Affirmed and Memorandum Opinion filed January =
22,=20
2008.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-07-00001-CV
____________
MIRNA=20
ACOSTA, INDIVIDUALLY AND AS NEXT FRIEND, NATURAL PARENT, AND LEGAL =
GUARDIAN OF DENIS ACOSTA, =
Appellant
V.
MEMORIAL=20
HERMANN HOSPITAL SYSTEM, MEMORIAL HERMANN HOSPITAL SYSTEM D/B/A =
MEMORIAL=20
HERMANN SOUTHWEST HOSPITAL AND GREATER HOUSTON ANESTHESIOLOGY,=20
P.A.,=20
Appellees
On Appeal from the =
152nd District Court
Harris County, =
Texas
Trial Court Cause =
No. 2003-29841A
M E M O R=20
A N D U M O P I N I O N
Appellant,=20
Mirna Acosta, Individually and as Next Friend, Natural Parent, and =
Legal=20
Guardian of Denis Acosta, filed suit against appellees, Memorial =
Hermann=20
Hospital System, Memorial Hermann Hospital System D/B/A Memorial =
Hermann=20
Southwest Hospital (collectively AMemorial=20
Southwest@), and=20
Greater Houston Anestheiology, P.A. (AGHA@)=20
asserting various health care liability claims. Arguing all =
of=20
appellant=3Ds=20
individual claims were barred by limitations, appellees separately =
filed=20
motions for summary judgment, which the trial court granted. =
We=20
affirm.
Factual=20
and Procedural Background
On=20
February 13, 1996 appellant arrived at Memorial Southwest already =
in=20
active labor. At the time appellant was admitted to the =
hospital,=20
she was eight centimeters dilated. Soon thereafter,=20
appellant=3Ds=20
attending physician ordered that appellant receive epidural=20
anesthesia. A short time later, a Memorial Southwest nurse =
deleted=20
the attending physician=3Ds order=20
for epidural anesthesia from the computer. Appellant was then =
prepped for=20
and ultimately completed her labor and delivery without epidural=20
anesthesia.
Appellant=3Ds labor=20
and delivery were difficult. Appellant experienced a great =
deal=20
of pain making her uncooperative and unable to participate =
in the=20
efforts to vaginally deliver the baby. During the efforts to =
vaginally deliver appellant=3Ds baby, he=20
experienced a drop in his heart rate. Following four unsuccessful =
efforts=20
to deliver the baby by vacuum extraction, the physicians proceeded =
with a=20
cesarian section. Nine months after his birth, =
appellant=3Ds son was=20
diagnosed with cerebral palsy.
On May 29,=20
2003, appellant filed a health care liability claim on behalf of =
her son=20
against Memorial Southwest and her treating physicians to recover =
for the=20
neurological injuries he allegedly sustained at birth. At =
the time=20
the suit was originally filed, appellant made no claims in her =
individual=20
capacity. During discovery, a labor and delivery nurse at =
Memorial=20
Southwest testified during her deposition that appellant was =
likely denied=20
epidural anesthesia based on her economic status. In =
response to=20
that testimony, in May 2005, appellant amended her pleadings to =
add=20
individual health care liability claims and claims for =
patient=3Ds rights=20
violations under section 321.003 of the Texas Health and Safety =
Code=20
against Memorial Southwest. In June 2005 appellant filed a =
separate=20
lawsuit against GHA, which was eventually consolidated with her =
original=20
lawsuit. Appellees moved for summary judgment on=20
appellant=3Ds=20
individual claims, arguing, among other things, that =
appellant=3Ds claims=20
were barred by limitations. The trial court granted=20
appellees=3D =
motions. The trial court then severed appellant=3Ds=20
individual causes of action making the summary judgments final and =
appealable. This appeal followed.
Discussion
Appellant=20
raises nine issues on appeal challenging the trial =
court=3Ds granting=20
of appellees=3D =
motions=20
for summary judgment. However, as we determine the =
limitations issue=20
is dispositive, we need not address appellant=3Ds=20
remaining issues challenging the other grounds for summary =
judgment raised=20
by Memorial Southwest.
