Send this document to a
colleague

Close
This Window

Affirmed and Memorandum Opinion filed January 22,
2008.

In The

Fourteenth
Court of Appeals

____________

NO. 14-07-00001-CV

____________

MIRNA
ACOSTA, INDIVIDUALLY AND AS NEXT FRIEND, NATURAL PARENT, AND LEGAL
GUARDIAN OF DENIS ACOSTA, Appellant

V.

MEMORIAL
HERMANN HOSPITAL SYSTEM, MEMORIAL HERMANN HOSPITAL SYSTEM D/B/A MEMORIAL
HERMANN SOUTHWEST HOSPITAL AND GREATER HOUSTON ANESTHESIOLOGY,
P.A.,
Appellees

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 2003-29841A

M E M O R
A N D U M   O P I N I O N

Appellant,
Mirna Acosta, Individually and as Next Friend, Natural Parent, and Legal
Guardian of Denis Acosta, filed suit against appellees, Memorial Hermann
Hospital System, Memorial Hermann Hospital System D/B/A Memorial Hermann
Southwest Hospital (collectively AMemorial
Southwest@), and
Greater Houston Anestheiology, P.A. (AGHA@)
asserting various health care liability claims.  Arguing all of
appellant=s
individual claims were barred by limitations, appellees separately filed
motions for summary judgment, which the trial court granted.  We
affirm.

Factual
and Procedural Background

On
February 13, 1996 appellant arrived at Memorial Southwest already in
active labor.  At the time appellant was admitted to the hospital,
she was eight centimeters dilated.  Soon thereafter,
appellant=s
attending physician ordered that appellant receive epidural
anesthesia.  A short time later, a Memorial Southwest nurse deleted
the attending physician=s order
for epidural anesthesia from the computer. Appellant was then prepped for
and ultimately completed her labor and delivery without epidural
anesthesia.

Appellant=s labor
and delivery were difficult.  Appellant experienced a great deal
of  pain making her uncooperative and unable to participate in the
efforts to vaginally deliver the baby.  During the efforts to
vaginally deliver appellant=s baby, he
experienced a drop in his heart rate. Following four unsuccessful efforts
to deliver the baby by vacuum extraction, the physicians proceeded with a
cesarian section.  Nine months after his birth, appellant=s son was
diagnosed with cerebral palsy.

On May 29,
2003, appellant filed a health care liability claim on behalf of her son
against Memorial Southwest and her treating physicians to recover for the
neurological injuries he allegedly sustained at birth.  At the time
the suit was originally filed, appellant made no claims in her individual
capacity.  During discovery, a labor and delivery nurse at Memorial
Southwest testified during her deposition that appellant was likely denied
epidural anesthesia based on her economic status.  In response to
that testimony, in May 2005, appellant amended her pleadings to add
individual health care liability claims and claims for patient=s rights
violations under section 321.003 of the Texas Health and Safety Code
against Memorial Southwest.  In June 2005 appellant filed a separate
lawsuit against GHA, which was eventually consolidated with her original
lawsuit.  Appellees moved for summary judgment on
appellant=s
individual claims, arguing, among other things, that appellant=s claims
were barred by limitations.  The trial court granted
appellees=
motions.  The trial court then severed appellant=s
individual causes of action making the summary judgments final and
appealable.  This appeal followed.

Discussion

Appellant
raises nine issues on appeal challenging the trial court=s granting
of appellees= motions
for summary judgment.  However, as we determine the limitations issue
is dispositive, we need not address appellant=s
remaining issues challenging the other grounds for summary judgment raised
by Memorial Southwest.

A.
The Standard of Review

The movant
for summary judgment has the burden to show there is no genuine issue of
material fact and is entitled to judgment as a matter of law.
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.
1985).  A defendant moving for summary judgment on a statute of
limitations affirmative defense must prove conclusively that
defense=s
elements.  Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001).
If the movant establishes that the statute of limitations bars the action,
the nonmovant must then adduce summary judgment proof raising a fact issue
in avoidance of the statute of limitations.  Diversicare General
Partners, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005).  In
determining whether there is a genuine fact issue precluding summary
judgment, evidence favorable to the non-movant is taken as true and the
reviewing court makes all reasonable inferences and resolves all doubts in
the non-movant=s favor.
Nixon, 690 S.W.2d at 548B549.
If there is no genuine issue of material fact, summary judgment should
issue as a matter of law.  Hasse v. Glazner, 62 S.W.3d 795,
797 (Tex. 2001).  We review a trial court=s summary
judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656,
661 (Tex. 2005).

