Thompson v. Community Health Investment Corp.

892 S.W.2d 440, 1995 Tex. App. LEXIS 438, 1995 WL 4706
CourtCourt of Appeals of Texas
DecidedJanuary 4, 1995
DocketNo. 05-94-00645-CV
StatusPublished
Cited by4 cases

This text of 892 S.W.2d 440 (Thompson v. Community Health Investment Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. Community Health Investment Corp., 892 S.W.2d 440, 1995 Tex. App. LEXIS 438, 1995 WL 4706 (Tex. Ct. App. 1995).

Opinion

BAKER, Justice.

This is a health care provider liability case. Appellants, Melissa Lay and Mary Johnson, contend the trial court erred in granting appellees a summary judgment based on the two-year statute of limitations. Appellants contend a fact question exists on limitations. We hold the appellants’ claim notice did not meet statutory requirements and did not effectively toll limitations. We affirm the trial court’s judgment.

FACTUAL BACKGROUND

Appellants and others sued appellees alleging that Youlanda Thompson died on September 21, 1990 because Colonial Hospital committed medical malpractice. Appellants and the other plaintiffs sent a claim notice dated September 14, 1992. They addressed the notice to Lee Brown, Colonial Hospital, 502 W. College, Terrell, Texas 75160. Appellants and the other plaintiffs sued appellees on October 28, 1992.

Appellees’ answer alleged the two-year statute of limitations as an affirmative defense. Appellees moved for summary judgment on the ground that limitations barred the claim. Appellees supported the motion with the affidavit of Linda K. Parsons, the appellees’ corporate secretary.

Appellants and the other plaintiffs responded to appellees’ motion for summary judgment. They supported their response with the affidavit of Susan Hurst, the secretary of the attorney representing appellants and the other plaintiffs.

The trial court considered appellees’ motion and summary judgment evidence and the plaintiffs’ response and summary judgment evidence. The trial court granted ap-pellees summary judgment.

APPLICABLE LAW

A. Summary Judgment— Standard of Review

When we review a summary judgment, we require the movant to show that no genuine issues of material fact exist and the movant’s entitlement to judgment as a matter of law. In deciding whether the summary judgment proof shows as a matter of law there is no genuine fact issue, we take evidence favorable to the nonmovant as true. We indulge every reasonable inference for the nonmovant and resolve any doubts in its favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex.1985).

The purpose of the summary judgment rule is to eliminate patently unmeritorious claims or untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952). The summary judgment rule does not provide for a trial by deposition or affidavit. The rule provides a method for summarily ending a case involving only a [442]*442question of law and no genuine fact issues. See Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962). The trial court must determine whether fact issues exist, not weigh the evidence or its credibility and try the case on affidavits. Gulbenkian, 252 S.W.2d at 931.

A movant must show its right to summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of its cause of action or defense as a matter of law. See Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). To show its right to summary judgment, a defendant must either disprove an essential element of the plaintiffs claim as a matter of law or establish all elements of its defense as a matter of law. See Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Spencer v. City of Dallas, 819 S.W.2d 612, 615 (Tex.App.—Dallas 1991, no writ).

The court may base a summary judgment on uncontroverted testimonial evidence of an interested witness. However, the evidence must be clear, positive, direct, otherwise credible, and free from contradictions and inconsistencies. Also, the evidence must be such that the nonmovant could easily controvert the testimony. See TEX.R.Crv.P. 166a(c); Spencer, 819 S.W.2d at 616.

B. Statutory—The Medical Liability and Insurance Act—Article 4590i1

1.Health Care Provider

“Health care provider” means any person, partnership, professional association, corporation, facility, or institution duly licensed or chartered by the State of Texas to provide health care as a registered nurse, hospital, dentist, podiatrist, pharmacist, or nursing home. Health care provider includes an Officer," employee, or agent of the health care provider acting in the course and scope of his employment. See section 1.03(a)(3) of the Act.

2.Limitations

Notwithstanding any other law, a claimant may not begin a health care liability claim unless the claimant files the action within two years of the breach or tort or within two years of the date of completion of the medical or health care treatment the subject of the claim. Minors under twelve years of age have until their fourteenth birthday to file their claim or have it filed on their behalf. This subchapter applies to all persons regardless of minority or other legal disability except as stated. See section 10.01 of the Act.

3.Notice

Any person or his authorized agent asserting a health care liability claim shall give written notice of the claim by certified mail return receipt requested. The claimant must notify each physician or health care provider against whom the claimant asserts liability. The claimant must give the notice at least 60 days before filing the suit in any court of this state. See section 4.01(a) of the Act.

Notice given as provided in the Act tolls limitations for 75 days after giving notice. The tolling applies to all parties and potential parties. See section 4.01(c) of the Act.

C. Case Law

All health care liability claims are subject to an absolute two-year limitations period. See section 10.01 of the Act; Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987). When a claimant asserts a health care liability claim against a hospital, liability accrues on the last day of hospitalization. See section 10.01; Kimball, 741 S.W.2d at 372.

The notice requirement under section 4.01(c) is mandatory. Schepps v. Presbyterian Hosp., 652 S.W.2d 934, 938 (Tex.1983). For an effective notice, the claimant must address and mail the notice to the physician or health care provider. See section 4.01(a) of the Act.

[443]*443The Act bars a claim if a claimant does not give the required notice to the health care provider before limitations runs. Kimball, 741 S.W.2d at 372. Notice given after the limitation period runs does not revive a claimant’s cause of action. Kimball v. Brothers, 712 S.W.2d 538, 540 (Tex.App.—Waco 1986), aff'd, 741 S.W.2d 370 (Tex.1987).

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892 S.W.2d 440, 1995 Tex. App. LEXIS 438, 1995 WL 4706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-community-health-investment-corp-texapp-1995.