Cook v. Withers, No. 14-03-00816-CV (Tex. App. 4/13/2004)
| Decision Date | 13 April 2004 |
| Docket Number | No. 14-03-00816-CV,14-03-00816-CV |
| Parties | DOROTHY COOK, Appellant v. EDWARD H. WITHERS, M.D., Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 215th Judicial District, Harris County, Texas, Trial Court Cause No. 03-24730.
Affirmed.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
Dorothy Cook appeals the trial court's grant of summary judgment in favor of Edward H. Withers, M.D. on her claims of medical negligence and breach of contract. By two points of error, Cook contends the trial court erroneously granted summary judgment because (1) her breach of contract claim does not fall within the constraints of the Medical Liability and Insurance Improvement Act and (2) the statute of limitations does not bar her claims. We affirm.
In the fall of 2000, Cook consulted Withers regarding surgery to remove and replace a ruptured breast implant as well as perform a full abdominoplasty. Withers performed the surgery on October 25, 2000, and thereafter complications arose requiring Cook to undergo another surgery. Cook claims the second surgery was a corrective procedure to cure defects from the first surgery, which were caused by Withers's negligence. Additionally, Cook claims Withers did not replace the ruptured implant or perform a complete abdominoplasty. Cook initially filed a lawsuit on January 6, 2003 against Withers, individually, and his professional practice, alleging only a medical malpractice claim. Cook filed a voluntary nonsuit on May 6, 2003 after the trial court ordered Cook to post a $7500 bond for each defendant. On May 8, 2003, Cook filed this lawsuit against only Withers, individually, alleging medical malpractice. Withers filed a motion for summary judgment, claiming limitations expired on January 8, 2003. Cook filed an amended petition contemporaneously with her response to Withers's summary judgment adding an additional cause of action for breach of contract. In her response, Cook also claimed the statute of limitations had not expired before the filing of her second lawsuit because the statute of limitations was tolled during the pendency of the initial lawsuit.
Withers filed a reply to Cook's response to summary judgment arguing the additional breach of contract claim was nothing more than an attempt to disguise her medical malpractice claim to avoid application of the stringent statute of limitations for medical liability claims. The trial court agreed, and dismissed all of Cook's claims. By this appeal, Cook contends the trial court erred in dismissing all of her claims because the statute of limitations had not expired at the time of filing the second lawsuit and her breach of contract claim is separate and distinct from the medical malpractice claim.
The movant for summary judgment has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). When a defendant moves for summary judgment on an affirmative defense, the defendant, as movant, bears the burden of proving each essential element of that defense as a matter of law. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). We take all evidence favorable to the nonmovant as true, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in its favor. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). Thus, a party moving for summary judgment on the basis of limitations must conclusively establish the bar of limitations. Id. If the nonmovant raises a fact issue suspending limitations, the movant must conclusively negate these facts to show its entitlement to summary judgment. Id. To determine whether the statute of limitations is applicable, we examine the substance of the pleadings rather than a mere allegation of a cause of action. Shannon v. Lay-Yone, 950 S.W.2d 429, 434 (Tex. App.—Fort Worth 1997, writ denied).
By her first point of error, Cook claims the trial court erred in granting summary judgment on her breach of contract claim because (1) Withers's motion for summary judgment did not address the breach of contract claim and (2) the breach of contract claim was a separate and distinct cause of action from the medical malpractice claim. Cook's first allegation fails because Whithers, in his reply to Cook's response, directly addressed Cook's addition of the breach of contract cause of action by arguing the breach of contract claim was, in actuality, a health care liability claim. Thus, the trial court could consider whether the claims asserted by Cook were, in actuality, a health care liability claim, and therefore subject to the statute of limitations. TEX. R. CIV. P. 166a(c).
Whithers contends Cook's breach of contract claim is nothing more than a recharacterization of her previously pleaded medical negligence claim, and thereby subject to the Medical Liability and Insurance Improvement Act ("MLIIA"). However, in order to determine whether the breach of contract cause of action falls within the MLIIA, the cause of action must meet the MLIIA's definition of a "health care liability claim":
`Health care liability claim' means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient's claim or cause of action sounds in tort or contract.
Act of May 30, 1977, 65th Leg., R.S., ch. 817, sec. 1.03, 1977 Tex. Gen. Laws 2039, 2041 (repealed and recodified 2003) ) (emphasis added). Our inquiry is not focused on the pleadings; rather we must look to the underlying nature of the claim asserted to determine whether that claim is in fact a health care liability claim. MacGregor Med. Ass'n v. Campbell, 985 S.W.2d 38, 40 (Tex. 1998) (per curiam). Thus, we look to the specific factual allegations in the petition to determine whether Cook's breach of contract claim is based upon a claimed departure from the accepted standards of medical care. See Gormley v. Stover, 907 S.W.2d 448, 450 (Tex. 1995); Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex. 1994). "If the cause of action is based on the physician's breach of the accepted standard of medical care, the cause of action is nothing more than a health care liability claim, no matter how the plaintiff labels it." Savage v. Psychiatric Inst. of Bedford, Inc., 965 S.W.2d 745, 751 (Tex. App.—Fort Worth 1998, pet denied). Thus, a party may not recast a health care liability claim in an effort to avoid application of the MLIIA. Campbell, 985 S.W.2d at 40. Likewise, a cause of action that does not involve a departure from accepted standards of medical or health care is not covered by the MLIIA. Id.
In her First Amended Original Petition, filed on June 12, 2003, Cook for the first time asserts a breach of contract claim against Withers. The basis of her claim is that Withers did not insert the replacement implant and did not complete the abdominoplasty as promised and agreed upon. However, by looking to the facts, as described by Cook, her claims materialized after "serious and gross complications arose as a result of the surgeries and Withers' [sic] negligence." According to Cook, the "defects brought about by Withers' [sic] acts and omissions" caused her to sustain serious and severe injuries. Indeed, Cook's first factual assertion is that the "damages due and owing to Cook [result] because of injuries she sustained due to Withers' [sic] medical negligence."
Cook's allegations are replete with assertions that Withers's conduct fell below the acceptable standards of medical care. Cook plainly states that the alleged improper and unprofessional treatment by...
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