Gormley v. Stover
| Decision Date | 16 March 1995 |
| Docket Number | No. 94-0954,94-0954 |
| Citation | 907 S.W.2d 448 |
| Parties | 38 Tex. Sup. Ct. J. 384 Jerold W. GORMLEY, D.D.S., Petitioner, v. Marion STOVER, Respondent. |
| Court | Texas Supreme Court |
Michael J. Sharpee, Barry D. Peterson, Amarillo, for petitioner.
Leighton Cornett, Paris, for respondent.
Marion Stover sued Dr. Jerold Gormley, a dentist, alleging that he was negligent in his treatment of her in three respects: in recommending a skin graft rather than a bone graft to improve her ability to wear dentures, in performing the skin graft surgery, and in treating her after the surgery. Stover filed suit more than two years after the surgery was performed but less than two years after Gormley last treated her.
Stover also alleged that Gormley misrepresented: that he could perform the surgery with no problems; that a skin graft would work as well as a bone graft; that after surgery he would refer her to another dentist to be fitted for dentures which would fit well and which she would have no problems wearing; and that her post-surgery pain and numbness would cease in several months. Stover claims that these misrepresentations are actionable under the Texas Deceptive Trade Practices--Consumer Protection Act, TEX.BUS. & COM.CODE §§ 17.41-.63.
The trial court granted summary judgment for Gormley on the grounds that all of Stover's claims are barred by the two-year limitations period prescribed by the Medical Liability and Insurance Improvement Act, TEX.REV.CIV.STAT.ANN. art. 4590i, § 10.01 (Vernon Supp.1995). 1 The court of appeals held: that Stover's claim for negligent performance of surgery was barred by limitations because it was completed more than two years before she filed suit and was not part of a continuing course of treatment that extended after surgery; that Gormley did not establish as a matter of law that his post-operative care of Stover, which continued within two years of when she filed suit, was not negligent; and that Gormley failed to establish as a matter of law that Stover did not sue within two years of when she should have discovered the DTPA violations, which is the limitations period prescribed by the DTPA, 2 which applies rather than the Medical Liability and Insurance Improvement Act. 883 S.W.2d 278. Consequently, the court of appeals affirmed the summary judgment as to Stover's negligent surgery claim, but reversed it as to her other claims. We conclude that Gormley was entitled to summary judgment on all claims.
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 ...
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Appendix - Desk Book
...ill-fitting dentures was simply a negligence action recast as a DTPA claim and, thus, barred by Article 4590i. Gormley v. Stover, 907 S.W.2d 448 (Tex. 1995) ( per curiam ) The plaintiff brought suit against her dentist claiming that he misrepresented that he could perform surgery on her wit......
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Initial Client Contacts (Defendant)
...DTPA. See Walden v. Jeffery , 907 S.W.2d 446 (Tex. 1995) (plaintiff’s claim of ill-fitting dentures barred by MLIIA); Gormley v. Stover , 907 S.W.2d 448 (Tex. 1995) (representations of successful surgery nothing more than “recast” negligence claim); Earle v. Ratliff , 998 S.W.2d 882 (Tex. 1......