IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 05-0925

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Eula Yancy, as Guardian of the Person and the Estate of = Carletha Yates, an Incapacitated Adult,

Petitioner,

United Surgical = Partners=20 International, Inc., Valley View Surgical = Center, Inc.,=20 and Judith Smith, R.N.,

Respondents

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On Petition for Review from = the

Court of Appeals for the Fifth = District of=20 Texas

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Argued February=20 14, 2007

Chief Justice Jefferson delivered the opinion of the = Court.

We = must=20 decide whether the two-year statute of limitations found in former = article=20 4590i, section 10.01 of the Texas Revised Civil Statutes[1], violates the Texas = Constitution=92s open=20 courts guarantee as applied to an incapacitated plaintiff whose guardian = timely=20 filed suit against some defendants but not others. We conclude, contrary = to the=20 court of appeals, that the plaintiff presented competent summary = judgment=20 evidence of her continuous mental incapacity but nonetheless hold that = the open=20 courts guarantee has not been violated here.

Background

On = May 3,=20 2000, Carletha Yates underwent a lithrotripsy=97a surgical procedure to remove = kidney stones=97at=20 Valley = View Surgical Center. During the procedure, = Yates=20 suffered a cardiac arrest=97allegedly caused by the medical = personnel=92s failure to=20 monitor her oxygen while she was under general anesthesia=97and is now = comatose.=20 On December 10, 2001, Eula Yancy, Yates=92s mother and guardian of her estate = and person,=20 sued Manuel Ramirez, M.D. and Dallas Pain & Anesthesia = Associates for=20 negligence. Almost two years later, on September 2, 2003, Yancy added United Surgical Partners = International, Inc.[2] (United = Surgical),=20 Valley View Surgical Center, Inc., and Judith Smith, R.N., = (collectively, Valley=20 View) as defendants.

United=20 Surgical and Valley View asserted that limitations barred Yates=92s = claims, and=20 they moved for summary judgment on that basis. In response, Yancy conceded that she filed Yates=92s claims = outside of the=20 two-year statute of limitations but contended that because Yates has = =93been=20 continuously in a vegetative, comatose state since May 3, 2000 . . . = limitations=20 . . . has been tolled and any statutory attempt to void the tolling = violates the=20 Texas Open Courts provisions.=94 Yancy = attached two=20 affidavits to the summary-judgment response. Anaise=20 =93Sis=94 Theuerkauf, a =93certified = rehabilitation=20 registered nurse, certified case manager, and life care planner,=94 = testified that=20 she visited and assessed Yates at her home and reviewed her medical = records.=20 Theuerkauf concluded:

It is my=20 opinion based upon personal observations, assessment, interviews and = review of=20 her medical records and diagnoses of her treating physicians that Carletha Yates is in a comatose, vegetative state, = and,=20 based on my review of her medical records, she has been in such a = condition=20 consistently and uninterrupted since her anoxic brain injury suffered on = May 3,=20 2000, while a patient at Valley View Surgery [sic] Center. She has been = totally=20 disabled continuously since May 3, 2000.

Yancy also filed an affidavit and accompanying = report from=20 Cindy Sacker, a registered nurse. Sacker=92s report noted that the = monitor record=20 from Yates=92s surgery reflected a ten-minute period during which Yates = had =93no=20 respirations,=94 leading Sacker to conclude that Valley View=92s nursing = staff=20 breached its duty of care and =93[a]s a result . . . Yates, has suffered = a=20 catastrophic, irreversible, brain injury, rendering her comatose and = totally=20 unresponsive, requiring her family to assume responsibility for her = care.=94

Yancy also attached the 137-page deposition = transcript of=20 Dr. Manuel Ramirez, the anesthesiologist who attended Yates during the = lithrotripsy. Based on his review of the records, = Dr.=20 Ramirez testified that near the end of the procedure, Yates=92s = blood-oxygen=20 levels dropped, and she developed =93brady = [and] asystole.=94 Ultimately, Yates suffered a cardiac = arrest,=20 requiring cardiopulmonary resuscitation. Dr. Ramirez intubated Yates and administered epinephrin. Yates=92s vital signs returned and, = accompanied by=20 Dr. Ramirez, she was transferred to Medical City Dallas. Dr. Ramirez = recalled=20 speaking with Yancy that day and explaining = that Yates=20 had suffered a cardiac arrest, had been = resuscitated=20 and had demonstrated good vital signs on transfer, but remained = unconscious.=20 While Dr. Ramirez had not seen Yates since the transfer, he had no = reason to=20 believe her condition had changed.

