Husain v. Khatib
| Decision Date | 13 March 1998 |
| Docket Number | No. 97-0910,97-0910 |
| Citation | 964 S.W.2d 918 |
| Parties | 41 Tex. Sup. Ct. J. 547 Tehmina HUSAIN, M. D., Petitioner, v. Ilham KHATIB and Farouk Khatib, Respondents. |
| Court | Texas Supreme Court |
The issue in this case is whether the court of appeals erred in holding that Ilham and Farouk Khatib's medical malpractice claim was timely filed. Because the court of appeals measured the limitations period from the final date of treatment rather than from the ascertainable date of the alleged tort, we reverse and render judgment for Tehmina Husain.
Plaintiff Ilham Khatib visited defendant Dr. Tehmina Husain ("Husain"), a gynecologist, on December 5, 1989, complaining of a thickness in her left breast. Husain ordered a mammogram. On January 25, 1990, Husain told Khatib that the mammogram showed fibrocystic disease but not cancer. Husain referred Khatib to her husband, Dr. Asif Husain, for a second opinion, and he concurred in her diagnosis. On September 26, 1991, Husain examined Khatib's breasts during a consultation on an unrelated complaint. She did not order any tests at that time. On August 25, 1992, Husain examined Khatib's breasts and ordered a mammogram. The summary judgment evidence includes records from the radiology firm that performed Khatib's mammogram indicating that on September 3, 1992, the lab notified Husain that the results suggested cancer. Khatib testified that on September 8, 1992, Husain told her that her pap smear was not clear and would have to be redone, and further told her that she should meet with Dr. Asif Husain who would tell her about the mammogram results.
Khatib's attorney sent a written notice of her claim to Husain on May 26, 1993. On November 15, 1994, Khatib and her husband sued Husain, Dr. Asif Husain, the radiologist who interpreted the January 1990 mammogram, and his employer for medical malpractice. The trial court rendered summary judgment for all defendants based on limitations. The court of appeals reversed the summary judgment for Husain and affirmed the summary judgment for the remaining defendants. 949 S.W.2d 805. Husain filed a petition for review in this Court.
The Medical Liability and Insurance Improvement Act provides:
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. By sending a notice of claim, Khatib tolled the running of the two-year limitations period for 75 days. See id. § 4.01(c); De Checa v. Diagnostic Ctr. Hosp., Inc., 852 S.W.2d 935, 937-38 (Tex.1993). Thus, her suit was timely if the limitations period began on or after September 1, 1992.
Section 10.01 measures the limitations period from one of three dates: the date of the tort, the last date of the relevant course of treatment, or the last date of the relevant hospitalization. The court of appeals used the second of these three dates on the ground that the alleged negligence "occurred during an ongoing course of consultation with and treatment by Dr. Tehmina Husain concerning a lump in Mrs. Khatib's left breast." 949 S.W.2d at 810. The court further held that this course of treatment was completed on September 8, 1992, and that the suit was...
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In re Briscoe
...tort;" (2) "the last date of the relevant course of treatment;" or (3) "the last date of the relevant hospitalization." Husain v. Khatib, 964 S.W.2d 918, 919 (Tex.1998). A plaintiff cannot choose the most favorable of these dates; if the specific date of the tort can be ascertained, the lim......
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Shah v. Moss
...course of treatment, or (3) the last date of the relevant hospitalization. Tex.Rev.Civ. Stat. art. 4590i, § 10.01; Husain v. Khatib, 964 S.W.2d 918, 919 (Tex.1998). A plaintiff may not choose the most favorable date that falls within section 10.01's three categories. Husain, 964 S.W.2d at 9......
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O'Reilly v. Wiseman
...with instrumentation implanted in him had "opportunity to learn of any negligence" prior to two-year period); Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998) (failing to mention open-courts provision in holding that if doctor's date of negligence can be ascertained "there are no doubts to......
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Streich v. Dougherty, No. 13-05-00064-CV (Tex. App. 12/11/2008), 13-05-00064-CV.
...can be ascertained. We must disagree. In this case, the dates of the alleged negligence are readily ascertainable. Husain v. Khatib, 964 S.W.2d 918, 919-20 (Tex. 1998). It is therefore immaterial whether appellant established a course of treatment or whether the tort is characterized as a f......