Dougherty v. Gifford

• Decision Date: 25 February 1992
• Docket Number: No. 6-91-023-CV,6-91-023-CV
• Citation: 826 S.W.2d 668
• Parties: Marshall K. DOUGHERTY, M.D. d/b/a Marshall K. Dougherty & Associates, M.K. Dougherty, M.D. & Associates, and T. Jaime Molina, M.D., Appellants, v. Russell GIFFORD and Mary Imogene Gifford, Appellees.
• Court: Texas Court of Appeals

Page 668

826 S.W.2d 668

Marshall K. DOUGHERTY, M.D. d/b/a Marshall K. Dougherty &amp Associates, M.K. Dougherty, M.D. & Associates, and T. Jaime Molina, M.D., Appellants, v. Russell GIFFORD and Mary Imogene Gifford, Appellees.

No. 6-91-023-CV.

Court of Appeals of Texas,

Texarkana.

Feb. 25, 1992.

John K. Vaughn, Riddle & Brown, Dallas, for appellants.

James R. Rodgers, Moore, Payne, Clem, Rodgers & Hodgkiss, Paris, for appellees.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

CORNELIUS, Chief Justice.

Dougherty & Associates and Dr. Jaime Molina appeal from a judgment based on a jury verdict in favor of Mr. and Mrs. Russell Gifford in a medical malpractice action.

Dougherty and Molina raise eleven points of error, asserting that limitations, improper admission of expert testimony, and insufficiency of the evidence precluded the judgment against them. They also assert that a remittitur is required.

Dougherty's legal sufficiency points must be examined in the light most favorable to the jury findings to determine if there is any probative evidence supporting them, disregarding all contrary evidence and inferences. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Raw Hide Oil & Gas v. Maxus Exploration, 766 S.W.2d 264, 276 (Tex.App.-Amarillo 1988, writ denied). If there is any probative evidence to support the findings, the point must be overruled and the findings upheld. Southern States Transportation, Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989).

The factual sufficiency points require us to examine all of the evidence in the record and sustain the points only if the evidence is insufficient or if the findings are so against the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Garza v. Alviar, 395 S.W.2d at 823; In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951); Raw Hide Oil & Gas v. Maxus Exploration, 766 S.W.2d at 276.

Gifford developed a hernia of the esophagus that worsened to the point that his family physician referred him to a specialist. The specialist, Dr. Josie Williams, took a biopsy and sent it to the pathology department of McQuistion Regional Medical Center in Paris. Dougherty & Associates had a contract to perform all pathology work for the medical center. The actual pathology work on Gifford's biopsy, however, was performed by Dr. Jaime Molina, who worked under an arrangement with Dougherty. Molina's work was done at the medical center laboratory, which Dougherty directed. Dougherty billed Gifford for the pathology services. Molina diagnosed malignant cancer, and as a result, Gifford was ordered to undergo irradiation and chemotherapy treatments.

After six weeks of treatments, a second biopsy was taken, and it revealed that there was no malignancy. Gifford was scheduled for surgery in Dallas, but it was avoided when the original biopsy slides were reviewed and determined to contain no indication of cancer.

The jury found that Molina was negligent in making the cancer diagnosis and that his negligence proximately caused Gifford's injuries, that Molina was an employee and a borrowed servant of Dougherty, that Dougherty was estopped to deny liability for Molina's work, that Molina and Dougherty fraudulently concealed Molina's part in the diagnosis, and that Gifford could not have reasonably discovered Molina's involvement before suit was filed. Damages of $1,000,000.00 to Gifford and $200,000.00 to his wife were awarded.

The relevant dates are:

February 21, 1986 First pathology report/misdiagnosis

May 1986 Gifford learns of misdiagnosis

July 10, 1986 Addendum pathology report prepared by Dougherty and Molina

August 28, 1987 Article 4590i notice letter to M.K. Dougherty & Associates

April 21, 1988 Suit filed against M.K. Dougherty d/b/a Marshall K. Dougherty, M.D. & Associates

April 27, 1988 4590i notice letter to Molina May 8, 1988 Limitations date for February 21, 1986 (including seventy-five-day extension)

May 17, 1988 Gifford's first set of interrogatories

June 10, 1988 Dougherty's answer filed naming Molina as pathologist doing the work

July 14, 1988 Molina added to suit

September 25, 1988 Limitations date for July 10, 1986 (including seventy-five-day extension)

March 23, 1989 Dougherty filed answer indicating that he was sued in the wrong capacity

November 16, 1989 Gifford's petition amended to show M.K. Dougherty, M.D. & Associates as a professional association

The first four points of error are interrelated and are grouped for discussion.

