Westphal v. Diaz

918 S.W.2d 543, 1996 Tex. App. LEXIS 1125, 1996 WL 16023

• Court: Court of Appeals of Texas
• Decided: March 21, 1996
• Docket: 13-94-237-CV
• Status: Published

Opinions

OPINION

YÁÑEZ, Justice.

Carolyn Westphal appeals from summary judgment on survival and wrongful death actions based on Dr. Gustavo Diaz’s malpractice. The trial court granted Diaz’s motion for summary judgment, which asserted the defense of limitations. Westphal appeals by one point of error. We reverse and remand in part and affirm in part.

Diaz was Michael Westphal’s doctor only up until August of 1984; Michael Westphal had Hodgkin’s Disease, which Diaz treated with Cytoxan. In August of 1984, Westphal began to excrete blood in his urine while he was on vacation. Because he was out of town, Westphal saw a different doctor. This doctor offered the opinion that Westphal had been taking Cytoxan for too long and that extended use of the drug had caused West-phal’s bladder to bleed. Because of the bleeding from his bladder and urinary tract, Westphal was intermittently hospitalized from 1984 until his death in 1992. Over the course of treatment for these problems, Westphal was led to believe that his condition was a curable effect of the Cytoxan.¹ Westphal consequently declined to bring suit. Nevertheless, he did not continue to see Diaz for treatment.

Westphal’s new doctor recommended reconstructive bladder surgery in 1991. Dim-ing medical examinations conducted in preparation for that surgery, Westphal’s bladder cancer was first detected. When he discovered the terminal cancer, Westphal decided to sue Diaz. No action was filed, however, until a year after Michael Westphal’s death.

Based on these facts, we must determine whether Diaz’s motion for summary judgment established as a matter of law that the statute of limitations barred Carolyn West-phal’s suit. See Chambers v. Conaway, 883 S.W.2d 156, 158 (Tex.1993).

At common law, a claim for personal injuries expired upon the claimant’s death, and the decedent’s survivors had no claim against a party who may have negligently caused the decedent’s death. Rose v. Doctors Hosp., 801 S.W.2d 841, 845 (Tex.1990). However, the Texas legislature has abrogated both of these common-law rules. Tex.Civ.Prac. & Rem.Code Ann. §§ 71.002 (allowing claim for wrongful death), 71.021 (allowing survival of decedent’s causes of action) (Vernon 1986). A decedent’s spouse, children, and parents may now bring a statutory wrongful death claim for their loss of future pecuniary benefits, loss of inheritance, loss of companionship, and mental anguish. Id. § 71.004; Moore v. Lillebo, 722 S.W.2d 683, 687-88 (Tex.1986). A statutory survival action allows the decedent’s heirs, legal representatives, and estate to sue for injuries that the decedent personally suffered. Tex.Civ.Prac. & Rem.Code Ann. § 71.021.

Although Carolyn- Westphal’s suit is comprised of survival and wrongful death claims, her cause of action is also a health care liability claim because it falls within the following definition:

“Health care liability claim” means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.

Tex.Rev.Civ.Stat.Ann. art. 4590i, § 1.03(a)(4) (Vernon Supp.1995). Notwithstanding any other law, no health care liability claim can

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 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.

Id. § 10.01.

The Westphals’ claims are based on Diaz’s negligence in the course of treatment. Consequently, the two-year limitations period on Carolyn Westphal’s claims began to run on the last day that Diaz treated Michael Westphal. If suit was filed after expiration of that two-year period but before Michael Westphal’s death, Michael and Carolyn Westphal’s claims might have been preserved by the discovery rule. See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355 (Tex.1990) (open courts provision of Texas Constitution precludes any application of art. 4590i, § 10.01 that sets an impossible precondition to common-law remedies). If Michael West-phal had filed suit prior to his death, his health care liability claim would have involved a common-law remedy and might have been susceptible to the discovery rule.

In this case, however, Michael Westphal died before any suit was filed. Consequently, the wrongful death claim that Carolyn Westphal asserts in her individual capacity and the survival action she asserts as representative of Michael Westphal’s estate are statutory in nature. Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397, 403 (Tex.1993). Accordingly, neither the open courts provision nor the tolling provision within section 10.01 prevents expiration of the two-year limitations period. Tex.Rev.Civ.StatAnn. art. 4590i, § 10.01.