B.
Which Law Governs Appellant=s
Individual Health Care Liability Claims?

In her
fourth issue on appeal, appellant contends her individual claims are
governed by the now repealed Article 4590i rather than Chapter 74 of the
Civil Practice and Remedies Code as urged by appellees.  We agree
with appellant.

In 2003,
the Texas Legislature amended and re-codified the statutory provisions
contained in Article 4590i into Chapter 74 of the Civil Practice and
Remedies Code.  As part of this process, the Texas Legislature
specifically addressed the issue of when Chapter 74 would take
effect:

Except as otherwise provided
in this section or by a specific provision in an article, this Act applies
only to an action filed on or after [September 1, 2003,] the effective
date of  this Act.  An action filed before the effective date of
this Act, including an action filed before that date in which a party is
joined or designated after that date, is governed by the law in effect for
that purpose.

Act of
September 1, 2003, 78th Leg., ch. 204, 2003 Tex. Sess. Law
Serv., ' 23.02(d)
(Vernon) (codified in Tex. Civ. Prac. & Rem. Code Ann. ' 74.001
(Vernon 2005)).

In this
case, appellant originally filed suit against Memorial Southwest and other
defendants on May 29, 2003, well before the effective date of Chapter
74.  She amended her petition to add her individual claims on March
8, 2005.  On June 19, 2005, appellant filed a separate lawsuit
against GHA.  GHA moved to consolidate the two cases and the 2005
lawsuit was consolidated into appellant=s original
lawsuit.  Based on the plain language of the enabling provision of
Chapter 74, former Article 4590i, not Chapter 74, controls this case,
including the case against GHA.[1]

C.
Does the Article 4590i Statute of Limitations Violate the Open Courts
Provision of the Texas Constitution?

In her
first issue, appellant contends her individual claims are not barred by
the two-year statute of limitations contained in section 10.01 of Article
4590i because that provision violates the open courts provision in the
Texas Constitution.  Act of May 30, 1977, 65th Leg., R.S.,
ch. 817, ' 1, sec.
10.01, 1977 Tex. Gen. Laws 2039, 2052, repealed by Act of
June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09,
2003 Tex. Gen. Laws 847, 884.  We disagree.

To avoid
limitations under section 10.01 of Article 4590i, an injured party must
file a medical malpractice claim within two years from one of the
following events: (1) the date the breach or tort occurred; (2) the date
the treatment that is the subject of the claim is completed; or (3) the
date the hospitalization for which the claim is made is completed.
West v. Moore, 116 S.W.3d 101, 105B06 (Tex.
App.CHouston
[14th Dist.] 2002, no pet.) (citing former Tex. Rev. Civ. Stat. Ann. Art.
4590i, ' 10.01
(Vernon Supp. 2003)).  A plaintiff may not choose among alternative
limitation periods in bringing her claim.  Id. at 106.
When the date of the alleged tort or breach is ascertainable, limitations
begin to run from that date.  Shah, 67 S.W.3d at
843.

The Texas
Constitution guarantees that persons bringing common-law claims will not
unreasonably or arbitrarily be denied access to the courts.
Id. at 841 (citing Tex. Const. art. 1, '
13).  A statute that unreasonably or arbitrarily abridges a
person=s right to
obtain redress for injuries another person=s harmful
act causes is an unconstitutional due course of law violation.
Id. at 842.  Consequently, the Texas Constitution=s open
courts provision protects a person from legislative acts that cut off a
person=s right to
sue before there is a reasonable opportunity to discover the wrong and
bring suit.  Id.  The legislature cannot abrogate the
right to bring a well-established common-law claim without showing that
the statute=s
objectives and purposes outweigh denying the constitutionally guaranteed
right of redress.  Id.  The open courts doctrine is
premised on the rationale that the legislature has no power to make a
remedy by due course of law contingent upon an impossible condition.
Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex. 1997).

