Sandra Larson v. Medical City Hospital Fort Worth

Opinion

In the

Court of Appeals

Second Appellate District of Texas at Fort Worth

___________________________

No. 02-25-00674-CV

___________________________

SANDRA LARSON, Appellant

V.

MEDICAL CITY HOSPITAL FORT WORTH, Appellee

On Appeal from County Court at Law No. 3 Tarrant County, Texas

Trial Court No. 2024-004599-3

Before Sudderth, C.J.; Womack and Walker, JJ.

Memorandum Opinion by Justice Womack

MEMORANDUM OPINION

I. INTRODUCTION

In this health care liability case arising from medical care provided to her husband, Appellant Sandra Larson appeals the trial court’s order granting Appellee Medical City Fort Worth’s1 traditional motion for summary judgment based on the statute of limitations. Larson’s sole appellate issue contends that fraudulent concealment barred Medical City’s motion. Because Larson never raised the fraudulent concealment defense before the trial court and because the statute of limitations bars her claims, we will affirm.

II. BACKGROUND

A. Larson sues Medical City and a doctor for her husband’s improper wound care treatment.

Larson, proceeding pro se, filed her lawsuit on June 21, 2024, against Medical City and Antonio Castaneda M.D.2 As pleaded by Larson, “[o]n or around April 16, 2022,” her husband was in Medical City “due to complications from hernia surgery

Appellee’s answer and motion for summary judgment both state that its 1

correct name is “Columbia Plaza Medical Center of Fort Worth Subsidiary, L.P. d/b/a Medical City Fort Worth.”

2 Castaneda answered and moved to dismiss the claims against him for failure to file a Chapter 74 expert report. See Tex. Civ. Prac. & Rem. Code § 74.351(a) (requiring a health care liability claimant to serve expert reports “for each physician or health care provider against whom a liability claim is asserted”). The trial court dismissed the claims against Castaneda on December 10, 2024. The doctor is not a party to this appeal.

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which le[]d to a massive infection.” Larson alleged that, although her husband was being treated with a wound vac, the medical staff was not trained on its use and the “procedure was done wrong which created more infection and [caused] the wound to increase in size.” She complained that the “hospital and the doctor Castaneda did not see to it that trained staff on the wound vac were available or on call” and that Castaneda failed to contact her after the “wound vac situation.” Larson sought a “money award” and judgment against Medical City and Castaneda.

B. Medical City moves for summary judgment based on the statute of limitations.

Medical City answered, asserting a general denial and affirmative defenses, including the statute of limitations “as contained in [Section] 74.251 of the Texas Civil Practice and Remedies Code.” After discovery, Medical City moved for summary judgment based on limitations, stating that all claims were barred because Larson “waited two months after the statute of limitations to file suit.”3 As summary judgment evidence, Medical City attached medical records for Larson’s husband, Plaintiff’s Original Petition, Medical City’s First Amended Answer, and Larson’s

3 Medical City’s motion asserted that there was no seventy-five day tolling of the statutory two-year limitations period because “[p]re-suit notice of the claim and a medical authorization were never given in this matter.” See Tex. Civ. Prac. & Rem. Code § 74.051(c) (stating that “[n]otice given as provided in this chapter shall toll the applicable statute of limitations to and including a period of 75 days following the giving of the notice”).

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deposition.4 Medical City contended that the “absolute latest day that the tort could have occurred would have been the date of discharge from Medical City.” As reflected in the medical records, the discharge date was April 22, 2022.

C. Larson responds to the motion for summary judgment, arguing only that a “continuous course of treatment” extended limitations.

After the trial court set a hearing date on the motion for summary judgment, Larson filed an “opposition” to the motion, arguing that her husband had undergone a “continuous course of treatment” that lasted “at least until June 21, 2022.” Medical City filed objections and a reply to the response.

At the hearing, the trial court granted Medical City’s motion for summary judgment and signed an order dismissing all claims brought against it with prejudice. Larson appealed from that order.