But Carolyn Westphal also brings suit as next friend of Eric Westphal, who is the only child from the Westphals’ marriage. Like Carolyn Westphal’s claims, Eric West-phal’s claims are wrongful death and survival actions premised on Diaz’s medical treatment of Michael Westphal. As with his mother’s claims, therefore, Eric Westphal’s claims are governed by the statute of limitations in article 4590i. See id. § 1.03(a)(4) (defining health care liability claims subject to art. 4590i); Bala v. Maxwell, 909 S.W.2d 889, 892 (Tex.1995); Sanchez v. Memorial Medical Ctr. Hosp., 769 S.W.2d 656, 659-60 (Tex.App.—Corpus Christi 1989, no writ). Because Eric is under 12 years of age, however, the tolling provision within section 10.01 applies to extend the time during which Eric can bring suit. Tex.Rev.Civ.Stat.Ann. art. 4590i, § 10.01; cf. Weiner v. Wasson, 900 S.W.2d 316, 318-19 (Tex.1995) (discussing inadequacy of tolling provision to protect rights of minor asserting common-law claim). We hold that Diaz’s summary judgment motion and proof are inadequate to establish that the statute of limitations barred Eric’s claims.

The interaction between the wrongful death statute and the Medical Liability and Insurance Improvement Act has created several points of conflict among the courts of appeal. Compare, e.g., Sanchez, 769 S.W.2d at 659-60 (limitations period under Medical Liability and Insurance Improvement Act governs claims that are both health care liability claims and wrongful death claims) with Wilson v. Rudd, 814 S.W.2d 818, 822-23 (Tex.App.—Houston [14th Dist.] 1991), overruled sub nom. Bala, 909 S.W.2d at 892 (intermediary court of appeals reached contrary holding regarding applicability of limitations from wrongful death statute). To clarify our holding in this case, we first address our application of the discovery rule.

The discovery rule does not apply to the limitations period during which a party must file a wrongful death claim. Moreno, 787 S.W.2d at 350-51. This does not preclude Eric’s causes of action, however, because he filed suit before limitations expired under either the Medical Liability and Insurance Improvement Act or the wrongful death statute. Cf. Bangert v. Baylor College of Medicine, 881 S.W.2d 564, 566-67 (Tex.App.—Houston [1st Dist.] 1994, writ denied) (considering similar claim of a minor).

Eric’s claims are derivative in nature and, therefore, depend on whether his father could have brought a personal-injury suit immediately before his death. Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 344-47 (Tex.1992). Whether Eric’s father could have brought a personal-injury suit immediately before his death depends on Michael Westphal’s ability to avail himself of the discovery rule. Application of the discovery rule to Michael Westphal’s hypothetical suit affects whether Eric Westphal may maintain his derivative claims. Accordingly, we must determine whether Diaz’s summary judgment evidence establishes as a matter of law that the discovery rule would not have been applicable in a suit brought by Michael West-phal.

Throughout his motion for summary judgment and appellate brief, Diaz characterizes Michael Westphal’s bladder cancer as merely the final progression of the urinary tract problem. Conversely, the Westphals characterize the urinary tract bleeding as a problem separate from Michael Westphal’s subsequent bladder cancer. The Westphals describe the urinary tract bleeding as a minor, curable result of the treatment for Hodgkin’s disease.

If the urinary tract bleeding and the cancer are part of one single injury, as Diaz contends, the Westphals cannot claim that they did not know of the injury at the time it occurred. If this relationship between the two health problems had been established as a matter of law, Michael Westphal would not have been able to apply the open courts provision or the discovery rule.

We reach a different result, however, if the urinary tract bleeding was merely a minor, curable side-effect of treatment with Cytox-an, and the bladder cancer was a separate and distinct injury. Diaz has failed to negate the applicability of the discovery rule if the Westphals have properly characterized the relationship between the urinary tract bleeding and the cancer.

Diaz’s summary judgment proof includes no expert medical testimony resolving which party has accurately characterized the relationship between the urinary tract bleeding and the cancer. When a summary judgment proceeding involves a dispute as to the relationship between two medical problems, the movant must resolve that issue as part of its burden of proof. Rowntree v. Hunsucker, 833 S.W.2d 103, 106 (Tex.1992).

