Grady v. Faykus
| Decision Date | 06 November 1975 |
| Docket Number | No. 990,990 |
| Citation | 530 S.W.2d 151 |
| Parties | Mrs. Dorothy GRADY, Appellant, v. Max H. FAYKUS, M. D., et al., Appellees. |
| Court | Texas Court of Appeals |
David H. Burrow, Helm, Jones & Pletcher, Houston, for appellant.
O. F. Jones, Victoria, for appellees.
This summary judgment case arose from a medical malpractice suit. Mrs. Dorothy Grady sued Dr. Max H. Faykus and Dr. Walter Herbst for injuries she allegedly sustained from excessive radiation by x-ray therapy treatments negligently administered by defendants in October and November of 1969. Plaintiff's original petition was filed June 22, 1973, which date was more than two years after the alleged negligent treatment occurred. Defendants moved for summary judgment which was granted by the trial court on the ground that the suit was barred by the two-year statute of limitations. Tex.Rev.Civ.Stat.Ann. art. 5526. From that judgment the plaintiff-appellant appeals.
In 1969 a medical diagnosis revealed that Mrs. Grady had cancer of the breast. Subsequently, in September 1969, Dr. McCollum of Victoria, Texas, performed a radical mastectomy to remove the cancer. After the operation, Dr. McCollum informed Mrs. Grady that it was routine treatment for a patient to receive x-ray thereapy after such an operation. This thereapy was administered to the plaintiff by defendants, Drs. Faykus and Herbst, in Victoria, Texas over a four week period from October 8, 1969, to November 4, 1969.
Toward the end of the radiation treatment (October 30, 1969) the defendant doctors noticed that Mrs. Grady had an area of redness on the area of her body which was being exposed to the radiation. A specimen of the fluid in this area was obtained by the defendants and sent to Dr. McCollum for tests. Dr. McCollum reported that the fluid aspirated from this area had grown bacteria which was sensitive to practically all antibiotics. The defendant doctors then referred Mrs. Grady to Dr. McCollum for antibiotic treatment.
Several weeks after the completion of the radiation treatments, additional complications began to appear in the area which had been exposed to the radiation. These complications manifested themselves in the form of marked discoloration of the skin (browning), blistering of the skin, and superficial ulcerations on the shoulder and the superclavicular area.
Dr. McCollum had already begun the antibiotic treatment, along with whirlpool bath treatments, both of which did not produce any satisfactory results. Dr. McCollum then attempted a skin graft. After the skin graft did not take, Mrs. Grady was referred to Dr. Bromley Freeman, a plastic surgeon in Houston, in September 1970, for further treatment.
Dr. Freeman first saw the plaintiff on September 23, 1970. Upon the initial examination, Dr. Freeman found a deep ulcer covering all of the front and top part of the shoulder. At this time, Dr. Freeman told Mrs. Grady that her condition was caused by radiation, as opposed to some other cause. This is the first time, Mrs. Grady alleges, that she knew or was aware that the radiation therapy was or might be the cause of her condition.
Plaintiff's suit was thereafter filed June 22, 1972, against Drs. Faykus and Herbst, for injuries allegedly sustained as a result of excessive radiation received through x-ray therapy treatments negligently performed and administered by defendants. The defendants answered and pleaded that plaintiff's case was barred by the two-year statute of limitations (Article 5526, supra) because the act complained of (negligent x-ray treatment in October and November, 1969) occurred prior to two years before the filing of this suit (June 22, 1972).
By her amended petition, plaintiff then pleaded that she was not aware of the cause of her condition until she saw Dr. Bromley Freeman in September 1970, and that furthermore, 'Defendants intended to keep plaintiff in ignorance of her cause of action and fraudulently concealed from her the fact that her injuries were caused by excessive radiation received through x-ray therapy treatments negligently performed and administered by defendants.'
The defendant doctors then filed their motion for summary judgment on the ground that plaintiff's action was barred by the two-year limitation statute as a matter of law. Article 5526, supra. The summary judgment evidence in the present case consists of the deposition, affidavit and answers to interrogatories of plaintiff and the depositions of Drs. Richard H. Eppright, Walter E. Herbst, Max H. Faykus and Bromley S. Freeman. The trial court, after reviewing that evidence, granted summary judgment in defendants' favor decreeing that plaintiff take nothing by her suit. This appeal is by plaintiff from that decree.
Plaintiff brings forward one point of error asserting three grounds why the trial court erred in applying the statute of limitations in appellant's cause of action for the negligent performance of radiation therapy subsequent to a radical mastectomy. The grounds are these:
fraudulent concealment of the true facts of appellant's injuries tolled the running of the statute of limitations.
B. Appellant's discovery of excessive radioactive foreign objects negligently induced by appellees entitled her to the application of the foreign object discovery rule exception to the two-year statute of limitations.
C. Appellant's radiation injuries are of the type of legal injury where impossibility of discovery has created the discovery rule exception to the two-year statute of limitations.'
We will first consider appellant's third ground because it is dispositive of this appeal. In this assertion, Mrs. Grady contends that her radiation injuries are of the type of legal injury where impossibility of discovery has created the discovery rule exception to the two-year statute of limitations.
The Texas Supreme Court in Hays v. Hall, 488 S.W.2d 412 (Tex.Sup.1973), which involved an alleged unsuccessful vasectomy operation, seemed to broaden the discovery rule. There the defendant doctor had performed a vasectomy operation on Mr. Hays and, after subsequent tests, assured him that the operation was...
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...that excessive radiation, and not a recurrence of cancer, was the cause of her ulcerated epidermis. Grady v. Faykus, 530 S.W.2d 151 (Tex.Civ.App. Corpus Christi 1975, writ ref'd n.r.e.). The result in "discovery rule" cases like Gaddis, Hays v. Hall and Grady v. Faykus stems from the recogn......
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