Winkle v. Tullos

917 S.W.2d 304, 1995 WL 680045
CourtCourt of Appeals of Texas
DecidedMarch 7, 1996
Docket14-93-00995-CV
StatusPublished
Cited by28 cases

This text of 917 S.W.2d 304 (Winkle v. Tullos) 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
Winkle v. Tullos, 917 S.W.2d 304, 1995 WL 680045 (Tex. Ct. App. 1996).

Opinions

OPINION

EDELMAN, Justice.

In this medical malpractice case, Joy Winkle appeals from two judgments rendered in favor Hugh S. Tullos, M.D. on the grounds that (1) the claims relating to her first surgery were not barred by limitations, (2) the jury charge on limitations was erroneous, (3) the trial on limitations was improperly bifurcated, (4) the statutory provisions governing disclosure of medical risks and informed consent are unconstitutional, (5) the portions of the jury charge on informed consent and negligence were invalid, (6) the jury’s responses on lack of informed consent, negligence and damages were not supported by the evidence, and (7) evidence was improperly excluded. We affirm.

On November 6, 1984, Dr. Tullos performed knee replacement surgery on Winkle. On July 16, 1985, Dr. Tullos performed revision surgery on her to cement a loose part of the artificial device to the bone. In both procedures, a tourniquet was used on Winkle’s leg. However, while in recovery from [309]*309the second surgery, Winkle showed signs of poor circulation in her foot. Dr. George Noon, a vascular surgeon, was called in for consultation. After an arteriogram showed a blockage above the knee, Dr. Noon performed bypass surgery in an attempt to alleviate Winkle’s circulation problems. The following day, Dr. Noon performed another surgical procedure to remove the blockage. These surgeries were unsuccessful, and Dr. Tullos amputated Winkle’s right leg below the knee on July 25,1985.

On July 13, 1987, Winkle filed suit against Dr. Tullos complaining of the revision surgery performed on July 16,1985. On August 14, 1990, Winkle filed a second amended petition in which she added a claim for negligence relating to the original knee replacement surgery Dr. Tullos performed on November 6,1984.1

In 1991, the trial court conducted a separate trial on whether Winkle’s claims concerning the first surgery in 1984 were barred by limitations. Based on a jury verdict, the court entered an interlocutory judgment that those claims were barred. In 1993, a second trial was held on the issues of liability and damages arising from the second surgery in 1985. Based on a jury verdict, the trial court entered a take-nothing judgment in favor of Dr. Tullos. This is an appeal from both judgments.

I. LIMITATIONS TRIAL

In points of error three through eight, Winkle challenges the sufficiency of the evidence to support the jury's failure to find that (1) she did not have a reasonable opportunity to discover her cause of action for the first surgery and file suit within the applicable time period, and (2) Dr. Tullos fraudulently concealed the cause of action from her. She also contends in point nine that, as a matter of law, limitations was “tolled” by the “continuous treatment” exception set forth in the Medical Liability and Insurance Improvement Act (the “Act”). See Tex.Rev.Civ.Stat.Ann. art. 4590i, § 10.01 (Vernon Supp. 1995).

Because her contentions of delayed discovery of her claim and fraudulent concealment were in the nature of affirmative defenses to Dr. Tullos’ limitations defense, Winkle bore the burden of proof on those issues. To prevail in challenging the legal sufficiency of the adverse findings on these issue on which she had the burden of proof, Winkle must demonstrate that the evidence conclusively established all vital facts in support of the issue. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). When reviewing such a “matter of law” point, (1) we examine the record for evidence that supports the finding, ignoring all evidence to the contrary, and (2) if there is no evidence to support the finding, we then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. If the contrary proposition is established conclusively, we sustain the point. Meyerland Community Improvement Ass’n v. Temple, 700 S.W.2d 263, 267 (Tex.App.—Houston [1st Dist.] 1985, writ ref'd n.r.e.).

In attacking the factual sufficiency of evidence concerning issues on which she had the burden of proof, Winkle must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In deciding this challenge, we must examine the entire record to determine if there is some evidence to support the finding, if the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust, or if the great preponderance of the evidence supports its nonexistence. Id. When a party complains of the jury’s failure to find a fact, we may reverse only when the great weight of the evidence supports an affirmative answer. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988); see also Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 647 (Tex.1988) (holding that court of appeals has authority to review jury’s “failure to find” in same manner as it reviews jury findings).

A Application of Section 10.01

Section 10.01 of the Act provides, in relevant part:

[310]*310Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years [1] from the occurrence of the breach or tort or [2] from the date the medical or health care treatment that is the subject of the claim or [3] the hospitalization for which the claim is made is completed....

Tex.Rev.Civ.Stat.Ann. art. 4590i, § 10.01 (Vernon Supp.1995).

Importantly, however, in each case, the limitations period does not run from any of these three dates, i.e., whichever is later, but from only the one which is applicable to the particular circumstances. Where the date on which the breach or tort occurred is ascertainable from the facts of the case, the limitations period runs from that date. Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987).2 Where that date is not ascertainable, and the injury occurs during a course of treatment for a particular condition, the limitations period runs from the date that treatment was completed. Id.3

1. Continuous Course of Treatment

In her ninth point of error,4 Winkle argues that the limitations period for her first surgery was governed by the continuous course of treatment rule since there was a period of continuous treatment between that surgery on November 6,1984 and the second surgery on July 16, 1985, and she timely filed suit within two years of the second surgery.5

The continuous treatment rule often arises in suits alleging misdiagnosis or mistreatment. Kimball, 741 S.W.2d at 372; see also Chambers v. Conaway, 883 S.W.2d 156 (Tex.1993); Rowntree v. Hunsucker, 833 5.W.2d 103, 105-06 (Tex.1992). However, it is inappropriate where the negligent act was the surgery itself. See, e.g., Gormley v. Stover, 907 S.W.2d 448, 449-50 (Tex.1995) (holding that a suit filed more than two years after surgical procedure was barred where any negligence occurred during surgery and not afterwards).6

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

Related

Shanti v. Allstate Insurance Co.
356 S.W.3d 705 (Court of Appeals of Texas, 2011)
Quan Tien v. John J. Alappatt, M.D.
Court of Appeals of Texas, 2010
ROBINSON & HARRISON POULTRY CO. v. Galvan
323 S.W.3d 236 (Court of Appeals of Texas, 2010)
Julian Orduna Gonzalez v. Rodrigo Cruz
Court of Appeals of Texas, 2008
Baylor University Medical Center v. Biggs
237 S.W.3d 909 (Court of Appeals of Texas, 2007)
Pierce v. Texas Racing Commission
212 S.W.3d 745 (Court of Appeals of Texas, 2006)
John L. Pierce, II v. Texas Racing Commission
Court of Appeals of Texas, 2006
C.M. Asfahl Agency v. Tensor Inc.
135 S.W.3d 768 (Court of Appeals of Texas, 2004)
Simmons v. Healthcare Centers of Texas, Inc.
55 S.W.3d 674 (Court of Appeals of Texas, 2001)
Cruz v. Paso Del Norte Health Foundation
44 S.W.3d 622 (Court of Appeals of Texas, 2001)
Jones v. Lurie
32 S.W.3d 737 (Court of Appeals of Texas, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
917 S.W.2d 304, 1995 WL 680045, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winkle-v-tullos-texapp-1996.