Diaz v. Westphal

• Decision Date: 21 March 1997
• Docket Number: No. 96-0433,96-0433
• Citation: 40 Tex. Sup.Ct. J. 434,941 S.W.2d 96
• Parties: 40 Tex. Sup. Ct. J. 434 Gustavo DIAZ, M.D., Petitioner v. Carolyn WESTPHAL, individually and a/n/f of Eric Michael Westphal, a minor, and as independent executrix of the estate of Michael Westphal, deceased, Respondent.
• Court: Texas Supreme Court

Page 96

941 S.W.2d 96

40 Tex. Sup. Ct. J. 434

Gustavo DIAZ, M.D., Petitioner v. Carolyn WESTPHAL, individually and a/n/f of Eric Michael Westphal, a minor, and as independent executrix of the estate of Michael Westphal deceased, Respondent.

No. 96-0433.

Supreme Court of Texas.

March 21, 1997.

Carlos Villarreal, Corpus Christi, for petitioner.

J. Norman Thomas, Corpus Christi, for respondent.

GONZALEZ, Justice.

In this medical malpractice case, we must decide whether Carolyn Westphal brought the wrongful death and survival claims she asserted on behalf of her minor child within the applicable statute of limitations. The trial court rendered summary judgment for the defendant doctor, holding that the suit was not timely. A divided court of appeals reversed and remanded the minor's claims for trial. 918 S.W.2d 543. We reverse the judgment of the court of appeals and render judgment for the defendant.

I

The facts of this case are largely undisputed. From 1977 to 1984, Dr. Gustavo Diaz prescribed Cytoxan to treat Michael Westphal's Hodgkin's disease. Diaz last treated Mr. Westphal on August 6, 1984. In September 1984, while on vacation out of state, Mr. Westphal experienced bleeding from his urinary tract and an inability to urinate. He went to a local hospital, where an emergency-room doctor advised him that he had been taking Cytoxan too long, that the drug was causing his bleeding, and that he should cease taking the drug. He continued his vacation, and although he ceased taking Cytoxan, Mr. Westphal's symptoms continued. He again required hospitalization while on vacation. Upon returning to Texas, Mr. Westphal visited another emergency room, and his condition again required hospitalization.

Mr. Westphal did not sue Diaz at that time, but decided not to consult him again. Mr. Westphal selected another doctor, who treated his Hodgkin's disease and his urinary tract problems. Later, in 1987 or 1988, Mr. Westphal's wife Carolyn gave birth to a child, Eric Westphal. ¹ In April 1991, during examinations before bladder reconstructive surgery, the new doctor discovered bladder cancer. Mr. Westphal did not file suit against Diaz before he died on April 27, 1992.

On May 20, 1993, Carolyn Westphal brought this suit against Diaz and Methodist Hospital, alleging statutory wrongful death and survival claims on behalf of her son, herself, and Mr. Westphal's estate. She contended that Diaz negligently prescribed Cytoxan to Mr. Westphal for an extended period of time and that such prolonged duration and dosage proximately caused his fatal cancer. Diaz answered with a general denial and moved for summary judgment solely on the ground that the two-year limitations provision found in section 10.01 of the Medical Liability and Insurance Improvement Act (the Medical Liability Act) barred the Westphals' claims. See Tex.Rev.Civ. Stat. art. 4590i, § 10.01. In response, the Westphals alleged that section 10.01 violated the Texas Constitution's "open courts" provision as applied in this case and that it did not govern the minor child's claims. See Tex. Const. art. I, § 13. The trial court granted Diaz's motion, rendered summary judgment that the Westphals take nothing, and severed the claims against Diaz from those brought against Methodist Hospital.

With one justice dissenting, the court of appeals affirmed the trial court's summary judgment on Carolyn Westphal's claims and the claims she brought for Mr. Westphal's estate, holding that the limitations period had expired before she filed suit. 918 S.W.2d at 546. However, the appellate court reversed and remanded Eric Westphal's claims for trial. Id. at 551. In distinguishing his claims, the court reasoned that section 10.01 contained a tolling provision that extends the time within which minors may bring suit and that "Diaz's summary judgment motion and proof are inadequate to establish that the statute of limitations barred Eric's claims." Id. at 546-47. Only Diaz applied for writ of error. We granted the writ to determine whether, as Diaz contends, the court of appeals erred in reversing the trial court's summary judgment with respect to Eric Westphal.