The first point of error asserts that Gifford's claim was barred because it was not brought within two years of the misdiagnosis. ¹ Suit was brought against Molina on July 14, 1988. Gifford contends that limitations should be measured from the last day of Molina's involvement in the case, which was July 10, 1986, when he prepared an amended report. We disagree.

The continuing treatment doctrine ² applies in situations where a patient's injury occurs during a course of treatment for a particular condition, and the only readily ascertainable date is the last day of treatment. Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987). The Kimball rule does not apply to this case. There is a course of treatment causing injuries, but the date of the negligent misdiagnosis is readily ascertainable. Furthermore, treatments were rendered only on the basis of the February 1986 diagnosis, not the July 1986 follow-up report. Consequently, the continuing treatment doctrine does not apply, and limitations began on the date of the misdiagnosis in February 1986 and expired in February 1988. Gifford's notice letter sent pursuant to TEX.REV.CIV.STAT.ANN. art. 4590i (Vernon 1976 & Supp.1992) in April 1988 was not timely and did not extend the filing deadline. Shook v. Herman, 759 S.W.2d 743, 746 (Tex.App.-Dallas 1988, writ denied). As noted earlier, Gifford filed suit against Molina in July 1988, well outside the limitations period. Thus, his claim is barred unless the jury's finding of fraudulent concealment is sustainable.

In point two, Dougherty and Molina contend that the jury finding of fraudulent concealment is not supported by legally or factually sufficient evidence.

It is undisputed that Gifford learned of the misdiagnosis in May 1986, within the limitations period. Gifford asserts that suit was not filed earlier because Molina's identity as the pathologist who did the work was concealed until after limitations had run. To succeed on this fraudulent concealment claim, Gifford had to show that Dougherty and Molina had actual knowledge of Molina's involvement, a duty to disclose Molina's identity, and a fixed purpose to conceal Molina's identity. See Rhodes v. McCarron, 763 S.W.2d 518, 524 (Tex.App.-Amarillo 1988, writ denied); Leeds v. Cooley, 702 S.W.2d 213, 215 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.). If fraudulent concealment is established, Molina is estopped from claiming limitations as an affirmative defense. Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex.1983).

Dougherty assigned Molina to do Gifford's pathology work. Molina prepared his report on Dougherty's business forms. Dougherty billed Gifford for Molina's work. Knowledge of Molina's involvement is indisputably shown.

Fraudulent concealment may be shown where a party affirmatively conceals the responsible party's identity, Cherry v. Victoria Equipment & Supply, Inc., 645 S.W.2d 781, 782 (Tex.1983), if there is a duty to disclose one's identity. In Cherry, a potential defendant repeatedly disavowed, when deposed, any involvement in the occurrence in question. The court reasoned that such testimony, being under oath, could support a finding of fraudulent concealment. Cherry v. Victoria Equipment & Supply, Inc., 645 S.W.2d at 782. We see Cherry as standing for the principle that the nature of the parties' relationship controls the duty of disclosure. Thus, a party responding under oath is under a higher duty to disclose than someone in a negotiation process. Likewise, a higher duty to disclose exists in a physician/patient relationship. ³ Consequently, Dougherty and Molina's duty to disclose depends on their relationship with Gifford. For the reasons discussed below, we find that Dougherty and Molina had a duty to disclose Molina's identity because a physician/patient relationship existed between each of them and Gifford.

Dougherty and Molina assert that the evidence does not show a physician/patient relationship between either of them and Gifford. Relying on Childs v. Weis, 440 S.W.2d 104 (Tex.Civ.App.-Dallas 1969, no writ), and Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705 (Tex.Civ.App.-Dallas 1963, writ ref'd n.r.e.), they argue that because Gifford's pathology work was done exclusively for other doctors, the pathologist did not see Gifford, and Gifford did not personally select Molina or Dougherty, there was no physician/patient relationship. Their reliance is misplaced.

Lotspeich involved a woman who was sent to a company doctor for a pre-employment physical. That court did not reach the question of whether the physician owed a duty to disclose because they found that no duty to even discover the presence of the disease existed. Lotspeich v. Chance Vought Aircraft, 369 S.W.2d at 710. The doctor's sole duty was owed to the company which employed him because the examination was only for the company's benefit. Id. at 710. The services in our case were for Gifford's benefit.

Childs involved a malpractice action where a woman went to an emergency room when she began having premature labor pains. The nurse called the doctor on duty, who merely advised the woman to call her regular doctor. The court found that there was not a physician/patient relationship because the doctor was under no duty to examine or treat Mrs. Childs. The telephone conversation with a nurse did not amount to an acceptance of the case, and the instructions could not be construed as treatment. Childs v. Weis, 440 S.W.2d at 106-07...