III. DISCUSSION

In her sole issue, Larson asks “[w]hether summary judgment was improper where concealment and withheld records prevented discovery of negligence.” Medical City responds that this issue was “never raised or argued at the trial court” and was therefore waived. Even if it was not waived, Medical City asserts that the appellate record “does not allow an argument of fraudulent concealment” and that the

4 While Medical City referenced portions of Larson’s deposition in its summary judgment motion, the pages attached to the motion that supposedly contained her deposition are blank. However, those pages are not necessary to our disposition of this appeal. See Tex. R. App. P. 47.1.

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trial court properly granted summary judgment because Larson’s claims were not filed within the applicable two-year statute of limitations. We agree with Medical City. A. Standard of Review We review a summary judgment de novo. Weekley Homes, LLC v. Paniagua, 691 S.W.3d 911, 915 (Tex. 2024); Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). With respect to a traditional motion for summary judgment, the movant has the burden to demonstrate that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);5 Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). For a traditional motion for summary judgment, the movant satisfies its burden by conclusively negating at least one element of the nonmovant’s cause of action or proving all elements of the movant’s cause of action or affirmative defense. See Tex. R. Civ. P. 166a(a), (c); Stanfield v. Neubaum, 494 S.W.3d 90, 96 (Tex. 2016).

When a summary judgment movant has met its burden, the burden then shifts to the nonmovant to raise a fact issue to defeat summary judgment. Stanfield, 494 S.W.3d at 97. This burden requires the nonmovant to specifically identify the supporting proof it seeks to have considered by the trial court and explain why it

5 The Texas Supreme Court amended Rule 166a, effective March 1, 2026. See Sup. Ct. of Tex., Final Approval of Amendments to Rule 166a of the Texas Rules of Civil Procedure, Misc. Docket No. 26-9012 (Feb. 27, 2026). But the “amendments apply only to a motion for summary judgment filed on or after March 1, 2026,” id., so they are inapplicable here. All references to Rule 166a in this opinion are to the rule in effect prior to March 1, 2026.

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demonstrates a fact issue exists. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); see Lufkin Mall Realty Holding LLC v. Lufkin Inv. Partners LLC, 721 S.W.3d 629, 634 (Tex. App.—Tyler 2025, no pet.).

When reviewing a traditional motion for summary judgment, we consider the evidence presented in the light most favorable to the nonmovant. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant is entitled to summary judgment on a statute-of-limitations affirmative defense if it conclusively establishes the defense as a matter of law and conclusively negates any properly raised tolling doctrine. Jordan v. Heitkamp, No. 02-25-00190-CV, 2025 WL 3181154, at *3 (Tex. App.—Fort Worth Nov. 13, 2025, no pet.) (mem. op.); see First Sabrepoint Cap. Mgmt., L.P. v. Farmland Partners Inc., 712 S.W.3d 75, 84 (Tex. 2025) (“To establish entitlement to summary judgment based on an affirmative defense . . . the defendant must conclusively establish each element of its affirmative defense.”); Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010); see also Tex. R. Civ. P. 166a(b), (c). B. Analysis 1. Documents Attached to Larson’s Brief At the outset, we note that Larson has attached documents to her brief that do not appear in the appellate record. The appellate record consists of the clerk’s record and, if necessary to the appeal, the reporter’s record. Tex. R. App. P. 34.1; see In re

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G.K., No. 02-25-00420-CV, 2025 WL 3558969, at *4 (Tex. App.—Fort Worth Dec. 11, 2025, no pet.) (mem. op.). “An appellate court is required to consider a case solely on the appellate record (citing of the clerk’s record and the reporter’s record), and it cannot consider documents attached to briefs as exhibits or appendices.” Petrov v. Will-Brooks Inv, LLC, No. 11-24-00112-CV, 2026 WL 1593650, at *3 (Tex. App.— Eastland June 4, 2026, no pet. h.) (mem. op.); see Warriner v. Warriner, 394 S.W.3d 240, 254 (Tex. App.—El Paso 2012, no pet.) (stating that documents attached to a brief as an exhibit or an appendix, but not appearing in the record, could not be considered on appellate review); see also Quorum Int’l v. Tarrant Appraisal Dist., 114 S.W.3d 568, 572 (Tex. App.—Fort Worth 2003, pet. denied) (“We cannot look outside the record in an effort to discover relevant facts omitted by the parties; rather, we are bound to determine this case on the record as filed.”).

