Conaway v. Chambers

823 S.W.2d 331, 1991 Tex. App. LEXIS 3070, 1991 WL 263113
CourtCourt of Appeals of Texas
DecidedDecember 17, 1991
Docket6-91-031-CV
StatusPublished
Cited by8 cases

This text of 823 S.W.2d 331 (Conaway v. Chambers) 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
Conaway v. Chambers, 823 S.W.2d 331, 1991 Tex. App. LEXIS 3070, 1991 WL 263113 (Tex. Ct. App. 1991).

Opinions

OPINION

GRANT, Justice.

Christine Conaway and her husband Raymond Conaway appeal from a summary judgment granted in favor of Dr. George H. Chambers on the basis of his statute of limitations defense.

The Conaways raise a single point of error on appeal: that the trial court erred in granting Chambers’ motion for summary judgment. The issue is when the statute of limitations began to run.

Dr. Chambers was Christine Conaway’s family physician. In the fall of 1983, Cona-way complained of a lump in her left breast. Chambers sent her to Titus County Memorial Hospital where a bilateral mammogram was performed. The mammogram was negative, and the radiologist, Dr. Dale Riepe, sent Chambers a report. Chambers never sent Conaway for another mammogram. Conaway, on her own initiative, went for a second mammogram and a sonogram on May 13, 1986. This mammogram was also negative, and again Dr. Riepe sent a copy of his report to Dr. Chambers. Chambers did nothing about this second mammogram except to remark to Conaway on her June 16 office visit, “Well, I see your breast is all right.” Con-away saw Chambers at least six more [333]*333times over the next two years, seeking treatment for high blood pressure, urinary tract infections, flu, colds, and other minor ailments. Christine Conaway testified that she saw symptoms of cancer in her breast such as a receding nipple, discharge of fluids, and an enlarged lump, but she never mentioned these symptoms to Chambers or sought treatment from him for them.

Conaway presented herself to the University of Texas Health Center at Tyler on March 16, 1988, where breast cancer was diagnosed. A modified radical mastectomy of the left breast was performed a week later. The Conaways filed this action on January 30, 1989, seeking damages caused by the delay in diagnosing the cancer.

In reviewing a summary judgment record, it is the duty of appellate courts to apply the following rules:

(1) The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
(2) In deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.
(3) Every reasonable inference must be indulged in favor of the non-movants and any doubts resolved in their favor.

Wilcox v. St. Mary’s University of San Antonio, 531 S.W.2d 589 (Tex.1975).

The specific statute applicable to medical malpractice claims is Tex.Rev.Civ. Stat.Ann. art. 4590i, § 10.01 (Vernon Supp. 1991):

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....

(Emphasis added.) Chambers had the burden of showing as a matter of law that the suit was barred by limitations. See Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983). In particular, Chambers had to establish conclusively a specific date on which the statute began to run. See Jones v. Cross, 773 S.W.2d 41, 43 (Tex.App.— Houston [1st Dist.] 1989, writ denied).

Chambers denies any negligence but contends that the last date he could possibly have been negligent was June 16, 1986. This was the date of Christine Conaway’s office visit after the second mammogram was done and was the last time that there was any communication between Chambers and Conaway regarding her breast. Cona-way made many additional office visits to Chambers for other complaints and problems. Chambers contends the statute of limitations must run from June 16, 1986, and thus this suit, which was filed on January 30, 1989, was commenced more than two years after that date and is barred.

The Conaways also raise the discovery rule laid down by the Texas Supreme Court in Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex.1985); Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984). These decisions were premised on situations in which it was impossible for the parties to discover the injury within the two-year period. The Cona-ways admit that they had reason to know of Chambers’ negligence on March 16, 1988, when the cancer was diagnosed. If on June 16,1986, as Chambers contends, he last treated Christine Conaway for the lump in her left breast, the Conaways would have had three months after they discovered the harm to have filed their cause of action. Thus, they did discover the injury within the two-year period.

The Conaways further argue that Chambers negligently omitted to treat the breast problem during the entire period between May 1986, and January 19, 1988. They contend that Chambers had a continuing obligation to follow up on the mammograms by obtaining a medical history, performing further diagnostic tests, reviewing Conaway’s mammograms and sonograms with the radiologist, and discussing with Conaway the danger signs relating to breast cancer.

The wording of the medical malpractice act (Tex.Rev.Civ.Stat.Ann. art. [334]*3344590i, § 10.01) permits the commencement of an action within two years from the occurrence of the breach or tort or from the date of the medical or health care treatment. The wording of the statute suggests that the action can be filed within two years from any one of these three beginning points: (1) the breach, or (2) tort, or (3) 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. However, the Texas Supreme Court has ruled that the terms breach or tort are used to designate the act or omission on which the claim is founded and not the accrual of a right to a judicial remedy.1 Morrison v. Chan, 699 S.W.2d 205 (Tex.1985).

In the case of Atha v. Polsky, 667 S.W.2d 307 (Tex.App. — Austin 1984, writ ref d n.r.e.), Atha contended that the statute of limitation was tolled for so long as the patient-physician relationship existed, even if the relationship was unassociated with the medical malpractice claim. The court rejected this contention and found that the intention of the Legislature was to begin the running of the statute of limitations on the date of the particular tort or breach complained of or, if no specific date was ascertainable, on the date of the completion of the particular medical treatment that was the subject of the claim. See also Vinklarek v. Cane, 691 S.W.2d 108 (Tex.App. — Austin 1985, writ ref’d n.r.e.).

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Conaway v. Chambers
823 S.W.2d 331 (Court of Appeals of Texas, 1991)

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Bluebook (online)
823 S.W.2d 331, 1991 Tex. App. LEXIS 3070, 1991 WL 263113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conaway-v-chambers-texapp-1991.