Earle v. Ratcliff

• Citation: 998 S.W.2d 882
• Parties: (Tex. 1999) STEPHEN EARLE, M.D., PETITIONER v. MICHAEL RATLIFF AND SHIRLEY RATLIFF, RESPONDENTS NO. 98-0115
• Decision Date: 07 October 1999
• Court: Supreme Court of Texas

Page 882

998 S.W.2d 882 (Tex. 1999)

STEPHEN EARLE, M.D., PETITIONER v. MICHAEL RATLIFF AND SHIRLEY RATLIFF, RESPONDENTS

NO. 98-0115

IN THE SUPREME COURT OF TEXAS

Argued on April 7, 1999

Decided July 1, 1999

Rehearing Overruled Oct. 7, 1999

ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS

[Copyrighted Material Omitted]

JUSTICE HECHT delivered the opinion of the Court.

Nathan L. Hecht, Justice

This medical malpractice case raises several issues, but our attention centers on whether the plaintiff's claim that the defendant negligently performed surgery on him is barred by limitations. The plaintiff contends that limitations did not begin to run on his claim until his post-surgical course of treatment by the defendant ended, and until he became aware that the defendant had fraudulently concealed from him the truth about the surgery and the treatment that followed. Further, the plaintiff asserts, to bar his claim would violate the Open Courts provision of the Texas Constitution.¹ On each of these matters we disagree with the plaintiff, but on other claims described below, we believe the plaintiff is correct. The district court granted defendant summary judgment on all plaintiff's claims. The court of appeals reversed summary judgment on all claims.² We partially affirm, and partially reverse, the judgment of the court of appeals and remand the case to the district court for further proceedings.

I

Michael Ratliff, a thirty-eight-year-old freight handler in good health, sustained a work-related back injury in June 1991, for which he was treated by Dr. Stephen Earle. On November 21, 1991, Earle operated on Ratliff, fusing his lumbar spine at three levels, decompressing nerves at four levels, and inserting metal bone plates and screws manufactured by AcroMed Corporation. Unfortunately, Ratliff's condition gradually worsened. Earle continued to treat Ratliff, and on November 16, 1993, Earle operated again to remove and replace the instrumentation implanted in the first surgery. Following this surgery, Ratliff's condition deteriorated even further, to the point where he was in constant pain and unable to walk, talk, or care for himself. A month later, Ratliff saw a television report on the risks associated with the AcroMed instrumentation that had been surgically implanted in him and removed. Ratliff contends that this was his first inkling that Earle's treatment had been improper. Ratliff returned to Earle on January 4, 1994, for a final visit, and not quite two months later, on February 28, he and his wife (collectively, "Ratliff") sued Earle and others. We are concerned only with Ratliff's action against Earle.

Ratliff sued Earle for negligence, fraudulent concealment, strict liability, and violations of the Deceptive Trade Practices-Consumer Protection Act.³ Ratliff alleged that Earle was negligent in:

* misdiagnosing his condition;

* performing unwarranted and unnecessary surgeries on him;

* implanting in his back pedicle devices not approved by the federal Food and Drug Administration;

* failing to warn him of the risks of the surgery and the causes of his subsequent pain; and

* misrepresenting throughout the entire course of treatment the risks of pedicle instrumentation and the problems experienced by other patients from such procedure.

Ratliff further alleged that Earle had fraudulently concealed:

* that the surgeries were unwarranted and unnecessary;

* that objective reports did not support Earle's diagnosis and recommendation of surgery;

* that statements Earle made to induce Ratliff to have surgery were incorrect;

* that assurances Earle gave Ratliff about his condition and the reasons for his continuing pain were misleading, incomplete, and inaccurate; and

* the risks of using spinal fixation devices, some of which were printed on an insert in the packaging of the instrumentation Earle implanted in Ratliff.

Finally, Ratliff alleged that Earle violated the DTPA by telling him that:

* he needed surgery;

* he would get "95% better" and would be able to return to work;

* the devices implanted in Ratliff were safe, approved for such use, and permanent; and

* the pain he endured was to be expected and would get better.