In the absence of conclusive summary-judgment evidence disposing of a material fact issue, we indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In this case, we must infer that Michael Westphal promptly sought expert medical treatment and was led to believe the urinary tract bleeding was a minor, curable problem unrelated to the bladder cancer. Thus, the Westphals have raised a fact issue as to whether they had a reasonable opportunity to discover the injury that would have formed the basis of Michael Westphal’s hypothetical suit. As a result, Diaz has failed to show as a matter of law that Michael West-phal would have been unable to invoke the open courts provision and apply discovery rule in a suit against Diaz. Accordingly, we hold that Diaz has not demonstrated that he is entitled to summary judgment on Eric Westphal’s causes of action.

The dissent would hold that Diaz is entitled to judgment on all claims because the summary judgment evidence proves as a matter of law that Michael Westphal’s suit would have been barred by limitations. The dissent contends that the Westphals were required to sue Diaz as soon as they had any knowledge of any problem related to Diaz’s treatment. We reject that position, however, because it conflicts with this court’s decision in Dallas Market Center Hotel Co. v. Beran & Shelmire, 865 S.W.2d 145 (Tex.App.—Corpus Christi 1993, writ denied).

In Dallas Market Center, we reversed a summary judgment based on limitations in a suit alleging architectural and structural design defects. Id. at 146. Dallas Market Center pleaded the discovery rule in response to the defendants’ motion for summary judgment. As part of their summary judgment evidence regarding the applicability of the discovery rule, the defendants produced certain letters that they had received from Dallas Market Center. Id. This correspondence established that Dallas Market Center had identified some possible masonry defects while there was time to bring suit within the limitations period. Id. at 147.

In reply, Dallas Market Center argued that the problems alluded to in the letters were insufficient to inform it of the structural masonry defects that were the basis of the suit. Dallas Market Center also contended that the relatively minor problems discussed in the letters were unrelated to the major structural defect that led to litigation. Reversing the summary judgment, we held that

we cannot discern from the letters whether this was sufficient, as a matter of law, to hold that appellants “discovered” the extensive nature of the masonry defects which form the basis of this suit. Any doubt must be resolved in favor of appellant. ... We hold that appellees have not negated the discovery rale by proving as a matter of law that appellant discovered or should have discovered the injury before 1989.

Id. (citations omitted). Under Dallas Market Center, the summary judgment movant is required to show that the nonmovant’s knowledge of some potential problem was sufficient to inform it of the injury in dispute. In the absence of summary judgment proof resolving that issue as a matter of law, the movant cannot show that the discovery rale is inapplicable to the case. Diaz has failed to discharge the burden that we discussed in Dallas Market Center.

Conversely, the dissent would hold that the relevant “injury” in this case is the act of prescribing Cytoxan. This analysis is not appropriate in the context of a summary judgment on a health care liability claim such as the Westphals’ case. The medications used to combat cancer often cause severe side-effects. In the absence of summary judgment evidence, we cannot say that urinary tract bleeding as a result of treatment for a potentially fatal cancer automatically represents a legally compensable injury. In this case, the harmful side-effects did not necessarily outweigh the benefits of treatment until Michael Westphal was diagnosed with bladder cancer. As a result, it would be unjust to hold that Michael Westphal was required to bring suit as soon as he first experienced a minor, curable problem related to Diaz’s treatment. See, e.g., Baldridge v. Howard, 708 S.W.2d 62, 65 (Tex.App.—Dallas 1986, writ ref'd n.r.e.) (plaintiff who knew of some harm to vocal cord could postpone suit for nine years until she learned injury was permanent because “if she believed [injury] was temporary result of surgery, there would be no reason for filing suit”).

Moreover, the dissent’s approach to this case is inconsistent with the Texas Supreme Court’s seminal decisions in Weaver v. Witt, 561 S.W.2d 792 (Tex.1977) (per curiam), and Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967).

In the Weaver case, Tom Weaver alleged that Dr. Witt’s negligent performance of a hemorrhoidectomy caused Weaver’s permanent loss of bowel control. Weaver v. Witt, 552 S.W.2d 565, 567 (Tex.Civ.App.—Houston [14th Dist.]), rev’d per curiam, 561 S.W.2d 792 (Tex.1977). Weaver did not file suit until five years after the operation, however, after he first learned that the damage to his bowels was incurable. Id. Weaver asserted both fraudulent concealment and the discovery rule in response to Witt’s motion for summary judgment based on limitations, but Weaver presented no summary judgment evidence. The trial court granted summary judgment in favor of Witt, and the intermediate appellate court affirmed that judgment.

