Opinion issued December 20,=20
2007
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; In The
Court of Appeals
For The
First District of =
Texas
NO. 01-06-01068-CV
__________
TANGIE =
WALTERS,=20
Appellant
V.
CLEVELAND REGIONAL=20
MEDICAL CENTER, SHIRLEY KIEFER, AND KEITH SPOONER, M.D.,=20
Appellees
On =
Appeal from=20
the 125th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2005-54075
O P I =
N I O=20
N
<=
/SPAN>Tangie=20
Walters, appellant, appeals the=20
trial court=E2=80=99s grant of Cleveland Regional Medical Center =
and Shirley=20
Kiefer=E2=80=99s (collectively =
=E2=80=9CCleveland=E2=80=9D) and=20
Keith Spooner, M.D.=E2=80=99s motions for summary judgment. =
Walters argues that=20
she alleged and offered evidence that the medical malpractice=20
statute of =
limitations cut off=20
her claim before she knew or reasonably should have known of her =
injury,=20
in contravention of the open courts=20
guarantee of the Texas Constitution. Tex. Const. art. I, =
=C2=A7 =
13. She =
also asserts=20
that Cleveland and Spooner =
failed to=20
establish conclusively that =
there was=20
no genuine issue of material fact that she should have discovered =
her=20
injury and filed suit within the limitations period. We=20
affirm.Background
<=
/SPAN>On December 1, 1995, Keith Spooner, M.D. =
delivered=20
Tangie Walters=E2=80=99s fourth child at Cleveland Regional =
Medical=20
Center. The same day, =
Spooner=20
performed a bilateral tubal ligation on Walters. Walters=20
was taken to the recovery room in stable condition, and all =
surgical=20
sponges were accounted for according=20
to the sponge count performed by nurse Shirley Kiefer. =
After the surgery, Walters began =
suffering chronic=20
abdominal pain, which progressively worsened over the next 10=20
years. The pain was more =
intense=20
during her menstrual cycle, with bowel movements, and during =
certain=20
physical activities. She also suffered various ailments during =
this time,=20
including bladder =
infections,=20
frequent urination, vaginal bleeding, lymph node infections, sinus =
problems, pneumonia-like symptoms, insomnia, and fatigue. =
Beginning in=20
March 1998, more than two years after the surgery, she was treated =
by=20
primary care physicians, who performed blood and urine tests, and=20
prescribed antibiotics, antidepressants, and sleep=20
medications.
<=
/SPAN>In=20
April 2005, almost 10 years =
after the=20
surgery, Walters went to =
Mary=20
Garnepudi, M.D., a gynecologist. While performing a routine exam,=20
Garnepudi noticed something =
unusual=20
and decided to perform a laparoscopy, which revealed a bulky =
uterus,=20
multiple pelvic adhesions, and pelvic congestion. Garnepudi=20
referred Walters to Tracy Pipkin, M.D. Due to Walters=E2=80=99s continued =
pain, Pipkin=20
conducted an exploratory laparotomy and hysterectomy. =
Pipkin=20
noticed a mass connected to the small bowel and brought in another =
surgeon=20
for an intraopertive consultation. The mass was removed and was =
determined=20
to be a surgical sponge encapsulated in fibrous tissue. Pipkin =
told=20
Walters that the sponge had been there for awhile because =
=E2=80=9Ca lot of stuff=E2=80=9D=20
had grown around it.
