Hogan v. Hallman

• Decision Date: 21 July 1994
• Docket Number: No. B14-92-00989-CV,B14-92-00989-CV
• Citation: 889 S.W.2d 332
• Parties: Brentley Shane HOGAN and Bradley Shawn Hogan, Appellants, v. Grady L. HALLMAN, M.D., Charles J. Rodman, M.D., and St. Luke's Episcopal Hospital, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 332

889 S.W.2d 332

Brentley Shane HOGAN and Bradley Shawn Hogan, Appellants, v. Grady L. HALLMAN, M.D., Charles J. Rodman, M.D., and St.

Luke's Episcopal Hospital, Appellees.

No. B14-92-00989-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

July 21, 1994.

Rehearing Overruled Oct. 6, 1994.

Les Cochran, Virginia A. Barry, Houston, for appellant.

Solace H. Kirkland, Gordon M. Carver, III, Frank V. Ghiselli, Houston, for appellees.

Before MURPHY, SEARS and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

This is a consolidated appeal from three separate summary judgments granted in favor of appellees, St. Luke's Episcopal Hospital, Dr. Grady Hallman, and Dr. Charles Rodman. Appellants, Brentley Hogan and Bradley Hogan, brought a wrongful death action against appellees based on the alleged medical malpractice resulting in the death of their mother, Melissa Boddie Hogan. The trial court granted appellees' motions for summary judgment on the basis of the limitations provision in the Medical Liability and Insurance Improvement Act ("Medical Liability Act"). Tex.Rev.Stat.Ann., art. 4590i, § 10.01 (Vernon Supp.1993). In two points of error, appellants allege that the trial court erred in granting summary judgment for appellees because their wrongful death action was not barred by the limitations in article 4590i. We affirm.

The record reveals that on September 18, 1978, Melissa Boddie Hogan was admitted to St. Luke's Hospital by Dr. J.M. Bergland for evaluation and treatment of a cystic lesion in the right lower lobe of her lung. The lesion was associated with recurrent infections and coughing up of blood. During Hogan's hospitalization, Dr. Bergland consulted with Dr. Hallman, who recommended surgery to evaluate and visualize the cystic lesion. On September 19, 1978, Dr. Hallman performed surgery on her with the assistance of Dr. Rodman and Dr. Hernan Ramirez. After assessing the etiology of the lung, the doctors decided to remove a portion of the lung by way of a right lower lobectomy. After the surgery, Hogan was transferred to the recovery room in stable condition. During her post-operative recovery period, she had a paroxysm of coughing and began to hemorrhage from the surgical site. As a result, Hogan died on September 19, 1978, leaving two minor sons, appellants, who were five years old at that time.

On March 15, 1991, appellants turned eighteen years of age. Thereafter, appellants filed suit against appellees on May 21, 1991. The suit originally named St. Luke's Hospital, Dr. Hallman, Dr. Rodman, and Dr. Ramirez. However, Dr. Ramirez was later dismissed from the suit and is not a party to this appeal. These summary judgments based on the statute of limitations were subsequently granted.

On appeal from the granting of summary judgment, the court must inquire whether the evidence establishes as a matter of law that there is no genuine issue of material fact. Rodriguez v. Naylor, 763 S.W.2d 411, 413 (Tex.1989). In deciding whether a disputed material fact issue exists, the evidence must be viewed in favor of the non-movant, resolving all doubts and indulging all reasonable inferences in his favor, and is taken as true. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex.1985). When a defendant in a medical malpractice case moves for summary judgment based on the running of limitations, the defendant bears the burden of showing that the suit is barred by limitations as a matter of law. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983).

In their first point of error, appellants allege that the trial court erred in granting summary judgment in favor of appellees because their mother had a viable claim for medical malpractice at the time of her death. Appellants further contend that their mother's health care liability claim preserved their wrongful death action until they reached the age of majority. Thus, appellants' claim would not be barred by the statute of limitations.

Before deciding this point, we must first determine the applicable statute of limitations. Appellants claim that the controlling statute of limitations is § 16.003(b) of the civil practice and remedies code, which allows wrongful death actions to be filed within two years from the date of death. TEX.CIV.PRAC. & REM.CODE ANN. § 16.003(b) (Vernon 1986). Section 16.003(b) provides that:

A person must bring suit not later than two years after the day the cause of action accrues in an action for injury resulting in death. The cause of action accrues on the death of the injured person.

