Dorotha Hutchinson as Next Friend of Rela Mae Kuhl v. Dr. Ned Snyder, III and Molly G. Snyder-Williams, as Administrators for the Estate of Dr. Ned Snyder, Jr.

• Court: Court of Appeals of Texas
• Decided: December 14, 2006
• Docket: 11-05-00294-CV
• Status: Published

Opinion

Opinion filed December 14, 2006

Opinion filed December 14, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-05-00294-CV

                                                    __________

                      DOROTHA HUTCHINSON AS NEXT FRIEND OF

RELA MAE KUHL, Appellant

                                                             V.

             DR. NED SNYDER, III AND MOLLY G. SNYDER-WILLIAMS

AS ADMINISTRATORS FOR THE ESTATE OF

DR. NED SNYDER, JR., Appellees

                                          On Appeal from the 35th District Court

                                                          Brown County, Texas

                                                Trial Court Cause No. 01-10-556

                                              M E M O R A N D U M   O P I N I O N

This is an appeal from a take-nothing summary judgment based upon limitations.  Defendants Dr. Ned Snyder, III and Molly G. Snyder-Williams as Administrators for the Estate of Dr. Ned Snyder, Jr. moved for summary judgment based upon the two-year statute of limitations applicable to health care liability claims.  See former Tex. Rev. Civ. Stat. art. 4590i, ' 10.01 (1997), (repealed  August 31, 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. ' 74.251(a) (Vernon 2005)).  The trial court granted the motion and entered judgment that Dorotha Hutchinson as next friend of Rela Mae Kuhl take nothing on her claims.  We affirm. 

Hutchinson presents three points of error challenging the propriety of the summary judgment.  We will apply the well-recognized standard of review for summary judgment.  A trial court must grant a traditional motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991).  Once the movant establishes a right to a summary judgment, the nonmovant must come forward with evidence or law that precludes summary judgment.  City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678‑79 (Tex. 1979).  When reviewing a summary judgment, the appellate court takes as true evidence favorable to the nonmovant.  Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548‑49 (Tex. 1985).

In the first point, Hutchinson contends that the defendants failed to accurately identify a date of accrual and that limitations had not expired under the Acourse of treatment@ doctrine.  Pursuant to former Article 4590i, section 10.01, a health care 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 or hospitalization is completed.  The two-year limitations period applies to all persons regardless of minority or other legal disability.  The supreme court has determined that Article 4590i, section 10.01 Ameasures the limitations period for medical negligence claims from one of three dates:  (1) the occurrence of the breach or tort, (2) the last date of the relevant course of treatment, or (3) the last date of the relevant hospitalization.@  Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001).  A plaintiff may not choose the most favorable date that falls within former Article 4590i, section 10.01=s three categories.  Id.; Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998).  Rather, if the date of the tort is ascertainable, limitations must begin on that date B making further inquiry into the second and third categories unnecessary.  Shah, 67 S.W.3d at 841; Earle v. Ratliff, 998 S.W.2d 882, 886 (Tex. 1999); Husain, 964 S.W.2d at 919.

The record shows that the original petition was filed on October 22, 2001.  The summary judgment evidence indicates that Dr. Snyder, Jr. treated Kuhl while she was a resident in a nursing home.  According to the expert report of Donald K. Ellis, DO, Kuhl was a patient of Dr. Snyder from November 13, 1992, through September 15, 1999.  Dr. Ellis concluded that Dr. Snyder=s care of Kuhl fell below the acceptable standards of care in that he failed to diagnose and treat Kuhl=s diabetes mellitus until June 29, 1999, when Kuhl was hospitalized.  According to Dr. Ellis, Dr. Snyder=s negligent care caused Kuhl to have to undergo bilateral leg amputations.  Dr. Ellis opined that Kuhl had diabetes mellitus by May 1995 and that, based upon Kuhl=s glucose and triglyceride levels, Dr. Snyder should have ordered a diabetic workup and thereby diagnosed Kuhl=s condition years earlier than he did.  Dr. Ellis=s report does not indicate that Dr. Snyder=s negligence continued beyond the June 29, 1999 date of diagnosis.

Hutchinson filed a response to the motion for summary judgment and attached the affidavit of Dana L. Berger, RN.  In her affidavit, Berger suggested that Kuhl continued to receive substandard care from Dr. Snyder in his treatment of her diabetes after it was diagnosed.  However, we may not consider Berger=s affidavit as summary judgment evidence because the trial court sustained the defendants= objections to each paragraph of that affidavit.  Hutchinson does not complain on appeal that the trial court=s ruling with respect to Berger=s affidavit was erroneous.

Relying on the supreme court=s opinion in Husain, we hold that the summary judgment evidence in this case shows that the date of the tort is readily ascertainable.  Dr. Ellis=s affidavit indicates that the diagnosis of diabetes mellitus was made on June 29, 1999, and that treatment began on that date; it does not indicate that any negligence occurred beyond that date.  Thus, the last date that Dr. Ellis could have failed to diagnose or treat Kuhl=s diabetes was on June 29, 1999.  The original petition in this case was filed on October 22, 2001 B more than two years and 75 days^[1] after June 29, 1999.  Therefore, the trial court correctly determined that limitations barred the commencement of suit in this case.  Hutchinson=s first point of error is overruled.

In her second point, Hutchinson contends that the application of the two-year statute of limitations as applied in this case is unconstitutional under the open courts doctrine.  Tex. Const. art. I, ' 13.  Hutchinson asserts that Kuhl=s mental incompetence throughout her treatment by Dr. Snyder makes the application of limitations unconstitutional.

When a plaintiff/nonmovant relies upon the open courts doctrine to avoid the application of the statute of limitations, the plaintiff/nonmovant must raise a fact issue with respect to the open courts doctrine.  Shah, 67 S.W.3d at 846-47; Earle, 998 S.W.2d at 889.  The record shows that Hutchinson pleaded the open courts doctrine in her amended petitions.  The record also shows, however, that Hutchinson did not rely on or mention the open courts doctrine in her response to the defendants= motion for summary judgment.  A nonmovant must expressly present any reasons for avoiding the movant=s right to summary judgment.  McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); Clear Creek Basin, 589 S.W.2d at 678.  Rule 166a(c) specifically provides that A[i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.@  Consequently, pursuant to Rule 166a(c), we may not consider Hutchinson=s contention regarding the open courts doctrine.  Hutchinson=s second point of error is overruled.

In her final point, Hutchinson contends that the trial court erred in granting summary judgment based upon the alleged failure to timely serve the defendants.  We need not consider the merits of this point of error as we have assumed that service of the original petition upon the defendants was timely.  See Tex. R. App. P. 47.1.

The judgment of the trial court is affirmed. 

AUSTIN McCLOUD

SENIOR JUSTICE

December 14, 2006

Panel consists of:  McCall, J.,

Strange, J., and McCloud, S.J.^[2]

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^[1]Limitations is tolled for 75 days when proper notice of the claim is given.  See former Tex. Rev. Civ. Stat. art. 4590i, ' 4.01(c) (1997) (repealed August 31, 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. ' 74.051 (Vernon 2005)) . There was summary judgment evidence showing that such notice was given in this case.

^[2]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.