Rowntree v. Hunsucker

• Decision Date: 27 May 1992
• Docket Number: No. D-1665,D-1665
• Citation: 833 S.W.2d 103
• Parties: Robert J. ROWNTREE, II, M.D., Petitioner, v. Penelope HUNSUCKER and John Hunsucker, Respondents.
• Court: Texas Supreme Court

Page 103

833 S.W.2d 103

Robert J. ROWNTREE, II, M.D., Petitioner, v. Penelope HUNSUCKER and John Hunsucker, Respondents.

No. D-1665.

Supreme Court of Texas.

May 27, 1992.

Leonard Davis, Douglas R. McSwane, Jr., Michael E. Starr, Potter, Guinn, Minton, Roberts & Davis, Tyler, for petitioner.

C.L. Mike Schmidt, Ronald D. Wren, Stradley, Schmidt & Wright, Dallas, for respondents.

OPINION

GONZALEZ, Justice.

This is an appeal in a medical malpractice case based on allegations of a failure to diagnose the injury-causing condition. The trial court granted a summary judgment for the doctor on limitations grounds. The court of appeals, with one justice dissenting, reversed and remanded, holding that "the summary judgment evidence raises a question whether (the doctor's) treatment of (the plaintiff) continued for as long as she was taking the medication which he prescribed during the time for which it was prescribed." 815 S.W.2d 779, 782 (Tex.App.--Texarkana 1991). We reverse the judgment of the court of appeals and affirm that of the trial court.

The summary judgment evidence shows that Penelope Hunsucker's family doctor referred her to Dr. Robert Rowntree, II, a specialist in internal medicine, because of hypertension. During her first visit on October 4, 1985, Dr. Rowntree performed an examination and prescribed the medication Sectral for the treatment of that condition.

Mrs. Hunsucker returned to Dr. Rowntree's office to have her blood pressure checked by nurses on October 11, 1985 November 11, 1985, and January 3, 1986, but Dr. Rowntree did not see her on any of these occasions. During Mrs. Hunsucker's February 13, 1986 office visit, Dr. Rowntree examined her for an unrelated condition, prescribed a refill for Sectral, and referred her to a urologist.

She did not return until September 15, 1986, at which time she complained of stress due to recent deaths in her family and her mother's surgery. Dr. Rowntree performed a limited examination and continued the prescription for Sectral. This was the last time Dr. Rowntree saw or talked to her and future appointments were not scheduled.

Mrs. Hunsucker telephoned Dr. Rowntree's office on May 22, 1987, requesting a refill of Sectral. She did not express any complaints nor did she receive any medical advice at that time. She was given a prescription authorizing five refills. The exact prescription is not in the record, but each refill contained 30 capsules, and the testimony established that this was a six-month supply. This was the last contact between Dr. Rowntree or his office and the Hunsuckers prior to Mrs. Hunsucker's debilitating stroke on January 5, 1988 due to an occluded carotid artery. ¹

A pharmacy refilled Mrs. Hunsucker's Sectral prescription on May 22, July 10, September 7, October 29, and December 12, 1987. Mrs. Hunsucker was also treated by another physician in December of that year for a respiratory infection.

The Hunsuckers gave notice of claim to Dr. Rowntree on July 31, 1989, and filed suit on October 30, 1989. They alleged that, during Dr. Rowntree's treatment of Mrs. Hunsucker for high blood pressure, he negligently failed to diagnose, monitor, and otherwise properly treat the occluded artery. The Hunsuckers do not allege any injury from taking the medication Dr. Rowntree prescribed.

Based on this evidence and the pleadings of the parties, we must determine whether Dr. Rowntree, in moving for summary judgment based upon an affirmative defense, established as a matter of law that there were no questions of fact regarding the essential elements of that defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). Under his defense, Dr. Rowntree is not entitled to summary judgment unless he conclusively established that the statute of limitations barred the lawsuit. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983). For limitations purposes, the controlling issue becomes whether Mrs. Hunsucker's taking medication on a prescription that Dr. Rowntree agreed to refill constitutes "a course of treatment," absent any other concomitant medical care, e.g., office visits or related diagnostic services. This is a question of law rather than fact.

The applicable statute of limitations is found in TEX.REV.CIV.STAT.ANN. art. 4590i, § 10.01. It provides that:

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....

