Fitzpatrick v. Marlowe

• Decision Date: 09 June 1977
• Docket Number: No. 1014,1014
• Citation: 553 S.W.2d 190
• Parties: Sylvia FITZPATRICK et vir., Appellants, v. Julius MARLOWE, Jr., M.D., Appellee.
• Court: Texas Court of Appeals

Page 190

553 S.W.2d 190

Sylvia FITZPATRICK et vir., Appellants, v. Julius MARLOWE, Jr., M.D., Appellee.

No. 1014.

Court of Civil Appeals of Texas, Tyler.

June 9, 1977.

Rehearing Denied July 7, 1977.

John D. Wennermark, San Antonio, for appellants.

Peter N. Plumb, Allison & Plumb, San Antonio, for appellee.

DUNAGAN, Chief Justice.

This summary judgment case arose from a medical malpractice suit. This is an appeal from an order granting summary judgment on the ground that plaintiffs' suit was barred by the two-year statute of limitations. Sylvia Fitzpatrick (hereafter referred to individually as "appellant"), joined by her husband, filed this action to recover for the alleged malpractice of defendant-appellee, Julius Marlowe, in treating her for sinus and other nasal problems. Appellee filed his motion for summary judgment alleging therein that appellant's suit was barred by the two-year statute of limitations, Art. 5526, Tex.Rev.Civ.Stat.Ann. At the hearing on the motion for summary judgment appellant sought to establish that appellee had fraudulently induced her to postpone taking action on her cause for malpractice. Appellant's contention was found to be without merit and the motion was granted. Appellants thereafter timely filed this appeal.

Appellants bring forward one point of error asserting that the trial court erred "in not holding that the statute of limitations was tolled by the fraudulent misrepresentations of Defendant until a time within two years before the filing of this suit." The summary judgment evidence in the present case consists of the depositions of appellant and answers of Dr. Tolbert S. Wilkinson to interrogatories with all his written records in connection with treatment and examination of appellant attached to said answers.

The thrust of appellants' lawsuit as reflected in their original petition is predicated upon the alleged negligent conduct of appellee-physician, Dr. Julius Marlowe, Jr., his fraudulent concealment thereof and misrepresentation of the true facts, which conduct allegedly occurred during surgery upon the appellant's nose in January 1972 and March 1973 and in subsequent follow-up treatment of appellant's condition during 1972 and through the latter part of 1973. Appellants alleged in their original petition that:

"Defendant, with intent to deceive Plaintiffs and induce them to refrain from bringing an action against him for malpractice, fraudulently conceal(ed) from Plaintiffs his negligent and careless acts in the course of said operations to Plaintiff's, SYLVIA FITZPATRICK, nose and fraudulently lolled (sic) them into the belief that the condition of her nose was a natural result of the operation and would improve with time and various treatments that he intended to give to Plaintiff, SYLVIA FITZPATRICK. By Defendant's promises and representations to Plaintiffs that such treatment would repair and correct the condition of her nose, induce Plaintiffs to refrain from consulting with or receiving further treatment from other physicians. Defendant's false statements and representations were made with intent that Plaintiffs would rely thereon, to protect Defendant from any demand or claim by Plaintiffs for damages within the time allowed by the statute of limitations. In truth and in fact, Defendant knew Plaintiff's, SYLVIA FITZPATRICK, true condition at all times since March 2, 1973, and Plaintiffs believed, relied and acted on Defendant's false statements and representations concerning such condition. By Defendant's wrongful conduct and fraudulently concealing from Plaintiffs the nature and extent of Plaintiff's condition caused by Defendants negligence, Plaintiffs, in the exercise of reasonable diligence, did not discover Defendant's fraud until February 1975 when she consulted a plastic surgeon and was advised by such surgeon that her condition was the result of Defendant's negligence and would never improve. . . ."

In determining the matter of rendering or affirming a summary judgment in favor of a party, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff's claim or cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970); Harrington v. Young Men's Christian Ass'n of Houston,452 S.W.2d 423 (Tex.1970); Rule 166-A(c), T.R.C.P. The burden of proof is upon the party moving for summary judgment and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). The evidence upon such a motion must be viewed in the light most favorable to the party opposing the motion. All conflicts in the evidence are disregarded and the evidence which tends to support the position of the party opposing the motion is accepted as true. Parrott v. Garcia, 436 S.W.2d 897, 899 (Tex.1969). Thus we shall consider the evidence which supports appellants' cause of action to determine if any genuine fact issue exists.

The summary judgment evidence shows that in September of 1971 appellant went to appellee for treatment of a sinus condition. Appellee performed surgery on appellant to rectify this condition and to remove a small bump from the bridge of her nose. This was done in January of 1972. After the surgery, appellee told appellant the swelling would go down and the bump, which persisted, would go away. In March of 1973, appellee performed a second operation on appellant's nose in an effort to correct the rise, which had never subsided. Now, as a result, instead of a bump, appellant's nose was quite red and depressed in the area where the bump used to be. Appellee again told appellant that this condition would heal. When appellee realized that the dip in appellant's nose would not heal by itself, he told appellant that he would give her cortisone but that, because she was now pregnant, the cortisone treatment would not begin until the termination of the pregnancy. Appellant's child was born in February of 1974, but the cortisone treatments were never begun. Appellant was last treated by appellee in November of 1973. About the time the baby was delivered, appellant began to doubt that the dip would heal.

Appellant saw a Dr. Smith, a plastic surgeon, in the latter part of 1974, who advised her that more corrective surgery would be necessary. Appellant saw Dr. Smith only once. Appellant by her deposition testified that even though Dr. Smith recommended additional surgery to correct the condition "he couldn't guarantee me results because it wasn't a virgin nose, I had already had surgery done on it twice, it wasn't like it was a nose that had never been operated on." The first time she knew she needed corrective surgery was in the latter part of 1974 when Dr. Smith so advised her. In February 1975, appellant saw Dr. Wilkinson who also told her that surgery would be needed because her nose had been "messed up," and that plastic surgery was needed to correct it. Appellants filed this suit on December 10, 1975.

It was about six months after the first surgery in January 1972 before the swelling subsided to the extent that appellant could see that the bump had not subsided. After the January surgery appellee advised her to put cocoa butter on the affected part of her nose. She did so but to no avail. The bump remained. After the cocoa butter failed to correct the situation, appellee suggested more surgery in which he "would rasp it down." The appellee did perform the second surgery in March 1973. The first time Mrs. Fitzpatrick looked at her nose after the second surgery she "noticed that it was real red across my nose and it was just a big dip in my nose like he had just taken...