Winston v. Peterek

132 S.W.3d 204, 2004 Tex. App. LEXIS 3235, 2004 WL 744412
CourtCourt of Appeals of Texas
DecidedApril 8, 2004
Docket14-03-00624-CV
StatusPublished
Cited by7 cases

This text of 132 S.W.3d 204 (Winston v. Peterek) 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
Winston v. Peterek, 132 S.W.3d 204, 2004 Tex. App. LEXIS 3235, 2004 WL 744412 (Tex. Ct. App. 2004).

Opinions

OPINION

J. HARVEY HUDSON, Justice.

On its own motion, the court withdraws its memorandum opinion of March 16, 2004 and substitutes the following majority and dissenting opinions.

Appellants, Bessie Winston and James Winston (‘Winstons”) appeal the grant of summary judgment in favor of Appellee, William H. Peterek, M.D. (“Dr. Peterek”). The Winstons brought their medical malpractice suit after Mrs. Winston suffered from a ruptured cerebral aneurysm and subarachnoid hemorrhages. Dr. Peterek filed his motion for partial summary judgment arguing the Winstons’ claims were barred by limitations. We affirm.

The Winstons originally brought suit against Dr. Peterek and the Gulf Coast Medical Group Family Practice. After giving notice to Dr. Peterek of their claim pursuant to Article 4590i, Section 4.01 of the Revised Civil Statutes1 in October, 2000, the Winstons filed their suit on January 2, 2002. After the trial court granted Dr. Peterek’s motion for partial summary judgment, the claims against Dr. Peterek were severed from the claims against the medical group; thus, a final judgment was rendered in favor of Dr. Peterek.

Dr. Peterek began treating Winston for hypertension on October 13, 1993. Dr. Peterek initially prescribed Procardia XL on October 13, 1993. He also prescribed Anaprox on or about June 27, 1994. Winston’s last office visit with Dr. Peterek was on April 3,1998. Subsequently, Dr. Peter-ek’s office made calls to refill the prescription for Procardia on February 9, 1999, and October 5,1999. A call was also made on November 19, 1998, to refill a prescription for Anaprox. The record is silent, and the parties do not assert, that any future office visits were scheduled. Winston sustained her injuries on November 5, 1999.

To prevail on a motion for summary judgment, a defendant must establish that no material fact issue exists and that it is entitled to judgment as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex.1999). Once the defendant establishes that no genuine issue of material fact exists regarding an element of the plaintiffs claim, the plaintiff must present competent summary judgment evidence raising a fact issue on that element. Guest v. Cochran, 993 S.W.2d 397, 401 (Tex.App.Houston [14th Dist.] 1999, no pet.). In [207]*207conducting our review of the summary judgment, we take as true all evidence favorable to the nonmovant, and make all reasonable inferences in the nonmovant’s favor. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). A defendant, as movant, is entitled to summary judgment if it either disproves at least one essential element of each of the plaintiffs causes of action or establishes all the elements of an affirmative defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). By moving for summary judgment, Dr. Peter-ek has the burden to show as a matter of law that the Winstons’ suit is barred by limitations. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983) (per curiam).

Texas law imposes a two-year statute of limitation on health care claims. Tex. Civ. Prac. & Rem.Code Ann. § 74.251 (Vernon Supp.2004).2 The limitations period is measured from one of three dates: (1) occurrence of the breach or tort, (2) date that the relevant course of treatment was completed, or (3) last date of the relevant hospitalization. Id.; Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987). A plaintiff is not permitted to choose the measurement most favorable to its case. Shah v. Moss, 67 S.W.3d 836, 841 (Tex.2001). A reviewing court must first determine whether the date of the alleged tort is ascertainable. If the date is not ascertainable, then the court must employ a course of treatment analysis in order to determine the last day of treatment. Kimball, 741 S.W.2d at 372. Naturally, the plaintiff must establish a course of treatment under this analysis. Shah, 67 S.W.3d at 841. However, if the date of the alleged tort or breach is known, the limitations run from that date. Id. at 843. The ascertainable date controls irrespective of the plaintiffs attempt to establish a course of treatment. Id. at 843-44.

The Winston’s alleged in their petition that “Peterek continued to misdiagnose Plaintiffs condition over the phone .... [and] continued to prescribe hypertension and pain medication despite the medication’s apparent ineffectiveness.” More specifically, the Winstons alleged in their petition that Dr. Peterek was negligent in: (1) In failing to properly perform medical treatment; (2) failing to examine upon presentment of symptoms; (3) prescribing medication without a physical examination; (4) failing to use proper diagnostic procedures in connection with Winston’s symptoms; and (5) fading to recognize and/or acknowledge the symptoms resulting from his treatment. The Winstons do not allege that the prescribed medications were the cause of her injury; rather, the Winstons’ complaints arise out of Dr. Peterek’s failure to correctly discover, treat, or prevent Mrs. Winston’s subsequent injuries through appropriate follow-up care.

Allegations of misdiagnosis necessarily require a reviewing court to use the date of the last visit with the physician in a limitations analysis. See Rowntree v. Hunsucker, 833 S.W.2d 103, 108 (Tex.1992). Likewise, a physician’s “negligent failure to conduct follow-up procedures” occurs only “in connection with the [last] examination.” Bala v. Maxwell, 909 S.W.2d 889, 892 (Tex.1995). The theory in such cases is that when a physician negligently fails to provide weekly or monthly follow-up treatment, the breach of duty imposed by the standard of care occurs on the last date the physician actually saw the patient. Shah, 67 S.W.3d at 844.

[208]*208Appellants argue that Mrs. Winston was injured by a “course of treatment.” However, the gist of their complaint is not that the medications prescribed by Dr. Peterek caused the injury, but that his lack of follow-up care caused the injury. As the Texas Supreme Court observed, “[wjhile the failure to treat a condition may well be negligent, we cannot accept the self-contradictory proposition that the failure to establish a course of treatment is a course of treatment.” Roumtree, 833 S.W.2d at 105-06 (quoting from Nykorchuck v. Henriques, 78 N.Y.2d 255, 573 N.Y.S.2d 434, 437, 577 N.E.2d 1026, 1029 (1991)).

Appellants also seem to contend that a “course of treatment” is supported here by the fact that Mrs. Winston obtained additional refills of her prescription medication by calling Dr. Peterek well after her last visit.

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132 S.W.3d 204, 2004 Tex. App. LEXIS 3235, 2004 WL 744412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winston-v-peterek-texapp-2004.