Attaching documents to briefs as exhibits does not make them part of the appellate record. Petrov, 2026 WL 1593650, at *3. Accordingly, we do not consider the documents attached to Larson’s brief that are not part of the appellate record. See Leal v. Lopez, No. 11-24-00015-CV, 2025 WL 1335315, at *5 (Tex. App.—Eastland May 8, 2025, pet. denied) (mem. op.) (“[B]ecause the appendix and its inclusions attached to [Appellant’s] appellate brief are not part of the appellate record, we cannot and do not consider them.”); Bell v. State for S.E.G., 659 S.W.3d 21, 24 (Tex. App.—El Paso 2021, pet. denied) (stating that because the attachment of documents as exhibits

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or appendices to briefs is not a formal inclusion in the record on appeal, the documents attached to appellant’s brief could not be considered).

2. The Statute of Limitations We first address when Larson’s health care liability claims accrued. Such claims in Texas are governed by the Texas Medical Liability Act (TMLA). See Tex. Civ. Prac. & Rem. Code §§ 74.001–.551; Rogers v. Bagley, 623 S.W.3d 343, 349 (Tex. 2021) (setting out the elements of a health care liability claim). The TMLA lists potential triggering events for the two-year limitations period:

[N]o 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 . . . .

Tex. Civ. Prac. & Rem. Code § 74.251(a) (emphasis added); see Aldaco v. Wood, No. 24- 1069, 2026 WL 1838585, at *2 (Tex. June 26, 2026); see also Flanigan v. Nekkalapu, 613 S.W.3d 361, 364 (Tex. App.—Fort Worth 2020, no pet.) (stating that health care liability claims are subject to a two-year limitations period that commences on one of three dates: (1) the date the breach occurred, (2) the last date of treatment, or (3) the last date of hospitalization).

Despite the alternative dates, the Texas Supreme Court has made the following principles clear:

• “A plaintiff may not choose the most favorable date that falls within [the] three categories”;

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• “[I]f the date the alleged tort occurred is ascertainable, limitations must begin on that date”; and

• “[I]f the date is ascertainable, further inquiry into the second and third categories is unnecessary.”

Pignano v. Cash, No. 02-21-00168-CV, 2022 WL 60737, at *6 (Tex. App.—Fort Worth Jan. 6, 2022, pet. denied) (mem. op.) (quoting Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001)). Section 74.251(a) contains no discovery rule, and the statute of limitations begins to run from the dates specified in the statute, irrespective of the claimant’s delayed knowledge that a departure from the standard of care has occurred. Id. While the supreme court in Shah recognized that there may not be an exact date of accrual if a patient is subject to a course of treatment, that is the exception rather than the rule. Id. at *7; see Shah, 67 S.W.3d at 841 (“[I]f the defendant committed the alleged tort on an ascertainable date, whether the plaintiff established a course of treatment is immaterial because limitations begins to run on the ascertainable date.”).

Here, Medical City’s motion asserted that Larson “could not pinpoint the exact day during the hospitalization when the alleged negligence occurred” but that she “believe[d] it occurred on Saturday April 2 or 9, 2022.” However, according to the motion, the “absolute latest day that the tort could have occurred would have been the date of discharge from Medical City,” which was April 22, 2022. Medical City attached Larson’s husband’s discharge summary, which confirmed that his discharge date was April 22, 2022.

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In her response to the motion, Larson argued that “the issue here is the completion date of the treatment that is the subject of this claim.” Larson asserted that her husband received “continuous wound care” from the date of admission and was “overseen by Dr. Muhammad A. Khan . . . and Dr. Antonio Castaneda.” According to Larson, her husband “was under the care of Dr. Khan specifically to treat the wound from a previously botched surgery at least until June 21, 2022.” Larson referenced the bottom of a partial document she attached to her response that showed that Khan dictated and electronically signed it on June 20, 2022.6 Therefore, she argued that her filing on June 21, 2024, was timely. Consistent with the records attached to Medical City’s motion, other medical records attached to Larson’s response showed that her husband was discharged on April 22, 2022.

