Chilkewitz v. Hyson

• Decision Date: 21 October 1999
• Docket Number: No. 98-0363,98-0363
• Citation: 22 S.W.3d 825
• Parties: (Tex. 1999) Peter Chilkewitz, Petitioner v. Morton I. Hyson, M.D., P.A., Respondent
• Court: Texas Supreme Court

Page 825

22 S.W.3d 825 (Tex. 1999)

Peter Chilkewitz, Petitioner v. Morton I. Hyson, M.D., P.A., Respondent

No. 98-0363

IN THE SUPREME COURT OF TEXAS

Argued December 8, 1998

Decided October 21, 1999

On Petition for Review from the Court of Appeals for the Fifth District of Texas

Justice Owen delivered the opinion of the Court in which Chief Justice Phillips, Justice Hecht, Justice Enoch, Justice Baker, Justice Abbott, Justice O'Neill and Justice Gonzales joined.

We grant, in part, Morton I. Hyson, M.D., P.A.'s motion for rehearing, withdraw our opinion dated June 17, 1999, and substitute the following in its place.

Section 10.01 of article 4590i establishes a two-year statute of limitations for medical malpractice actions, which applies "notwithstanding any other law." Tex. Rev. Civ. Stat. Ann. art. 4590i, 10.01 (Vernon Supp. 1999). The question in this case is whether Texas Rule of Civil Procedure 28, which permits a party to sue or be sued in an assumed name, constitutes "any other law" within the meaning of section 10.01. Because we conclude that Rule 28 is not a tolling provision and does not extend limitations beyond the period prescribed by section 10.01, we reverse the judgment of the court of appeals and remand this case to the court of appeals.

I

Peter Chilkewitz injured his back while at work. After several months of ineffective therapy, his physician, James Elbaor recommended that Chilkewitz undergo surgery to alleviate his continuing back pain. Dr. Elbaor referred Chilkewitz to Dr. Morton Hyson for preoperative tests. Dr. Hyson and Mary Sklodowski, a medical technician employed by Dr. Hyson's professional association, Morton Hyson, M.D., P.A. (the Association), conducted those tests on Chilkewitz.

Dr. Elbaor subsequently performed surgery and used an electrocautery unit (ECU) to make incisions and cauterize blood vessels. Sklodowski assisted him, and as part of the procedure, she performed somatosensory evoked potential (SEP) monitoring on Chilkewitz. SEP monitoring is used to determine whether the surgical procedure is causing injury to the nervous system. Due to improper grounding of the ECU, a very large amount of high frequency electricity passed through one of the SEP electrodes attached to Chilkewitz's leg. As a result, Chilkewitz suffered a severe and debilitating burn to his leg. Dr. Hyson was not present during Chilkewitz's surgery.

Less than two years after the surgery, Chilkewitz sent Hyson a notice letter in conformity with the Medical Liability and Insurance Improvement Act, Tex. Rev. Civ. Stat. Ann. art. 4590i (Vernon Supp. 1999), (the Act or article 4590i). Pursuant to section 4.01(c) of article 4590i, the applicable two-year statute of limitations was tolled for seventy-five days from the date the letter was sent. Id. 4.01(c); see De Checa v. Diagnostic Ctr. Hosp., Inc., 852 S.W.2d 935, 937 (Tex. 1993). Dr. Hyson testified at trial that upon receipt of that letter, his professional association was aware of the claim. The Association immediately notified its malpractice carrier and began investigating the allegations.

Chilkewitz thereafter sued "Morton Hyson, M.D." and others within the limitations period. The original petition described Morton Hyson, M.D. as an individual who practices medicine. Morton Hyson, M.D. filed his original answer generally denying all of Chilkewitz's material allegations, claiming that no act of Hyson, M.D. proximately caused any injury to Chilkewitz, alleging that any injury was caused by someone or something else, and claiming that the injury was unavoidable.

After the two-year limitations and the seventy-five day tolling periods had elapsed, Hyson, M.D. filed a motion for summary judgment alleging that he, individually, did not perform surgery on Chilkewitz; that none of Dr. Hyson's employees nor any person under his personal control performed or attended the surgery; and that Dr. Hyson did not own any of the test equipment used during the surgery. Chilkewitz promptly amended his original petition, changing the designation of "Morton Hyson, M.D." as a defendant to "Morton Hyson, M.D., P.A." Chilkewitz asserted in that amended petition that Morton Hyson, M.D., P.A. was misnamed in the original petition but that service was made on the correct party. Chilkewitz further alleged that naming Hyson's professional association instead of Hyson individually was done to correct a misnomer or, alternatively, that if Chilkewitz had sued the wrong party, "Morton Hyson, M.D." had notice of the suit and was not prejudiced by the fact that Chilkewitz named the physician rather than the Association.