A. =20
The Standard of Review
The movant=20
for summary judgment has the burden to show there is no genuine =
issue of=20
material fact and is entitled to judgment as a matter of =
law. =20
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.=20
1985). A defendant moving for summary judgment on a statute =
of=20
limitations affirmative defense must prove conclusively that=20
defense=3Ds=20
elements. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. =
2001). =20
If the movant establishes that the statute of limitations bars the =
action,=20
the nonmovant must then adduce summary judgment proof raising a =
fact issue=20
in avoidance of the statute of limitations. Diversicare =
General=20
Partners, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. =
2005). In=20
determining whether there is a genuine fact issue precluding =
summary=20
judgment, evidence favorable to the non-movant is taken as true =
and the=20
reviewing court makes all reasonable inferences and resolves all =
doubts in=20
the non-movant=3Ds favor.=20
Nixon, 690 S.W.2d at 548B549. =20
If there is no genuine issue of material fact, summary judgment =
should=20
issue as a matter of law. Hasse v. Glazner, 62 S.W.3d =
795,=20
797 (Tex. 2001). We review a trial court=3Ds summary=20
judgment de novo. Valence Operating Co. v. Dorsett, 164 =
S.W.3d 656,=20
661 (Tex. 2005).
B. =20
Which Law Governs Appellant=3Ds=20
Individual Health Care Liability Claims?
In her=20
fourth issue on appeal, appellant contends her individual claims =
are=20
governed by the now repealed Article 4590i rather than Chapter 74 =
of the=20
Civil Practice and Remedies Code as urged by appellees. We =
agree=20
with appellant.
In 2003,=20
the Texas Legislature amended and re-codified the statutory =
provisions=20
contained in Article 4590i into Chapter 74 of the Civil Practice =
and=20
Remedies Code. As part of this process, the Texas =
Legislature=20
specifically addressed the issue of when Chapter 74 would take=20
effect:
Except as otherwise =
provided=20
in this section or by a specific provision in an article, this Act =
applies=20
only to an action filed on or after [September 1, 2003,] the =
effective=20
date of this Act. An action filed before the effective =
date of=20
this Act, including an action filed before that date in which a =
party is=20
joined or designated after that date, is governed by the law in =
effect for=20
that purpose.
Act of=20
September 1, 2003, 78th Leg., ch. 204, 2003 Tex. Sess. =
Law=20
Serv., ' =
23.02(d)=20
(Vernon) (codified in Tex. Civ. Prac. & Rem. Code Ann. =
' =
74.001=20
(Vernon 2005)).
In this=20
case, appellant originally filed suit against Memorial Southwest =
and other=20
defendants on May 29, 2003, well before the effective date of =
Chapter=20
74. She amended her petition to add her individual claims on =
March=20
8, 2005. On June 19, 2005, appellant filed a separate =
lawsuit=20
against GHA. GHA moved to consolidate the two cases and the =
2005=20
lawsuit was consolidated into appellant=3Ds original=20
lawsuit. Based on the plain language of the enabling =
provision of=20
Chapter 74, former Article 4590i, not Chapter 74, controls this =
case,=20
including the case against GHA. <=
SPAN=20
style=3D"FONT-SIZE: 13pt; LINE-HEIGHT: 150%; FONT-FAMILY: =
Shruti">
C. =20
Does the Article 4590i Statute of Limitations Violate the Open =
Courts=20
Provision of the Texas Constitution?
