Hyson v. Chilkewitz
| Decision Date | 27 January 1998 |
| Docket Number | No. 05-95-00403-CV,05-95-00403-CV |
| Citation | 971 S.W.2d 563 |
| Parties | Morton I. HYSON, M.D., P.A., Appellant, v. Peter CHILKEWITZ, Appellee. |
| Court | Texas Court of Appeals |
Morton I. Hyson, M.D., P.A. (Association) appeals from a jury verdict in favor of appellee Peter Chilkewitz in his suit for medical malpractice. Association contends, among other things, that Chilkewitz's suit is barred by limitations. Because we determine that the tolling provisions asserted by Chilkewitz cannot toll the limitations period provided by the Medical Liability and Insurance Improvement Act, we agree Chilkewitz's action against Association is barred by limitations. Therefore, we reverse the judgment of the trial court and render judgment that Chilkewitz take nothing against Association.
Association is a professional association under the Texas Professional Association Act. 1 Dr. Morton I. Hyson, a neurologist, practiced medicine as an employee of Association. Hyson was also the sole shareholder, director, and officer of Association.
In 1987, Chilkewitz injured his back. He sought treatment from an orthopedic surgeon, who was not an employee of Association. After several months of unsuccessful therapy, the surgeon recommended back surgery. He referred Chilkewitz to Hyson, who performed some pre-operative tests.
On January 14, 1988, Chilkewitz underwent back surgery. The surgeon had arranged for a technician employed by Association to perform somatosensory evoked potential (SEP) monitoring on Chilkewitz during surgery. SEP monitoring involves using small electrodes to stimulate the patient with a mild electrical shock; the resulting impulses are observed as they travel to the brain to monitor whether the surgical procedure is causing injury to the nervous system. Hyson was not present during the surgery.
During Chilkewitz's surgery, the surgeon used an electrocautery unit (ECU) to make incisions and cauterize blood vessels. The ECU also passes electricity through the body of the patient, but this electric charge is greater than that generated by the SEP monitor. Because the ECU was improperly grounded, the electricity from the ECU passed back to ground through one of the SEP monitor electrodes, heating the electrode and causing a severe burn to Chilkewitz's left leg.
Chilkewitz's claims against Association are governed by the Medical Liability and Insurance Improvement Act (the Act). 2 Section 10.01 of the 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.... Except as herein provided, this subchapter applies to all persons regardless of minority or other legal disability. 3
Section 4.01 of the Act requires a person asserting a health care liability claim to give written notice of such claim at least sixty days before filing suit and provides that such notice tolls the applicable statute of limitations (i.e., section 10.01 of the Act) for a period of seventy-five days following the giving of the notice. 4 When the precise date of the tort is known, the statutory two-year period begins on that date. 5
Chilkewitz's two-year limitations period under the Act began on January 14, 1988, the date he was injured. In December 1989, he notified Hyson of his "potential medical malpractice claim" by letter, thus tolling the limitations period under the Act for seventy-five days. On January 30, 1990, within two-years, seventy-five days of the date he was injured, Chilkewitz filed suit against Hyson, individually, the surgeon, and the hospital in which his surgery was performed.
In his Original Petition, Chilkewitz alleged generally that while he was under the care of the surgeon and Hyson, he sustained an electrical burn resulting from tests ordered and performed under their general supervision. He alleged the tests were performed by hospital personnel, or by persons under their direction or supervision. Chilkewitz's Original Petition did not name Association as a party.
On August 22, 1990, more than two years, seventy-five days after the injury, Chilkewitz filed his First Amended Original Petition, naming Association as a party for the first time. In this pleading, Chilkewitz alleged that, while under the care of the surgeon, Association, and a technician employed by Association, he was injured during testing ordered and performed under the general supervision of the surgeon and Association. He alleged that the testing was performed in part by hospital personnel or by persons under their direction or supervision, and in part by personnel under direct control and supervision of Association, the surgeon, and the hospital. He further alleged that Hyson and the technician were under the direct supervision of Association and in its employ.
