Moss v. Shah
| Decision Date | 04 November 1999 |
| Docket Number | No. 08-98-00316-CV,08-98-00316-CV |
| Citation | 7 S.W.3d 690 |
| Parties | (Tex.App.-El Paso 1999) RONALD MOSS, Appellant, v. HARSHAD G. SHAH, M.D., Appellee. |
| Court | Texas Court of Appeals |
Appeal from 385th District Court of Midland County, Texas (TC# 41,349)
Before Panel No. 3 Barajas, C.J., Larsen, and Chew, JJ.
O P I N I O N
This is an appeal from a summary judgment in favor of the defendant doctor on the plaintiff's medical negligence and breach of contract claims. We affirm in part and reverse and remand in part.
On May 9, 1991, Appellant Ronald Moss first saw Appellee Dr. Harshad Shah for vision problems including "floaters" and shadows in his vision. Moss's eye doctor had referred Moss to Shah, a retinal specialist, after diagnosing Moss with a detached retina in his right eye. Dr. Shah implanted a scleral buckle, which was intended to hold the retina in place, in Moss's right eye on June 21, 1991. Over the next year and a half, Moss complained of double vision problems he associated with the buckle, but Shah warned Moss that removing the buckle could result in another retinal detachment. Following the recommendation of another specialist Moss consulted about the double vision, however, Shah surgically removed the buckle on November 28, 1992. Shah saw Moss for five post-operative "recheck" visits following the removal. The last visit Shah characterized as a "recheck" in his notes was on October 21, 1993. At Moss's next checkup, a yearly exam on November 22, 1994, Shah discovered that Moss's retina had again detached. Moss was still complaining of "floaters" at the time Shah discovered the second detachment, but he had no additional symptoms. On December 12, 1994, Shah surgically repaired Moss's second retinal detachment. After the surgery, Moss was blind in his right eye. Despite several explanations from Shah including the possibility of a gas bubble and cataracts, the vision in Moss's right eye did not improve. Shah continued to treat Moss, including additional surgeries on the right eye, until July 24, 1995 when he told Moss he could do nothing further for him.
Moss sent a letter notifying Shah of malpractice claims on April 19, 1996 and filed suit against Shah on June 28, 1996. Shah moved for summary judgment claiming that limitations barred Moss's medical negligence claims because the negligence forming the basis of Moss's complaint occurred at the surgery to remove the scleral buckle on November 28, 1992, more than two years prior to Moss's suit. As part of his responsive summary judgment evidence, Moss filed the affidavit of Dr. Conard Moore. Dr. Moore opined that "[a] patient such as Mr. Moss, who has experienced multiple retinal tears and/or detachments, requires a careful, continuous course of treatment by a qualified ophthalmologist . . . ." Moore concluded that "removal of the scleral buckle, without careful follow-up on a weekly or monthly basis thereafter" caused Moss's second retinal detachment and constituted a "significant deviation from the standard of care."1 The trial court granted summary judgment in favor of Shah and Moss appeals contending, among other things, that Shah engaged in a negligent course of treatment that continued until July 1995.
In his first three issues for review, Moss contends that the trial court erred in granting summary judgment in Shah's favor because the summary judgment evidence created a fact issue as to whether Shah engaged in a course of treatment for Moss's right eye after the surgery to remove the scleral buckle, and whether that course of treatment was negligent. We agree.
