sixteen months excessive as a matter of law).
The record establishes Denny filed suit against Dr. Chang twenty-five months after she
learned a cotton ball remained in her brain following the first surgery. At trial, Denny attempted
to explain the delay in filing by stating there were times she was either physically or emotionally
not well and could not help her lawyer, and that it took her multiple years to find an expert to
testify on her behalf.5 Denny’s alleged inability to help her lawyer is the singular reason that the
majority affirms the trial court’s judgment on this issue, as the majority correctly concludes
Denny’s other explanation concerning an expert is insufficient because an attorney’s policy to
search for an expert before filing suit does not constitute due diligence. See Erickson v. Heim-
Hall, 172 S.W.3d 664, 666 (Tex. App.—San Antonio 2005, no pet.); LaGesse v. Primacare, Inc.,
899 S.W.2d 43, 44–45, 47 (Tex. App.—Eastland 1995, writ denied).
Even if the delay in retaining an expert could be considered with respect to the due
diligence inquiry, it is not at all clear that Denny needed an expert in the first place.6 This is not a
complicated medical malpractice case. Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex. 2007)
(“expert testimony is necessary to establish causation as to medical conditions outside the common
knowledge and experience of jurors.”) (emphasis added). Amputating the wrong leg or leaving
foreign objects in the body generally breaches the standard of care and is the cause of some
damage. But even if an expert is required to fulfill chapter 74’s expert report requirement, nothing
5 In her motion for new trial, Denny did not mention any difficulty in communicating with counsel. Rather, she based her motion on pending criminal matters and difficulty in obtaining an expert. 6 While expert opinion evidence is necessary to establish the standard of care and breach in medical malpractice cases, it is not invariably necessary to establish factual causation, depending on the nature of the claimed injury. Jelinek v. Casas, 328 S.W.3d 526 533 (Tex. 2010) (noting expert testimony is the norm).
–5– within that chapter tolls limitations on the claim and Denny launches no constitutional attack on it
in any event.
Conceding that delaying suit to find an expert witness is insufficient, in and of itself, to
justify the lag in filing here, the majority allows Denny’s claim to survive by reasoning that the
client’s illness made it difficult to talk to her attorney and therefore led to a two-year delay in filing
suit. I do not call into question the obvious pain and suffering that Denny has been through, and
instead commend her on her proactive hiring of an attorney only a month after learning a foreign
object had been left in her brain during her first surgery, as well as her persistence in searching for
an expert. However, the majority’s reasoning fails to acknowledge an accepted truth about
attorney–client relationships that is fundamental to our justice system; the actions of a party’s
attorney are the actions of the party itself. Gavenda v. Strata Energy, Inc., 705 S.W.2d 690, 693
(Tex. 1986). As her counsel was candid to acknowledge at argument, the responsibility of
preparing and filing this petition did not fall on the client. During the summary judgment hearing,
he advised the trial court he believed a reasonable period to file after discovering the injury would
be the two year limitations period. He did not mention any difficulty communicating with his
client.
I am obliged to find that Denny has not provided evidence that would enable a jury to come
to the conclusion that her counsel met the due diligence standard to save her claim from being time
barred. Therefore, even if due diligence is a fact question for the jury, Denny’s suit was filed too
late to satisfy the statute of limitations. Even in cases like this one, where negligence has caused
significant harm, neutral and predictable application of the law compels us to apply it in every
single case. The law plainly requires a party asserting an affirmative open courts defense in
response to an assertion the claim is barred by the medical liability statute of limitations to show
–6– due diligence in pursuit of their claim and to adequately explain any delay. No matter how
tempting, we simply cannot ignore the law for a favorable outcome in one specific case.
Although Denny herself was attempting to exercise due diligence, the misunderstandings
and inaction of her legal counsel left her with a stale claim. Rather than pursue a stale claim against
Dr. Chang, Denny’s relief should be the pursuit of a fresh claim against her attorney. The law
might prevent recovery against Dr. Chang, but it also provides a path to recovery for the person
harmed.
CONCLUSION
The open courts provision has been a remedy for the violation of plaintiffs’ right to due
process for over a decade. Either as a fact question or a legal question, the result in this case before
us is the same, but thought should be put into not only why due process is protected, but also how
due process is protected. Accordingly, I respectfully dissent from the majority’s opinion.
/David J. Schenck/ DAVID J. SCHENCK JUSTICE
171457DF.P05
–7–