Nichols v. Smith, 17365

• Decision Date: 12 January 1973
• Docket Number: No. 17365,17365
• Citation: 489 S.W.2d 719
• Parties: Geneva NICHOLS et vir, Appellants, v. Dr. Jack C. SMITH, Appellee.
• Court: Texas Court of Appeals

Page 719

489 S.W.2d 719

Geneva NICHOLS et vir, Appellants, v. Dr. Jack C. SMITH, Appellee.

No. 17365.

Court of Civil Appeals of Texas,

Fort Worth.

Jan. 12, 1973.

Rehearing Denied Feb. 2, 1973.

Vecchio & Vecchio and James S. Vecchio, Arlington, for appellants.

Cantey, Hanger, Gooch, Cravens & Munn, William B. David and Richard L. Griffith, Fort Worth, for appellee.

OPINION

BREWSTER, Justice.

This appeal is by the plaintiffs from a summary judgment rendered in favor of the defendant in a medical malpractice case.

The plaintiff, Geneva Nichols, and her husband alleged that on June 27, 1966, the defendant Dr. Jack C. Smith, performed an operation upon her for the purpose of repairing a hiatus hernia and that during the course of the operation defendant intentionally and negligently severed her vagus nerve, which nerve controls many of the functions of the stomach. It was alleged that during this operation the defendant was guilty of malpractice and that he committed several acts of negligence which proximately caused damage to her.

This suit was filed on August 5, 1970.

The defendant pleaded that plaintiffs' case was barred by the two year statute of limitations (Art. 5526, Vernon's Ann.Civ.St.).

By supplemental petition the plaintiffs then pleaded, in an effort to get around the statute of limitations, that they did not give defendant consent to sever any part of Mrs. Nichols' vagus nerve, and that they learned for the first time in 1969 the extent of what defendant had done during the operation. Plaintiffs then alleged that because of defendant's fraud in concealing from plaintiffs what he had done during the operation and because of their inability to discover what had occurred during the operation until a time within two years prior to filing of suit, this suit is not barred by the two year statute of limitations.

The plaintiffs contend that by this pleading they effectively pleaded the doctrine of fraudulent concealment.

After depositions were taken, the defendant filed a motion for summary judgment on the ground that plaintiffs' action is barred by the two year limitation statute, Art. 5526, V.A.C.S.

At the hearing of the motion the trial court granted summary judgment in defendant's favor, decreeing that plaintiff and her husband take nothing by their suit, and this appeal is by plaintiffs from that decree.

A motion for summary judgment by a defendant can properly be based upon a showing that plaintiff's case is barred as a matter of law by an affirmative defense such as limitations. 4 McDonald Texas Civil Practice 135, Sec. 17.26.2, notes 26 and 35, and cases therein cited .

The general rule is that a cause of action for medical malpractice arises at the time the negligent act causing injury, however slight, to plaintiff's person is committed. Coffman v. Hedrick, 437 S.W.2d 60 (Houston (1st Dist.) Tex.Civ.App., 1968, ref., n.r.e.); and Stone v. Morris,476 S.W.2d 901 (Fort Worth Tex.Civ.App., 1972, no writ hist.). Under the facts alleged here the cause of action accrued at the time the nerve was allegedly severed, which act is alleged to have occurred during the operation. Axcell v. Phillips, 473 S.W.2d 554 (Houston (1st Dist.) Tex.Civ.App., 1971, ref., n.r.e.).

The Supreme Court has in recent years created two exceptions to this general rule. That Court has held that this rule does not apply in instances where a foreign object is sewed up inside a person's body during an operation. In that type case limitations do not begin to run until the plaintiff discovers the presence of the foreign object in his body, or until such time that plaintiff by the exercise of ordinary care and diligence should have discovered the presence of such foreign object. See Gaddis v. Smith, 417 S.W.2d 577 (Tex.Sup., 1967).

The other exception to the general rule has just recently been created in malpractice cases arising from vasectomy operations, the Supreme Court holding that in this type case limitations start to run on the date of the discovery of the true facts concerning the failure of the operation, or from the date it should, in the exercise of ordinary care and diligence, have been discovered. See Hays v. Hall, 488 S.W.2d 412 (Tex.Sup., 1972).

The two year statute of limitations, Art. 5526, V.A.C.S., is the limitation statute that applies to medical malpractice cases. Stone v. Morris, supra; Coffman v. Hedrick, supra; Stewart v. Janes, 393 S .W.2d 428 (Amarillo Tex.Civ.App., 1965, writ ref., 383 U.S. 962, 86 S.Ct. 1233, 16 L.Ed.2d 304; 384 U.S. 923, 86 S.Ct. 1372, 16 L.Ed.2d 444); and Thompson v. Barnard, 142 S.W.2d 238 (Waco Tex.Civ.App., 1940, aff. in 138 Tex. 277, 158 S.W.2d 486).