On = the day of=20 the summary judgment hearing, Valley View challenged Yancy=92s summary judgment evidence, asserting = that Theuerkauf=92s affidavit testimony was vague, = ambiguous,=20 misleading, and conclusory, and that = Sacker=92s=20 testimony was uncorroborated. United Surgical did not object to Yancy=92s proof. The trial court granted the = motions.[3] Yancy settled=20 with and dismissed Ramirez and the Dallas Pain & Anesthesia = Associates from=20 the suit, making the summary judgments final.

Yancy appealed, and the court of appeals affirmed. = 170 S.W.3d 185. The court examined the summary = judgment=20 evidence and objections and concluded that, because the objections = raised=20 matters of substance, not form, =93the = failure to obtain=20 a ruling did not waive the objections=94 because =93[o]bjections to the substance of an affidavit may be = raised for=20 the first time on appeal.=94 Id. at=20 191. The court held that both affidavits were conclusory, and that neither Theuerkauf nor Sacker were=20 qualified to testify to Yates=92s medical condition. The court did not = mention Dr.=20 Ramirez=92s testimony nor any other summary = judgment=20 evidence. The court of appeals affirmed, holding that Yancy failed to present competent evidence of = Yates=92s=20 alleged continuous mental incapacity and, therefore, failed to raise a = fact=20 issue about the constitutionality of the statute of limitations for = health care=20 liability claims as applied to her. Id. at 192-93. We granted Yancy=92s=20 petition for review. 50 Tex. Sup. Ct. J. 65 (Oct. 27, = 2006).=20

Summary Judgment=20 Burden of Proof

Yancy argues that, as the movants,=20 the respondents bore the burden of conclusively negating an open courts=20 violation, and that because their motions did not address the open = courts provision, they failed to meet their burden. To = support her=20 position, she relies on authority requiring a defendant to negate the = discovery=20 rule as a matter of law once the plaintiff has pleaded it. See Pustejovsky v. Rapid-American Corp., 35 S.W.3d = 643, 646=20 (Tex. 2000); Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. = 1997).

We = confronted=20 this very question in Shah v. Moss, 67 S.W.3d 836, 846-47 = (Tex. 2001). = In that case=20 Moss sued Shah for medical negligence, and Shah moved for summary = judgment based=20 on section 10.01's limitations provision. Id. at 839. Moss countered that section 10.01 violated = the open=20 courts guarantee. Id. at=20 841. We said, =93it was Moss=92s = burden to raise a=20 fact issue demonstrating that . . . the open courts guarantee = applies.=94=20 Id. at=20 846-47. Unlike the discovery rule, which a defendant must negate = once the=20 plaintiff has pleaded it, a plaintiff who asserts that the open courts = provision=20 defeats limitations bears the burden of raising a fact issue. See also Brown v. Shores, 77 S.W.3d 884, 888-89 = (Tex.=20 App.=97Houston=20 [14th Dist.] 2002, no pet.) (Brister, C.J., concurring).

Thus, Yancy had the burden to present evidence of = Yates=92s=20 continuous mental incapacity. See Tinkle v. = Henderson,=20 730 S.W.2d 163, 167 (Tex. App.=97Tyler 1987, writ ref=92d). The court of appeals held that = Yancy failed to provide competent summary judgment = evidence=20 regarding Yates=92s mental capacity and, therefore, failed to meet that = burden.=20 170 S.W.3d at 192-93. We disagree.