To
establish an open courts violation in an Article 4590i case, a litigant
must first show a cognizable, common-law claim that Article
4590i=s
limitations provision restricts.  Shah, 67 S.W.3d at
842.  Then the litigant must show the restriction is unreasonable or
arbitrary when balanced against the statute=s purpose
and basis.  Id.  The limitations provision in Article
4590i, section 10.01, does not violate the open courts guarantee if the
plaintiff had a reasonable opportunity to discover the alleged wrong and
bring suit within the limitations period.  Id.  The open
courts doctrine has no effect on the limitations period when the plaintiff
discovers his injury while there is still a reasonable time to sue.
Hogan v. Hallman, 889 S.W.2d 332, 337 (Tex. App.CHouston
[14th Dist.] 1994, writ denied).  Under the open courts doctrine,
courts must determine what constitutes a reasonable time for a claimant to
discover her injuries and file suit.  Yancy v. United Surgical
Partners Int=l,
Inc., 236
S.W.3d 778, 784 (Tex. 2007).

Here,
appellant contends the wrong she experienced and for which she brought
suit, was the discriminatory denial of epidural anesthesia on February 13,
1996.  Because there is no doubt as to when the alleged tort
occurred, limitations are measured from that date.  Id. at
843.  Because the alleged tort date is ascertainable, and because
appellant did not file suit within two years of that date, to avoid
summary judgment on limitations, appellant had the burden to produce
summary judgment evidence sufficient to raise a fact issue concerning the
applicability of the open courts doctrine.  Earle v. Ratliff,
998 S.W.2d 882, 889 (Tex. 1999). Appellant argues her summary judgment
evidence establishes that she did not have a reasonable opportunity to
discover the allegedly discriminatory motive behind her failure to receive
epidural anesthesia on February 13, 1996 thus invoking the open courts
doctrine.  We disagree that appellant had to discover the allegedly
discriminatory motive behind her failure to receive epidural anesthesia
for the limitations period to begin running on her claims.  Cases
adjudicating Title VII discrimination claims are instructive.  Under
Title VII, the claimant=s
knowledge of a discriminatory act, not the claimant=s
knowledge that the act had a discriminatory motive, triggers
limitations.  See, e.g., Pacheco v. Rice, 966 F.2d 904, 906
(5th Cir. 1992) (holding that Title VII requires notice of a
claim be filed within thirty days of a discriminatory event or action, not
when a claimant apprehends that the event was motivated by a
discriminatory purpose); Merrill v. Southern Methodist University,
806 F.2d 600, 605 (5th Cir. 1986) (holding that the focus of
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
itself).  In this case, the evidence is undisputed that appellant
experienced such a painful labor and delivery that she was uncooperative
and unable to meaningfully participate in the effort to vaginally deliver
her son.  It is also undisputed that while appellant was unaware of
the existence of epidural anesthesia at the time of her delivery of her
son, she learned about epidural anesthesia and its use to reduce the pain
of childbirth within six months of her son=s
birth.  Finally, it was undisputed that appellant=s son was
diagnosed with cerebral palsy, allegedly a result of his difficult birth,
within nine months of his birth.  Because the focus is on the
allegedly wrongful act and not the discriminatory motive, this undisputed
summary judgment evidence establishes that appellant had sufficient
information within nine months of her son=s birth to
investigate and discover the allegedly wrongful denial of epidural
anesthesia and bring suit within the limitations period.  This
constitutes a reasonable time as a matter of law and the open courts
doctrine does not apply.  Accordingly, the trial court did not err
when it granted appellees= motions
for summary judgment on appellant=s Article
4590i causes of action.  Hogan, 889 S.W.2d at 337.  We
overrule appellant=s first
issue.

D.
Does the Doctrine of Fraudulent Concealment Toll the Article 4590i Statute
of Limitations?

In her
second issue on appeal, appellant asserts that her individual article
4590i claims are not time barred because the doctrine of fraudulent
concealment tolled the running of the statute of limitations until she
discovered the fraud or could have discovered the fraud by the exercise of
reasonable diligence.  Once again, we disagree.

Fraudulent
concealment is based upon the doctrine of equitable estoppel.
Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983).  Where a
defendant is under a duty to make disclosure but fraudulently conceals the
existence of a cause of action from the party to whom it belongs, the
defendant is estopped from relying on the defense of limitations until the
party learns of the right of action or should have learned thereof through
the exercise of reasonable diligence.  Id.  The estoppel
effect of fraudulent concealment ends when a party learns of facts,
conditions, or circumstances which would cause a reasonably prudent person
to make inquiry, which, if pursued, would lead to discovery of the
concealed cause of action.  Id. at 909.  Knowledge of
such facts is in law, the equivalent to knowledge of the cause of
action.  Id.