<=
/SPAN>Walters=20
testified that she believes that her physical problems=E2=80=94the =
weakening of=20
her immune system and her subsequent surgeries, including the=20
hysterectomy=E2=80=94 resulted from the retained sponge. She =
brought a medical=20
negligence suit against Spooner and Cleveland Regional Medical =
Center=20
on August 23, 2005, and =
later amended=20
her petition to include Kiefer as a defendant. All defendants =
filed=20
traditional motions for summary judgment, asserting that =
Walters=E2=80=99s claims=20
were barred by the two-year statute of limitations applicable to =
medical=20
malpractice claims. See Tex.=20
Civ. Prac. & Rem. Code Ann. =C2=A7 74.251(a) (Vernon =
2005). Walters=20
responded by asserting that the statute of limitations violated =
her open=20
courts guarantee under the Texas Constitution. Tex. Const. art. I, =
=C2=A7 =
13. =
The trial court granted both motions for =
summary=20
judgment against Walters. Walters now appeals
Open =
Courts=20
Guarantee
<=
/SPAN>In=20
two issues, Walters argues that the open courts guarantee saves =
her claim=20
from being barred by the two-year medical malpractice statute of=20
limitations. In her first =
issue,=20
Walters claims that she alleged and offered some evidence that the =
application of the two-year limitations period cut off her claim =
before=20
she knew or should have known of its existence, in contravention =
of the=20
open courts guarantee. In her second issue, Walters asserts that =
Cleveland=20
and Spooner failed to =
establish=20
conclusively that there was =
no=20
genuine issue of material fact that she should have discovered the =
nature=20
of her injury and claim within two years of her tubal =
ligation.
Standard of=20
Review
<=
/SPAN>We review the granting of summary =
judgment de=20
novo. See Nelson v.=20
Chaney, 193 S.W.3d 161, =
165 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2006, no pet.). When a defendant =
moves for=20
traditional summary judgment, it must either (1) disprove at least =
one=20
element of the plaintiff=E2=80=99s cause of action or (2) plead =
and conclusively=20
establish each essential element of its affirmative defense, =
thereby=20
defeating the plaintiff=E2=80=99s cause of action. Cathey v.=20
Booth, 900 S.W.2d 339, =
341 (Tex.=20
1995). The court takes as =
true=20
evidence favorable to the non-movant when deciding whether there =
is a=20
disputed, material fact issue precluding summary judgment, =
Nixon v. Mr. Prop. =
Mgmt.=20
Co., 690 S.W.2d 546, =
548=E2=80=9349=20
(Tex. 1985),=20
and all doubts about the existence of a genuine issue of a =
material fact=20
are resolved against the movant. Cate, 790 S.W.2d at =
562.=20
If the movant=E2=80=99s summary judgment =
motion and proof=20
facially establish its right to judgment =
as a matter of law, the burden shifts to =
the=20
non-movant to raise a material fact issue sufficient to defeat =
summary=20
judgment. City of Houston v. =
Clear=20
Creek Basin Auth., 589 S.W.2d 671, =
678 (Tex.=20
1979). A=20
summary judgment must be affirmed if any of the theories advanced =
by the=20
movant is meritorious. Harwell v. State =
Farm Mut.=20
Auto. Ins. Co., 896 S.W.2d 170, =
173 (Tex.=20
1995).
Analysis
<=
/SPAN>In=20
her first issue, Walters argues that she alleged and offered some =
evidence=20
that application of the two-year statute of limitations cut off =
her claim=20
before she knew or should have known of its existence. Walters is essentially arguing that =
she met her=20
burden of establishing an open courts violation that would allow =
her to=20
file her claim beyond the applicable statute of limitations.
<=
/SPAN>=E2=80=9C[N]o health care liability claim may be =
commenced=20
unless the action is filed within two years from the occurrence of =
the=20
breach or tort or from the date the medical or health care =
treatment that=20
is the subject of the claim or the hospitalization for which the =
claim is=20
made is completed.=E2=80=9D Tex. Civ.=20
Prac. & Rem. Code Ann. =C2=A7 74.251(a). Former Article =
4590i,=20
Section 10.01 of the =
Texas Revised=20
Civil Statutes ![3DFootnote](3D"")
was the =
predecessor to=20
Subsection 74.251. =
Because the =
two-year=20
limitations period described in Subsection 74.251(a) =
is substantially the same as that =
described in=20
former Section 10.01, we rely on precedent concerning Section =
10.01 in=20
interpreting Subsection 74.251(a). Kallam v.=20
Boyd, 232 S.W.3d 774, 776 n.1 (Tex.=20
2007) (recognizing that =
Subsection 74.251 is the current version of Section=20
10.01).
