Sanchez v. Memorial Medical Center Hosp., 13-88-287-CV

• Decision Date: 30 March 1989
• Docket Number: No. 13-88-287-CV,13-88-287-CV
• Citation: 769 S.W.2d 656
• Parties: Maria Blanca SANCHEZ, et al., Appellants, v. MEMORIAL MEDICAL CENTER HOSPITAL, et al., Appellees.
• Court: Texas Court of Appeals

Page 656

769 S.W.2d 656

Maria Blanca SANCHEZ, et al., Appellants, v. MEMORIAL MEDICAL CENTER HOSPITAL, et al., Appellees.

No. 13-88-287-CV.

Court of Appeals of Texas,

Corpus Christi.

March 30, 1989.

Dan L. Barber, Corpus Christi, for appellants.

Francis A. Bradley, Peter R. Meeker, Austin, for appellees.

Before NYE, C.J., and BENAVIDES and DORSEY, JJ.

OPINION

NYE, Chief Justice.

This is an appeal from an order which sustained a motion for summary judgment filed by defendants-appellees Dr. E.S. Crenshaw, Memorial Medical Center Hospital, and nurses Carol Ramirez, Rayme Worsham, Diana Garcia, Mary Margaret Rodriguez, Brenda Ashley Benton, and Evonne Mouw. Plaintiffs-appellants, Maria Blanca Sanchez, individually and on behalf of Felix Sanchez' estate, Olda De La Garza Flores, Maria Felix Sanchez, Angelita Sanchez Hernandez, Santos Escobar, Renee Sanchez, and Francisco Sanchez, sued appellees alleging that their negligence resulted in Felix Sanchez' (decedent's) death. The trial court granted appellees' motion for summary judgment on the basis of limitations as provided in Tex.Rev.Civ.Stat.Ann. art. 4590i, § 10.01 (Vernon Supp.1989).

Appellants allege that on December 28, 1984, the decedent entered the Camp Traylor Memorial Hospital (now Memorial Medical Center) (MMC) emergency room, exhibiting blue hands, glassy eyes, and short periods of apnea. On December 29, 1984, he experienced difficulty breathing. Later that day, MMC staff transferred him to intensive care. He was diagnosed as having had a stroke. Three minutes after transfer, he suffered respiratory and cardiac arrest. He was intubated thirteen minutes afterwards. On December 31, 1984, MMC sent him to a Victoria hospital. His condition deteriorated, and he died on February 15, 1985. On December 12, 1986, appellants sent a "notice of claim" letter to Dr. E.S. Crenshaw. Suit was filed against appellees on April 13, 1987. Pertinent to this appeal, appellants alleged that appellees negligently treated the decedent by failing to properly monitor him for his apnea and by failing to timely intubate him following his respiratory and cardiac arrest.

Appellees asserted their right to summary judgment based on article 4590i, § 10.01. They claimed that appellants failed to file their suit by March 16, 1987, two years and seventy-five days after decedent's last day of hospitalization at MMC. Appellants' response asserts that limitations did not bar their suit. They alleged that Tex.Civ.Prac. & Rem.Code Ann. §§ 16.003 and 16.062 (Vernon 1986) govern this lawsuit, that appellees fraudulently concealed decedent's alleged negligent treatment, and that decedent's "hospitalization," as used in article 4590i, § 10.01 actually ended on February 15, 1985.

In their first point of error, appellants argue that the trial court erred in granting summary judgment because a genuine issue of material fact exists regarding whether appellees fraudulently concealed decedent's alleged negligent treatment. Appellants contend that appellees allowed thirteen minutes to elapse before intubating (the introduction of a tube into the trachea to keep it open) decedent following his cardiac and respiratory arrest. They also contend that appellants checked decedent only hourly for his apnea. They maintain that appellees knew about this conduct but did not tell them. Appellants state that they did not learn about this conduct until after decedent's death.

Tex.Rev.Civ.Stat.Ann. art. 4590i, § 10.01 provides:

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; provided that minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim....

Our Supreme Court in Borderlon v. Peck, 661 S.W.2d 907, 909 (Tex.1983), held that in a medical malpractice case, article 4590i, § 10.01 did not abolish fraudulent concealment as a basis for extending limitations in health care liability actions.

