Bradley v. Etessam, 05-83-01185-CV

• Decision Date: 26 November 1985
• Docket Number: No. 05-83-01185-CV,05-83-01185-CV
• Citation: 703 S.W.2d 237
• Parties: Foy BRADLEY, Individually and as Personal Representative of the Estate of Jo Ann Bradley, Deceased, and as Next Friend of Shannon Bradley and William Scott Bradley, Minors, Appellants, v. Houshang ETESSAM, M.D., Appellee.
• Court: Texas Court of Appeals

Page 237

703 S.W.2d 237

Foy BRADLEY, Individually and as Personal Representative of

the Estate of Jo Ann Bradley, Deceased, and as Next Friend of Shannon Bradley and William Scott Bradley, Minors, Appellants, v. Houshang ETESSAM, M.D., Appellee.

No. 05-83-01185-CV.

Court of Appeals of Texas,

Dallas.

Nov. 26, 1985.

Rehearing Denied Jan. 14, 1986.

Paula Sweeney, Law Offices of Windle Turley, P.C., Dallas, for appellants.

Mark A. Stinnett, A. Brent Cooper, Cowles, Sorrells, Patterson & Thompson, Dallas, for appellee.

Before TUNKS ¹, C.J., and ALLEN and KEITH ², JJ.

ALLEN, Justice.

This is a medical malpractice case, subject to the provisions of the Medical Liability and Insurance Improvement Act of Texas, TEX.REV.CIV.STAT.ANN. art. 4590i (Vernon Supp.1985). Foy Bradley, plaintiff in the trial court, and surviving husband of Jo Ann Bradley, alleged that the defendant, Dr. Houshang Etessam's failure to timely diagnose and treat the breast cancer of his deceased wife, Jo Ann, proximately caused her to suffer pain and, ultimately, death. Bradley alleges that his wife, Jo Ann, consulted Dr. Etessam concerning a lump in her right breast on numerous occasions between January 1, 1979 and February 1, 1980, and that she was repeatedly told that the lump was not cancerous. On February 4, 1980, surgery was performed on her right breast and cancer was confirmed. On September 23, 1980, surgery was performed on her left breast and she was found to have metastatic carcinoma of that breast.

This suit was originally filed while Mrs. Bradley was alive, on December 11, 1981. Both Mr. and Mrs. Bradley were named as plaintiffs in the original petition. They sought damages they had sustained up to that time, including Mrs. Bradley's pain and suffering, medical expenses, and Mr. Bradley's loss of his wife's services.

On April 16, 1982, Mrs. Bradley died. On February 7, 1983, Mr. Bradley filed a first original amended petition adding causes of action under the Texas Wrongful Death Act, TEX.REV.CIV.STAT.ANN. art. 4671, et seq. (Vernon Supp.1985), and under the Texas Survival Statute, TEX.REV.CIV.STAT.ANN. art. 5525 (Vernon 1958).

On March 7, 1983, a second amended original petition was filed and became the plaintiff's trial pleading. In that pleading Mr. Bradley, for himself and as representative of his minor children, sought to recover damages sustained by Mrs. Bradley before her death under the Survival Statute. In addition under the Wrongful Death Act and under a "bystander" theory, Mr. Bradley, for himself, sought recovery for mental pain and anguish, past and future, loss of household services of his wife, loss of financial contribution to the family unit and loss of consortium, and for the surviving children, both under age twelve, Mr. Bradley sought recovery for their mental pain and anguish, past and future, and their loss of the support, care, advice, attention and counsel of their mother.

After Bradley filed his second amended original petition, Etessam filed a motion for partial summary judgment. In that motion Etessam asked for judgment in his favor as to Mr. Bradley's claim and his children's claims under the Wrongful Death Act, contending that they were barred by limitations. He further sought summary judgment that the claims of Mr. Bradley for himself and on behalf of the minor children for mental pain and anguish were not recoverable under the Wrongful Death Act or any other theory.

The trial court granted Etessam's motion for summary judgment as to Mr. Bradley's claim and his children's claims under the Wrongful Death Act, holding that they were barred by limitations. The trial court also granted Etessam's motion for summary judgment as to the claims for the alleged injuries plaintiffs sustained under a "bystander" theory of recovery. The trial court denied Etessam's requested judgment that the plaintiffs were limited, in their actions under the Wrongful Death Act, to recovery of pecuniary losses caused by the death of Mrs. Bradley.

The trial court filed a memorandum in which it recited its rulings and the reasons therefor and later signed a written judgment. It severed plaintiffs' case under the Survival Statute, rendering the partial summary judgment final, and this appeal resulted.