=
The=20
two-year limitations =
period of=20
Section 10.01 is=20
absolute. See Diaz v. Westphal, 941 S.W.2d 96, 98 (Tex.=20
1997). However, a =
plaintiff can=20
save his claim barred by Section 10.01 if =
he can show=20
that the claim was cut short in violation of the open courts guarantee of the Texas=20
Constitution.
See, =
e.g., Neagle=20
v. Nelson, 685 S.W.2d 11, 12 (Tex. 1985) (holding that the limitations=20
period of Section 10.01violated the =
plaintiff=E2=80=99s=20
open courts guarantee). The open courts =
guarantee is=20
based on the principle that =
=E2=80=9Cthe Legislature =
has no power=20
to make a remedy by due course of law contingent on an impossible=20
condition.=E2=80=9D=20
Morrison v.=20
Chan, 699 S.W.2d 205, =
207 (Tex.=20
1985). For a litigant to establish that the =
limitations=20
period of 4590i violated =
his open=20
courts guarantee, the litigant must: =
first show a =
cognizable,=20
common-law claim that article 4590i=E2=80=99s limitations =
provision restricts.=20
Then, =
the=20
litigant must show the restriction is unreasonable or arbitrary =
when=20
balanced against the statute=E2=80=99s purpose and basis. =
The limitations =
provision in=20
article 4590i section 10.01 does not violate the open courts =
guarantee if=20
the plaintiff had a reasonable opportunity to discover the alleged =
wrong=20
and bring suit before the limitations period expired. =
Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001) =
(citations=20
omitted). Thus, the plaintiff has a burden to raise a fact issue=20
demonstrating that he did not have a reasonable opportunity =
to=20
discover the alleged wrong before the limitations period expired =
so that the open =
courts=20
guarantee applies. Id. at =
846=E2=80=9347.
<=
/SPAN>The=20
interpretation of =E2=80=9Creasonable opportunity to discover the =
alleged wrong=E2=80=9D=20
is the source of the parties=E2=80=99 =
disagreement. =
Walters argues that this phrase =
requires an=20
inquiry of whether the plaintiff knew-or-should-have-known of her =
injury=20
during the limitations period, whereas Cleveland and Spooner =
contend that=20
the provision applies only if it was =
impossible-or-exceedingly-difficult=20
for the plaintiff to have discovered the injury during this =
period. This=20
divergence is understandable given that the=20
language used in applying the open courts guarantee to the two-year statute of =
limitations=20
of Section 10.01 has been =
inconsistent.=20
See=20
O=E2=80=99Reilly=20
v. Wiseman, 107 S.W.3d 699, 702 (Tex. =
App.=E2=80=94Austin 2003,=20
pet. denied) (=E2=80=9CLanguage in =
appellate=20
opinions has made it confusing for both lower courts and litigants =
to know=20
with certainty when the open-courts provision applies so as to =
invalidate=20
the limitation period.=E2=80=9D). However, we agree with the =
Fort Worth=20
court of appeals, which recognized the test as being whether the =
plaintiff=20
had a reasonable opportunity to discover the injury and file suit. =
Boyd=20
v. Kallam, 152 S.W.3d 670, 678=E2=80=9381 (Tex. =
App.=E2=80=94Fort Worth 2004), pet.=20
denied improvidently granted, 232 S.W.3d 774 (Tex.=20
2007). Any other =
variations of the=20
test carry the same meaning. See id.=20
at 678. A recent Texas Supreme Court decision is =
instructive on this issue. In Yancy v. United Surgical Partners =
Intern., Inc., the Texas Supreme Court gave the =
following=20
description of the open courts guarantee: This guarantee differs from =
tolling=20
provisions. Unlike the discovery rule, which defers accrual of a =
cause of=20
action until the plaintiff knew or, exercising reasonable =
diligence,=20
should have known of the facts giving rise to the=20
claim, the open courts=20
provision merely =
gives=20
litigants a reasonable time to discover their injuries and file=20
suit. =
Because=20
the open courts guarantee does not toll limitations, courts =
must=20
determine what constitutes a reasonable time for a claimant to =
discover=20
her injuries and file suit.236 S.W.3d 778, =
784 (Tex.=20
2007) =
(emphasis=20