The Association then filed a motion for summary judgment based on the statute of limitations. That motion asserted that section 10.01 of article 4590i precluded the use of the doctrines of misnomer and misidentification to toll the statute of limitations. In his response, Chilkewitz's arguments included his contentions that the Association did business under the assumed or common name of Morton Hyson, M.D.; that naming the Association as Morton Hyson, M.D. was a misnomer; and that if Hyson, M.D. and the Association were separate entities, then the Association was not prejudiced by the misidentification. The trial court denied the Association's motion for summary judgment.

At trial, the parties agreed that the trial court should make all determinations regarding the limitations defense, including factual findings. The remaining issues were tried to a jury, and it returned a verdict for Chilkewitz, finding that Hyson, M.D. was fifteen percent responsible for Chilkewitz's injury and awarding Chilkewitz over $1,000,000. The Association moved for judgment notwithstanding the verdict on the limitations issue. In response, Chilkewitz argued that Hyson, M.D. was the assumed or common name of the Association, that Hyson, M.D. was a misnomer, or, alternatively, that any misidentification did not prejudice the Association. The trial court impliedly overruled the Association's motion by rendering judgment for Chilkewitz.

The Association appealed, and the court of appeals en banc reversed and rendered judgment that Chilkewitz take nothing because of limitations. 971 S.W.2d 563. The court of appeals held that Chilkewitz waived misidentification as a matter in avoidance of limitations because his pleadings only included misnomer and assumed name under Texas Rule of Civil Procedure 28 (Rule 28). Id. at 568-69. The court of appeals then held that both misnomer and assumed name operate to toll limitations and, accordingly, that the "notwithstanding any other law" language in section 10.01 prevents the application of either misnomer or Rule 28. Id. At 569-74.

We disagree with the court of appeals that Rule 28 operates as a tolling provision and is inapplicable under section 10.01 of article 4095i. Rule 28 permits suit against a party in its assumed name. Tex. R. Civ. P. 28. Because there was some evidence that Hyson's professional association conducted business as Morton Hyson, M.D., the trial court's judgment should not have been reversed.

II

Morton Hyson, M.D. was the sole physician, sole officer, sole shareholder, and sole director of his professional association, Morton Hyson, M.D., P.A. No one disputes that Chilkewitz brought suit within the applicable limitations period against a defendant identified in the original petition as "Morton Hyson, M.D."

The first question that we must decide is whether a professional association can do business in the name of an individual for purposes of Rule 28 or whether the circumstances of this case can give rise to only a misidentification or a misnomer. Our common-law decisions have recognized that a misidentification arises when two separate legal entities actually exist and a plaintiff mistakenly sues the entity with a name similar to that of the correct entity. See Enserch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex. 1990). Misidentification is generally distinct from misnomer. Misnomer arises when a plaintiff sues the correct entity but misnames it. See id.

In this case, two distinct legal entities with similar names exist: (1) Morton Hyson, M.D. in his individual capacity, and (2) his professional association, Morton Hyson, M.D., P.A. We need not decide, however, whether this is a case of misidentification, misnomer, or both because neither of those common-law doctrines operates to the exclusion of Rule 28 when there are facts that call Rule 28 into play. Rule 28 provides:

Suits in Assumed Name

Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right, but on a motion by any party or on the court's own motion the true name may be substituted.

Tex. R. Civ. P. 28.

Under this Rule, a plaintiff can bring suit against an individual doing business under the name of an association, partnership, or corporation, even if the association, partnership, or corporation does not exist. For example, a plaintiff could effectively bring suit against an individual doing business as "Widgets International, Inc." by naming Widgets International, Inc. as the defendant. The Rule would allow the plaintiff to bring suit against the individual even if the plaintiff mistakenly thought that a company under that name legally existed and identified the defendant in his original petition as "Widgets International, Inc., a corporation." At the same time, an association, partnership, or private corporation may do business under the name of an individual and may be sued under that assumed name. Here, although Chilkewitz described Hyson as an individual in his original petition, his suit against Morton Hyson, M.D. was effective to commence suit against the Association doing business under the name of Morton Hyson, M.D. Of course, at some point before judgment, the plaintiff...