Morrison v. Chan

668 S.W.2d 483, 1984 Tex. App. LEXIS 5235

• Court: Court of Appeals of Texas
• Decided: March 22, 1984
• Docket: 2-83-050-CV
• Status: Published

Opinions

OPINION

JORDAN, Justice.

This appeal is from a summary judgment granted all defendants in the trial court in a medical malpractice case. The summary judgment was granted on the basis of the statute of limitations presently applicable in medical malpractice cases, TEX.REV. CIV.STAT.ANN. art. 4590i, sec. 10.01, Medical Liability And Insurance Improvement Act (Vernon Supp.1984).

We affirm.

Betty Gray, deceased, who received radium treatments for cervical cancer from appellee Dr. Rafael C. Chan from December 14, 1979 to February 18, 1980, developed urinary problems in late August, 1980, which her physician diagnosed as being caused by a hole between her bladder and her vagina. The hole between Mrs. Gray’s bladder and her vagina was discovered and diagnosed as a thinning of the bladder wall by her urologist in September of 1980, although an earlier examination in August of 1980 had not revealed the problem. Her bladder was later removed and she subsequently died.

Prior to her death, Gray sued all appel-lees for damages allegedly caused by negligence of appellees in the application of the radium treatment to her. All appellees answered that the suit was barred by the limitations statute applicable to medical malpractice claims, sec. 10.01 of art. 4590i (Vernon Supp.1984).

The following chronology clarifies the facts important to a resolution of the question of whether the statute of limitations bars Mrs. Gray’s suit:

12-14-79—Radiation treatment begun by Dr. Chan at Moncrief Radiation Center.

2-11-80—Last radiation treatment given by Dr. Chan.

2-13-80—Radiation treatment of 2-11-80 completed.

7-23-82—Dr. Chan received statutory notice of claim letter from Betty Gray.

10-6-82—Plaintiff’s original petition is filed (2 years, 8 months after the date of the last treatment by Dr. Chan).

The period of limitations in medical malpractice cases is determined by TEX.REV. CIV.STAT.ANN. art. 4590i, sec. 10.01 (Vernon Supp.1984), which provides:

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;

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Appellant contends that the notice of a claim required by sec. 4.01(a) of the Act may be given within two years from any of the following three events: (1) the occurrence of the breach; (2) the occurrence of the tort; (3) the date of completion of the health care treatment made the basis of the claim. It is undisputed that Gray’s notice of her claim was given more than two years from any breach of duty on the part of any of the appellees and more than two years from the date of completion of the treatment administered to her. However, it is appellant’s contention that the last of the three events to occur controls as to when the two-year period begins to run and that, in Mrs. Gray’s case, the last of the events was the “occurrence of the tort”.

Appellant argues that the tort in this case did not occur until late in August of 1980 when a hole developed in Mrs. Gray’s bladder because until that time, she had suffered no damage or injury sufficient to entitle her to seek a judicial remedy. Thus, appellant says, Gray’s notice to appellees, filed within two years from August of 1980, was timely and her suit is not barred by the limitation statute.

We disagree with appellant’s contention. Initially, we note that appellant’s argument assumes that only the actual development of the hole in Mrs. Gray’s bladder constituted sufficient damage and that the hole did not develop until August of 1980. We find no basis in the record for the assertion that the hole did not come into existence until August, 1980. Nor do we accept appellant’s arbitrary designation of the development of the hole in the bladder as the point at which “legally cognizable damage” occurred to Mrs. Gray.

Second, and most importantly, we interpret the language of art. 4590i, sec. 10.01 to mean that there are two times or events from which limitations begin to run on a health care claim: (1) from the date of the occurrence of the breach or tort; or, (2) from the date of completion of the medical or health care treatment (or hospitalization) made the basis of the claim. Under this interpretation of the statute, the terms “breach” or “tort” are used to designate the act or omission on which the claim is founded and not, as appellant would have us hold, the accrual of a right to a judicial remedy.

We believe this interpretation of the statute to be the more reasonable because by using the occurrence of a more readily ascertainable act or omission, rather than the nebulous concept of accrual of legally cognizable damage or accrual of a cause of action, the statute clarifies the determination of the time from which limitations begin to run on a health care claim. The inclusion in sec. 10.01 of the date of completion of treatment operates to extend the time before limitations commence to run in the situation where a patient receives treatment over an extended period of time, thus relieving the claimant of the burden of ascertaining the precise date during the treatment on which the negligent act or omission occurred. In our opinion, this extension of time was the only such extension contemplated by the statute; to engraft another would contravene the purpose of the Act.

The purpose of the Legislature in enacting the Medical Liability And Insurance Improvement Act was, as stated in sec. 1.02 of the Act, to alleviate a medical malpractice insurance crisis in the State of Texas caused by increased health care liability claims and judgments and the inordinate rise in the cost of medical malpractice insurance rates. The limitations statute, enacted by the Legislature, adopted an absolute two-year period which begins to run, at the latest, when the treatment upon which the claim is based is completed. Such an absolute and readily calculable period of limitations furthers the legislative purpose of alleviating the “medical malpractice insurance crisis.” The only court-made exception to this absolute time period which has been recognized to date exists where there is fraudulent concealment on the part of the health care provider. See Borderlon v. Peck, 661 S.W.2d 907, 909 (Tex.1983). There is no contention here of the applicability of estoppel based on fraudulent concealment.

We hold that appellant’s health care claim against all appellees was barred under sec. 10.01 and accordingly, we overrule appellant’s first point of error.

In the second point of error appellant contends that art. 4590i, sec. 10.01 is unconstitutional as a denial of due process of law. In Nelson v. Krusen, Tex., — S.W.2d — (Nov. 19, 1983), the Supreme Court upheld the constitutionality of the predecessor provision of art. 4590i, art. 5.82 of the Insurance Code as against the same attack raised here by appellant. The second point of error is overruled.

Dissent by HILL, joined by HUGHES, JJ. BURDOCK, J., not participating.