Hogue v. Propath Laboratory, Inc.

• Decision Date: 13 April 2006
• Docket Number: No. 2,2
• Citation: 192 S.W.3d 641
• Parties: Donald HOGUE and Elta Hogue, Appellants, v. PROPATH LABORATORY, INC. and Propath Services, L.L.P., Appellees.
• Court: Texas Court of Appeals

192 S.W.3d 641

Donald HOGUE and Elta Hogue, Appellants, v. PROPATH LABORATORY, INC. and Propath Services, L.L.P., Appellees.

No. 2-04-376-CV.

Court of Appeals of Texas, Fort Worth.

April 13, 2006.

Olson, Nicoud & Gueck, Jay L. Gueck, Dallas, for Appellants.

Strasburger & Price and P. Michael Jung, Joseph A. Turano, David L. Ovard, Christine D. Roseveare and Amy L. Saberian, Dallas, for Appellees.

Panel A: LIVINGSTON, HOLMAN, and GARDNER, JJ.

OPINION

ANNE GARDNER, Justice.

I. Introduction

Appellants Donald Hogue and Elta Hogue sued ProPath Laboratory, Inc. and ProPath Services, L.L.C. after a pathologist employed by ProPath Services allegedly failed to detect the presence of melanoma in a lesion removed from Donald Hogue's skin and submitted to ProPath Services for analysis. The trial court granted partial summary judgment in favor of the ProPath entities on the Hogues' claims for negligence, negligent misrepresentation, and deceptive trade practices. The Hogues' breach of implied warranty claim proceeded to trial, but at the close of the Hogues' evidence, the trial court directed a verdict in favor of the ProPath entities. The trial court later denied the Hogues' motion for new trial. The Hogues now appeal from the summary judgment, the directed verdict, and the denial of their motion for new trial. We affirm.

II. Background

On July 17, 1998, Donald Hogue consulted Dr. Karen Spetman about a skin lesion on his back. Dr. Spetman biopsied the lesion and submitted the specimen to ProPath Services for analysis to determine the existence or nonexistence of a malignancy. ProPath Services is a group medical practice of pathologists. ProPath Laboratory provides technical support to ProPath Services, such as making slides of the lesion specimen concerned here.

Dr. Donald Cohen, an employee of ProPath Services, performed a pathology review of the skin lesion and issued a medical diagnosis in which he concluded that the specimen was a nonmalignant freckle. His report was provided to Dr. Spetman, who passed the diagnosis on to Mr. Hogue.

In March 2000, Mr. Hogue consulted Dr. Spetman again about other lesions. Dr. Spetman diagnosed those lesions as melanoma and referred Mr. Hogue to Dr. John Adnot, a dermatologist specializing in skin cancer, for removal. Dr. Adnot biopsied a lesion that, according to the Hogues, was the same lesion biopsied by Dr. Spetman in 1998. He sent a sample of the lesion to Dr. Clay Cockerell, a dermatopathologist,¹ for analysis. Dr. Cockerell confirmed the diagnosis of melanoma. Dr. Adnot obtained and reviewed the slide of the original lesion submitted to ProPath Services and sent it to Dr. Cockerell, too. Both Dr. Adnot and Dr. Cockerell concluded that melanoma could not be ruled out from the original slide.

The Hogues sued the ProPath entities on January 4, 2001, alleging negligence, negligent misrepresentation, deceptive trade practices, and breach of implied warranties. The Hogues did not sue Dr. Cohen and did not claim that Dr. Cohen or the ProPath entities violated a medical standard of care. Instead, the gist of the Hogues' complaint was that the ProPath entities routed the subject specimen to a pathologist rather than a dermatopathologist.

The ProPath entities moved for summary judgment, contending that the Hogues' claims were subject to the absolute two-year statute of limitations under the Medical Liability and Insurance Improvement Act ("MLIIA").² The trial court granted summary judgment as to all claims except breach of implied warranty, which proceeded to trial. At the close of the Hogues' evidence, the trial court directed a verdict in favor of the ProPath entities. This appeal followed.