When=20 reviewing a summary judgment, we =93must examine the entire record = in the=20 light most favorable to the nonmovant, = indulging every=20 reasonable inference and resolving any doubts against the motion.=94 = City of=20 Keller v. Wilson, 168 S.W.3df 802, 824-25 (Tex. 2005) (emphasis added). Here, = the=20 evidence included not only the two affidavits discussed by the court of = appeals,=20 but the anesthesiologist=92s deposition testimony and Yates=92s medical = records.[4] Theuerkauf=20 averred that she =93personally visited and assessed Carletha Yates in her home,=94 and it was her = opinion =93based=20 upon personal observations, assessment, interviews and review of her = medical=20 records and diagnoses of her treating physicians that Carletha Yates is in a comatose, vegetative state, = and,=20 based on [her] review of [Yates=92s] medical records, she has been in = such a=20 condition consistently and uninterrupted since . . . May 3, 2000.=94

The = court of=20 appeals concluded that the affidavit was not competent evidence because = Theurkauf did not show herself qualified to render = an=20 opinion on Yates=92s medical diagnosis, and Theurkauf=92s=20 statement that Yates had been in a =93comatose, vegetative state=94 = consistently=20 since her surgery was =93wholly conclusory = in nature.=94=20 170 S.W.3d at 191-92. Theuerkauf=92s qualifications consisted of a = statement that=20 she is =93a certified rehabilitation registered nurse, certified case = manager, and=20 life care planner who has been duly licensed in nursing in Louisiana, = Texas,=20 Mississippi, Arkansas, Alabama, and Tennessee.=94 Even assuming that she = was not=20 qualified as an expert, she was still free to offer testimony of her = personal=20 observations. The lower court recognized that Theuerkauf, a registered nurse, would have been = competent to=20 testify that =93the plaintiff was unresponsive, uncommunicative, and = incapable of=20 caring for herself.=94 [5] 170 S.W.3d = at=20 192. We see no meaningful distinction between that description = and Theuerkauf=92s actual testimony that Yates was = =93comatose=94 and=20 in a =93vegetative state.=94 Theuerkauf=92s = affidavit=20 supports an inference that Yates is currently mentally incapacitated. =

Also included=20 in the summary judgment evidence were Valley View's medical records of = Yates=92s=20 lithrotripsy procedure. Those records show = that,=20 during surgery, Yates suffered a cardiac arrest during which her = blood-oxygen=20 levels dropped, necessitating cardiopulmonary resuscitation. Sacker=92s = affidavit=20 describes a ten-minute period during which Yates had =93no = respirations.=94 The=20 records further reflect that when Yates was transferred from the surgery = center=20 by ambulance she was =93unresponsive,=94 with pupils fixed and dilated. = Dr.=20 Ramirez, who rode with Yates during the transfer to = Medical=20 City,=20 testified that Yates had not regained consciousness when he last saw her = and=20 that it was his understanding she was =93incapacitated.=94 = While these=20 facts alone may not absolutely exclude the possibility that Yates = regained=20 consciousness after she was transferred from the surgery center, her = current=20 comatose condition supports a reasonable inference that she never = recovered. The=20 affidavits, taken in conjunction with the medical records and Dr. = Ramirez=92s=20 testimony, raise a fact issue as to whether Yates has been continuously = mentally=20 incapacitated since the surgery, and the court of appeals erred in = concluding=20 otherwise.

III

The = Open Courts=20 Guarantee

Applicable=20 Law

The = Texas=20 Constitution=92s open courts guarantee provides that =93[a]ll courts shall be open, and every person for an = injury done=20 him, in his lands, goods, person or reputation, shall have remedy by due = course=20 of law.=94 Tex. Const. = art.=20 I, =A7 13. This provision assures that a = person bringing=20 a well-established common-law cause of action will not suffer = unreasonable or=20 arbitrary denial of access to the courts. Jennings = v.=20 Burgess, 917 S.W.2d 790, 793 (Tex. 1996). =93[I]t is, quite = plainly, a=20 due process guarantee.=94 Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983); Hanks v. City of Port=20 Arthur, 48 S.W.2d 944, 946-48 (Tex. 1932).

