De Checa v. Diagnostic Center Hospital, Inc.

852 S.W.2d 935, 1993 WL 101874
CourtTexas Supreme Court
DecidedJune 16, 1993
DocketD-2761
StatusPublished
Cited by69 cases

This text of 852 S.W.2d 935 (De Checa v. Diagnostic Center Hospital, Inc.) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
De Checa v. Diagnostic Center Hospital, Inc., 852 S.W.2d 935, 1993 WL 101874 (Tex. 1993).

Opinions

OPINION

CORNYN, Justice.

This case comes to us on certified questions from the United States Court of Appeals for the Fifth Circuit. The questions require interpretation of the notice and limitations provisions of the Texas Medical Liability and Insurance Improvement Act (the Act).1 Specifically, we are asked: 1) whether notice of a health care liability claim2 to one health care provider tolls the statute of limitations for seventy-five days for all health care providers against whom a claim is timely asserted, 2) whether a claim is barred when notice is served within two years and seventy-five days but suit is not filed for sixty days, placing the commencement of litigation outside the extended limitations period, 3) whether each health care provider sued is entitled to a separate sixty-day presuit negotiation period, and 4) whether a claim may be abated, due to the failure to provide timely notice, beyond the two year and seventy-five day extended limitations period. For the following reasons, we answer each of these questions in the affirmative.

In the underlying suit, Robert Canavati’s surviving spouse and children alleged medi[937]*937cal malpractice by various health care providers. Only the allegations against Drs. Burbridge, Bumazian, and Davis are at issue here. The United States District Court for the Southern District of Texas found that the physicians were protected by the two-year statute of limitations and thus granted summary judgment in their favor.3 Determining that key issues dis-positive of the case are unsettled under Texas precedent, the Fifth Circuit certified these questions to us. De Checa v. Diagnostic Center Hosp., Inc., 967 F.2d 126 (5th Cir.1992), certified questions accepted, 36 Tex.Sup.Ct.J. 57 (Oct. 17, 1992).

The parties stipulated that Robert Cana-vati’s treatment was completed and the statute of limitations began to run, at the latest, on September 25, 1986. Under section 10.01 of the Act, in the absence of any presuit notice by the Canavatis, the limitations period against all health care providers would have expired two years later on September 25, 1988. Sending notice within those two years, however, would have tolled the limitations period under section 4.01(c) for an additional seventy-five days, until November 24, 1988. The Canavatis served presuit notice of their claim on other health care providers who are not involved in this proceeding within two years of accrual. They served presuit notice on the physicians within two years and seventy-five days.

Section 4.01 requires that notice of a health care liability claim be sent to “each physician ... at least sixty days before the filing of a suit” and provides a seventy-five day tolling period, once timely notice is sent, as “to all parties and potential parties.” Tex.Rev.Civ.Stat.Ann. art. 4590i § 4.01(a), (c). The Canavatis contend that the notice of the claim they sent to the other defendants within two years of the claim’s accrual and more than sixty days before filing their lawsuit also tolled the statute of limitations for the physicians for seventy-five days. The physicians insist, however, that the Canavatis cannot take advantage of the tolling period. They argue that when a health care provider is served with notice of a claim, the tolling period is triggered for the recipient only. Thus, the physicians contend that the failure to notify them individually within the statutorily-prescribed period means that the suit against them was barred two years after the completion of Robert Canavati’s medical treatment.

The Canavatis argue that the term “potential parties” in section 4.01(c) refers to any health care providers against whom a health care liability claim is timely asserted. Under their interpretation, the physicians were “potential parties” at the time the Canavatis notified the other defendants; accordingly notice to the latter tolled the limitations period as to the former as well. In contrast, the physicians assert that the term “potential parties” in section 4.01(e) refers only to health care providers unknown to the claimant during the two-year limitations period. The physicians maintain that any other interpretation would allow a claimant deliberately to fail to notify a known health care provider who would eventually be sued.

We agree with the Canavatis. The “potential parties” language in subsection (c) means that notice to any health care provider under subsection (a) tolls the limitations period for seventy-five days as to all parties against whom a health care lia[938]*938bility claim is timely asserted. Roberts v. Southwest Texas Methodist Hosp., 811 S.W.2d 141, 148 (Tex.App.—San Antonio 1991, writ denied); Rhodes v. McCarron, 763 S.W.2d 518, 521-22 (Tex.App.—Amarillo 1988, writ denied).

Our legislature intended to enact a strict and predictable limitations period. See Morrison v. Chan, 699 S.W.2d 205, 208 (Tex.1985). We believe that the physicians’ interpretation would undermine the legislature’s intent. Their view that the term “potential parties” refers only to health care providers unknown to the claimant during the two-year limitations period would create a collateral fact issue regarding which defendants the claimant knew of and when such knowledge was acquired. This result is avoided by a simpler rule consistent with the words of the statute and legislative intent: notice to one serves to toll the limitations period for all.

The dissenting justices claim that our construction of the Act will entice patients to timely serve notice on one health care provider to obtain an initial seventy-five day tolling period, then to serve another defendant on the last day to obtain an additional tolling period and so on for all defendants in order to evade the statute of limitations. Our interpretation of the Act, however, does not allow for more than one tolling. See Rhodes, 763 S.W.2d at 521-22. When notice is sent to any health care provider within two years of the claim’s accrual, the limitations period for all defendants is tolled for seventy-five days.4 No claim, however, may ever be timely launched more than two years and seventy-five days after its accrual. For these reasons, we answer the first question in the affirmative.

Second, we are asked whether a claim is barred when notice is served within two years and seventy five days but suit is not filed for sixty days, placing the commencement of litigation outside the extended limitations period. The answer to this question is yes. Suit may never be filed outside the extended limitations period. If no notice of a claim is served at all, suit must be filed within two years of the claim’s accrual. If notice of a claim is served on any health care provider, suit must be filed within two years and seventy-five days of the claim’s accrual. Consequently, under exigent circumstances a plaintiff may be required to file suit before the sixty day presuit notice period elapses or file suit without tendering any notice to avert the expiration of the limitations period.

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852 S.W.2d 935, 1993 WL 101874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-checa-v-diagnostic-center-hospital-inc-tex-1993.