TEX.CIV.PRAC. & REM.CODE ANN. § 16.003(b) (Vernon 1986).

Appellees argue to the contrary and contend that the applicable statute of limitations is found in article 4590i, § 10.01 of the Medical Liability Act. Section 10.01 provides, in pertinent part, that:

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 (Vernon Supp.1993). Appellees further argue that § 16.003(b) is part of the "other law" expressly made inapplicable by operation of this statute.

In Wilson v. Rudd, this court addressed which period of limitations controls a wrongful death action based on medical malpractice. We held that a wrongful death action was not barred by the limitations period of the Medical Liability Act. Wilson v. Rudd, 814 S.W.2d 818 (Tex.App.--Houston [14th Dist.] 1991, writ denied). We concluded that section 16.003(b) provides the limitations period for wrongful death actions. The plain language of section 16.003(b) reflects a clear legislative intent to adopt an absolute two-years limitations period for wrongful death actions. Id.; Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 354 (Tex.1990). Since section 16.003(b) is not a general tolling provision, it is not a part of the "other law" expressly made inapplicable by the operation of article 4590i, § 10.01. Wilson, 814 S.W.2d at 822. Contra Shidaker v. Winsett, 805 S.W.2d 941, 943 (Tex.App.--Amarillo 1991, writ denied); Sanchez v. Memorial Medical Center Hospital, 769 S.W.2d 656, 660 (Tex.App.--Corpus Christi 1989, no writ). Therefore, we find that the statute of limitations in § 16.003 is applicable to the present case.

In the present case, appellants' mother died on September 19, 1978. Under section 16.003(b), appellants had until September 19, 1980, to file their wrongful death action against appellees. Even assuming, arguendo, that article 4590i applied to this case, appellants still had until September 19, 1980, to file their suit because the last date on which the alleged negligence could have occurred was September 19, 1978, the date of Hogan's surgery. Since appellants filed their wrongful death action on May 21, 1991, it would not be timely filed unless the statute of limitations was otherwise tolled.

We must, however, consider any applicable tolling provisions that would extend the time for appellants to file their lawsuit. Appellants contend that the general tolling provision in § 16.001 of the civil practice and remedies code should be applied. TEX.CIV.PRAC. & REM.CODE ANN. § 16.001 (Vernon 1986). Section 16.001 provides, in relevant part, that:

(a) For the purpose of this subchapter, a person is under a legal disability if the person is (1) younger than 18 years of age, regardless of whether the person is married;

(b) If a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in the limitations period.

Id. Based on this tolling provision, appellants argue that the two-year limitations period was tolled until their eighteenth birthday.

Appellees argue, on the other hand, that the tolling provision for the period of minority in article 4590i, § 10.01, governs this case. We agree. The Medical Liability Act contains its own limited tolling provision which suspends the statute during minority. TEX.REV.CIV.STAT.ANN. art. 4590i, § 10.01 (Vernon Supp.1993). Section 10.01 provides, in relevant part, that:

... provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or to have filed on their behalf, the claim. Except as herein provided, this subchapter applies to all persons regardless of minority or other legal disability.

Id. As a general tolling statute, section 16.001 is not a part of the statutory scheme for medical malpractice claims envisioned by the legislature. Therefore, section 16.001 is a part of the "other law" expressly made inapplicable by operation of the statute. See Wilson, 814 S.W.2d at 821; Sanchez, 769 S.W.2d at 659-60; Rascoe v. Anabtawi, 730 S.W.2d 460, 461 (Tex.App.--Beaumont 1987, no writ). Appellants reached age twelve on March 15, 1985, and they had until two years thereafter to file suit. Under article 4590i, § 10.01, appellant had until March 15, 1987, to file suit against appellees. Since appellants did not file their wrongful death action until May 21, 1991, we find that the trial court properly decided that such action was barred as a matter of law by the terms of this statute. Accordingly, we overrule appellants' first point of error.

In their second point of error, appellants allege that the trial court erred in granting summary judgment for appellees because article 4590i, § 4.01 and § 10.01, of the Medical Liability Act is unconstitutional as applied to them because they were legally barred from pursuing their cause of action in their own right until their disability was removed. Thus, appellants contend that the requirements of article 4590i violate their constitutional rights of due process, equal protection and access to open courts by imposing an impossible burden on them to meet the mandatory notice of...