Medical City filed an objection and reply, arguing that Larson’s response was untimely and should not be considered by the trial court, as it was filed four days before the hearing. See Tex. R. Civ. P. 166a(c) (stating that, except on leave of court, the response must be filed “not later than seven days prior to the day of hearing”). In addition, Medical City objected that the documents attached to the response were “improper and inadmissible hearsay.” Specifically, it noted that the partial page of the document showing that Khan had dictated and electronically signed it did not show

6 It is unclear why Larson argued that June 21, 2022, was the last date of treatment when the partial document she referenced was dictated and signed on June 20, 2022.

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that it pertained to Larson’s husband, did not state where the care took place, and “appear[ed] to be a screen shot of a document that is inadmissible hearsay.”

The trial court’s order did not contain a ruling on the objections. Rather, it simply granted Medical City’s motion and ordered that all of Larson’s claims against Medical City were dismissed with prejudice.

As noted above, the third provision of Section 74.251(a) permits the limitations period to run from the date “the hospitalization for which the claim is made is completed.” See Tex. Civ. Prac. & Rem. Code § 74.251(a). The purpose of the three- date scheme is “to aid the plaintiff who had difficulty ascertaining a precise date on which his injury occurred, specifically in circumstances where the claim arose from a course of treatment or a period of hospitalization that extended for a period of time.” Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987); see Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998) (“In such a situation, the statute resolves doubts about the time of accrual in the plaintiff’s favor by using the last date of treatment or hospitalization as a proxy for the actual date of the tort.”).

Applying these principles here, the uncontradicted summary judgment evidence established that the date of discharge—April 22, 2022—was the last day that Larson’s husband could have received treatment from Medical City. While not alleging a specific date, Larson’s pleadings stated that her husband’s injuries occurred sometime during hospitalization due to the improper use of a wound vac. Therefore, the latest possible date that Larson’s causes of action could have accrued was April 22, 2022.

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See Tex. Civ. Prac. & Rem. Code § 74.251(a); see also Shield v. Bio-Synthesis, Inc., No. 02- 21-00160-CV, 2022 WL 2840111, at *4 (Tex. App.—Fort Worth July 21, 2022, no pet.) (mem. op.) (“[W]e assume without deciding, for purposes of determining the accrual date, that the facts came into existence on the latest possible date . . . .”); Patrick v. Howard, 904 S.W.2d 941, 944 n.4 (Tex. App.—Austin 1995, no writ) (“For simplicity, we analyze the limitations issue using the latest possible date.”).

While Larson attached as summary judgment evidence a partial document showing it was dictated and electronically signed by Khan on June 20, 2022, there was no evidence showing that this document related to Larson’s husband’s care or that Khan’s alleged treatment related to the claims Larson made against Medical City. In fact, Larson’s pleadings did not mention Khan’s name.

Here, in order for Larson’s claims to be timely under Section 74.251(a), Larson needed to file suit against Medical City no later than April 22, 2024. See Tex. Civ. Prac. & Rem. Code § 74.251(a). However, Larson filed her suit on June 21, 2024, almost two years and two months after the last date of hospitalization. Therefore, the statute of limitations bars Larson’s claims unless a tolling provision applies. See Jordan, 2025 WL 3181154, at *5.

3. Fraudulent Concealment On appeal, Larson argues that summary judgment was improper because Medical City “withheld critical records” that “were not merely incomplete but contained information central to understanding the nature and extent of the

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deficiencies in care.” She contends that the records “showed critical deficiencies in care—specifically, the absence of weekend wound care staffing and repeated wound [vac] failures” and that the “concealment directly impacted [her] ability to timely assert her claims.” Medical City responds that Larson waived this argument because she did not raise it below in her response to its summary judgment motion. We agree.