II

We review Diaz's complaints under well known summary judgment standards. See Sysco Food Serv., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant who moves for summary judgment based on limitations must establish the defense as a matter of law. Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex.1996); Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983). To satisfy this burden, the defendant must conclusively negate any relevant tolling doctrines the plaintiff asserted in the trial court. Jennings, 917 S.W.2d at 793; see Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975) (per curiam).

Victims of medical negligence have a common-law right to sue for their injuries. Rose v. Doctors Hosp., 801 S.W.2d 841, 843 (Tex.1990). In contrast, wrongful death and survival claims are statutory in nature. Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex.1992); see Tex. Civ. Prac. & Rem.Code § 71.004 (conferring cause of action upon surviving spouse, children, and parents of decedent for damages decedent may have recovered if he had lived); id. § 71.021 (allowing decedent's heirs, legal representatives, and estate to bring suit for personal injuries decedent suffered before death). The right to maintain such actions "is entirely derivative of the decedent's right to have sued for his own injuries immediately prior to his death, and is subject to the same defenses to which the decedent's action would have been subject." Russell, 841 S.W.2d at 347.

The Legislature enacts statutes of limitation to ensure that claims are brought within a reasonable, prescribed time after a wrong occurs. Russell, 841 S.W.2d at 349; Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990). The parties to this case agree that Michael Westphal could have exercised his common-law right to sue Dr. Diaz for negligence within the limitations period prescribed in section 10.01 of the Medical Liability Act, which represents the Legislature's determination of what constitutes a reasonable time for bringing health care liability claims. ² This statute provides:

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. Except as herein provided, this subchapter applies to all persons regardless of minority or other legal disability.

Tex.Rev.Civ. Stat. art. 4590i, § 10.01. Section 10.01 imposes an absolute two-year limitations period that runs from any one of three possible 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. State v. Thirteenth Court of Appeals, 933 S.W.2d 43, 46 (Tex.1996) (per curiam); Chambers v. Conaway, 883 S.W.2d 156, 158 (Tex.1993); see Jennings, 917 S.W.2d at 793. One may extend the two-year period for seventy-five days by giving notice of a claim. See Tex.Rev.Civ. Stat. art. 4590i, § 4.01(c).

To refute Diaz's limitations defense, the Westphals contend in this Court that section 10.01's tolling provision extended the time for filing Eric Westphal's claims. They did not raise this argument in the court of appeals. Accordingly, we do not address the issue.

The Westphals do not dispute that Diaz last treated Mr. Westphal on August 6, 1984. Under section 10.01, the limitations period for his prospective medical malpractice claim began to run on August 6, 1984 and, absent a statutory notice letter, expired two years later. See Bala v. Maxwell, 909 S.W.2d 889, 891 (Tex.1995) (per curiam) (noting that, under section 10.01, limitations period begins on last date of treatment if injury results from negligent course of treatment, rather than specific instance of negligence); see also Rowntree v. Hunsucker, 833 S.W.2d 103, 105 (Tex.1992) ("There are some situations in which the statute would run from the date of the last drug treatment, if the course of that treatment is the direct cause of the injury."). The Westphals concede that Michael Westphal failed to bring suit within this two-year window and that limitations ran on his prospective claim against Diaz unless a tolling provision saved it. Consequently, because Eric Westphal's statutory claims are entirely derivative of his father's rights, Diaz was entitled to summary judgment if he conclusively disproved all tolling doctrines the Westphals pleaded that might have saved Mr. Westphal's potential negligence suit. ³ See Jennings, 917 S.W.2d at 793; Russell, 841 S.W.2d at 347.

III

The court of appeals held that, because a fact issue existed as to whether Michael Westphal could have maintained a medical negligence claim immediately before he died, Diaz failed to conclusively prove that limitations barred Eric Westphal's wrongful death and survival claims. 918 S.W.2d at 547. In its opinion, the appellate court discussed two doctrines that arguably could have tolled Mr. Westphal's claim: the discovery rule and the Texas Constitution's open courts provision. Before beginning our analysis, we note that the court of appeals treated the discovery rule and the open courts doctrine as if they are one in the same. See 918 S.W.2d at 546-47 (purporting to apply "the discovery rule" to determine whether section 10.01 is unconstitutional as applied to Eric Westphal's derivative claims). We disagree with the court of appeals' approach given our explication of the respective...