III. Analysis

A. Partial Summary Judgment

In their first issue, the Hogues argue that the trial court erred by granting partial summary judgment in favor of the ProPath entities because the MLIIA does not apply to their claims and, thus, their claims are not barred by the MLIIA's absolute two-year statute of limitations. Specifically, the Hogues contend that ProPath is not a "healthcare provider" as defined by the MLIIA. The Hogues argue in the alternative that article 4590i's limitations provision violates the open courts provision of the Texas Constitution.

i. Applicability of the MLIIA

Section 10.01 of the MLIIA provides: "no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort." TEX.REV.CIV. STAT. ANN. art. 4590i, § 10.01 (1995 version). This absolute two-year statute of limitations abolishes the discovery rule in cases governed by the MLIIA. Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex.1997). "Health care liability claim" means "a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety." TEX.REV.CIV. STAT. ANN. art. 4590i, § 1.03(a)(4) (1995 version). "Health care provider" means "any person, partnership, professional association, corporation, facility, or institution duly licensed or chartered by the State of Texas to provide health care as a registered nurse, hospital, dentist, podiatrist, pharmacist, or nursing home, or an officer, employee, or agent thereof acting in the course and scope of his employment." Id. § 1.03(a)(3).

The Hogues argue that the ProPath entities do not fit within the definition of "health care provider." The ProPath entities offered as summary judgment evidence the uncontroverted affidavit of Dr. E.P. Jenevein, who stated that ProPath Services is a group medical practice formed under Texas law as a limited liability partnership. In MacGregor Medical Ass'n v. Campbell, the supreme court held that "excluding professional associations of physicians from article 4590i protections would thwart express legislative intent . . . expressed in [4590i]." 985 S.W.2d 38, 39 (Tex.1998). The supreme court agreed with the analysis of the first court of appeals rejecting an argument remarkably similar to the one now made by the Hogues. Id., (citing Campbell v. MacGregor Med. Ass'n, 966 S.W.2d 538, 542-44 (Tex. App.-Houston [1st Dist.] 1997), rev'd in part, 985 S.W.2d 38 (1998)). The supreme court concluded that former article 4590i— including the two-year statute of limitations—applied to claims made against associations of physicians even though such associations were not expressly listed by the MLIIA. MacGregor, 985 S.W.2d at 39.

Because the supreme court has held that former article 4590i extended to healthcare claims made against associations of physicians, and ProPath Services offered uncontroverted proof that it is an association of physicians, we hold that the Hogues' claims against ProPath Services are subject to former article 4590i's absolute two-year statute of limitations. The Hogues did not sue ProPath Services until more than two years after the alleged misdiagnosis in 1998. Therefore, their claims against ProPath Services were barred by limitations.

ii. Open courts provision

We next consider whether application of 4590i's limitations period to the Hogues' claims against ProPath Services violates the open courts provision of the Texas constitution. "The Texas Constitution guarantees that persons bringing common-law claims will not unreasonably or arbitrarily be denied access to the courts." Shah v. Moss, 67 S.W.3d 836, 841-42 (Tex. 2001) (citing TEX. CONST. art. I, § 13). But "[t]he limitations provision in article 4590i . . . does not violate the open courts guarantee if the plaintiff had a reasonable opportunity to discover the alleged wrong and bring suit before the limitations period expired." Id. at 842.

In their brief on appeal, the Hogues admit that Mr. Hogue learned of the alleged misdiagnosis in April 2000. ProPath Services filed as summary judgment evidence a June 26, 2000 claim notice letter from the Hogues' attorney to ProPath Services. Thus, the Hogues discovered the alleged wrong at least three months before the two-year statute of limitations expired and retained counsel to pursue their claims at least a month before limitations expired. Under these circumstances, applying former article 4590i's absolute two-year statute of limitations does not violate the open courts provision of the Texas Constitution. We therefore hold that the trial court did not err by granting partial summary judgment in favor of ProPath Services.

iii. ProPath Laboratory's partial summary judgment

Unlike ProPath Services, ProPath Laboratory is not a group of physicians. Therefore, our conclusion that former section 4590i applies to the Hogues' claims against ProPath Services does not address the propriety of the summary judgment in favor of ProPath Laboratory.

In addition to moving for summary judgment on 4590i's statute of limitations, ProPath Laboratory moved for summary judgment on the basis that it was not a party responsible for the actions about which the Hogues complained. In support of its motion, ProPath Laboratory offered the affidavit of its executive director, Krista Crews. Crews stated that ProPath Laboratory provides technical services such as slide preparation and transcription to the physicians of ProPath Services. The trial court did not specify any particular ground when it granted partial summary judgment in favor of ProPath Laboratory.

When a trial court's order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995). When the trial court's judgment rests upon more than one independent ground or defense, the aggrieved party must assign error to each ground, or the judgment will be affirmed on the ground to which no...