J.K. and Susie L. Wadley Research Institute and Blood Bank v. Beeson

• Decision Date: 11 June 1992
• Docket Number: No. 05-91-01574-CV,05-91-01574-CV
• Citation: 835 S.W.2d 689
• Parties: J.K. AND SUSIE L. WADLEY RESEARCH INSTITUTE AND BLOOD BANK, D/B/A the Blood Center at Wadley, Appellant, v. Esther BEESON, Individually and as Representative of the Estate of Thomas W. Beeson, and Bruce Beeson, Appellees.
• Court: Texas Court of Appeals

Page 689

835 S.W.2d 689

J.K. AND SUSIE L. WADLEY RESEARCH INSTITUTE AND BLOOD BANK D/B/A the Blood Center at Wadley, Appellant, v. Esther BEESON, Individually and as Representative of the Estate of Thomas W. Beeson, and Bruce Beeson, Appellees.

No. 05-91-01574-CV.

Court of Appeals of Texas Dallas.

June 11, 1992.

Rehearing Denied July 21, 1992.

Mickie S. Fleetwood, Michael W. Huddleston, Dallas, for appellant.

Kip A. Petroff, Erin C. Askew, Dallas, for appellees.

Before STEWART, CHAPMAN and ROSENBERG, JJ.

OPINION

STEWART, Justice.

This is a suit against a blood bank resulting from the death of a blood recipient from acquired immunodeficiency syndrome (AIDS) and the subsequent AIDS infection of the recipient's wife. The plaintiffs alleged that the blood bank negligently screened blood donors and tested blood donations for infection.

J.K. and Susie L. Wadley Research Institute and Blood Bank, d/b/a The Blood Center at Wadley (Wadley), appeals from a judgment in favor of appellees, Esther Beeson, individually and as representative of the estate of Thomas W. Beeson, and Bruce Beeson (the Beesons), in the Beesons' suit under the wrongful death and survival statutes. Wadley argues in three points of error that the trial court erred in denying its motion for judgment notwithstanding the verdict because (1) the Beesons' wrongful death and survival causes of action are barred by the applicable statutes of limitations, (2) Esther's personal injury claims are barred by the applicable statutes of limitations, and (3) the evidence is legally insufficient to support the jury verdict with regard to causation. For the reasons given below, we affirm the trial court's judgment.

BACKGROUND FACTS

On April 22, 1983, Dr. William Kraus, a cardiologist, discovered that Tom had severe blockage of two major arteries in his heart and recommended cardiac bypass surgery. During surgery that same day, Tom received seven units of blood by transfusion. In late May 1987, Tom had trouble breathing and chest pain. He was hospitalized on June 5, 1987. Dr. Kraus consulted with two specialists in pulmonary medicine about the unusual pneumonia evident in x-rays of Tom's lungs. Because there was a possibility that the lung infection was secondary to AIDS, Tom was tested for HIV. Although Tom had not been formally diagnosed, doctors empirically started him on therapy for AIDS on June 6, 1987. On June 9, 1987, Tom was formally diagnosed as HIV positive. Esther was then tested for HIV, and she learned in June 1987 that she was HIV positive. Tom died on July 2, 1987.

On April 21, 1989, Esther and her son, Bruce, filed suit against Wadley alleging that Tom contracted AIDS from the transfusion of a unit of blood donated at Wadley on April 19, 1983, by a donor identified at trial as John Doe. The parties stipulated at trial that Doe was a sexually active homosexual male with multiple sex partners. On June 7, 1990, the Beesons amended their original petition to contend that Wadley's negligence in testing and screening blood donors caused Esther's contraction of AIDS. At trial, the jury awarded the Beesons $800,000 in damages. Following the trial court's denial of Wadley's motion for judgment n.o.v., Wadley filed this appeal.

STATUTE OF LIMITATIONS

A. Wrongful Death and Survival Claims

Wadley argues in its first point of error that the trial court erred in denying its motion for judgment n.o.v. because the Beesons' wrongful death and survival causes of action are barred by the applicable statutes of limitations. Wadley's pleadings alleged that the Beesons' claims were barred by the "statute of limitations pursuant to the Medical Liability and Insurance Improvement Act of Texas, art. 4590(i)" and by the "common law statute of limitations."

Wadley first argues that Tom's negligence cause of action is a claim for personal injuries barred by the two-year statute of limitations. TEX.CIV.PRAC. & REM.CODE ANN. § 16.003(a) (Vernon 1986). The Beesons respond that the allegation that their claims were barred by the "common law statute of limitations" was insufficient to raise the statute of limitations contained in section 16.003(a) as an affirmative defense because it failed to give them fair notice of Wadley's defensive theory. Schley v. Structural Metals, Inc., 595 S.W.2d 572, 586 (Tex.Civ.App.--Waco 1980, writ ref'd n.r.e.); Hunter v. Carter, 476 S.W.2d 41, 45 (Tex.Civ.App.--Houston [14th Dist.] 1972, writ ref'd n.r.e.). The Beesons maintain that Wadley's failure to properly plead and prove its plea of limitations under section 16.003(a) waived this defense on appeal. Woods v. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.1988).