Chilkewitz's First Amended Original Petition also alleged that he had misnamed Association as Hyson in his Original Petition; alternatively, he alleged that if he sued the wrong party, then Association was aware of the suit and not prejudiced by the misidentification. Although Chilkewitz did not specifically list Hyson as a party, he alleged generally that Hyson and Association were jointly and severally liable for his injuries.
In its original answer, Association denied all liability and asserted that Chilkewitz's claims were barred by limitations. It later moved for summary judgment on limitations grounds. The trial court denied that motion.
In his Second Amended Original Petition, filed in November 1990, Chilkewitz asserted some additional grounds for avoiding limitations. In addition to misnomer and misidentification, he alleged that Hyson and Association were alter egos of each other; he also alleged that Hyson was the common or trade name of Association, or vice versa. (His pleadings are unclear.) However, in his subsequent pleadings Chilkewitz alleged only misnomer, dropping all other allegations of matters in avoidance of limitations. Chilkewitz also dropped the allegation that Hyson was "jointly and severally" liable with Association, and did not name Hyson as a party. Thus, Chilkewitz effectively dismissed Hyson from the suit. 6
Trial began on December 5, 1994. The other defendants in the case had settled, leaving Association as the only defendant. At that time Chilkewitz was alleging only misnomer as a matter in avoidance of Association's statute of limitations defense. After Chilkewitz rested his case on December 6, Association moved for a directed verdict based in part on limitations. The trial court overruled that motion. The next day, Chilkewitz reopened his case, without objection, to present evidence relating to Association's motion for directed verdict.
The following day, December 8, Chilkewitz filed a "Motion for Leave to File His Seventh Amended Original Petition to Conform to Issues Tried Without Objection." In this pleading Chilkewitz again alleged, in addition to misnomer, that Association was doing business as Morton Hyson, M.D. and was originally sued in its assumed name or common name of "Morton Hyson, M.D."
The jury found in favor of Chilkewitz. The trial court denied Association's subsequent motion for judgment notwithstanding the verdict and renewed motion for judgment notwithstanding the verdict, both based in part on limitations. Instead, the trial court rendered judgment against Association and in favor of Chilkewitz for the amount of damages found by the jury, less credits for payments received from the settling defendants, plus prejudgment interest and costs of court. Association appealed.
In its first point of error, Association contends the trial court erred in entering judgment for Chilkewitz because the statute of limitations bars his cause of action. We interpret this point as a complaint that the trial court erred in denying Association's motion for judgment notwithstanding the verdict in which it raised limitations. The chronology of events set forth above is not in dispute and is shown on the face of the record. Association argues that the evidence establishes that Chilkewitz's claim is barred by limitations as a matter of law.
In response, Chilkewitz asserts that his timely Original Petition naming Hyson merely contained a pleading error, either misnomer or misidentification. Chilkewitz argues that through the application of these doctrines and because of a lack of prejudice to Association, his First Amended Original Petition naming Association related back to his timely filed Original Petition. Alternatively, Chilkewitz contends his Original Petition correctly sued Association under its assumed name, Morton I. Hyson, M.D. Therefore, Chilkewitz asserts, his claim against Association was not time barred.
If a plaintiff timely sues the correct defendant but merely misnames him, the timely pleading containing the "misnomer" tolls the applicable limitations period, and a subsequent amendment of that pleading correctly naming the defendant relates back to the date of the misnomer pleading. 7 This doctrine of "misnomer" differs from "misidentification," which occurs when a plaintiff is mistaken about the identity...
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...Third, one purpose of the Medical Liability and Insurance Improvement Act, is to avoid stale claims. See Hyson v. Chilkewitz, 971 S.W.2d 563, 571 (Tex.App.-Dallas 1998) (stating language of section 10.01, stated legislative findings, and purpose of the Act, clearly indicate legislative inte......
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Chilkewitz v. Hyson
...appealed, and the court of appeals en banc reversed and rendered judgment that Chilkewitz take nothing because of limitations. 971 S.W.2d 563. The court of appeals held that Chilkewitz waived misidentification as a matter in avoidance of limitations because his pleadings only included misno......