“As to the fraudulent concealment plea,” the Texas Supreme Court concluded, “the Court of Civil Appeals was correct.” Weaver, 561 S.W.2d at 793. The supreme court nevertheless reversed the lower court judgments and remanded the cause for trial on the merits. Although the plaintiff bore the burden of proof on his plea of fraudulent concealment, the defendant bore the burden of conclusively negating the discovery rule as part of its limitations defense. Id. at 793-94. The supreme court further explained that the discovery rule operated so that

a statute of limitations barring prosecution of an action for medical malpractice runs, not from the date of the practitioner’s wrongful act or omission, but from the date the nature of the injury was or should have been discovered by the plaintiff.

Id. (footnote omitted).

This is the very rule that the legislature sought to eliminate from medical malpractice cases by passing the Medical Liability and Insurance Improvement Act. Morrison v. Chan, 699 S.W.2d 205, 208 (Tex.1985). Yet this legislative attempt to abolish the discovery rule is unconstitutional “to the extent it purports to cut off an injured person’s right to sue before the person has a reasonable opportunity to discover the wrong and bring suit.” Nelson v. Krusen, 678 S.W.2d 918, 923 (Tex.1984). When the nonmovant-plaintiff preserves its challenge to the constitutionality of the Medical Liability and Insurance Improvement Act, the movant-defendant must negate the discovery rule. Hellman v. Mateo, 772 S.W.2d 64, 66 (Tex.1989).

In our case, the Westphals pleaded the unconstitutionality of the Medical Liability and Insurance Improvement Act as applied to their claims and raised a fact issue material to that challenge. Accordingly, Diaz was obliged to conclusively negate the possible application of the discovery rule before we could consider the act of prescribing Cytoxan as the relevant “injury” in this case. The dissent would automatically apply the “legal injury rule” as if the Westphals failed to plead the discovery rule. Cf. Aduddell v. Parkhill, 821 S.W.2d 158, 159 (Tex.1991). In this case, however, the Westphals pleaded the discovery rule as well as the unconstitutionality of the Medical Liability and Insurance Improvement Act as applied to their claims. In light of these pleadings, the dissent’s application of the legal injury rule conflicts with Weaver v. Witt, 561 S.W.2d at 793-94.

The result that the dissent would reach is also inconsistent with the Texas Supreme Court’s decision in Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967). In the Gaddis case, Dr. Smith neglected to remove a surgical sponge before closing the incision he made while operating on Dorothy Gaddis. Five years passed between the operation and Gad-dis’s discovery of the fact that Smith had failed to remove the sponge. Id. at 578. During this “long period,” Gaddis experienced “increasing internal pain.” Id. Gad-dis knew of this increasing internal pain, but the supreme court applied the discovery rule to toll limitations until she discovered, or should have discovered, what her injury actually was. Id. at 580.

The basis for Gaddis’s suit was the injury represented by the surgical sponge. Yet Gaddis’s knowledge of her increasing internal pain did not preclude an application of the discovery rule in the suit alleging Smith’s failure to remove the sponge. This is because Smith did not show that Gaddis’s pain was sufficient to inform her that Smith had negligently caused the injury that was the basis of her suit. Id. Under the dissent’s view, Gaddis would have been automatically obliged to bring suit over the increasing internal pain she experienced during the period beginning immediately after the operation. This is not the result that the supreme court reached.

Considering the facts of the Weaver and Gaddis eases, we presume that Tom Weaver and Dorothy Gaddis may have had some early postoperative inkling that their surgeries had not been flawless. Weaver and Gad-dis each experienced the initial negative effects from treatment during the two-year period immediately following surgery. Yet the Texas Supreme Court did not recite these circumstances as an automatic bar to Weaver’s and Gaddis’s later suits. Regardless of these cases, the dissent would bar Eric Westphal’s claims based on Carolyn Westphal’s admission that she and her husband felt that “Diaz had done [the decedent] wrong” as early as 1984. Under the rigorous standard of review for summary judgments, however, this sentiment does not conclusively resolve whether the patient had a reasonable opportunity to discover the relevant injury. This is particularly true in light of evidence suggesting that Michael Westphal diligently sought treatment of his urinary tract bleeding and was led to believe the problem was minor and curable.