added) (citations omitted). It is clear that courts are to decide =
what=20
constitutes a reasonable =
time or=20
opportunity for the plaintiff to discover his injury and file=20
suit. Therefore, Walters had the =
burden of=20
establishing a fact issue that she did not have reasonable =
time to=20
discover her injuries and file suit before the =
limitations=20
period expired.=20
=
In=20
her response to the defendants=E2=80=99 motions for summary =
judgment, Walters=20
specifically pleaded an open courts guarantee violation. Walters =
attached=20
evidence showing that she had no medical training and that the =
operative=20
report showed that all sponges were accounted for following her =
tubal=20
ligation. She also directed the trial court to evidence in the =
defendants=E2=80=99=20
motions for summary judgment, which showed that she had received=20
post-surgical treatment from several doctors, none of whom =
determined that=20
a retained sponge was the source of her ailments. Walters, arguing =
that=20
she should not be held to a higher standard than the doctors who =
treated=20
her, cited Del Rio v. =
Jinkins, =
which=20
commented on the effects a doctor=E2=80=99s misdiagnosis of the =
source of a=20
plaintiff=E2=80=99s pain may have on the plaintiff=E2=80=99s =
ability to discover his=20
injury. 730 S.W.2d 125, =
128 n.1 (Tex. App.=E2=80=94Corpus Christi =
1987, writ ref=E2=80=99d=20
n.r.e.) (=E2=80=9C[W]e believe that limitations =
cannot bar a=20
plaintiff who reasonably attempts to learn the cause of his injury =
but is=20
prevented from doing so through no=20
fault of his own.=E2=80=9D). =
Walters also=20
supplemented her response by pointing out that, in his deposition, =
Spooner=20
was asked whether he agreed that Walters could have and should =
have known=20
that her condition was related to her tubal ligation, to which he =
answered=20
he did not.
=
The fact that Walters had no medical =
training does=20
not show that she could not have reasonably discovered her injury =
within=20
the two-year limitations window; pain itself can be an indicator =
of=20
injury. See id. (=E2=80=9CThe cases=20
interpreting article 4590i, section 10.01 . . . seem to equate =
feelings of=20
pain with discovery of the injury.=E2=80=9D). =
Furthermore,=20
Walters presented no evidence that she saw the medical records that =
reflected the=20
sponge count. As for =
Spooner=E2=80=99s=20
statement that he does not agree that Walters could have and =
should have=20
known that her condition was related to her tubal =
ligation, we agree with Cleveland that such =
testimony was=20
taken out of the context of Spooner=E2=80=99s answer; Spooner disagreed with the statement =
because he=20
was not in a position to comment on Walters=E2=80=99s condition, =
having not=20
evaluated her. Finally, Walters directed the trial court to her =
medical=20
records which show a variety of diagnoses from several =
physicians. However, the =
records reveal=20
that her first doctor=E2=80=99s visit was on March 16, =
1998=E2=80=94more than two years=20
after her December 1, 1995 tubal ligation. Thus, the evidence =
referred to by=20
Walters does not show that she relied on any doctor=E2=80=99s =
misdiagnosis in the=20
two years following her surgery. We hold that Walters failed to =
establish=20
a fact issue that she did not have a reasonable opportunity to =
discover=20
her injuries and file suit before the =
limitations=20
period expired, and, thus, did not meet her burden of=20
establishing the applicability of the open courts guarantee. =
See=20
Yancy, 236 S.W.3d at 784. =
=
Walters=E2=80=99s=20
first issue is overruled. Because Walters=E2=80=99s =
first issue is dispositive of her =
appeal, we need=20
not discuss her second issue. ConclusionWe affirm =
the trial court=E2=80=99s grant of =
Cleveland=E2=80=99s and Spooner=E2=80=99s=20
motions for summary judgment.
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; George=20
C. Hanks, Jr.
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; Justice
Panel consists of =
Justices=20
Taft, Hanks, Higley. |