In her=20
first issue, appellant contends her individual claims are not =
barred by=20
the two-year statute of limitations contained in section 10.01 of =
Article=20
4590i because that provision violates the open courts provision in =
the=20
Texas Constitution. Act of May 30, 1977, 65th =
Leg., R.S.,=20
ch. 817, ' =
1, sec.=20
10.01, 1977 Tex. Gen. Laws 2039, 2052, repealed by =
Act of=20
June 2, 2003, 78th Leg., R.S., ch. 204, ' =
10.09,=20
2003 Tex. Gen. Laws 847, 884. We disagree.
To avoid=20
limitations under section 10.01 of Article 4590i, an injured party =
must=20
file a medical malpractice claim within two years from one of the=20
following events: (1) the date the breach or tort occurred; (2) =
the date=20
the treatment that is the subject of the claim is completed; or =
(3) the=20
date the hospitalization for which the claim is made is =
completed. =20
West v. Moore, 116 S.W.3d 101, 105B06 (Tex.=20
App.CHouston=20
[14th Dist.] 2002, no pet.) (citing former Tex. Rev. Civ. Stat. =
Ann. Art.=20
4590i, ' =
10.01=20
(Vernon Supp. 2003)). A plaintiff may not choose among =
alternative=20
limitation periods in bringing her claim. Id. at =
106. =20
When the date of the alleged tort or breach is ascertainable, =
limitations=20
begin to run from that date. Shah, 67 S.W.3d at=20
843.
The Texas=20
Constitution guarantees that persons bringing common-law claims =
will not=20
unreasonably or arbitrarily be denied access to the courts. =20
Id. at 841 (citing Tex. Const. art. 1, ' =
13). A statute that unreasonably or arbitrarily abridges a=20
person=3Ds right to=20
obtain redress for injuries another person=3Ds harmful=20
act causes is an unconstitutional due course of law =
violation. =20
Id. at 842. Consequently, the Texas =
Constitution=3Ds open=20
courts provision protects a person from legislative acts that cut =
off a=20
person=3Ds right to=20
sue before there is a reasonable opportunity to discover the wrong =
and=20
bring suit. Id. The legislature cannot abrogate =
the=20
right to bring a well-established common-law claim without showing =
that=20
the statute=3Ds=20
objectives and purposes outweigh denying the constitutionally =
guaranteed=20
right of redress. Id. The open courts doctrine =
is=20
premised on the rationale that the legislature has no power to =
make a=20
remedy by due course of law contingent upon an impossible =
condition. =20
Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex. =
1997).
To=20
establish an open courts violation in an Article 4590i case, a =
litigant=20
must first show a cognizable, common-law claim that Article=20
4590i=3Ds=20
limitations provision restricts. Shah, 67 S.W.3d at=20
842. Then the litigant must show the restriction is =
unreasonable or=20
arbitrary when balanced against the statute=3Ds purpose=20
and basis. Id. The limitations provision in =
Article=20
4590i, section 10.01, does not violate the open courts guarantee =
if the=20
plaintiff had a reasonable opportunity to discover the alleged =
wrong and=20
bring suit within the limitations period. Id. =
The open=20
courts doctrine has no effect on the limitations period when the =
plaintiff=20
discovers his injury while there is still a reasonable time to =
sue. =20
Hogan v. Hallman, 889 S.W.2d 332, 337 (Tex. =
App.CHouston=20
[14th Dist.] 1994, writ denied). Under the open courts =
doctrine,=20
courts must determine what constitutes a reasonable time for a =
claimant to=20
discover her injuries and file suit. Yancy v. United =
Surgical=20
Partners Int=3Dl,=20
Inc., 236=20
S.W.3d 778, 784 (Tex. 2007).
Here,=20
appellant contends the wrong she experienced and for which she =
brought=20
suit, was the discriminatory denial of epidural anesthesia on =
February 13,=20
1996. Because there is no doubt as to when the alleged tort=20
occurred, limitations are measured from that date. =
Id. at=20
843. Because the alleged tort date is ascertainable, and =
because=20
appellant did not file suit within two years of that date, to =
avoid=20
summary judgment on limitations, appellant had the burden to =
produce=20
summary judgment evidence sufficient to raise a fact issue =
concerning the=20
applicability of the open courts doctrine. Earle v. =
Ratliff,=20
998 S.W.2d 882, 889 (Tex. 1999). Appellant argues her summary =
judgment=20
evidence establishes that she did not have a reasonable =
opportunity to=20
discover the allegedly discriminatory motive behind her failure to =
receive=20
epidural anesthesia on February 13, 1996 thus invoking the open =
courts=20
doctrine. We disagree that appellant had to discover the =
allegedly=20
discriminatory motive behind her failure to receive epidural =
anesthesia=20
for the limitations period to begin running on her claims. =
