Conerly v. Morris, 17240

• Decision Date: 14 December 1978
• Docket Number: No. 17240,17240
• Parties: Lula Belle CONERLY, Appellant, v. Dr. Edward MORRIS, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 633

575 S.W.2d 633

Lula Belle CONERLY, Appellant, v. Dr. Edward MORRIS, Appellee.

No. 17240.

Court of Civil Appeals of Texas, Houston (1st Dist.).

Dec. 14, 1978.

Rehearing Denied Jan. 11, 1979.

W. Jiles Roberts, Houston, for appellant.

Fulbright & Jaworski, Charles R. Parker, Houston, for appellee.

EVANS, Justice.

This is an appeal from a summary judgment in favor of the defendant in a medical malpractice case. The trial court's judgment is based upon a determination that the plaintiff's action is barred, as a matter of law, by the two-year statute of limitations.

This action was brought by Mrs. Lula Belle Conerly against Dr. Edward H. Morris, M.D., on July 22, 1975. In her petition Mrs. Conerly alleged that she had been a patient of Dr. Morris' from October 1970 until July 27, 1973, when, as a result of treatment received from him for a fibroid tumor, she suffered a heart condition requiring her hospitalization. She alleged that during the time she was being treated by Dr. Morris for the tumor condition, she was assured by him that it was "nothing to worry about" and that if surgery ever became necessary, he would send her to a clinic for the operation. She alleged that when she was subsequently hospitalized for the heart condition, it was discovered that surgery was necessary to remove the tumor and that the tumor should have been removed while she was under Dr. Morris' care in order to prevent the heart condition from developing. Mrs. Conerly alleged that Dr. Morris was negligent in the treatment of her in one or more of the following particulars:

"a. In failing to perform surgery;

b. In failing to advise her that surgery was in fact needed

c. In failing to advise her of the consequences of failing to have surgery.

d. In representing to her that the tumor was 'nothing to worry about'."

In her petition, Mrs. Conerly stated that she last saw Dr. Morris on January 23, 1973, that she had received treatment from his office on February 2, 1973, and that she was to return to see him in about six months.

In his motion for summary judgment Dr. Morris alleges that Mrs. Conerly's action is one for damages based upon an alleged negligent "misdiagnosis", which occurred no later than January 1973, and that more than two years elapsed between the date of such misdiagnosis and the date suit was filed in July 1975. Alternatively, Dr. Morris alleges that Mrs. Conerly's deposition testimony shows she knew of the existence of the tumor in her body and was therefore fully aware of the injury prior to the last time she saw him in January 1973.

The first question to be determined is whether the so-called discovery rule is applicable to the action alleged by Mrs. Conerly. If the discovery rule is applicable, Mrs. Conerly's cause of action must be considered to have accrued when the nature of the injury was or should have been discovered by the plaintiff, rather than upon the date of the alleged wrongful act or omission causing the injury. Hays v. Hall, 488 S.W.2d 412 (Tex.1972); Weaver v. Witt, 561 S.W.2d 792 (Tex.1977).

Dr. Morris contends that the discovery rule is not applicable because Mrs. Conerly's action is founded not upon allegations of negligent treatment, but rather upon a negligent misdiagnosis. He relies upon the holding in Robinson v. Weaver, 550 S.W.2d 18 (Tex.1977).

In the Robinson case the defendant practitioner, concluding that the plaintiff had a herniated disc between the fourth and fifth lumbar vertebrae, performed surgery to repair the disc at that location. The plaintiff continued to have back pains, and after subsequent testing, a herniated disc was found between the third and fourth lumbar vertebrae. Thus, the plaintiff claimed that the defendant had erroneously diagnosed her condition and had operated on the wrong disc. The Texas Supreme Court held that since the plaintiff's action was founded upon an alleged misdiagnosis, subject to proof only by "expert hindsight", the discovery rule was inapplicable.

In the case at bar, Mrs. Conerly states in her deposition that in the early part of 1972, she found a knot in her side and went to see Dr. Morris, who had treated her for a prior injury. Dr. Morris found a tumor about the size of an orange and also determined that Mrs. Conerly was anemic. He prescribed shots and tablets and advised Mrs. Conerly to eat plenty of meat to build up the iron in her blood. Dr. Morris told Mrs. Conerly that if he ever thought she needed surgery for the tumor, he would recommend it and that there were clinics she could go to since she did not have insurance coverage. She made several visits to Dr. Morris' office thereafter, and she last saw Dr. Morris in January 1973. At that time the tumor was quite a bit larger. She was not told how large it was, but she could tell it was larger since she had to change her dress and pant size. Prior to her last visit to Dr. Morris, she was feeling depressed because she had been "worried to death, about the tumor." Her menstrual periods were not normal and on such occasions she hemorrhaged excessively. After her first visit Dr. Morris...