Nichols v. Smith

• Decision Date: 27 February 1974
• Docket Number: No. B--3887,B--3887
• Citation: 507 S.W.2d 518
• Parties: Geneva NICHOLS et vir, Petitioners, v. Dr. Jack C. SMITH, Respondent.
• Court: Texas Supreme Court

Page 518

507 S.W.2d 518

Geneva NICHOLS et vir, Petitioners, v. Dr. Jack C. SMITH, Respondent.

No. B--3887.

Supreme Court of Texas.

Feb. 27, 1974.

Rehearing Denied March 27, 1974.

Vecchio & Vecchio, James S. Vecchio, Arlington, for petitioners.

Centey, Hanger, Gooch, Cravens & Munn, Willian B. David and Richard L. Griffith, Fort Worth, for respondent.

WALKER, Justice.

The opinion delivered in this case on October 31, 1973, is withdrawn, and the following is substituted therefor:

This is a medical malpractice case. Mrs. Geneva Nichols, joined by her husband, petitioners, sued Dr. Jack C. Smith, respondent, for injuries she allegedly sustained during an operation performed by Dr. Smith on June 27, 1966. Petitioners' original petition was filed on August 5, 1970, and the trial court granted respondent's motion for summary judgment on the ground that the suit was barred by the two-year statute of limitations. Article 5526, Vernon's Ann.Tex.Civ.St. The Court of Civil Appeals affirmed. 489 S.W.2d 719. We affirm.

Petitioners' allegations in the trial court may be summarized as follows: On June 20, 1966, geneva Nichols was hospitalized by Dr. Robert Wayne Moore, a general practitioner, whose diagnosis was that she was suffering from a hiatus hernia, a duodenal ulcer, and possibly other difficulties. A hiatus hernia is a herniation of the stomach through the esophageal opening in the diaphragm separating the chest and abdominal cavities. Dr. Moore consulted with respondent, who concurred in the diagnosis of hiatal hernia and recommended that the condition be surgically repaired. On June 27, 1966, respondent operated with the assistance of Dr. Moore and purported to repair the hernia. In the course of the operation, respondent severed both branches of the vagus nerve, which controls the secretion of acids in the stomach. The surgical severance of both branches of the vagus nerve is called a complete vagotomy. When a complete vagotomy is performed, the digestive processes are materially affected and it is necessary to enlarge the valve at the end of the stomach to provide more adequate drainage. This latter procedure, called a pyloroplasty, was not performed on Mrs. Nichols. She has suffered from disorders of her digestive system ever since the operation and eventually had corrective surgery which did not fully alleviate her problems. It is necessary that she take drugs to supplement her digestive processes, and she constantly suffers from diarrhea, constipation, and nausea. At no time was she advised that there was even the possibility that her vagus nerve might be cut, and at no time did she consent to te severing of same.

Petitioners further alleged that 'the defendant and Dr. Moore fraudulently concealed from plaintiff and her husband the fact that they had performed a vagotomy upon her and, when they finally advised her that a vagotomy had been performed, they advised her further that it would regenerate itself and would cure itself. It was not until approximately 1969 that plaintiff for the first time learned what had been done to her and its effects . . .. Because of the fraud of the defendant in concealing from Geneva Nichols what he had done and because of her inability to discover what had occurred until a time within two years prior to the filing of this suit, the suit is not barred by the two year statute of limitation.'

When the defendant is under a duty to make a disclosure but fraudulently conceals the existence of a cause of action from the one to whom it belongs, the guilty party will be estopped from relying on the defense of limitations until the right of action is, or in the exercise of reasonable diligence should be, discovered. Barnard v. Thompson, 138 Tex. 277, 158 S.W.2d 486; Owen v. King, 130 Tex. 614, 111 S.W.2d 695; 51 Am.Jur.2d Limitation of Actions, § 147. The summary judgment proofs in the present case consist of the deposition and affidavit of Geneva Nichols and the depositions of respondent and Dr. Moore. Both doctors testified that the right vagus nerve was severed during the operation because the hernia could not be properly repaired without doing so. They also testified that following the operation they told Mrs. Nichols that her right vagus nerve had been severed, and Mrs. Nichols admitted that she was so advised by respondent on September 10, 1966. If she ever had a cause of action for the cutting of her right vagus nerve, therefore, it is clearly barred by limitation.

As previously indicated, petitioners alleged that respondent severed both branches of the vagus nerve, and that this fact was fraudulently concealed from them by respondent and Dr. Moore.

The Court of Civil Appeals concluded that the burden was on petitioners to offer proof raising a fact issue of fraudulent concealment. They had not done so, and the summary judgment in respondent's favor was accordingly affirmed. Petitioners' application for writ of error was granted, because several members of the Court were of the view that under our holding in Torres v. Western Cas. Co. and Sur. Co., Tex.Sup., 457 S.W.2d 50, the burden was on respondent to negate the claim of fraudulent concealment. After further consideration, however, we agree with respondent that the case is governed by 'Moore' Burger, Inc. v. Phillips Petroleum Co., Tex.Sup., 492 S.W.2d 934, and that the Court of Civil Appeals was correct in concluding that petitioners had the burden of supporting the allegations by which they sought to avoid the defense of limitations.

It was held in Gulf, C. & S.F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, that when the plaintiff moves for summary judgment in a case where the defendant has alleged an affirmative defense, the motion should be granted upon a showing by the plaintiff that there is no material issue of fact concerning the elements of his claim...