Doran v. Compton

Decision Date20 May 1981
Docket NumberNo. 80-1146,80-1146
Citation645 F.2d 440
PartiesJames P. DORAN and Eileen T. Doran, Plaintiffs-Appellees, v. Mary Lou COMPTON, Executrix of the Estate of Margaret Watkins, Deceased, andTexas Scottish Rite Hospital for Crippled Children, Defendants-Appellants, Dallas Society for Crippled Children, Defendant-Appellee. . Unit A
CourtU.S. Court of Appeals — Fifth Circuit

Royal H. Brin, Jr., Kevin H. Good, J. Carlisle DeHay, Jr., Dallas, Tex., for defendants-appellants.

Craig P. Campbell, Seattle, Wash., Webber W. Beall, Jr., Mark E. Smith, Dallas, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before AINSWORTH and SAM D. JOHNSON, Circuit Judges, and HUNTER, * District Judge.

SAM D. JOHNSON, Circuit Judge:

This interlocutory appeal raises questions of the applicability and validity of former Tex.Ins.Code Ann. art. 5.82, § 4 (effective June 3, 1975 and originally scheduled to expire December 31, 1977), a two-year statute of limitations for certain medical malpractice claims, with respect to a cause of action that accrued prior to the effective date of the statute. We hold that the statute does not retroactively apply to causes of action that accrued prior to the enactment of the statute and that were not then time-barred. Consequently, the district court's denial of defendants' motion for summary judgment with respect to Jeffrey Doran's claims is affirmed.

The alleged medical malpractice in this case involves the diagnosis and treatment of Jeffrey Doran. Jeffrey was born January 11, 1960, and was a normal, active child physically and mentally from birth to age six. At that time his parents, James P. and Eileen T. Doran, noticed that he could not fully manipulate his right arm and that he had assumed an unusual gait when walking. On January 17, 1969, the Dorans took Jeffrey to Dr. Margaret Watkins for examination and treatment. Dr. Watkins, a physician and surgeon specializing in the field of orthopedic surgery, was associated with defendant Dallas Society for Crippled Children. 1 Jeffrey was admitted to Dallas Society for evaluation under Dr. Watkins' supervision. Over the course of the next several months, Jeffrey was examined by Dr. Watkins and by numerous other medical personnel employed by Dallas Society. He was seen at Dallas Society on January 20, 27, February 5, and 6, 1969. Jeffrey's condition was diagnosed as right spastic hemiplegia, which is associated with cerebral palsy, and a program of physiotherapy and occupational therapy with periodic re-evaluations was prescribed. Jeffrey's ability to utilize his right arm and right leg, however, progressively deteriorated. Jeffrey's last contact with Dr. Watkins and Dallas Society was in June 1969.

In June 1970, the Dorans took Jeffrey to defendant Texas Scottish Rite Hospital for Crippled Children. 2 He was again diagnosed as having cerebral palsy with right spastic hemiplegia. Two surgical procedures an Achilles tendon lengthening procedure on June 5, 1970 and an operation for multiple tendon releases on May 24, 1971 were performed at Scottish Rite. Following both operations, programs of physical therapy with periodic re-evaluations were prescribed. Jeffrey was last treated at Scottish Rite in May 1973. 3 Jeffrey continued to lose the use of his right side and eventually began to suffer from more general paralysis with attendant muscle wasting and atrophy.

Later in 1973, Jeffrey's ailment was finally properly diagnosed by Dr. Carl Pevoto as resulting from a tumor of the spinal cord. In July 1973, a laminectomy performed on Jeffrey by Dr. Morris Sanders resulted in the partial removal of an oligondendroglioma-astrocytoma tumor. Following that operation Jeffrey experienced some improvement, but thereafter his condition regressed. Despite extensive radiation therapy designed to destroy the surgically inaccessible remnants of the tumor, Jeffrey's condition has not improved, and he is presently a functional quadriplegic.

Plaintiffs James and Eileen Doran instituted this suit on August 26, 1977, alleging malpractice by misdiagnosis of the condition of their son Jeffrey. Their suit asserted individual claims and claims on behalf of their son for the injury and damage sustained by their son and themselves as a result of the defendants' negligence. Defendants are Ms. Compton (executrix of the Estate of Dr. Watkins), Scottish Rite, and Dallas Society. In February 1979, Compton and Scottish Rite filed a joint motion for summary judgment, contending that the cause of action was barred by Tex.Ins.Code Ann. art. 5.82, § 4, the statute of limitations applicable at the time that suit was filed. Article 5.82, section 4 provided:

Notwithstanding any other law, no claim against a person or hospital covered by a policy of professional liability insurance covering a person licensed to practice medicine or podiatry or certified to administer anesthesia in this state or a hospital licensed under the Texas Hospital Licensing Law, as amended (Article 4437f, Vernon's Texas Civil Statutes), whether for breach of express or implied contract or tort, for compensation for a medical treatment or hospitalization may be commenced unless the action is filed within two years of the breach or the tort complained of or from the date the medical treatment that is the subject of the claim or the hospitalization for which the claim is made is completed, except that minors under the age of six years shall have until their eighth birthday in which to file, or have filed on their behalf, such claim. Except as herein provided, this section applies to all persons regardless of minority or other legal disability.