Cases=20
adjudicating Title VII discrimination claims are =
instructive. Under=20
Title VII, the claimant=3Ds=20
knowledge of a discriminatory act, not the claimant=3Ds=20
knowledge that the act had a discriminatory motive, triggers=20
limitations. See, e.g., Pacheco v. Rice, 966 F.2d =
904, 906=20
(5th Cir. 1992) (holding that Title VII requires notice =
of a=20
claim be filed within thirty days of a discriminatory event or =
action, not=20
when a claimant apprehends that the event was motivated by a=20
discriminatory purpose); Merrill v. Southern Methodist =
University,=20
806 F.2d 600, 605 (5th Cir. 1986) (holding that the =
focus of=20
when a Title VII claim accrues is not on the date the victim first =
perceives a discriminatory motive caused an act, but the date of =
the act=20
itself). In this case, the evidence is undisputed that =
appellant=20
experienced such a painful labor and delivery that she was =
uncooperative=20
and unable to meaningfully participate in the effort to vaginally =
deliver=20
her son. It is also undisputed that while appellant was =
unaware of=20
the existence of epidural anesthesia at the time of her delivery =
of her=20
son, she learned about epidural anesthesia and its use to reduce =
the pain=20
of childbirth within six months of her son=3Ds=20
birth. Finally, it was undisputed that appellant=3Ds son was=20
diagnosed with cerebral palsy, allegedly a result of his difficult =
birth,=20
within nine months of his birth. Because the focus is on the =
allegedly wrongful act and not the discriminatory motive, this =
undisputed=20
summary judgment evidence establishes that appellant had =
sufficient=20
information within nine months of her son=3Ds birth to=20
investigate and discover the allegedly wrongful denial of epidural =
anesthesia and bring suit within the limitations period. =
This=20
constitutes a reasonable time as a matter of law and the open =
courts=20
doctrine does not apply. Accordingly, the trial court did =
not err=20
when it granted appellees=3D =
motions=20
for summary judgment on appellant=3Ds Article=20
4590i causes of action. Hogan, 889 S.W.2d at =
337. We=20
overrule appellant=3Ds first=20
issue.
D. =20
Does the Doctrine of Fraudulent Concealment Toll the Article 4590i =
Statute=20
of Limitations?
In her=20
second issue on appeal, appellant asserts that her individual =
article=20
4590i claims are not time barred because the doctrine of =
fraudulent=20
concealment tolled the running of the statute of limitations until =
she=20
discovered the fraud or could have discovered the fraud by the =
exercise of=20
reasonable diligence. Once again, we disagree.
Fraudulent=20
concealment is based upon the doctrine of equitable =
estoppel. =20
Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983). =
Where a=20
defendant is under a duty to make disclosure but fraudulently =
conceals the=20
existence of a cause of action from the party to whom it belongs, =
the=20
defendant is estopped from relying on the defense of limitations =
until the=20
party learns of the right of action or should have learned thereof =
through=20
the exercise of reasonable diligence. Id. The =
estoppel=20
effect of fraudulent concealment ends when a party learns of =
facts,=20
conditions, or circumstances which would cause a reasonably =
prudent person=20
to make inquiry, which, if pursued, would lead to discovery of the =
concealed cause of action. Id. at 909. =
Knowledge of=20
such facts is in law, the equivalent to knowledge of the cause of=20
action. Id.
Assuming=20
without deciding that appellees had a duty of disclosure to =
appellant, the=20
fraudulent concealment doctrine does not save =
appellant=3Ds=20
individual article 4590i causes of action. As discussed =
above, the=20
evidence is undisputed that (1) appellant experienced such a =
painful labor=20
and delivery that she was uncooperative and unable to meaningfully =
participate in the effort to vaginally deliver her son; (2) =
appellant=20
learned of the existence of epidural anesthesia within six months =
of her=20
son=3Ds birth;=20
and (3) appellant=3Ds son was=20
diagnosed with cerebral palsy within nine months of his =
birth. =20
Knowledge of these facts would cause a reasonable person to =
inquire and=20
discover any potential causes of action against appellees even if =
the=20
claim were somehow concealed. Because appellant waited nine =
years=20
after she learned of the above facts before filing suit against =
appellees,=20
her fraudulent concealment defense fails as a matter of law and =
her=20
individual article 4590i claims are barred by limitations. =
We=20
overrule appellant=3Ds second=20
issue on appeal.