Finally, we address the dissent’s reliance on Graffagnino v. Fibreboard Corp., 776 F.2d 1307 (5th Cir.1985) (per curiam), Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129 (5th Cir.1985), and Pecorino v. Raymark Industries, Inc., 763 S.W.2d 561 (Tex.App.—Beaumont 1988, writ denied). In Grajfagni-no and Pecorino, the plaintiff settled a personal-injury claim and then filed suit based on further damages as a result of the same tort that formed the basis of the earlier settlement. Graffagnino, 776 F.2d at 1308; Pecorino, 763 S.W.2d at 562; cf. Gideon, 761 F.2d at 1136-38 (at trial, Gideon introduced evidence of further damages that were not manifest at time of trial). Although Graffagnino and Pecorino were actually based on interpretations of the relevant releases, all three cases generally support the proposition that plaintiffs must bring all claims for consequential damages, present and future, when they bring a tort action. Graffagnino, 776 F.2d at 1308-09; Gideon, 761 F.2d at 1136-37; Pecorino, 763 S.W.2d at 562.

The principle from Graffagnino, Gideon, and Pecorino might dispose of the instant case if the Westphais had sued Diaz over the urinary tract bleeding, settled that claim, and then filed this suit. But see Hagerty v. L & L Marine Servs., Inc., 788 F.2d 315, 320-21 (5th Cir.), modified, 797 F.2d 256 (1986) (persuasively criticizing this principle as unjust when applied in some contexts). Of course, that is not the situation now before us. To the contrary, the summary judgment evidence shows that the Westphais did not even consider suing Diaz over the urinary tract bleeding because they had been led to believe it was a curable problem. See Weaver, 552 S.W.2d at 567 (plaintiff did not file suit until he realized injury was incurable); Baldridge, 708 S.W.2d at 65 (plaintiff did not file suit until she learned injury was permanent because “there would be no reason for filing suit” over temporary disability).

The dissent’s reliance on Graffagnino, Gideon, and Pecorino illustrates how the dissent has circumvented the main question at issue in this case. The filing and settlement of a suit has two distinct effects. First, as we discussed above, the filing of a suit may require that the plaintiff use that opportunity to bring all claims for present as well as future consequential damages. Second, the filing and settlement of a suit shows that the plaintiff has had a reasonable opportunity to discover an injury and ascertain the likelihood of all possible future harms. See, e.g., Pecorino, 763 S.W.2d at 568 (“the Pecorinos knew or should have known about the meso-thelioma when the release [of liability for all asbestos-related diseases] was carefully read and fully explained to them”).

This discovery issue distinguishes Michael Westphal’s urinary tract bleeding from the initial injuries at issue in the three cases the dissent relies upon. In each of the dissent’s three cases, there was no question whether the plaintiffs had a reasonable opportunity to discover an injury and then bring suit. Because the plaintiffs in those cases discovered injuries and brought suit, they were charged with “constructive” discovery of all consequential injuries running from the tort. Id.

In our case, however, this critical discovery issue has not been conclusively resolved. Westphal did not bring suit over the urinary tract bleeding because he sought prompt treatment of that problem and was told that it was a minor, curable result of taking Cy-toxan. Diaz’s motion for summary judgment failed to show that Westphal had a reasonable opportunity to discover the injury at issue in this lawsuit. Under the facts of this case, Graffagnino, Gideon) and Pecorino offer no support for the theory that Eric West-phal should be handicapped by his father’s constructive discovery of the bladder cancer.

We affirm the trial court’s summary judgment on the causes of action that Carolyn Westphal asserts in her individual capacity and as representative of Michael Westphal’s estate. We reverse the summary judgment as it applies to Eric Westphal’s claims, and we remand those causes of action for further proceedings.

SEERDEN, C.J., dissents.

1 . The dissent contends the record does not show that the Westphals were led to believe the urinary tract bleeding was curable. This is an inference we drew in favor of the Westphals, the nonmovants in this case, based on the following factors:

* Carolyn Westphal testified that her husband sought prompt and continual medical treatment for the urinary tract bleeding.

* During the course of treatment for the urinary tract bleeding, either Dr. Weiner or Dr. Heard (the context of the testimony does not specify which doctor) told the Westphals about the healing process.

* After the doctor explained the healing process, Michael Westphal thought he was going to recover and Carolyn Westphal understood that her husband’s problems were healing.

Either the Westphals believed the urinary tract bleeding was curable because of what their doctors told them, or they formed this belief despite what their doctors told them. Considering Carolyn Westphal’s testimony in light of the standard of review for summary judgments, we infer that the Westphals were led to believe the urinary tract bleeding was curable.