Nelson v. Krusen
| Decision Date | 03 May 1982 |
| Docket Number | No. 21044,21044 |
| Citation | 635 S.W.2d 582 |
| Parties | Tom L. NELSON, Gloria Jean Nelson, and Mark Ashley Nelson, a Minor, Appellants, v. Edward M. KRUSEN, M.D. and Baylor University Medical Center, Appellees. |
| Court | Texas Court of Appeals |
Larry Hayes, Office of Windle Turley, Dallas, for appellants.
Richard E. Gray, Thompson & Knight, Catherine Gerhauser, Burford & Ryburn, Dallas, for appellees.
Before GUITTARD, C. J., and CARVER and FISH, JJ.
Tom and Gloria Nelson and their minor son Mark appeal from a summary judgment denying relief on their claims of medical negligence against Dr. Edward M. Krusen and Baylor University Medical Center. In seven points of error, Tom and Gloria argue that the two-year statute of limitations, held by the trial court to bar their claims, is unconstitutional because such claims were undiscoverable during the limitations period. As a final point of error, Mark contends that the trial court's grant of summary judgment was improper because his pleadings state a valid cause of action of wrongful life. We affirm without reaching the constitutional arguments and sustain the summary judgment against Mark because a cause of action for wrongful life has not yet been recognized by Texas law.
The material facts are not disputed. In 1976, the Nelsons were the parents of a child afflicted with Duchenne Muscular Dystrophy, a neuromuscular disease. With Gloria Nelson again pregnant, the couple consulted Dr. Krusen to determine whether she was a genetic carrier of this disease so that they could decide whether to terminate her pregnancy. Dr. Krusen was Medical Director for a clinic designated by the Muscular Dystrophy Association of America, and Mrs. Nelson had been referred to him by the Association for examination, testing and evaluation. Dr. Krusen examined Mrs. Nelson on April 30, 1976 and found pregnancy, normal muscle test and reflexes, normal electromyogram and normal laboratory test of Creatine Phosphokinase. He reported these findings to the Association by letter dated May 4, 1976. Dr. Krusen examined Mrs. Nelson again on May 18 and June 8, 1976. On each occasion, he found, and reported by letter to the Association, that she was still pregnant and all other findings were normal. Dr. Krusen's last contact with the Nelsons in any medical capacity occurred no later than June or July, 1976.
After these consultations with Dr. Krusen, the Nelsons did not terminate Mrs. Nelson's pregnancy. A son, Mark Ashley Nelson, was born November 24, 1976. During a routine nursery school examination conducted two weeks before Mark's third birthday, a podiatrist noted that Mark had tight heel cords bilaterally. The podiatrist referred Mark to Dr. Robert Zeller, a specialist in pediatric neurology. Dr. Zeller examined Mark on February 20, 1980 and concluded the child had Duchenne Muscular Dystrophy. According to Dr. Zeller, a child may exhibit some clumsiness by two years of age that in retrospect is consistent with this disease, but it is only when the child gets older while continuing to exhibit clumsiness, not attributable to simply being two years of age or learning to walk, that the disease becomes detectable by a trained eye.
Nine months after Dr. Zeller's diagnosis, the Nelsons filed this suit alleging that Dr. Krusen was negligent in assuring them Mrs. Nelson was not a carrier of this disease and in advising them that her risk of having an afflicted child was no greater than that faced by any member of the general population. The suit also asserted that Dr. Krusen's advice and assurances were the basis of the decision not to terminate the pregnancy of Mrs. Nelson which resulted in Mark's birth. Alternatively, the Nelsons claimed that Baylor University Medical Center did not accurately conduct tests on Mrs. Nelson and did not furnish accurate test results to Dr. Krusen, causing Dr. Krusen to give them erroneous advice. Damages were sought on behalf of both parents and the afflicted child.
Each defendant raised limitations as a defense and moved for summary judgment, which was granted. The question presented for our decision is whether limitations was conclusively established as a matter of law.
The first seven points of error urge that the trial court erred in granting summary judgment because section 4 of article 5.82, Tex.Ins.Code ), which prescribes a 2-year limitations period from the date of the occurrence for medical malpractice claims against insured health care providers, violates both the state and federal constitutions. They raise these constitutional challenges to article 5.82 because, on the facts of this case, the 2-year statute of limitations operates to bar their claims before they were aware-or could in the exercise of reasonable diligence have become aware-that they had such claims.
We consider it unnecessary to determine these constitutional claims. The enactment of article 5.82, section 4, in 1975 (and the subsequent enactment of article 4590i, section 10.01 of the Texas Revised Civil Statutes, in 1977) effected no change in the length of the limitation period applicable to medical malpractice claims based on misdiagnosis. Article 5526 previously prescribed a limitation period of two years for tort claims generally. Tex.Rev.Civ.Stat.Ann. (Vernon 1958). Although in some medical malpractice cases that statute was construed to run from the date the negligence was discovered rather than the date the negligence occurred, the Supreme Court has since limited its approval of the "discovery rule" to three kinds of malpractice claims: (1) foreign object cases; (2) negligent performance of vasectomy cases; and (3) excessive exposure to x-ray cases. With respect to all other kinds of medical malpractice, the Supreme Court has ruled that limitations runs from the date of the occurrence. Robinson v. Weaver, 550 S.W.2d 18 (Tex.1977). Since section 4 of article 5.82 did not change the limitations period applicable to the Nelsons' claims, its enactment did not harm them, and we need not therefore consider their constitutional attacks.
In so ruling, we note that the Supreme Court in Robinson rejected arguments similar to those advanced here. If the "occurrence rule" for limitations in medical malpractice cases is to be reexamined, we should leave such a re-examination to the...
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Nelson v. Krusen
...had run on the wrongful birth claim and that no cause of action for wrongful life exists in Texas. The court of appeals affirmed. 635 S.W.2d 582. We reverse the court of appeals insofar as it held the statute of limitations, article 5.82, section 4 of the Insurance Code, barred the Nelsons'......
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