E. =20
Does Limitations Bar Appellant=3Ds=20
Individual Patient=3Ds Bill of=20
Rights Claim?
In her=20
third issue, appellant contends the discovery rule provision found =
in=20
section 321.003 of the Health and Safety Code tolled the running =
of=20
limitations until she discovered the discriminatory motive behind =
the fact=20
she did not receive epidural anesthesia on February 13, =
1996. Once=20
again, we disagree.
Assuming=20
without deciding that Health and Safety Code section 321.003 =
creates a=20
cause of action for a non-mental health patient at a hospital such =
as=20
Memorial Southwest and that said cause of action is governed by a =
statute=20
of limitations separate and distinct from appellant=3Ds article=20
4590i health care liability claims, limitations still bars=20
appellant=3Ds=20
claim. Section 321.003(f) requires that a plaintiff file =
suit not=20
later than the second anniversary of the date on which the=20
person=3Ds injury=20
is discovered. Tex. Health & Safety Code Ann. =
' =
321.003(f) (Vernon 2001). The discovery rule suspends the =
accrual of=20
a cause of action, and thus the running of limitations, only until =
a=20
plaintiff knew or in the exercise of reasonable diligence should =
have=20
known of the wrongful act and resulting injury. Diaz, =
941=20
S.W.2d at 99.
As pointed=20
out above, the evidence is undisputed that (1) on February 13, =
1996,=20
appellant experienced such a painful labor and delivery that she =
was=20
uncooperative and unable to meaningfully participate in the effort =
to=20
vaginally deliver her son; (2) appellant learned of the existence =
of=20
epidural anesthesia within six months of her son=3Ds birth;=20
and (3) appellant=3Ds son was=20
diagnosed with cerebral palsy within nine months of his =
birth. =20
Knowledge of these facts would cause a reasonable person to =
inquire and=20
discover any potential causes of action against appellees thus =
triggering=20
the running of the statute of limitations. Regardless of =
whether=20
appellant=3Ds=20
individual causes of action accrued on February 13, 1996, August =
13, 1996,=20
or November 13, 1996, because appellant waited nine years after =
the birth=20
of her son to file her lawsuit asserting her individual claims =
suit=20
against appellees, those claims are barred by =
limitations.
As we have=20
overruled appellant=3Ds issues=20
challenging the trial court=3Ds summary=20
judgment based on limitations, we need not address =
appellant=3Ds=20
remaining issues challenging the other grounds for summary =
judgment=20
asserted by Memorial Southwest. Tex. R. App. =
P. 47.1.
Conclusion
Having overruled =
all of=20
appellant=3Ds issues on appeal =
necessary=20
for a final disposition of the appeal, we affirm the =
trial=20
court=3Ds summary=20
judgments.
/s/ =20
John S. Anderson
Justice
Judgment=20
rendered and Memorandum Opinion filed January 22, 2008.
Panel=20
consists of Chief Justice Hedges and Justices Anderson and=20
Guzman.
Ultimately, the decision as to =
which law=20
governs is a distinction without a difference as both the old and =
the new=20
statutes impose an absolute two-year statute of limitations. =
Compare Tex. Civ. Prac. & Rem. Code Ann. ' 74.251(a) (Vernon =
2005)=20
(ANotwithstanding any =
other law=20
. . . , no health care liability claim may be commenced unless the =
action=20
is filed within two years from the occurrence of the breach or =
tort or=20
from the date the medical or health care treatment that is the =
subject of=20
the claim or the hospitalization for which the claim is made is =
completed=20
. . . .@) with Act =
of May 30,=20
1977, 65th Leg., R.S., ch. 817, ' 1, sec. 10.01, =
1977 Tex.=20
Gen. Laws 2039, 2052, repealed by Act of June 2, =
2003,=20
78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. =
Gen. Laws=20
847, 884 (ANotwithstanding any =
other=20
law, no health care liability claim may be commenced unless the =
action is=20
filed within two years from the occurrence of the breach or tort =
or from=20
the date the medical or health care treatment that is the subject =
of the=20
claim or the hospitalization for which the claim is made is =
completed . .=20
. .@). |