Neagle v. Nelson

• Decision Date: 30 January 1985
• Docket Number: No. C-2576,C-2576
• Citation: 685 S.W.2d 11
• Parties: Bobby NEAGLE, Petitioner, v. George C. NELSON, M.D. et al., Respondents.
• Court: Texas Supreme Court

Page 11

685 S.W.2d 11

Bobby NEAGLE, Petitioner, v. George C. NELSON, M.D. et al., Respondents.

No. C-2576.

Supreme Court of Texas.

Jan. 30, 1985.

Rehearing Denied March 6, 1985.

Phillip Brown, Amarillo, for petitioner.

Paul M. Green, San Antonio, James H. Robichaux and Ben A. Donnell, Corpus Christi, for respondents.

WALLACE, Justice.

This appeal presents an attack on the constitutionality of the limitations provision in the 1977 Medical Liability Act. Bobby Neagle filed this malpractice action against Dr. George C. Nelson, Dr. Roy J. Hotz and two nurses, Nancy S. Kieschnick and Linda N. White. He alleged that a surgical sponge had been left in his abdomen during an appendectomy in which the respondents had participated. Each respondent moved for summary judgment on the ground that Neagle's claim was barred by a two-year statute of limitations. TEX.REV.CIV.STAT.ANN. art. 4590i, § 10.01. The trial court granted their summary judgments and the court of appeals, with one justice dissenting, affirmed. 658 S.W.2d 258. We reverse the judgment of the court of appeals and remand this cause to the trial court.

Neagle's appendectomy was performed on December 9, 1977, at the Kleberg County Hospital, Kingsville, Texas. He was discharged from the hospital one week later. Dr. Nelson last examined Neagle within a few weeks of his discharge; however, the other respondents did not see Neagle after his discharge from the hospital. Discovery of the sponge occurred in January, 1980, more than two years after the appendectomy, when, after feeling a mass in his abdomen, Neagle submitted to exploratory surgery.

Neagle alleged that the surgical sponge had been left in his abdomen during the operation and that it was impossible for him to discover the sponge until more than two years after the surgery. We presume for purposes of appellate review that Neagle's allegations are true. See, Bayouth v. Lion Oil Co., 671 S.W.2d 867 (Tex.1984).

The action of the trial court in granting Nelson's motion for summary judgment was based upon the two-year statute of limitations set forth in Art. 4590i, § 10.01. This statute 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; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided, this subchapter applies to all persons regardless of minority or other legal disability.

This statute purports to establish an absolute two-year statute of limitations for Neagle's claim. In Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984), we held that TEX.INS.CODE ANN. art. 5.82, § 4 (repealed), predecessor to Art. 4590i, § 10.01, was unconstitutional insofar as it cut off a cause of action before the Nelsons could have known that their son had Duchenne Muscular Dystrophy. We have likewise declared unconstitutional that part of Art. 4.82, § 4 relating to minors. Sax v. Votteler, 648 S.W.2d 661 (Tex.1983). Both cases were decided on the basis of the open courts provision of the Texas Constitution. TEX. CONST. Art. I, § 13.

It is Neagle's contention that Art. 4590i, § 10.01, as applied to his cause of action, also violates the open courts provision. We agree. The open courts provision of our Constitution protects a citizen, such as Neagle, from legislative acts that abridge his right to sue before he has a reasonable opportunity to discover the wrong and bring suit.

We reverse the judgment of the court of appeals and remand this cause to the trial court.

GONZALEZ, J., not sitting.

ROBERTSON, Justice, concurring.

I agree fully with the majority opinion of the court in this cause. I must, however, respectfully disagree with the conclusions stated in Justice Kilgarlin's concurrence.

A concurring opinion can perform a useful function in explaining or supplementing opinions, providing guidance for both bench and bar. I have used this vehicle before, when the majority opinion deserved further explanation or could be justified on different legal grounds. See, e.g., Nelson v. Krusen, 678 S.W.2d 918, 925 (Tex.1984) (Robertson, J., concurring); Jensen v. Jensen, 665 S.W.2d 107, 110 (Tex.1984) (Robertson, J., concurring).

It is certainly possible that the views so ably expressed in Justice Kilgarlin's concurrence may, in some future case, become the majority opinion of this court. The questions addressed, however, are extremely complex. I fear that without additional explanation courts and litigants might mistakenly conclude that this court has already arrived at a firm consensus on these issues. The purpose of this concurrence is solely to demonstrate that there is at least one other plausible viewpoint. If and when the issues are raised directly in an appropriate case, further briefing and creative advocacy may reveal even more--and better--alternatives.

One question remaining for this court's future consideration is whether the legislature has abolished the "discovery rule" of Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967). It is suggested that "the clear intent of the legislature" in passing art. 5.82 Tex.Ins.Code Ann. and Tex.Rev.Civ.Stat.Ann. art. 4590i was "to overrule Gaddis v. Smith." 685 S.W.2d at 14 (Kilgarlin, J., concurring).

As I have pointed out once before, Nelson v. Krusen, 678 S.W.2d 918, 928 (Tex.1984) (Robertson, J. concurring), legislative history is not the beginning point for analysis of a statute. "It is the duty of courts to construe a law as written, and, if possible, ascertain its intention from the language used therein...." Government Personnel Mut. Ins. Co. v. Wear, 151 Tex. 454, 251 S.W.2d 525, 529 (1952). I am not convinced that the plain language of art. 4590i manifests any intent to abrogate the "discovery rule." Without an initial showing of some ambiguity or conflict in statutory language, it is not appropriate to inquire into the possible motives the legislature might have had in drafting the act. Board of Ins. Comm'rs v. Guardian Life Ins. Co., 142 Tex. 630, 180 S.W.2d 906, 909 (1944). For this reason, I view the "discovery rule" issue as an open question, and remain amenable to persuasion.

I am even more troubled by the suggested use of an "analogy" to workers' compensation law to answer the question of what a permissible delay for a malpractice plaintiff might be. As a method of reasoning, analogy draws its strength from similarity. It is difficult to perceive any relevant similarity between development of the test in Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370, 372 (1948) and the task that would confront the Texas Supreme Court in medical malpractice.

On the other hand, there are numerous distinctions. For example, in Hawkins the court sought diligently to follow the letter of a limitation statute; this court has constitutionally invalidated the "analogous" malpractice statute. Further, the statute in Hawkins provided only thirty days for giving notice of injury, as opposed to two years under the "analogous" statute considered here, a factor that must surely have flavored decisions on "good cause" for delay in workers' compensation cases. Compare Tex.Rev.Civ.Stat.Ann. art. 8307 § 4a with Tex.Rev.Civ.Stat.Ann. art. 4590i §§ 4.01, 10.01. Perhaps most important, while the Hawkins court operated within the context of the workers' compensation system, a statutory alternative to the common law of torts, the court today, having invalidated the statute as it applies to a particular plaintiff, operates within the familiar arena of common law and equity.

The last observation suggests one easy alternative to a strained analogy to workers' compensation law. While the malpractice limitations period may be unconstitutional as applied to a particular case, principles of common law and equity remain. This court has previously recognized that even where a statutory limitation period is not applicable, the equitable doctrine of laches may nonetheless operate to prevent the assertion of a stale claim. See, e.g., City of Fort Worth v. Johnson, 388 S.W.2d 400 (Tex.1964).

A further alternative to the workers' compensation...