A = statute has=20 the effect of denying access to the courts if it unreasonably abridges a = plaintiff=92s right to obtain redress for injuries caused by the = wrongful acts of=20 another. Sax, 648 S.W.2d at 665. Proof = of an=20 open courts violation requires two elements: (1) a cognizable, = common-law claim=20 that is statutorily restricted, and (2) the restriction is unreasonable or arbitrary when balanced against = the=20 statute=92s purpose and basis. Shah, 67 = S.W.3d at=20 842; Jennings, 917 S.W.2d at 793; = Sax,=20 648 S.W.2d at 665-66.

The = Parties=92=20 Arguments

&nbs= p;=20 Yancy contends that the Medical Liability = Insurance=20 Improvement Act=92s (MLIIA) limitations provision violates the open = courts=20 guarantee as applied to Yates. The statute at issue prescribes a = two-year limit=20 in which to file medical malpractice claims and prohibits tolling based = on=20 minority or incapacity; it provides:

Notwithstanding = any other=20 law, no healthcare liability claim may be commenced unless the = action is=20 filed within two-years from the occurrence of the breach or tort or from = the=20 date the medical or healthcare treatment that is the subject of the = claim or the=20 hospitalization for which the claim is made is completed; provided that, = minors=20 under the age of 12 shall have until their 14th birthday in which to = file, or=20 have filed on their behalf, the claim. Except as herein provided, = this=20 subchapter applies to all persons regardless of minority or other legal=20 disability.

Act of May 30,=20 1977, 65th Leg., R.S., ch. 817, =A7 10.01, = 1977 Tex.=20 Gen. Laws 2039, 2052 (repealed 2003) (emphasis added). Yancy=92s argument is precise: this Court has = already held=20 that section 10.01 violates the open courts guarantee as applied to = minors,=20 see Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995), and there is no = rational basis for allowing a plaintiff=92s minority but not her mental = incapacity=20 to toll limitations for a health care liability claim. United Surgical = and=20 Valley View contend, however, that Yancy = cannot=20 establish either element of an open courts claim. We conclude that the = open=20 courts guarantee is not violated as applied to Yates.

Analysis

In = Ruiz v.=20 Conoco, Inc., we acknowledged = that =93the=20 mere commencement of a lawsuit by, or on behalf of, a legally = incapacitated=20 individual is, considered alone, insufficient to deny the protection of = [the=20 Civil Practice and Remedies Code=92s] tolling provision.=94 Ruiz, 868 S.W.2d 752, 756 (Tex. 1994). Ruiz, = however, did=20 not involve an open courts challenge, but rather the statutory tolling = provision=20 applicable to persons who were legally disabled. See Tex. Civ. Prac. & Rem.=20 Code =A7 = 16.001. We=20 observed =93[t]he tolling statute reflects a considered legislative = judgment that=20 in enumerated circumstances the strong policy in favor of prompt = disposition of=20 disputes must give way to the need to protect a plaintiff who is unable = to=20 protect himself or herself.=94 Ruiz, = 868 S.W.2d at 756. But section 10.01 expressly = makes the=20 tolling statute inapplicable to health care liability claims, Act of May = 30,=20 1977, 65th Leg., R.S., ch. 817, =A7 10.01, = 1977 Tex.=20 Gen. Laws 2039, 2052 (repealed 2003) (applying two-year statute of = limitations=20 =93[n]otwithstanding any other law=94 and = stating that=20 subchapter =93applies to all persons regardless of minority or other = legal=20 disability=94), reflecting a considered legislative judgment in favor of = the=20 prompt resolution of such claims.

