Jennings v. Burgess

917 S.W.2d 790, 39 Tex. Sup. Ct. J. 369, 1996 Tex. LEXIS 24, 1996 WL 99891
CourtTexas Supreme Court
DecidedMarch 7, 1996
Docket95-0852
StatusPublished
Cited by137 cases

This text of 917 S.W.2d 790 (Jennings v. Burgess) 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
Jennings v. Burgess, 917 S.W.2d 790, 39 Tex. Sup. Ct. J. 369, 1996 Tex. LEXIS 24, 1996 WL 99891 (Tex. 1996).

Opinions

BAKER, Justice,

delivered the opinion of the court

in which PHILLIPS, Chief Justice, and HECHT, CORNYN, ENOCH, SPECTOR, OWEN and ABBOTT, Justices, join.

This is a medical malpractice case. Mary and Jimmie Burgess sued Dr. Jerry D. Jennings, Dr. A. Bryant Manning and two health insurance companies for negligent treatment of a basal cell carcinoma. The trial court granted Jennings a summary judgment based on limitations grounds. The trial court severed the Burgesses’ claim against Jennings from their claims against the other defendants, and the Burgesses appealed the unfavorable summary judgment.

The Burgesses sued Jennings in the trial court on several grounds. However, on appeal, the Burgesses only challenged the trial court’s holding that limitations applied to their claim that Jennings negligently referred Mary Burgess to Manning, another general practitioner, rather than to a specialist as she requested. On this issue, the court of appeals reversed the trial court’s judgment and remanded the cause for trial. 903 S.W.2d 388. The court of appeals held that the Texas Constitution’s open courts provision prevented the absolute two-year statute of limitations from applying to Mary Burgess’ claim against Jennings. The court of appeals did not consider Jennings’ claim that [792]*792even if the open courts provision applied, the Burgesses did not file suit within a reasonable time after discovery of the alleged malpractice. The court of appeals held that because Jennings raised this argument for the first time in his reply to the Burgesses’ response, and did not raise it in his motion for summary judgment, he did not properly present the argument to the trial court and the court of appeals could not consider it.

We disagree with the court of appeals. We hold that the open courts provision does not apply in this case, and that limitations bars the Burgesses’ claim against Jennings. Therefore, we need not consider the court of appeals’ holding that Jennings did not properly present his claim that the Burgesses did not file suit within a reasonable time. We reverse the court of appeals’ judgment and render judgment that the Burgesses take nothing from Jennings.

BACKGROUND FACTS

On March 3, 1989, Jennings diagnosed a nasal lesion on Mary Burgess as a basal cell carcinoma. After the initial diagnosis, Jennings did not examine or treat the lesion. Instead, he referred Mary to Manning, a general practitioner.

Manning first treated the lesion on March 3, 1989, and continued to treat the condition for over two years. On May 3, 1991, Manning advised Mary to consult a specialist and referred her to Dr. James W. Ward, a plastic surgeon. Ward examined Mary on May 7, 1991. He discovered that the cancer had invaded her nose. Ward performed surgery on Mary’s nose in June 1991.

Mary admits she intended to pursue a claim against Jennings and Manning in June 1991. She wrote Ward on July 15, 1991 and requested that he forward all records about the alleged mismanagement of her condition to her attorney. The Burgesses notified Dr. Jennings of their claim on March 3,1993, and filed suit on May 13,1993.

PROCEDURAL HISTORY

A. The Trial Court

In the trial court, the Burgesses alleged that Jennings negligently treated Mary because he did not protect her against the cancer’s continuing invasion of her nose. They further alleged that Jennings was negligent because he did not biopsy the lesion on each occasion Jennings treated Mary. However, the record shows that Jennings did not treat Mary for the nasal lesion after the initial examination and referral to Dr. Manning. The Burgesses’ remaining allegation, and the essence of their claim, is that Jennings was negligent because he did not refer Mary to the appropriate specialists to treat the cancer properly.

The trial court granted Jennings a summary judgment on limitations grounds. The trial court severed the summary judgment from the Burgesses’ other claims. The Bur-gesses appealed the adverse summary judgment.

B. The Court of Appeals

The court of appeals considered the applicable limitations statute and concluded that it barred the action. However, the court of appeals also concluded that the open courts provision prevented application of the absolute two-year limitations period. The court of appeals held that the open courts provision applied because the Burgesses did not discover the alleged negligent referral until May 1991, after the two-year period had expired. The court of appeals found that Jennings’ motion for summary judgment and reply to the Burgesses’ response did not properly present the issue of whether the Burgesses filed suit within a reasonable time after they discovered the alleged negligent referral. Consequently, the court of appeals held that the Burgesses raised fact issues suspending limitations, and Jennings did not conclusively negate those fact issues to show his entitlement to summary judgment. The court of appeals reversed the trial court’s summary judgment and remanded the case for trial.

APPLICABLE LAW

A. Summary Judgment

We follow well known standards when we review a summary judgment. See Sysco [793]*793Food Serv., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

A party moving for summary judgment on the basis of limitations must conclusively establish the bar of limitations. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983); Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975). If the nonmovant asserts that a tolling provision applies, the movant must conclusively negate the tolling provision’s application to show his entitlement to summary judgment. See Zale Corp., 520 S.W.2d at 891; Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 n. 2 (Tex.1988).

B. Medical Malpractice-Limitations

Article 4590i, section 10.01 governs medical malpractice claims. This section provides that notwithstanding any other law, a person may not bring a health care liability claim unless the person files the action within two years from the occurrence of the tort. See Tex.Rev.Civ.StatAnn. art. 4590i, § 10.01 (Vernon Supp.1996). A person may extend the two-year period for seventy-five days by giving notice of a claim under section 4.01 of article 4590L See Tex.Rev.Civ.StatAnn. art. 4590i, § 4.01 (Vernon Supp.1996).

When the precise date of the tort is known, the statutory two-year period begins on that date. See Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987). The statute imposes an absolute two-year statute of limitations regardless of when an injured party learns of the injuries. See Morrison v. Chan, 699 S.W.2d 205

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Bluebook (online)
917 S.W.2d 790, 39 Tex. Sup. Ct. J. 369, 1996 Tex. LEXIS 24, 1996 WL 99891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jennings-v-burgess-tex-1996.