The fraudulent concealment doctrine is an affirmative defense to the statute of limitations. Markwardt v. Tex. Indus., Inc., 325 S.W.3d 876, 894 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 749 (Tex. 1999)). Once a defendant has conclusively established the affirmative defense of limitations, the burden shifts to the plaintiff to produce evidence of a defendant’s fraudulent concealment. Jordan, 2025 WL 3181154, at *5. Fraudulent concealment is “a fact-specific, estoppel counter-defense to an assertion of limitations with four elements: (1) actual knowledge that a wrong occurred, (2) a fixed purpose to conceal the wrong, (3) that the wrong was in fact concealed, and (4) the plaintiff’s reasonable reliance on the facts upon which fraudulent concealment is premised.” Id.

Importantly, “a party asserting fraudulent concealment . . . has the burden to raise it in response to the summary judgment motion and to come forward with summary judgment evidence raising a fact issue on each element of the fraudulent concealment defense.” KPMG, 988 S.W.2d at 749; see Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer[,] or other

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response shall not be considered on appeal as grounds for reversal.”). Larson did not plead fraudulent concealment, nor did she raise the issue in response to Medical City’s motion for summary judgment. See Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1988) (“A defendant who has established that the suit is barred cannot be expected to anticipate the plaintiff’s defenses to that bar. A matter in avoidance of the statute of limitations that is not raised affirmatively by the pleadings will, therefore, be deemed waived.”). While Larson contends in her reply brief that she “requested complete Medical City records, complained that the records produced were incomplete, and sought court assistance to obtain the missing records,” her summary judgment response said nothing about missing or incomplete records. Therefore, we conclude that by failing to raise the issue before the trial court, Larson waived any fraudulent concealment defense to the statute of limitations. See Phillips v. Sharpstown Gen. Hosp., 664 S.W.2d 162, 167 (Tex. App.—Houston [1st Dist.] 1983, no writ) (“No mention of fraudulent concealment was made in appellants’ response to appellees’ motion for summary judgment and, therefore, the issue has been waived.”).

Even if it had not been waived, the summary judgment evidence did not support the elements of fraudulent concealment. In fraudulent concealment cases, the burden is on the plaintiff to provide evidence of specific acts that demonstrate a defendant’s actual knowledge of a wrong and a fixed purpose to conceal it. See Scott v. Kant, No. 14-98-01025-CV, 2000 WL 330088, at *4 (Tex. App.—Houston [14th Dist.] Mar. 30, 2000, no pet.) (not designated for publication). Here, even if there was

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summary judgment evidence showing that Medical City failed to timely provide Larson a copy of her husband’s medical records, Larson offered no summary judgment evidence to establish that Medical City had actual knowledge that a wrong occurred or that there was any fixed purpose to conceal the wrong. See Casey v. Methodist Hosp., 907 S.W.2d 898, 903 (Tex. App.—Houston [1st Dist.] 1995, no writ) (holding that Casey failed to satisfy her burden to raise a fact issue regarding fraudulent concealment; “[a]lthough the affidavit [of Casey’s attorney] shows that Methodist [Hospital] failed to timely provide Casey with a copy of her medical records, it wholly fails to establish that Methodist had actual knowledge that a wrong occurred or there was any fixed purpose to conceal the wrong”); see also Burton v. Labor, No. 02-18-00179-CV, 2019 WL 237736, at *4 (Tex. App.—Fort Worth Jan. 17, 2019, no pet.) (mem. op.) (“Appellees’ delay in forwarding [Appellant’s] medical records does not show that Appellees actually concealed her healthcare-liability claim. . . . [A]ny delay in forwarding [Appellant’s] medical records is not evidence that Appellees had actual knowledge that a wrong occurred and had a fixed purpose to conceal it.”).

Because the summary judgment evidence conclusively established that Larson sued Medical City outside the TMLA’s two-year window and because the doctrine of fraudulent concealment did not toll the running of the statute of limitations, the trial court properly granted summary judgment for Medical City. See Jordan, 2025 WL 3181154, at *8. We overrule Larson’s sole issue.

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IV. CONCLUSION

Having overruled Larson’s sole issue, we affirm the trial court’s order granting Medical City’s motion for summary judgment.

/s/ Dana Womack

Dana Womack

Justice

Delivered: August 13, 2026