Fraudulent concealment is a species of the equitable estoppel doctrine. Evans v. Conlee, 741 S.W.2d 504, 506 (Tex.App.--Corpus Christi 1987, no writ). It operates to preclude a defendant from relying on the statute of limitations as an affirmative defense to a claim where the defendant was under a duty to disclose the existence of a negligent act or injury to the wronged party, but concealed it. The physician-patient relationship imposes this duty upon a physician. When a physician conceals a cause of action from a patient, the physician is estopped from relying on the defense of limitations until the patient learns of the cause of action or should have learned about it through the exercise of reasonable diligence. Id.

The estoppel effect of fraudulent concealment terminates when a party learns of facts, conditions, or circumstances which would cause a reasonably prudent person to make inquiry, which, if pursued, would lead to discovery of the concealed cause of action. Borderlon, 661 S.W.2d at 909. Knowledge of these facts is in law equivalent to knowledge of the cause of action.

The movant for summary judgment bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether a disputed material fact issue exists to preclude summary judgment, evidence favorable to the non-movant will be taken as true. Every reasonable inference will be indulged in the non-movant's favor and any doubts resolved in its favor. When a defendant in a medical malpractice case moves for summary judgment based on the running of limitations, the defendant bears the burden of showing that the suit is barred by limitations as a matter of law. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983). If the defense of limitations is conclusively established, and the plaintiff resists the summary judgment by asserting the affirmative defense of fraudulent concealment, the plaintiff then has the burden to produce evidence which raises a fact issue regarding fraudulent concealment. See Weaver v. Witt, 561 S.W.2d 792, 793 (Tex.1977); Nichols v. Smith, 507 S.W.2d 518, 521 (Tex.1974).

We conclude that appellees decisively established their limitations defense. The provision in article 4590i, § 10.01 that permits limitations to run "from the date the medical or health care treatment that is the subject of the claim ... is completed" applies to a situation where 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. Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987). This situation usually arises in suits alleging misdiagnosis or mistreatment. Here, decedent entered MMC on December 28, 1984, exhibiting signs of apnea. He left MMC on December 31, 1984. Appellants allege that appellees negligently treated decedent by failing to properly monitor him for his apnea. We conclude that this is a situation where decedent's alleged injury occurred during a course of treatment for a particular condition. See Kimball, 741 S.W.2d at 372. The last date on which the alleged negligent treatment could have occurred is December 31, 1984. Therefore, the two-year limitations period commenced on December 31, 1984, the date decedent's treatment at MMC ended. Appellants gave written notice of their health care liability claim on December 12, 1986. According to article 4590i, § 4.01, this tolled the two-year limitations statute "to and including a period of 75 days following the giving of the notice." Appellants had until March 16, 1987 to file their lawsuit, and they failed to meet this deadline.

To invoke the doctrine of fraudulent concealment, as alleged, appellants had to offer evidence that appellees failed to intubate the deceased for thirteen minutes following his cardiac and respiratory arrest, that appellees observed the deceased only hourly for his apnea, and that appellees had knowledge of these alleged facts and concealed them from appellants. The only evidence placed before the trial court at the summary judgment hearing that tended to show that appellees had knowledge of these alleged facts was contained in two affidavits by appellants Maria Blanca Sanchez and Maria Felix Sanchez. These affidavits are attached to appellants' response and provide in relevant part that:

Although the Nurses in Memorial Medical Center and Dr. Crenshaw knew of the thirteen minute gap between their noting his arrest and their putting him on oxygen, and of the periods of apnea for which he was checked only hourly, none of them ever told me or my family of such inaction. I learned of it only after the death of [decedent] ... from statements of Dr. Crenshaw and the Nurses.

We hold that these affidavits, alleging that appellees knew about the thirteen minute delay and about the hourly apnea checks, amounted to mere conclusions. Supporting and opposing affidavits consisting only of conclusions are insufficient to raise an issue of fact. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984). Our rules provide that supporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters asserted therein. Tex.R.Civ.P. 166a(e). Here, the affiants made no effort to swear to any facts to support these conclusions or to prove that they really knew what appellees allegedly knew.

Appellants presented no legitimate evidence having probative force that either showed or tended to show that appellees failed to intubate the deceased for thirteen minutes or only checked him...