1975 Tex.Gen.Laws, ch. 330, § 1, at 865-66 (repealed effective August 29, 1977). Dallas Society filed a separate motion for summary judgment in February 1979, on the grounds that plaintiffs' action was time-barred by the applicable two-year statute of limitations and that Dallas Society was entitled to charitable immunity because of its status as a charitable institution. 4

On August 27, 1979, the district court granted the motion of Compton and Scottish Rite for summary judgment and ordered that plaintiffs take nothing from those defendants. 5 The Dorans and Dallas Society moved for reconsideration of the summary judgment. 6 On December 19, 1979, the district court vacated the order granting the summary judgment on behalf of Compton and Scottish Rite. The court then denied the joint motion of Compton and Scottish Rite for summary judgment insofar as it related to the claims on behalf of Jeffrey. The court granted summary judgment for Compton and Scottish Rite with respect to the individual claims of James and Eileen Doran. The district court provided the necessary certification for Compton to take an interlocutory appeal from the court's order, stating that "this Court is of the opinion that such Order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from this Order may materially advance the ultimate termination of this litigation." 7 Record, vol. III, at 587. On February 4, 1980, the Fifth Circuit granted the parties leave to appeal.

This Court has before it for consideration on appeal only the district court's denial of Compton and Scottish Rite's motion for summary judgment with respect to the claims filed on behalf of Jeffrey Doran. See note 8 infra. Prior to the passage of article 5.82, this cause of action would have been governed by Tex.Rev.Civ.Stat.Ann. art. 5526 (Vernon Supp.1980), which provides a two-year statute of limitations for actions "for injury done to the person of another." Moreover, prior to article 5.82, in medical malpractice actions involving minors, the limitation period for the minor was tolled by article 5535, a general disability statute that provides:

If a person entitled to bring any action mentioned in this subdivision of this title be at the time the cause of action accrues ... a minor ... the time of such disability shall not be deemed a portion of the time limited for the commencement of the action and such person shall have the same time after the removal of his disability that is allowed to others by the provisions of this title.

Tex.Rev.Civ.Stat.Ann. art. 5535 (Vernon Supp.1980).

Section 4 of article 5.82, which was enacted and became effective June 3, 1975, provided a two-year statute of limitations period for claims against certain insured health care personnel. It superseded article 5535, thereby eliminating the tolling provision of article 5535. (Pursuant to the terms of section 4, minors under the age of six had until their eighth birthday to file suit or to have an action filed on their behalf. Aside from that provision, minors were given no special consideration under the statute.) In addition, the two-year time period ran from the breach or the tort complained of, or from the date that the medical treatment or hospitalization for which the claim is made was completed. Thus, with respect to the causes of action to which the statute applied, it abrogated the discovery rule that existed under Texas jurisprudence for certain types of medical malpractice claims.

A review of the pertinent dates in this case reveals the following:

                Misdiagnosis and medical   Between 1969 and July
                treatment                  20, 1973
                Plaintiffs' discovery of   July 20, 1973
                misdiagnosis
                Effective date of article  June 3, 1975
                5.82
                Two years from effective   June 3, 1977
                date of article 5.82
                Petition filed             August 26, 1977
                Jeffrey Doran reached      January 11, 1978
                majority age
                

This Court need not decide exactly when Jeffrey's cause of action actually accrued. Whether it accrued in 1969, on July 20, 1973, or at some time in between, the same result maintains. Under either statute of limitations article 5526 or section 4 of article 5.82 a two-year period beginning at the accrual of the...

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  • Garay v. Overholtzer
    • United States
    • Maryland Court of Appeals
    • September 1, 1993
    ...during the minority of the child is in accord with virtually every court that has addressed this issue. See Doran v. Compton, 645 F.2d 440 (5th Cir. Unit A May 1981) (applying Texas law); Perez v. Espinola, 749 F.Supp. 732 (E.D.Va.1990) (applying Virginia law); Davis v. Drackett Prods. Co.,......
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    ...rejected the retroactive application of state statutes of limitations. Kotval v. Gridley, 698 F.2d 344 (8th Cir.1983); Doran v. Compton, 645 F.2d 440 (5th Cir. 1981). Although the Supreme Court in United States v. Lindsay, 346 U.S. 568, 74 S.Ct. 287, 98 L.Ed. 300 (1954), retroactively appli......
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