We agree that the defendant must state its affirmative defenses in sufficient detail to give the plaintiff fair notice of the defensive issues to be tried. Hunter, 476 S.W.2d at 45. The Beesons, however, should have filed special exceptions if they wanted more specificity. A party waives any defect, omission, or fault in a pleading that is not specifically pointed out by a special exception. TEX.R.CIV.P. 90. Here, because the Beesons did not file special exceptions to Wadley's "common law statute of limitations" pleading, they waived any complaint about its insufficiency. Id. Accordingly, we conclude that we may consider section 16.003(a) on appeal. We next address the Beesons' contention that Wadley failed to prove its statute of limitations defense.

Wadley had the burden of proof on its limitations defense at trial. Woods, 769 S.W.2d at 517. Thus, to prevail on appeal of the denial of a judgment n.o.v., Wadley must demonstrate that the evidence conclusively established that the cause of action was barred as a matter of law. Trenholm v. Ratcliff, 646 S.W.2d 927, 931 (Tex.1983); Miranda v. Joe Myers Ford, Inc., 638 S.W.2d 36, 38 (Tex.App.--Houston [1st Dist.] 1982, pet. dism'd). Section 16.003(a) of the Texas Civil Practice and Remedies Code, relied on by Wadley, provides that claims for personal injury must be brought no later than two years after the day the cause of action accrues. TEX.CIV.PRAC. & REM.CODE ANN. § 16.003(a) (Vernon 1986). Thus, we must determine when the cause of action accrued before we can determine if Wadley has conclusively established that the Beesons' claims are barred as a matter of law.

A cause of action generally accrues when the wrongful act effects an injury, regardless of when the plaintiff learned of the injury. Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex.1977). Wadley contends that its alleged wrongful conduct occurred on April 19, 1983, when it collected the unit of HIV-contaminated blood from Doe and that Tom suffered a legal injury when he received that unit of blood by transfusion on April 22, 1983. Therefore, Wadley asserts that Tom's right of redress accrued on April 22, 1983, and that limitations barred his cause of action for negligence as of April 22, 1985. TEX.CIV.PRAC. & REM.CODE ANN. § 16.003(a) (Vernon 1986).

The Beesons reply that a cause of action accrues when, and only when, damages are sustained. Atkins v. Crosland, 417 S.W.2d 150, 153 (Tex.1967). They rely on the supreme court's language in Atkins to the effect that the test to determine when limitations begin to run against a tort claim is "whether the act causing the damage does or does not of itself constitute a legal injury, that is, an injury giving rise to a cause of action because it is an invasion of some right of [the p]laintiff." The court stated that if the act is not unlawful in this sense, the cause of action for subsequent damages arising from the act accrues only when these damages are sustained. The Beesons argue that Tom did not suffer damages when he received the transfusion because the blood saved his life and because provision of the blood was legal since Tom had authorized his physician to order a blood transfusion; therefore, they maintain that the transfusion was not an invasion of Tom's legally protected right. Id. Instead, they argue that only a potential for future injury arose when Tom received the contaminated blood, see Independent Life & Acc. Ins. Co. v. Childs, 756 S.W.2d 54, 55 (Tex.App.--Texarkana 1988, no writ), and that he did not suffer an actual injury until the symptoms appeared in May 1987. They assert that Tom could not have sued Wadley the day after he received the blood because he could not have proved that he had suffered any injury; on that day he had endured no pain and had incurred no expense or other damage of any kind due to the blood transfusion. Hence, they conclude that, because the cause of action allegedly could not have accrued on that day for lack of damages, there simply was no cause of action until Tom first suffered damages from the contaminated blood by exhibiting the symptoms of HIV in May 1987.

We agree that Tom did not suffer a legal injury at the time Wadley collected the contaminated blood because the collection itself did not invade any of his legally protected rights. Hence, Wadley's negligent act was not in itself "unlawful" as to Tom, and his cause of action accrued when he sustained damages. Atkins, 417 S.W.2d at 153. However, we agree with Wadley that Tom suffered damages when he received the blood transfusion because at that time he not only received the red blood cells that saved his life, he also received HIV. Tom's receipt of the virus was an invasion of his interest in his own bodily security that is protected against unintentional invasion. RESTATEMENT (SECOND) OF TORTS § 281 (1965). In other words, Tom's cause of action accrued the moment he received the virus because it was then that he sustained damage by becoming infected with what is currently a fatal disease. Id. Consequently, we hold that Tom's cause of action is barred by the two-year statute of limitations contained in section 16.003(a) unless the discovery rule is both applicable to our case and available to the Beesons under our record.

The Discovery Rule

The discovery rule...