Willingham v. Schlichtemeier

864 S.W.2d 179, 1993 WL 421758
CourtCourt of Appeals of Texas
DecidedOctober 21, 1993
DocketNo. 11-92-099-CV
StatusPublished
Cited by2 cases

This text of 864 S.W.2d 179 (Willingham v. Schlichtemeier) 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
Willingham v. Schlichtemeier, 864 S.W.2d 179, 1993 WL 421758 (Tex. Ct. App. 1993).

Opinion

OPINION

McCLOUD, Chief Justice.

This is a medical malpractice case. Plaintiff, Lee B. Willingham, sued defendants, Dr. A. Lee Schlichtemeier and Dr. Patrick R. Thomas, contending, among other things, that the doctors negligently failed to tell plaintiff that she had received radiation burns as a result of radiation treatment. The trial court instructed a verdict for both doctors on all claims asserted by plaintiff when the plaintiff rested her case. We reverse and remand for trial.

Dr. Thomas, a general surgeon, performed a hemorrhoidectomy on plaintiff on August 29, 1983. A pathological examination of the excised tissue revealed the presence of a malignant tumor. Plaintiff was diagnosed as having “cloacogenic carcinoma of the anal canal.” Dr. Thomas advised plaintiff that she had two options in treating the cancer. The first option consisted of an abdominoper-ineal resection which would result in a permanent colostomy. The second option involved radiation therapy. Plaintiff advised Dr. Thomas that she would not have the abdominoperineal resection.

Dr. Thomas referred plaintiff to Dr. Schli-chtemeier, a radiologist. Plaintiff elected to undergo radiation treatments after talking with Dr. Schlichtemeier. Plaintiff received her first radiation treatment on September-30, 1983. The radiation treatments concluded in December of 1983. Plaintiff continued to experience pain and bleeding following the operation and radiation treatments. In November of 1984, plaintiff was experiencing internal bleeding, sloughing off of tissue through the rectum, and severe cramps. Dr. Thomas performed surgery on plaintiff for an anal fissure on January 7, 1985. On January 18, 1985, Dr. Thomas performed a “sigmoid colostomy” on plaintiff. The purpose of the colostomy was to temporarily divert the fecal stream away from the rectum in order to enhance plaintiffs recovery.

The record reveals that in January of 1985 both doctors were aware that plaintiffs problems were caused by radiation burns which resulted from the radiation treatments. There is evidence that Dr. Schlichtemeier told plaintiff that her problems were caused by radiation burns. However, plaintiff testified that neither doctor told her that she had sustained radiation burns and that she was unaware that her condition was the result of radiation treatments until July 22, 1985, when she was treated by Dr. Arthur Boddie of the M.D. Anderson Hospital and Tumor Institute.

Plaintiff raises two points on appeal. She urges, in her first point of error, that the trial court erred in granting Dr. Thomas’ motion for instructed verdict and, in her second point of error, that the court erred in granting Dr. Sehliehtemeier’s motion for instructed verdict. The proper standard of review in an instructed verdict case is stated in Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978):

The task of an appellate court in such a case is to determine whether there is any evidence of probative force to raise fact issues on the material questions presented. The court must consider all of the evidence in the light most favorable to the party against whom the verdict was instructed, discarding all contrary evidence and inferences. When reasonable minds may differ as to the truth of controlling facts, the issue must go to the jury. (Citations omitted)

[181]*181In their motions for instructed verdict, both doctors asserted that plaintiffs claims were barred by limitations and that plaintiff failed to present sufficient evidence of essential elements of her claims. The Medical Liability and Insurance Improvement Act provides the following statute of limitations for health care liability claims:

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.

TEX.REV.CIV.STAT.ANN. art. 4590i, § 10.01 (Vernon Pamph.Supp.1993).

Plaintiff gave written notice of her claims to both doctors on June 12, 1987.1 Under the two-year statute of limitations contained in Article 4590i, section 10.01, the critical date for determining whether plaintiffs claims are barred by limitations is June 12, 1985.

Plaintiff alleged that defendants failed to apprise her of the cause of her suffering while they treated her for radiation burns from January 1985 to August 1985. During that time, plaintiffs condition continued to deteriorate, and she testified that she would have sought treatment from other sources had she known that her condition resulted from radiation burns. She testified that she was “begging someone to tell” her what was wrong with her. There was evidence that plaintiffs rectum and approximately 15 inches of her intestine were damaged as a result of the radiation burns. There is evidence that the conservative external treatment received by plaintiff did not lessen the pain in plaintiffs rectum or stomach. When he examined plaintiff on July 22, 1985, and told her that she had sustained radiation burns, Dr. Boddie prescribed “steroid enemas.” Plaintiff testified that the steroid enemas relieved the pain in her stomach.

Dr. John Emmert testified that it would be the normal standard of medical care for a doctor to tell a patient about radiation burns.

We hold that the plaintiff presented sufficient evidence to raise a fact issue regarding defendants’ alleged negligent failure to tell her that she was suffering from radiation burns. We also hold that the evidence raised an issue of fact as to whether the defendants’ negligence was a proximate cause of some of plaintiffs pain and suffering.

Regarding the limitations question, plaintiff testified that she saw Dr. Thomas on June 14, 1985. Dr. Thomas testified by deposition that plaintiffs last appointment with him was in July 1985. Dr. Thomas argues that he had only a one-time duty to inform plaintiff of the cause of her suffering. He contends that this one-time duty arose on January 7, 1985, when he discovered the cause. Thus, Dr. Thomas argues that the running of the statute of limitations for the nondisclosure claim commenced on January 7, 1985, and ended on January 7, 1987.

The supreme court in Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987), held that, when the precise date of the specific breach or tort is ascertainable from the facts of the case, Article 4590i, section 10.01 requires the limitations period to run from the date of the breach or tort. Dr. Thomas relies upon the holding in Kimball to argue that the limitations period commenced on January 7, 1985. This argument is premised on the assumption that Dr. Thomas only had a duty to inform plaintiff of the cause of her suffering at the time he discovered the cause.

We agree that Dr. Thomas’ duty to apprise plaintiff of the cause of her suffering arose when he discovered the radiation burns. However, we do not agree with Dr. Thomas’ contention that his duty to disclose only existed on the day he diagnosed the cause of plaintiffs suffering. Dr. Thomas treated plaintiff for this condition from January 1985 to July 1985. We hold that Dr. Thomas had a continuing duty to apprise [182]

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864 S.W.2d 179, 1993 WL 421758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willingham-v-schlichtemeier-texapp-1993.