We reverse the trial court's summary judgment as to the claims of Mr. Bradley and his minor children under the Wrongful Death Act and hold that neither Mr. Bradley's nor the children's causes of action under the Wrongful Death Act are barred by limitations. No error has been assigned to the trial court's ruling that the plaintiffs cannot recover under a "bystander" theory or to the trial court's ruling that plaintiffs may recover for non-pecuniary losses; thus we do not address those issues.

The Husband's Wrongful Death Claim

The trial court ruled that Mr. Bradley's wrongful death claim was barred by the limitations provision for medical malpractice suits set out in section 10.01 of article 4590i, which provides in part:

Notwithstanding 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; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim....

TEX.REV.CIV.STAT.ANN. art. 4590i § 10.01 (Vernon Supp.1985). We hold that where suit is filed within this two-year limitations period, the plaintiff may later amend to assert additional causes of action arising out of the same transaction or occurrence, and these added causes of action will "relate back" under article 5539b. ³

Etessam argues that all causes of action must be brought within the two-year period. In this regard, we note that the Texas Supreme Court recently addressed the application of the medical malpractice limitations provision in Hill v. Milani, 686 S.W.2d 610 (Tex.1985). In Hill, the Texas Supreme Court decided the narrow issue that article 5537, TEX.REV.CIV.STAT.ANN. (Vernon 1958), did not toll the two-year limitations period of article 4590i, section 10.01, TEX.REV.CIV.STAT.ANN. (Vernon Supp.1985), while the defendant was absent from the state. The Court emphasized the exclusive language in article 4590i, section 10.01: "Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years...." (Emphasis added). The Court concluded that "article 5537 is not part of the statutory scheme for medical malpractice claims envisioned by the legislature." 686 S.W.2d at 611.

The issue presented in the present case, however, is not controlled by the Hill decision. In Hill, the plaintiff did not file his case within the two-year period and sought to defeat the limitations defense on the basis that article 5537 suspended the limitations provision of section 10.01. On those facts, article 5537 directly conflicted with the two-year limitations period for medical malpractice suits established in section 10.01.

In the case at bar, however, Mr. Bradley did file suit within the two-year period. Because Mr. Bradley's action was timely filed, the limitations provision, section 10.01, has been complied with, and thus its "notwithstanding any other law" language is irrelevant as to further pleadings and proceedings in the case. Reliance on this exclusive, introductory language is misplaced where the conditions of the limitations provision have been satisfied. Where the action is timely filed, amendments may "relate back" to the date of the original petition under article 5539b. Bradley v. Burnett, 687 S.W.2d 53 (Tex.App.--Dallas 1985, no writ).

Close analysis of the medical malpractice statutory scheme supports our conclusion. Section 10.01 states that "no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort ... that is the subject of the claim." TEX.REV.CIV.STAT.ANN. art. 4590i § 10.01 (Vernon Supp.1985) (emphasis added). The statute defines "health care liability claim" as "a cause of action against a health care provider or physician," article 4590i, section 1.03(a)(4) (emphasis added), while the term action is not defined. The language of a statute is presumed to have been carefully selected, and every word or phrase is presumed to have been used intentionally with a meaning and purpose. Perkins v. State, 367 S.W.2d 140, 146 (Tex.1963); Nichols v. William A. Taylor, Inc., 662 S.W.2d 396, 399 (Tex.App.--Corpus Christi 1983, no writ). Thus, article 4590i, section 10.01 draws a distinction between a cause of action or "health care liability claim," and an "action."

Article 4590i also directs that any undefined legal term should be construed consistent with its common law meaning. Article 4590i, section 1.03(b). We hold that the term action in section 10.01 means "suit." In Whitfield v. Burrell, 54 Tex.Civ.App. 567, 118 S.W. 153, 156 (Tex.Civ.App.1909, writ ref'd), the court interpreted the term action in a limitations statute to mean "suit." See also Webb v. Allen, 15 Tex.Civ.App. 605, 40 S.W. 342, 343 (Tex.Civ.App.1897, no writ) ("the words 'actions' and 'suits' employed in these [limitations] statutes ... are synonymous and interchangeable terms"). At common law, a "suit" is defined as the demand of one's right in a court of justice. Ex parte Towles, 48 Tex. 413, 433 (1877); Webb, 40 S.W. at 343. A cause of action, on the other hand, is "the facts necessary to be alleged and proved in order to obtain the relief sought, and on account of which the action is instituted." Elmo v. James, 282 S.W. 835, 839 (Tex.Civ.App.--Fort Worth 1926, writ dism'd w.o.j.) (emphasis added); accord Gilbert v. Fireside Enterprises, Inc., 611 S.W.2d 869, 873 (Tex.Civ.App.--Dallas 1980, no writ). But see Hatten v. City of Houston, ...