(Ratliff has dismissed his strict liability claim in order to participate in a settlement reached in In re: Orthopedic Bone Screw Products Liability Litigation (Fanning v. Acromed Corp.).⁴)

Earle moved for summary judgment on several grounds, including: that Ratliff's claims relating to his 1991 surgery were barred by limitations; that with respect to the 1993 surgery, Earle did not breach the standard of care owed Ratliff or cause him any injury; that Earle obtained from Ratliff the consent to treatment and surgery required by statute;⁵ and that Earle did not knowingly make any misrepresentation to Ratliff. In connection with the last ground, Earle argued that Ratliff's health care liability claims could not be recast as DTPA violations. Earle supported his motion with his own affidavit and certain medical records. Ratliff responded, relying on his own affidavit and that of an expert witness, Dr. Vert Mooney, as well as other medical records. The district court granted Earle's motion "on all grounds", and Ratliff appealed.

The court of appeals reversed, holding that Earle was not entitled to summary judgment on any ground raised in his motion.⁶ Concerning limitations, the court concluded "that the allegations of this case [involving] elements of both misdiagnosis and mistreatment mak[e] it difficult to ascertain a specific date when the malpractice claim arose."⁷ Under the circumstances, the court found that limitations did not begin to run on Ratliff's claims until the date of Earle's last treatment,⁸ which, as we have said, was less than two months before Ratliff filed suit.

We granted Earle's petition for review.⁹ We first consider whether Ratliff's claims relating to the 1991 surgery are barred by limitations, and then whether Earle was entitled to summary judgment on Ratliff's other claims.

II

Ratliff's negligence claims are "health care liability claims" within the meaning of the Medical Liability and Insurance Improvement Act.¹⁰ Section 10.01 of the Act provides in pertinent part that

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 . . . .¹¹

Thus, under this statute limitations is to run from one of three dates: the date of the breach or tort, the completion of treatment, or the completion of hospitalization. We have repeatedly held that a plaintiff cannot choose the most favorable of the three dates specified, and that "if the date of the negligence can be ascertained, . . . limitations must be measured from the date of the tort."¹²

Ratliff contends, and the court of appeals agreed, that limitations did not begin to run on his claims regarding the 1991 surgery until Earle quit treating him, shortly before he filed suit. Earle asserts that limitations began to run on those claims the date surgery was performed. Ratliff also contends that the running of limitations was suspended by Earle's fraudulent concealment of certain facts about the surgery and his prognosis. Earle responds that Ratliff has failed to raise a genuine issue of material fact on the elements of fraudulent concealment. Finally, Ratliff argues that his claims cannot be barred by limitations without violating the Open Courts provision of the Texas Constitution. Earle responds that Ratliff has failed to raise a fact issue that he did not have a reasonable opportunity to sue, and thus he is not entitled to the protection of the Open Courts provision. We address each of these issues - when limitations began to run, fraudulent concealment, and Open Courts - in turn.

A

Ratliff neither complains nor offers evidence of any negligence by Earle in the treatment following the 1991 surgery. Ratliff does not contend, for example, that Earle should have done something after the surgery to relieve his pain or improve his back. Ratliff alleges that Earle did not tell him the truth about the surgery, the reasons for his continued pain afterward, or his prognosis, but he does not assert that Earle's alleged post-surgical statements or concealments affected his treatment or his condition.

Rather, Ratliff contends that Earle was negligent in misdiagnosing the need for surgery, in failing to disclose the attendant risks of surgery beforehand, and in performing unwarranted surgery. Assuming Ratliff is correct, Earle's negligence occurred on or before the date he performed surgery, and limitations on Ratliff's claim began to run on that date. We reached the same conclusion in similar circumstances in Gormley v. Stover.¹³ There, Stover complained that Gormley was negligent in performing skin graft surgery to improve her ability to wear dentures, but she argued that limitations did not begin to run until Gormley quit treating her. We explained:

Gormley's motion for summary judgment stated that the health care of which Stover complained occurred before or during surgery. None of the excerpts of Stover's and her expert witness' deposition testimony, attached to Gormley's motion, mentioned any negligence occurring after surgery. Gormley's affidavit stated that if Stover was injured at all, it was during surgery. Stover's affidavit did not assert that Gormley was negligent following surgery. Her affidavit did assert that Gormley represented to her after her surgery that her pain would shortly subside, but she does not claim that her continued pain was attributable to his post-surgical treatment of her. In short, Gormley's affidavit established as a matter of law that no actionable negligence occurred after surgical treatment was completed, and...