Jones v. Miller

• Decision Date: 22 January 1998
• Docket Number: No. 14-96-01384-CV,14-96-01384-CV
• Citation: 964 S.W.2d 159
• Parties: Kristine Lizabeth JONES f/k/a Freeda Jones and Paul D. Jones, Appellants, v. Howard B. MILLER, M.D., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 159

964 S.W.2d 159

Kristine Lizabeth JONES f/k/a Freeda Jones and Paul D Jones, Appellants, v. Howard B. MILLER, M.D., Appellee.

No. 14-96-01384-CV.

Court of Appeals of Texas Houston (14th Dist.).

Jan. 22, 1998.

Rehearing Overruled Feb. 26, 1998.

John C. Osborne, Houston, for appellants.

Marc A. Sheiness, Tina Snelling, Houston, for appellee.

Before LEE, AMIDEI and ANDERSON, JJ.

OPINION

AMIDEI, Justice.

Kristine Lizabeth Jones (Kristine) and her husband, Paul D. Jones, appeal from a partial summary judgment for Howard B. Miller, M.D. Kristine sued appellee, nine other doctors, and twelve medical facilities for malpractice by failing to diagnose the cause of her multiple personality disorder. Her husband, Paul, sued for loss of consortium arising out of the same conduct. In one point of error, appellants contend the trial court erred in granting summary judgment on the two-year statute of limitations in article 4590i, section 10.01, Texas Revised Civil Statutes Annotated, because Dr. Miller's summary judgment proof is insufficient to negate her claim of her mental incompetence that tolled limitations. We affirm.

I. BACKGROUND.

Appellant was referred to Charter Hospital by her therapist in Houston, Texas, for further treatment of dissociative identity. Dr. Miller is a licensed psychiatrist and first saw appellant April 9, 1992, at Charter Hospital. Appellant was discharged from the hospital on April 18, 1992. Appellant filed suit on August 10, 1995, three years and four months later. Appellant sued Dr. Miller for malpractice contending his diagnosis of multiple personality disorder caused by satanic ritual abuse was "baseless."

II. SUMMARY JUDGMENT.

Dr. Miller moved for summary judgment on the grounds that: (1) Kristine's claims were barred by the two year statute of limitations under article 4590i, § 10.01, Texas Revised Civil Statutes Annotated (Vernon Supp.1997); (2) Dr. Miller was not negligent; and (3) Dr. Miller's treatment did not proximately cause Kristine's injuries, if any. The trial court's order granting summary judgment does not state the ground on which it was granted.

In her sole point of error, appellant contends the trial court erred in granting summary judgment on the statute of limitations because Dr. Miller did not controvert appellant's assertions that she was mentally incompetent. Appellant argues her summary judgment evidence establishes that she was mentally incompetent to manage her affairs from June 3, 1990, until suit was filed in 1995. Appellant argues she was under a legal disability and the two-year statute of limitations was tolled, citing Tinkle v. Henderson, 730 S.W.2d 163, 166 (Tex.App.--Tyler 1987, writ ref'd) as authority.

A. Standard of Review.

In order to prevail on summary judgment, the movant must disprove at least one of the essential elements of each of the plaintiff's causes of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). This burden requires the movant to show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In determining whether a material fact issue exists to preclude summary judgment, evidence favoring the nonmovant is taken as true, and all reasonable inferences are indulged in favor of the nonmovant. Id.; see also Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). Any doubt is resolved in favor of the nonmovant. Nixon, 690 S.W.2d at 548-49; see also Doe, 907 S.W.2d at 477.

To entitle Dr. Miller to the summary judgment granted him in this case, the summary judgment proof must conclusively establish that the statute of limitations barred this lawsuit. See Rowntree v. Hunsucker, 833 S.W.2d 103, 104 (Tex.1992). If the nonmovant raises fact issues suspending limitations, the movant must conclusively negate these fact issues to show its entitlement to summary judgment. Zale Corporation v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975).

When a summary judgment does not specify the grounds upon which the trial court granted it, the reviewing court will affirm the judgment if any one of the theories advanced in the motion is meritorious. State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

2. Applicable Law.

The pertinent part of Article 4590i, § 10.01, Texas Revised Civil Statutes Annotated, 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.

