Neagle v. Nelson

Texas Supreme Court

Neagle v. Nelson

685 S.W.2d 11, 28 Tex. Sup. Ct. J. 215, 1985 Tex. LEXIS 728

CourtTexas Supreme Court

DecidedJanuary 30, 1985

DocketC-2576

StatusPublished

Cited by157 cases

This text of 685 S.W.2d 11 (Neagle v. Nelson) 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

Neagle v. Nelson, 685 S.W.2d 11, 28 Tex. Sup. Ct. J. 215, 1985 Tex. LEXIS 728 (Tex. 1985).

Pincite

Opinions

WALLACE, Justice.

This appeal presents an attack on the constitutionality of the limitations provision in the 1977 Medical Liability Act. Bobby Neagle filed this malpractice action against Dr. George C. Nelson, Dr. Roy J. Hotz and two nurses, Nancy S. Kieschnick and Linda N. White. He alleged that a surgical sponge had been left in his abdomen during an appendectomy in which the respondents had participated. Each respondent moved for summary judgment on the ground that [12]*12Neagle’s claim was barred by a two-year statute of limitations. TEX.REV.CIV. STAT.ANN. art. 4590i, § 10.01. The trial court granted their summary judgments and the court of appeals, with one justice dissenting, affirmed. 658 S.W.2d 258. We reverse the judgment of the court of appeals and remand this cause to the trial court.

Neagle’s appendectomy was performed on December 9, 1977, at the Kleberg County Hospital, Kingsville, Texas. He was discharged from the hospital one week later. Dr. Nelson last examined Neagle within a few weeks of his discharge; however, the other respondents did not see Neagle after his discharge from the hospital. Discovery of the sponge occurred in January, 1980, more than two years after the appendectomy, when, after feeling a mass in his abdomen, Neagle submitted to exploratory surgery.

Neagle alleged that the surgical sponge had been left in his abdomen during the operation and that it was impossible for him to discover the sponge until more than two years after the surgery. We presume for purposes of appellate review that Nea-gle’s allegations are true. See, Bayouth v. Lion Oil Co., 671 S.W.2d 867 (Tex.1984).

The action of the trial court in granting Nelson’s motion for summary judgment was based upon the two-year statute of limitations set forth in Art. 4590i, § 10.01. This statute 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; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided, this subchapter applies to all persons regardless of minority or other legal disability.

/"This statute purports to establish an abso-I lute two-year statute of limitations for L Neagle’s claim. In Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984), we held that TEX. INS.CODE ANN. art. 5.82, § 4 (repealed), predecessor to Art. 4590i, § 10.01, was unconstitutional insofar as it cut off a cause of action before the Nelsons could have known that their son had Duchenne Muscu-1 lar Dystrophy. We have likewise declared l unconstitutional that part of Art. 4.82, § 4 relating to minors. Sax v. Votteler, 648 S.W.2d 661 (Tex.1983). Both cases were decided on the basis of the open courts provision of the Texas Constitution. TEX. CONST. Art. I, § 13.

It. is Neagle’s contention that Art. 4590i, § 10.01, as applied to his cause of action, also violates the open courts provision. We r agree. The open courts provision of our Constitution protects a citizen, such as Neagle, from legislative acts that abridge his right to sue before he has a reasonable opportunity to discover the wrong and .bring suit.

We reverse the judgment of the court of appeals and remand this cause to the trial court.

GONZALEZ, J., not sitting.

Free access — add to your briefcase to read the full text and ask questions with AI

WALLACE, Justice.

This appeal presents an attack on the constitutionality of the limitations provision in the 1977 Medical Liability Act. Bobby Neagle filed this malpractice action against Dr. George C. Nelson, Dr. Roy J. Hotz and two nurses, Nancy S. Kieschnick and Linda N. White. He alleged that a surgical sponge had been left in his abdomen during an appendectomy in which the respondents had participated. Each respondent moved for summary judgment on the ground that [12]*12Neagle’s claim was barred by a two-year statute of limitations. TEX.REV.CIV. STAT.ANN. art. 4590i, § 10.01. The trial court granted their summary judgments and the court of appeals, with one justice dissenting, affirmed. 658 S.W.2d 258. We reverse the judgment of the court of appeals and remand this cause to the trial court.

Neagle’s appendectomy was performed on December 9, 1977, at the Kleberg County Hospital, Kingsville, Texas. He was discharged from the hospital one week later. Dr. Nelson last examined Neagle within a few weeks of his discharge; however, the other respondents did not see Neagle after his discharge from the hospital. Discovery of the sponge occurred in January, 1980, more than two years after the appendectomy, when, after feeling a mass in his abdomen, Neagle submitted to exploratory surgery.

Neagle alleged that the surgical sponge had been left in his abdomen during the operation and that it was impossible for him to discover the sponge until more than two years after the surgery. We presume for purposes of appellate review that Nea-gle’s allegations are true. See, Bayouth v. Lion Oil Co., 671 S.W.2d 867 (Tex.1984).

The action of the trial court in granting Nelson’s motion for summary judgment was based upon the two-year statute of limitations set forth in Art. 4590i, § 10.01. This statute 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; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided, this subchapter applies to all persons regardless of minority or other legal disability.

/"This statute purports to establish an abso-I lute two-year statute of limitations for L Neagle’s claim. In Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984), we held that TEX. INS.CODE ANN. art. 5.82, § 4 (repealed), predecessor to Art. 4590i, § 10.01, was unconstitutional insofar as it cut off a cause of action before the Nelsons could have known that their son had Duchenne Muscu-1 lar Dystrophy. We have likewise declared l unconstitutional that part of Art. 4.82, § 4 relating to minors. Sax v. Votteler, 648 S.W.2d 661 (Tex.1983). Both cases were decided on the basis of the open courts provision of the Texas Constitution. TEX. CONST. Art. I, § 13.

It. is Neagle’s contention that Art. 4590i, § 10.01, as applied to his cause of action, also violates the open courts provision. We r agree. The open courts provision of our Constitution protects a citizen, such as Neagle, from legislative acts that abridge his right to sue before he has a reasonable opportunity to discover the wrong and .bring suit.

We reverse the judgment of the court of appeals and remand this cause to the trial court.

GONZALEZ, J., not sitting.

Cite This Page — Counsel Stack

Bluebook (online)

685 S.W.2d 11, 28 Tex. Sup. Ct. J. 215, 1985 Tex. LEXIS 728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neagle-v-nelson-tex-1985.

Opinions

Related

Cite This Page — Counsel Stack