In her brief the plaintiff expressly states the following: 'Plaintiff here does not ask the Court to extend the 'discovery' as set forth in Gaddis to the case at bar. The Plaintiffs ask that his Court recognize, and apply the rule of fraudulent concealment, and its effect When alleged as against the defense of . . . limitations.' (Emphasis ours.)

The plaintiffs urge a single point of error on this appeal. They say they pleaded that defendant had fraudulently concealed from them the fact that he had performed a vagotomy on Mrs. Nichols during the operation, and that defendant had misled them as to the effect of the vagotomy upon Mrs. Nichols' body. Their point of error is that the trial court erred in granting the summary judgment against them because their pleadings just referred to were sufficient to raise a fact issue of fraudulent concealment by the defendant of the existence of their cause of action, which fraudulent concealment, they say, prevented the running of the statute of limitations upon their case. The plaintiffs' position is that their pleadings alone raised the issue of fraudulent concealment and that there was therefore nothing further that they had to do at the summary judgment hearing by way of offering evidence regardless of the evidence that was presented by the defendant at that hearing.

The contention advanced by their single point of error is the only contention made in their statement and argument under such point. Therefore the scope of the matter presented for review on this appeal is limited to the matter stated in the point of error. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (Tex.Sup., 1943).

We hereby overrule plaintiffs' point of error and affirm the judgment.

The rule of fraudulent concealment that is relied on by the plaintiffs is stated as follows: '. . . when a party against whom a cause of action exists in favor of another, by fraud or concealment prevents such other from obtaining knowledge thereof, the statute of limitations will commence to run only from the time the cause of action is discovered or might have been discovered by the exercise of diligence . . ..' 37 C.J. 971, Limitations of Actions, Sec. 351. See also 54 C.J.S. Limitations of Actions § 206, p. 219, and 37 T.J .2d 213, Limitation of Actions Sec. 76.

The application of the rule of fraudulent concealment is not limited to cases that are founded upon fraud. Owen v. King, 130 Tex . 614, 111 S.W.2d 695 (Tex.Com.App., 1938), 114 A.L.R. 859, and Thompson v. Barnard, supra.

Fraudulent concealment does not create a new or a separate cause of action in and of itself. In instances where the doctrine applies its only effect is to estop the guilty party from relying upon limitations as a defense until the time plaintiff either discovers the fraud, or could have discovered it by the exercise of ordinary diligence. See Thompson v. Barnard, 142 S.W.2d 238, affirmed in 138 Tex. 277, 158 S.W.2d 486.

The fraudulent concealment relied upon by the plaintiffs was pleaded by them as a matter in avoidance of the operation of the Statute of Limitations. See 54 C.J.S. Limitations of Actions §§ 375, 376, and 377, pp. 509--512.

In order for the doctrine of fraudulent concealment to apply it must be shown that the defendant himself had knowledge of the facts that it is claimed that he fraudulently concealed. This is true because one cannot be guilty of fraudulently concealing facts which he does not know of. 37 C.J. 975, Limitations of Actions, Sec. 357; 54 C.J.S. Limitations of Actions § 206 f(2), p. 225--226; Barnard v. Thompson, 138 Tex. 277, 158 S.W.2d 486 (Tex.Com.App., 1942); and Carrell v. Denton, 138 Tex. 145, 157 S.W.2d 878 (Tex.Com.App., 1942) .

On this point see also Brown v. Grinstead, 212 Mo.App. 533, 252 S.W. 973 (1923). The court there held that in the absence of a showing that the defendant doctor knew of the presence of a sponge that was sewed up in plaintiff there could be no fraudulent concealment by defendant of a cause of action for damages for leaving the sponge in plaintiff during an operation.

At the hearing of defendant's motion for summary judgment the undisputed evidence showed that this case was not filed until more than four years after the operation was performed and more than four years after the vagus nerves were allegedly severed by defendant. It was thus established as a matter of law that plaintiff's case was barred by the two year statute of limitations unless, for some reason, the running of the statute of limitations was tolled at least for a part of the period between the time of the operation and the time of the filing of the suit.

When the defendant established as a matter of law by evidence at the summary judgment hearing that limitations had run on the plaintiff's case, he became entitled to the summary judgment that was granted him unless the plaintiff came forward at such hearing with legitimate evidence showing at least prima facie the existence of all of the elements of the doctrine of fraudulent concealment that the plaintiff had pleaded affirmatively in avoidance of limitations. Axcell v. Phillips, 473 S.W.2d 554 (Houston (1st Dist.) Tex.Civ.App., 1971, ref., n.r.e.); Pierce v. Estate of Haverlah,428 S.W.2d 422 (Tyler Tex.Civ.App., 1968, ref., n.r.e.); Birdwell v. American...