The two-year period starts on one of three dates: (1) when the breach or tort occurs; or (2) on the date the health care treatment complained of is completed; or (3) on the date the hospitalization complained of is completed. Rowntree, 833 S.W.2d at 104; Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987); Fiore v. HCA Health Servs. of Tex., Inc., 915 S.W.2d 233, 236 (Tex.App.-- Fort Worth 1996, writ denied). When the injury results from a negligent course of treatment, the limitations period begins on the last date of treatment. Kimball, 741 S.W.2d at 371.

C. The Summary Judgment Evidence.

1. Appellee's Evidence. In support of his motion for summary judgment, Dr. Miller submitted his affidavit stating he first saw Kristine on April 9, 1992, at Charter Hospital in Plano. He stated Kristine had been referred to Charter Hospital by her therapist in Houston, Texas, for "further treatment of her problems of Dissociative Identity." Dr. Miller stated she "had a history of several years of in-patient and out-patient therapy for alcohol abuse and Dissociative Identity." He stated Kristine "had an alleged history of childhood ritualistic cult abuse involving the grandfather and recent memories of abuse by her mother." He set out the standard of care of such psychiatric patients and stated such standard of care "was to change her medication and have her undergo treatment both on an individual as well as group basis for her Dissociative Identity." He stated Kristine made two demands for release on the grounds she was not receiving proper treatment and was finally discharged on April 18, 1992. We find the two-year statute of limitations began on the last day of treatment, April 18, 1992. Kimball, 741 S.W.2d at 371.

2. Appellant's Evidence. Kristine responded to Dr. Miller's motion for summary judgment with the following documents.

(a) An unsworn Social Security Notice, dated April 8, 1993, granting her disability benefits, with an explanation attached stating the "evidence shows the earliest date you had a disabling impairment was 04/01/92, when your mental condition worsened." The disabling condition itself was not set out in the "Explanation of Determination" other than to repeat her contention that she was "disabled because of chronic fatigue, major depression and multiple personality disorder" that Kristine said began on 07/30/89. We find the reports from Social Security are unsworn hearsay and incompetent summary judgment proof. Hall v. Rutherford, 911 S.W.2d 422, 426 (Tex.App.--San Antonio 1995, writ denied).

(b) Affidavit of Edwin Johnstone, M.D., a psychiatrist, who stated Kristine was "rendered legally incompetent" by her diagnosis of multiple personality disorder and "her related problems as above-described." Dr. Johnstone stated she was rendered incompetent for a period of time which would "certainly stem from June, 1990 up to September, 1994." He stated: "I believe that Dr. Miller's treatment of Ms. Jones fell below the standard of care that a reasonably prudent psychiatrist would have exercised under the same or similar circumstances. Further, I believe that this breach of the standard of care by Dr. Miller was a direct and proximate cause of the injuries to the plaintiff." He further stated Dr. Miller breached "the standard of care by diagnosing a condition that did not exist in the patient--a condition that Dr. Miller knew or should have known was a fictional product elaborated by a gullible patient in a highly suggestive state. Furthermore, Dr. Miller prescribed a mode of treatment that was based on accepting the invalid condition--a mode of treatment that prolongs treatment and induces the patient to accept a life of chronic mental disability based on being the victim of nonexistent traumas."

Dr. Johnstone did not identify the appropriate medical standard of care at the time Dr. Miller examined and diagnosed Kristine and his testimony raised no material fact issue as to Dr. Miller's negligence. White v. Wah, 789 S.W.2d 312, 316 (Tex.App.--Houston [1st Dist.] 1990, no writ). In a medical malpractice cause of action, the plaintiff must prove by competent testimony that the defendant's negligence proximately caused the plaintiff's injury. Id. at 315. To do so, the plaintiff must prove four elements: (1) a duty by the physician to act according to a certain standard; (2) a breach of the applicable standard of care; (3) an injury; and (4) a causal connection between the breach of care and the injury. Id. A defendant is entitled to prevail on his motion for summary judgment if he establishes, as a matter of law, that at least one essential element of the plaintiff's cause of action does not exist. Id.

Dr. Johnstone stated that he had reviewed the following information in reaching his opinion: "relevant medical records, information revealed to me by her attorney, John C. Osborne, pleadings and discovery in this case, and the plaintiff's mental health history." Based on a review of these documents and statements, he concluded Kristine was "rendered legally...