Gatling v. Perna
| Decision Date | 12 February 1990 |
| Docket Number | No. 05-89-00364-CV,05-89-00364-CV |
| Citation | 788 S.W.2d 44 |
| Court | Texas Court of Appeals |
| Parties | Jean GATLING, Appellant, v. Nancy PERNA, Executrix of the Estate of Ferald O. Mauk, M.D., Appellee. |
C.C. "Sonny" Phillips, Humble, Cary S. Stenrick, Alan J. Winters, Houston, for appellant.
R. Brent Cooper, William F. Allred, Cowles & Thompson, Dallas, for appellee.
Before HOWELL, ROWE and KINKEADE, JJ.
OPINION ON MOTION FOR REHEARING
Appellee's motion for rehearing is denied. Our opinion of December 20, 1989, is withdrawn, and this opinion is issued in lieu thereof.
Jean Gatling appeals from a summary judgment rendered against her in a medical malpractice suit that she brought against the estate of her psychiatrist, Dr. Ferald O. Mauk, deceased. The doctor's estate, represented by its executrix, Nancy Perna, contended that Gatling's suit was barred as a matter of law by limitations, and the trial court agreed. We disagree, reverse the summary judgment, and remand the cause to the trial court for further proceedings.
Gatling's petition sets forth the following details of her medical history while she was under the care of Dr. Mauk: Treatment for Gatling's psychiatric condition began in September 1980 and continued until December 1985. During all that time, Dr. Mauk prescribed various phenothiazine-type drugs including Stelazine, Prolixin, Haldol, and Moban. These drugs carry the risk of causing tardive dyskinesia. Gatling developed tardive dyskinesia sometime between 1980 and 1985 while taking these drugs. Dr. Mauk never informed Gatling of the possible side effects of these drugs and was guilty of negligence in his failure to obtain her informed consent to their use. Also, Dr. Mauk negligently failed to timely refer Gatling for neurological care after she developed tardive dyskinesia and negligently continued to prescribe the drugs despite the known harm they had already caused. Further, with intent to deceive, Dr. Mauk fraudulently concealed his malpractice from Gatling and lulled her into believing her neurological disorder was not associated with the drugs. Gatling's pleading was filed on August 31, 1987.
The doctor's estate answered by general denial and sought specifically to limit its liability and damages in accordance with the Medical Liability and Insurance Improvement Act. TEX.REV.CIV.STAT.ANN. art. 4590i (Vernon Supp.1989). This act specially defines the theory of recovery sought by Gatling with respect to Dr. Mauk's failure to disclose the risks in question. Id. at §§ 6.01-6.07. Section 10.01 of the act also provides this special statute of limitations:
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....
TEX.REV.CIV.STAT.ANN. art. 4590i, § 10.01.
The doctor's estate subsequently filed a motion for summary judgment which relied solely upon a limitations defense incident to section 10.01. This motion was supported by deposition testimony of Gatling and one of her doctors, Dr. Carl A. Lewis, as well as by affidavit testimony covering some of her medical records. The medical records established that Dr. Mauk had prescribed Stelazine from December 1980 to June 1982, Prolixin from June 1982 to October 1984; Haldol briefly during October 1984, and Moban from October 1984 to November 1985. The deposition testimony revealed that all these drugs are phenothiazines which can cause tardive dyskinesia. Gatling's deposition testimony also disclosed that she was given a neurological examination during October 1984 for a neuromuscular problem from which she was suffering. The examining neurologist reported to her thereafter that in his opinion she had tardive dyskinesia and that it was associated with the medications prescribed by Dr. Mauk. The doctor's estate maintains that this summary judgment evidence establishes as a matter of law that Gatling's malpractice claim is time-barred because she had actually discovered her injury, or reasonably should have discovered it, at least by October 1984. This date is more than two years before Gatling filed suit.
Gatling filed a response which attacked the summary judgment motion on grounds: (1) that while she had pleaded three alternative causes of action, the movant had failed to negate all three; (2) that Dr. Mauk had fraudulently disabled Gatling from pursuing legal action against him by minimizing his involvement in her neuromuscular problem; and (3) that Dr. Mauk's action in prescribing a phenothiazine after harmful effects therefrom had become apparent effectively extended limitations until that treatment was ended in December 1985. Gatling added to the summary judgment evidence other excerpts from her deposition, these excerpts detailing that she had not become alarmed about Dr. Mauk's treatment until late in 1985 when she inquired about her neuromuscular condition and Dr. Mauk told her that he would not fully answer her questions. Previously in answer to such questions he had told her the condition was nothing to worry about. Gatling also adopted the movant's evidence establishing the chronological sequence in which the four phenothiazines were prescribed, in particular the fact that Dr. Mauk had not prescribed Moban until after Gatling's neurological examination in October 1984.
To justify the trial court's summary judgment, the doctor's estate relied upon the holding in Kimball v. Brothers, 741 S.W.2d 370 (Tex.1987). Kimball is said to be controlling of the case before us because the summary judgment evidence established beyond dispute that any act of malpractice for which Dr. Mauk might be responsible resulted in noticeable injury to Gatling on or before October 1984. Kimball holds that when the precise date of the specific tort is ascertainable from the facts of the case, section 10.01 of article 4590i requires that the limitation period run from the date of the tort. This analysis, of course, overlooks the continuing nature of the tort about which Gatling complains, and we seriously question whether continuing torts can be so limited. We need not decide this issue, however, because the holding in Kimball is clearly restricted by the holding in Neagle v. Nelson, 685 S.W.2d 11 (Tex.1985). Neagle holds that a claim for medical malpractice cannot be time-barred before the patient has a reasonable...
To continue reading
Request your trial
-
Upjohn Co. v. Freeman
...rule may apply. Continued use of an injury-producing medication may be a continuing tort. See Gatling v. Perna, 788 S.W.2d 44, 46 (Tex.App.--Dallas 1990, writ denied). As long as Upjohn's conduct continued effecting injury to Freeman, each injury may be understood to create a separate cause......
-
Nelson v. Pagan
...of action for intentional infliction of emotional distress and tortious interference with employment. See Gatling v. Perna, 788 S.W.2d 44, 47 (Tex.App.-Dallas 1990, writ denied) (summary judgment proper only if nonmovant cannot succeed on any of theories pleaded as basis for recovery). Appe......
-
Schaefer v. Gulf Coast Regional Blood Center, 93-2550
...----, 112 S.Ct. 1778, 118 L.Ed.2d 435 (1991); Mann v. A.H. Robins Co., Inc., 741 F.2d 79, 81 (5th Cir.1984); Gatling v. Perna, 788 S.W.2d 44, 47 (Tex.App.--Dallas 1990, writ denied); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990); Allen v. Roddis Lumber & Veneer Co., 796 S.W.......
-
Desiga v. Scheffey
...on the non-movant's part such as is present in the instant case. In another case relied on by appellant, Gatling v. Perna, 788 S.W.2d 44 (Tex.App.--Dallas 1990, writ denied), the court made special allowances for the fact that the patient was a psychiatric patient whom they could not fault ......