Nelson v. Krusen

• Decision Date: 17 October 1984
• Docket Number: No. C-1429,C-1429
• Parties: Tom L. NELSON et al., Petitioners, v. Edward M. KRUSEN and Baylor University Medical Center, Respondents.
• Court: Texas Supreme Court

Page 918

678 S.W.2d 918

Tom L. NELSON et al., Petitioners, v. Edward M. KRUSEN and Baylor University Medical Center, Respondents.

No. C-1429.

Supreme Court of Texas.

Oct. 17, 1984.

Rehearing Denied Nov. 21, 1984.

Windle Turley, Paula Fisette-Sweeney, and Lee Steinberg, Dallas, for petitioners.

Thompson & Knight, Richard E. Gray, Burford & Ryburn, Wayne Pearson, Michael S. Holloway and Catherine A. Gerhauser, Dallas, for respondents.

ON MOTION FOR REHEARING

SPEARS, Justice.

We withdraw our opinion and judgment of November 16, 1983, and substitute the following.

Tom and Gloria Nelson brought a wrongful birth suit in their own behalf and a wrongful life suit as next friends of Mark Nelson, their minor son, against Dr. Edward Krusen and Baylor University Medical Center. The Nelsons' suits alleged that Dr. Krusen negligently advised them that Mrs. Nelson was not a genetic carrier of Duchenne muscular dystrophy and was no more likely than any other woman to have a child afflicted by the disease. The Nelsons further alleged that, had they known of the risk that their child would be born with the disease, they would have terminated the pregnancy. The Nelsons alternatively claimed that Baylor negligently conducted or reported certain tests thereby causing Dr. Krusen to misinform them.

The trial court rendered summary judgment for Dr. Krusen and Baylor on the grounds that the statute of limitations 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' claims. We affirm the court of appeals holding that no cause of action for wrongful life exists in Texas.

This is an appeal from a summary judgment; therefore, we take as true the uncontroverted evidence of the non-movants. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972). The summary judgment evidence showed that the Nelsons already had one child with Duchenne muscular dystrophy when they learned in 1976 that Mrs. Nelson was again pregnant. The Nelsons consulted Dr. Krusen to determine whether Mrs. Nelson was a genetic carrier of the disease. Dr. Krusen examined Mrs. Nelson on three separate occasions between April and June of 1976, and based on test results, assured Mrs. Nelson that she was not a carrier. In light of Dr. Krusen's opinion, the Nelsons chose not to terminate the pregnancy, and Mark Nelson was born November 24, 1976. On November 12, 1979, a nursery school examination revealed that Mark had tight heel cords bilaterally. As a result, Mark was referred to a pediatric neurologist, who determined from an examination on February 20, 1980, that Mark had Duchenne muscular dystrophy. Mark was three years and three months old at this time.

The neurologist based his diagnosis in part on Mark's "lordotic and clumsy gait." Although this clumsiness may have been evident during Mark's first two years, during that time these symptoms could be discounted as simply the result of being two years old and learning to walk. Only as the child grew older and continued to exhibit this clumsiness, however, did the possibility of a neuromuscular defect become detectable to the trained eye.

I. Statute of Limitations

Dr. Krusen and Baylor moved for summary judgment, claiming that the Nelsons' actions were barred because they were not brought within two years of the last examination by Dr. Krusen. The defendants relied on the limitations period prescribed by article 5.82, section 4 of the Insurance Code, which provides:

Notwithstanding any other law, no claim ... for compensation for a medical treatment or hospitalization may be commenced unless the action is filed within two years of the breach or the tort complained of or from the date the medical treatment that is the subject of the claim or the hospitalization for which the claim is made is completed .... ¹

The limitations period of article 5.82, by its terms, arguably began running on the date of the last examination by Dr. Krusen or on the date of Mark's birth and barred the Nelsons' claims two years later. Under our holding in Sax v. Votteler, 648 S.W.2d 661 (Tex.1983), the statute cannot cut off Mark's cause of action before he reaches the age of legal capacity. If applied literally, the statute would, however, operate to bar the parents' cause of action before they knew it existed, even though they did not discover, and could not reasonably have discovered, their injury within two years. The Nelsons contend that applying the statute in this manner is unconstitutional.

In Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967), a medical malpractice case, this court adopted the "discovery rule," providing that the statute of limitations did not begin to run until the patient learned of, or, in the exercise of reasonable care and diligence, should have learned of, the alleged malpractice. Id. at 580. The rule in Gaddis was adopted as a matter of statutory construction, because the limitations provision, article 5526, Tex.Rev.Civ.Stat.Ann., ² provided that the suit must be brought within two years of the date the cause of action accrued. We held that a cause of action does not accrue until the plaintiff knows, or has reason to know, of his injury. In contrast, article 5.82, section 4 contains no accrual language and thus imposes an absolute two-year statute of limitations, regardless of when the injury was discovered.

The Nelsons challenge the statute on several constitutional grounds. They claim that the statute denies them equal protection and due process under the fourteenth amendment to the United States Constitution. Under the Texas Constitution, they claim that the statute violates the article I, section 3 prohibition against public emoluments, the section 19 due process guarantee, and the section 13 "open courts" provision. Article I, section 13 provides in part:

... All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

Tex. Const. art. I, § 13. The Nelsons argue that this guarantee of a remedy by due course of law makes any legislative attempt to bar their cause of action prior to its discovery unconstitutional. Our disposition of the Nelsons' open courts argument makes consideration of the other constitutional claims unnecessary.

The numerous decisions of this court construing article I, section 13 establish that the guarantee of a remedy by due course of law is a substantial right, independent of other constitutional provisions. Although sections 13 and 19 of article I both guarantee due process, Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983), the two Texas due course of law provisions are not coterminous. Separate due process and open courts guarantees were included in the seventh and eleventh declarations of rights in the first constitution of Texas as a sovereign republic. These separate rights have been preserved in every constitution since. See Tex. Const. (1836); see also 1 G. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 47 (1977).

The common thread of this court's decisions construing the open courts provision is that the legislature has no power to make a remedy by due course of law contingent on an impossible condition. In H. Runge & Co. v. Wyatt, 25 Tex. (Supp.) 291 (1860), the court was faced with the issue of whether a defendant had the right to be sued in his home county when that county was newly severed from an existing county and did not yet have courts. Relying on the open courts provision, the court concluded that the legislature could not have intended to force plaintiffs to sue in a county where there were no tribunals to provide a remedy by due course of law. Id. at 294; accord Clark v. Goss, 12 Tex. 395 (1854); O'Shea v. Twohig, 9 Tex. 336 (1852).

In Dillingham v. Putnam, 109 Tex. 1, 14 S.W. 303 (1890), this court stated, "A law which practically takes away from either party to litigation the right to a fair and impartial trial in the courts provided by the constitution for the determination of a given controversy, denies a remedy by due course of law." 14 S.W. at 304. The court went on to hold that a legislative act making the right of appeal depend on the giving of a supersedeas bond, without reference to the appellant's ability to pay, was unconstitutional. Id. 14 S.W. at 305. Of course, for those unable to pay, the bond was an impossible condition.

This principle was best illustrated in the case of Hanks v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944 (1932). The city charter exempted the city from liability for injuries caused by street defects, unless the city had written notice of the defect at least twenty-four hours prior to the injury. In other words, the plaintiff, Mrs. Hanks, was required to give the city notice of the defect before she was injured. In posing the issue, the court asked,

Can it be "due process" to say that although she did not see the defect, and did not know of its existence, yet before she can recover for the city's wrongful act (if it was wrongful), she must have notified the city of the defect twenty-four hours before she received her injuries?

48 S.W.2d at 947-48. The court declared the notice provision unconstitutional, stating,

[I]t is obvious that notice of the defect, to be made by one ignorant of its existence, twenty-four hours before the subsequent injury, is unreasonable. A different question would be presented if the notice requirement applied only to those who had knowledge of the defect which brought about the injury. To require notice of those who knew nothing of a defective condition is to impose an unreasonable condition precedent to recovery, and which is, we believe, beyond the legislative power.

Id. 48 S.W.2d at 948 (emphasis added). The court amplified its...