Assuming
without deciding that appellees had a duty of disclosure to appellant, the
fraudulent concealment doctrine does not save appellant=s
individual article 4590i causes of action.  As discussed above, the
evidence is undisputed that (1) appellant experienced such a painful labor
and delivery that she was uncooperative and unable to meaningfully
participate in the effort to vaginally deliver her son; (2) appellant
learned of the existence of epidural anesthesia within six months of her
son=s birth;
and (3) appellant=s son was
diagnosed with cerebral palsy within nine months of his birth.
Knowledge of these facts would cause a reasonable person to inquire and
discover any potential causes of action against appellees even if the
claim were somehow concealed.  Because appellant waited nine years
after she learned of the above facts before filing suit against appellees,
her fraudulent concealment defense fails as a matter of law and her
individual article 4590i claims are barred by limitations.  We
overrule appellant=s second
issue on appeal.

E.
Does Limitations Bar Appellant=s
Individual Patient=s Bill of
Rights Claim?

In her
third issue, appellant contends the discovery rule provision found in
section 321.003 of the Health and Safety Code tolled the running of
limitations until she discovered the discriminatory motive behind the fact
she did not receive epidural anesthesia on February 13, 1996.  Once
again, we disagree.

Assuming
without deciding that Health and Safety Code section 321.003 creates a
cause of action for a non-mental health patient at a hospital such as
Memorial Southwest and that said cause of action is governed by a statute
of limitations separate and distinct from appellant=s article
4590i health care liability claims, limitations still bars
appellant=s
claim.  Section 321.003(f) requires that a plaintiff file suit not
later than the second anniversary of the date on which the
person=s injury
is discovered.  Tex. Health & Safety Code Ann. '
321.003(f) (Vernon 2001).  The discovery rule suspends the accrual of
a cause of action, and thus the running of limitations, only until a
plaintiff knew or in the exercise of reasonable diligence should have
known of the wrongful act and resulting injury.  Diaz, 941
S.W.2d at 99.

As pointed
out above, the evidence is undisputed that (1) on February 13, 1996,
appellant experienced such a painful labor and delivery that she was
uncooperative and unable to meaningfully participate in the effort to
vaginally deliver her son; (2) appellant learned of the existence of
epidural anesthesia within six months of her son=s birth;
and (3) appellant=s son was
diagnosed with cerebral palsy within nine months of his birth.
Knowledge of these facts would cause a reasonable person to inquire and
discover any potential causes of action against appellees thus triggering
the running of the statute of limitations.  Regardless of whether
appellant=s
individual causes of action accrued on February 13, 1996, August 13, 1996,
or November 13, 1996, because appellant waited nine years after the birth
of her son to file her lawsuit asserting her individual claims suit
against appellees, those claims are barred by limitations.

As we have
overruled appellant=s issues
challenging the trial court=s summary
judgment based on limitations, we need not address appellant=s
remaining issues challenging the other grounds for summary judgment
asserted by Memorial Southwest.  Tex. R. App. P. 47.1.

Conclusion

Having overruled all of
appellant=s issues on appeal necessary
for a final disposition of the appeal, we affirm the trial
court=s summary
judgments.

/s/
John S. Anderson

Justice

Judgment
rendered and Memorandum Opinion filed January 22, 2008.

Panel
consists of Chief Justice Hedges and Justices Anderson and
Guzman.

[1]  Ultimately, the decision as to which law
governs is a distinction without a difference as both the old and the new
statutes impose an absolute two-year statute of limitations.
Compare Tex. Civ. Prac. & Rem. Code Ann. ' 74.251(a) (Vernon 2005)
(ANotwithstanding any other law
. . . , no health care liability claim may be commenced unless the action
is filed within two years from the occurrence of the breach or tort or
from the date the medical or health care treatment that is the subject of
the claim or the hospitalization for which the claim is made is completed
. . . .@) with Act of May 30,
1977, 65th Leg., R.S., ch. 817, ' 1, sec. 10.01, 1977 Tex.
Gen. Laws 2039, 2052, repealed by Act of June 2, 2003,
78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws
847, 884 (ANotwithstanding any other
law, no health care liability claim may be commenced unless the action is
filed within two years from the occurrence of the breach or tort or from
the date the medical or health care treatment that is the subject of the
claim or the hospitalization for which the claim is made is completed . .
. .@).