The legislature enacted the Medical Liability and Insurance Improvement Act to alleviate a perceived medical malpractice insurance crisis in the State of Texas.2 In an effort to accomplish this goal, an absolute two-year period of limitations was adopted as follows:
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 . . . .3
This three-date scheme was intended to aid the plaintiff who had difficulty ascertaining a precise date on which his injury occurred, specifically in circumstances where the claim arose from a course of treatment or a period of hospitalization that extended for a period of time.4 The provision at issue here permitting the limitations period to run "from the date the medical or health care treatment that is the subject of the claim . . . is completed" contemplates a situation wherein the patient's injury occurs during a course of treatment for a particular condition and the only readily ascertainable date is the last day of treatment. Such a situation often arises in suits alleging misdiagnosis or mistreatment.5
We believe such a situation exists in this case. On the record before us, the exact date of Moss's injury is not ascertainable. We know only that the injury, the second retinal detachment, occurred sometime between the 1992 surgery to remove the buckle and his office visit of November 22, 1994. Moss's situation therefore fits squarely within the type of injury the course of treatment doctrine is intended to address. We acknowledge, however, that not every injury of unascertainable date is the result of a negligent course of treatment. The answer to questions of whether the patient is receiving a course of treatment, and when the course of treatment ends will depend upon the specific facts of the case. Courts have considered such factors as whether a physician-patient relationship is established with respect to the condition that is the subject of the litigation, whether the physician continues to examine or attend the patient, and whether the condition requires further services from the physician.6
Here, the summary judgment evidence shows that Moss was initially referred to Shah because of the detached retina in his right eye. This evidence tends to establish a physician-patient relationship between Shah and Moss regarding that particular condition. The evidence also shows several post-operative checkups following the buckle removal surgery thus showing a continuing physician-patient relationship relative to Moss's retina problems. The same checkups establish that Moss's condition required further services from Shah. Moreover, the Moore affidavit provides some evidence that the surgery Moss underwent required careful monitoring during the post-operative period. The affidavit also tends to establish that inadequate monitoring after surgery, rather than the surgery alone, was the cause of Moss's second retinal detachment. In light of the Moore affidavit, we reject Shah's contention that Moss's injury occurred at the time of surgery rather than after a negligent course of follow-up monitoring treatment. As the Supreme Court recently noted,
[i]f treatment is negligent following surgery, then section 10.01 provides that limitations begins to run from the date of the breach or tort or from the date that treatment was completed. Thus, limitations on a claim that a physician has improperly treated a patient's infection following surgery does not begin to run on the date of surgery merely because the infection would not have occurred but for the surgery.7
In this case, limitations on Moss's claims that Shah improperly monitored him after surgery did not begin to run on the date of surgery simply because the monitoring would not have been necessary but for the surgery.
In Jones v. Cross,8 the Houston First Court of Appeals found a course of treatment on allegations similar to Moss's allegations in this case. The court found that allegations in the plaintiff's petition, supported by his summary judgment affidavit, of the defendant's negligence during a course of continuing treatment consisted "among other things" of deep incisions during a surgery, raised a fact issue about the date of the alleged tort. The court liberally construed the "among other things" language in the pleadings to raise an issue of negligence during the appellant's post-operative period.9 Because none of the summary judgment evidence offered by the defendant conclusively showed that the plaintiff's allegations related only to the surgical procedure and not also to the post-operative care, summary judgment based on the date of surgery rather than on the last date of post-operative care was inappropriate.10 As in Moss's case, the plaintiff in Jones claimed that the defendant doctor'spost-operative course of care contributed to the injury thereby extending the beginning of limitations until the end of the treatment. Accordingly, we find Moss's case similar to Jones and determine that the statute of limitations did not begin to run on Moss's claims against Shah until Moss completed his course of treatment with Shah.
Having found that Shah engaged in a course of treatment for Moss's retina problems, the question becomes, when did the allegedly negligent course of treatment end and the statue begin to run? Determining when treatment has concluded for purposes of Section 10.01 simply amounts to deciding when a plaintiff's cause of action accrues, and the question of when a claim accrues is one of law.11 Thus, as a matter of law, Moss's cause of action accrued at the end of the course of monitoring treatment following the scleral buckle removal surgery. We find, however, that in this case the date of the end of the monitoring is subject to a factual dispute, and we further find that Shah has failed to establish that date as a matter of law as it is his burden to do.12 The summary judgment evidence shows that in the months following the questioned surgery, Moss received several "recheck" visits, then returned after a year for a "yearly...
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Shah v. Moss
...10.01. The court of appeals held that Moss's claims were not barred, reversed the judgment, and remanded the cause to the trial court. 7 S.W.3d 690, 694. We disagree and hold that article 4590i section 10.01 bars both Moss's negligent surgery and negligent follow-up treatment claims. Accord......