Thus the statute will begin to run from one of three possible dates: (1) the occurrence of the breach or tort; (2) the date the health care treatment that is the subject of the claim is completed; or (3) the date the hospitalization for which the claim is made is completed. Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987).

In order for the suit to be timely, an event giving rise to liability must have occurred after August 15, 1987. ² Dr. Rowntree argues that the first option in Kimball controls, and that the statute should run from the date of the last examination. The Hunsuckers contend that the statute should begin to run from the date "treatment" ended, which they claim occurred within the statutory period. While we agree with Dr. Rowntree that, in this case, the statute began to run from the date of the alleged wrongful act, we reject his assertion that the last examination of a patient is necessarily the triggering event for the statute of limitations in a medical malpractice suit.

In Kimball, we held that if the precise date of the specific breach or tort is ascertainable from the facts of the case, then the statute begins to run from that date. Id. We said that the provision that the statute runs from the date of the last treatment:

contemplates a situation wherein the patient's injury occurs during a course of treatment for a particular condition and the only readily ascertainable date is the last day of treatment. Such a situation often arises in suits alleging misdiagnosis or mistreatment.

Id. (emphasis added).

In many cases, the applicability of this provision will be clear. There are some situations in which the statute would run from the date of the last drug treatment, if the course of that treatment is the direct cause of the injury. That is not the situation here. The Hunsuckers do not claim that the drug prescribed by Dr. Rowntree caused harm.

Likewise, when the complaint is that the defendant instituted an improper course of treatment based upon a misdiagnosis, the last date of such mistreatment is the date the statute begins to run. Kimball v. Brothers, 741 S.W.2d at 372. The Hunsuckers concede, however, that Mrs. Hunsucker did indeed suffer from high blood pressure, and that the Sectral was appropriately prescribed.

Dr. Rowntree argues that this "course of treatment" was for one condition, hypertension, while the "subject of the claim" is a different condition, an occluded artery. Thus Dr. Rowntree contends that the Hunsuckers do not allege misdiagnosis followed by improper treatment, but a failure to diagnose a different condition.

In Texas, the existence of a general physician-patient relationship does not axiomatically constitute a course of treatment. For example, in Atha v. Polsky, 667 S.W.2d 307 (Tex.App.--Austin 1984, writ ref'd n.r.e.), the plaintiff sued for mistreatment of a skin ailment. The treatment which caused the injury was the use of a drug in connection with ultraviolet light, which the defendant doctor had administered more than two years before the suit was filed. The patient visited the doctor again within two years of suit, but for treatment totally unrelated to the injury. The court held that this latter treatment could not prevent application of the statute of limitations because it was unrelated to the suit's substantive claim. The court concluded that the mere existence of a physician-patient relationship does not, on its own accord, constitute a "course of treatment." Id. at 309; accord Fleishman v. Richardson-Merrell, Inc., 226 A.2d 843, 845 (N.J.Super.Ct.App.Div.1967); Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 321-23, 187 N.E.2d 777, 779 (1962); Grubbs v. Rawls, 235 Va. 607, 369 S.E.2d 683, 686 (1988).

The operative statute clearly states that the date of last treatment is relevant only if a course of treatment has been established for the condition that is the subject of the claim. New York's highest court said of its own similar statute of limitations: "While the failure to treat a condition may well be negligent, we cannot accept the self-contradictory proposition that the failure to establish a course of treatment is a course of treatment." Nykorchuck v. Henriques, 78 N.Y.2d 255, 573 N.Y.S.2d 434, 437, 577 N.E.2d 1026, 1029 (1991). In that case, the patient sued a doctor for failure to diagnose and monitor breast cancer. The patient was treated continuously for infertility due to endometriosis during a period within the statutory limits. The court concluded that the treatment for endometriosis did not extend the time for bringing suit for failure to diagnose the breast cancer. The court held that:

[E]ssential to the application of the doctrine is that there has been a course of treatment established with respect to the condition that gives rise to the lawsuit. We have held that neither the mere "continuing relation between physician and patient" nor "the continuing nature of a diagnosis" is sufficient to satisfy the requirements of the doctrine.

Id. 573 N.Y.S.2d at 436, 577 N.E.2d at 1028 (citations omitted). Because there was no connection claimed between the course of treatment for endometriosis and the breast cancer, the court held that the claim was time-barred as a matter of law. Id. 573 N.Y.S.2d at 437, 577 N.E.2d at 1029.

The subject of the Hunsuckers' claim is the alleged failure of Dr....