Instead,=20 Yancy=92s claim is based on the open courts = guarantee,=20 which is premised on the notion that =93the Legislature has no power to = make a=20 remedy by due course of law contingent on an impossible condition.=94 = Morrison v. Chan, 699 S.W.2d 205, 207 (Tex. = 1985). This=20 guarantee differs from tolling provisions. Unlike the discovery rule, = which=20 defers accrual of a cause of action until the plaintiff knew or, = exercising=20 reasonable diligence, should have known of the facts giving rise to the = claim,=20 HECI Exploration Co. v. Neel, 982 = S.W.2d 881,=20 886 (Tex. 1997), the open courts provision merely gives litigants a = reasonable=20 time to discover their injuries and file suit, Hall v. Dow Corning = Co.,=20 114 F.3d 73, 77 (5th Cir. 1997) (applying Texas law). Because the open = courts=20 guarantee does not toll limitations, courts must determine what = constitutes a=20 reasonable time for a claimant to discover her injuries and file suit.=20 Hall, 114 F.3d at 77.

Once again,=20 Shah v. Moss is instructive. There, we considered whether = applying=20 section 10.01 to the plaintiff=92s health care liability claim, = allegedly=20 resulting from a negligent course of treatment, would violate the open = courts=20 guarantee. Shah, 67 S.W.3d at 846-47. = Moss sued=20 Dr. Shah, alleging that his medical negligence ultimately caused = Moss=92s loss of=20 sight in his right eye. Id. at=20 839. Dr. Shah moved for summary judgment, claiming section = 10.01's=20 two-year statute of limitations barred Moss=92s claims, which were filed = more than=20 two years after Dr. Shah performed surgery on Moss=92s eye. Id. = The trial=20 court granted Dr. Shah=92s motion, and Moss appealed. Id. at=20 840. The court of appeals reversed, and we granted Dr. Shah=92s = petition=20 for review.

Moss argued,=20 among other things, that applying section 10.01 to bar his claims = violated the=20 open courts provision. Id. at=20 841. We rejected that proposition:

. . .=20 [E]ven if we take as true Moss=92s assertion = that he=20 could not have sued within the two-year limitations period because he = did not=20 discover Dr. Shah=92s negligence until his last office visit in July = 1995, the=20 open courts provision does not save Moss=92s claims. A plaintiff may = not obtain=20 relief under the open courts provision if he does not use due diligence = and sue=20 within a reasonable time after learning about the alleged wrong. =

Here, the=20 summary-judgment evidence shows Moss knew about his alleged injury, the = second=20 detached retina resulting in Moss=92s loss of sight, at least seventeen = months=20 before he brought suit. Moss offers no explanation, other than Dr. = Shah=92s=20 alleged fraudulent concealment, about why he delayed in bringing suit. = And, we=20 have already rejected Moss=92s fraudulent-concealment claim. = Accordingly, we=20 conclude that, as a matter of law, Moss did not file suit within a = reasonable=20 time after discovery his injury.

Moss did=20 not raise a fact issue establishing that he = did not=20 have a reasonable opportunity to discover the alleged wrong and bring = suit=20 within the limitations period or that he sued within a reasonable time = after=20 discovering the alleged wrong. Thus, the open courts provision does not = apply to=20 save Moss=92s time-barred negligence claims.

Id. at = 847=20 (citations omitted) (emphasis added).

Such is the=20 case here. The allegedly negligent treatment occurred on a single = day=97May 3,=20 2000=97the date of Yates=92s lithrotripsy at = Valley View.=20 Yancy=92s original petition, filed some = nineteen months=20 later, =93specifically reserve[d] the right to obtain discovery to = obtain more=20 information regarding the procedure in question and the events which = transpired=20 on May 3, 2000 and to thereafter name additional persons or entities as=20 Defendants based on future discovery.=94

Yancy has offered no explanation for failing to = name Valley=20 View and United Surgical for almost twenty-two months after filing the = original=20 petition. The record does not establish when Yancy was=20 appointed Yates=92s guardian nor when Yancy retained a lawyer, but neither event was = later than=20 December 10, 2001, the day Yancy, on = Yates=92s behalf,=20 filed suit against Dr. Ramirez and Dallas Pain and Anesthesia. The = summary=20 judgment evidence demonstrates that Dr. Ramirez spoke with Yancy on May 3, 2000 and informed her of Yates=92s = post-surgery condition. If, as Yancy = alleges, Yates=20 has been continuously incapacitated since that time, Yancy knew of her condition and retained a lawyer = well=20 within the limitations period. On this record, there is no fact issue=20 establishing that Yancy (on Yates=92s = behalf) did not=20 have a reasonable opportunity to discover the alleged wrong and bring = suit=20 within the limitations period or that she sued within a reasonable time = after=20 discovering the alleged wrong. Thus, the open courts provision does not = save=20 Yates=92s time-barred negligence claims. Shah, 67 S.W.3d=20 at 847.

In = Tinkle=20 v. Henderson, 730 S.W.2d 163, 167 (Tex. App.=97Tyler 1987, writ = ref=92d),[6] the court recognized that = requiring an=20 incapacitated plaintiff to comply with the Tort Claims Act=92s notice = provision=20 would =93require an impossible thing=94 and violate the due process = guarantees of=20 the Texas Constitution. Here, requiring Yates to comply with section = 10.01's=20 limitations period does not =93require an impossible thing=94; she had a = guardian,=20 retained a lawyer, and filed suit, all within the applicable period. = That Yancy chose, for unknown reasons, to sue some = defendants but=20 not others does not raise due process concerns. Because section 10.01 is = constitutional as applied to Yates, there is no need to strike it down = because=20 it might operate unconstitutionally in another case. See Morrison v.=20 Chan, 699 S.W.2d 205, 207 (Tex. 1985). =

Conclusion

We = affirm the=20 court of appeals=92 judgment. Tex. R. App. P.=20 60.2(a).

______________________________

Wallace B. Jefferson

Chief Justice

OPINION=20 DELIVERED: October 19,=20 2007 &nb= sp; &nbs= p; = ; = =20

^[1]=20 Act of May 30, 1977, 65th Leg., R.S., ch. = 817, =A7=20 10.01, 1977 Tex. Gen. Laws 2039, 2052, repealed by Act of June 2, = 2003,=20 78th Leg., R.S., ch. 204, =A7 10.09, 2003 = Tex. Gen. Laws=20 847, 884 (current version at Tex. Civ.=20 Prac. & Rem. Code =A7=20 74.251). The prior law continues in effect for = cases like=20 this one, filed before the new Act's September 1, 2003 effective date. = Act of June 2, 2003, 78th Leg., R.S., ch.=20 204, =A7 23.02(d), 2003 Tex. Gen. Laws 847, 899.

^[2]=20 Yancy alleged that United Surgical owned and = operated=20 Valley = View Surgical Center, where Yates=92s lithrotripsy was performed.

^[3]=20 The trial court=92s order was silent on the objections.

^[4]=20 We assume, without deciding, that the court of appeals correctly = concluded that=20 the objections raised matters of substance, not form, and, therefore, = that the=20 failure to obtain an explicit ruling from the trial court did not waive = the=20 objections.

^[5]=20 See Tex. R. = Evid. 701 ("If=20 the witness is not testifying as an expert, the witness' testimony in = the form=20 of opinions or inferences is limited to those opinions or inferences = which are=20 (a) rationally based on the perception of the witness . . . ."); see = also Lee=20 v. Lee, 424 S.W.2d 609, 611 (Tex. 1968) (holding that where there = was "no=20 direct testimony in the record of acts, demeanor or condition indicating = that=20 testator lacked testamentary capacity on [a certain date], testator's = mental=20 condition on that date may be determined from lay opinion testimony = based upon=20 the witnesses' observations of testator's conduct either prior or = subsequent to=20 the execution").

^[6]=20 Tinkle has the weight of our own precedent. See Hyundai = Motor=20 Co. v. Vasquez, 189 S.W.3d 743, 754 n.52 (Tex. 2006)(citing Texas Rules=20 of Form (Texas Law Review Ass'n et = al. eds.,=20 10th ed. 2005) (In cases decided after 1927, "writ refused" denotes that = the=20 "[j]udgment of the court of civil appeals is = correct,"=20 with "[s]uch cases hav[ing] equal precedential value with=20 the Texas Supreme Court's own opinions.")). =