De Los Santos v. Southwest Texas Methodist Hosp.

• Decision Date: 21 November 1990
• Docket Number: No. 04-90-00139-CV,04-90-00139-CV
• Citation: 802 S.W.2d 749
• Parties: Javier G. DE LOS SANTOS, Appellant, v. SOUTHWEST TEXAS METHODIST HOSPITAL and Charles A. Hulse, M.D., Appellees.
• Court: Texas Court of Appeals

Page 749

802 S.W.2d 749

Javier G. DE LOS SANTOS, Appellant, v. SOUTHWEST TEXAS METHODIST HOSPITAL and Charles A. Hulse M.D., Appellees.

No. 04-90-00139-CV.

Court of Appeals of Texas San Antonio.

Nov. 21, 1990.

Rehearing Denied Dec. 20, 1990.

Hugo Xavier De Los Santos, R. Robert Willmann, Jr., San Antonio, for appellant.

Thomas H. Crofts, Jr., Ruth E. Greenfield, Jo Reser, Groce, Locke & Hebdon, J. Mark Craun, Stephan B. Rogers, Akin, Gump, Strauss, Hauer & Feld, San Antonio, for appellees.

Before BUTTS, PEEPLES and BIERY, JJ.

OPINION

BIERY, Justice.

Javier G. De Los Santos appeals from summary judgments in favor of Southwest Texas Methodist Hospital and Charles A. Hulse, M.D. The Hospital filed suit on a sworn account and by summary judgment recovered $5,116.35 plus interest. The court further found that appellant De Los Santos take nothing by his medical malpractice counterclaim against the Hospital. In addition, Dr. Hulse's motion for summary judgment was granted due to the expiration of limitations thus disposing of appellant's malpractice claim against the doctor.

On May 24, 1988, Southwest Texas Methodist Hospital (Hospital) filed suit on sworn account against appellant seeking payment for services rendered during appellant's hospital stay from April 16, 1986 until April 25, 1986. On July 1, 1988, appellant filed a counterclaim against the Hospital and a cross claim against Dr. Hulse for malpractice. ¹ Dr. Hulse's first motion for summary judgment was denied because appellant filed an affidavit which controverted the limitations expiration date. Following discovery, Dr. Hulse filed a motion to strike the affidavit. The affidavit filed by appellant was struck by the court but Hulse's motion to set aside the denial of the first motion for summary judgment was denied. Dr. Hulse later filed a second motion for summary judgment again based on limitations which was granted. The trial court also granted the Hospital's motion for summary judgment.

Appellant asserts that the summary judgments were erroneously granted. In five points of error appellant claims error in the granting of the summary judgments and in two points he asserts error in the denial of his motion for new trial.

The supreme court has mandated the standard for reviewing a motion for summary judgment as follows:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Elam v. Yale Clinic, 783 S.W.2d 638, 641 (Tex.App.--Houston [14th Dist.] 1989, no writ). Applying this standard to the summary judgment evidence of this case, we affirm the summary judgments in favor of the Hospital and Dr. Hulse.

In his first three points of error, appellant contends that summary judgment should not have been granted for Dr. Hulse based on limitations because: 1) notice of the suit was given to the doctor in accordance with Article 4590i and suit filed on July 1, 1988 was timely. Further appellant asserts that he was not given proper notice of the second motion for summary judgment which constitutes reversible error; 2) the suit against Dr. Hulse was a cross claim, therefore the provisions of § 16.069 of the Civil Practice and Remedies Code were applicable; and 3) appellant should have been given the opportunity to amend the stricken affidavit, in response to Dr. Hulse's motion for summary judgment, in accordance with Rule 166a(e) and (g) of the Texas Rules of Civil Procedure.

Medical malpractice actions are governed by an absolute two-year limitation period. Article 4590i, § 10.01 provides that "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." TEX.REV.CIV.STAT.ANN. art. 4590i, § 10.01 (Vernon Supp.1990). In addition, § 4.01 provides that a person asserting a health care liability claim must give written notice of the claim by certified mail, return receipt requested, to each physician or health care provider against whom the claim is made. Such notice must be given at least 60 days before the suit is filed. TEX.REV.CIV.STAT.ANN. art. 4590i, § 4.01(a) (Vernon Supp.1990). As the movant for summary judgment, Dr. Hulse had the burden of conclusively proving that the claim was barred by limitations as a matter of law. See Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983); Sanchez v. Memorial Medical Center Hosp., 769 S.W.2d 656, 658 (Tex.App.--Corpus Christi 1989, no writ).

The record reflects that Dr. Hulse first saw appellant on April 3, 1986, for treatment of abdominal pain. Following a second office visit on April 10, 1986, appellant entered the Hospital where surgery was performed by another doctor on April 18th. Dr. Hulse did not perform or assist in the surgery but did visit appellant three times during his hospitalization. After appellant's release from the Hospital, Dr. Hulse wrote two letters summarizing appellant's care to two other doctors. These letters were dated April 30, 1986. Dr. Hulse's summary judgment proof included his affidavit stating that he did not receive notice of the suit until May 6, 1988. In addition, he attached to his motion the deposition of appellant wherein appellant stated that he had no contact with Dr. Hulse by phone or in person after his release from the Hospital on April 25th. When the medical malpractice claim alleges a misdiagnosis or mistreatment, the limitation period begins to run on the last day of treatment by the health care provider. See Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987).

Appellant asserts that the last day of treatment was July 30, 1986, based upon the letters Dr. Hulse wrote to the doctors and a progress note on appellant's hospital chart. The relevant portions of the letters and the progress note read as follows:

... We feel that the patient should be placed on steroid therapy, for about three months, starting with a fairly heavy dose of Aristocort Medrol, or another steriod preparation of your choice....

... Since there was some fairly acute inflammatory process noted, we plan to have the patient given, either at his hometown by his local physician, or back up here, a three month course of steroids to see if we can quiet this thing down....

The progress note stated "suggest 3 mos. of steroids and re-evaluate".

Appellant claims that limitations should start to run after the above suggested three month period. The letters were dated April 30, 1986; by adding three months to the letter date, July 30th became the last day of treatment. Therefore notice given on May 6, 1988 was timely as was the suit filed on July 1, 1988. Despite appellant's assertion, the summary judgment evidence is devoid of any evidence that treatment was actually rendered by Dr. Hulse prescribing the steroids or that appellant ever took steroids. In fact, appellant does not even allege that Dr. Hulse had any actual involvement with him after April 30, 1986.

Appellant's only evidence before the court in the second motion for summary judgment was the two April 30th summary letters, the progress/discharge note, and two notice of claim letters. Of the two notice letters, the letter dated April 20, 1988 was sent by regular mail contrary to article 4590i, § 4.01. Dr. Hulse admits receiving only the May 6, 1988 letter which was sent certified mail. Appellant asserts that the court did not strike the April 20th letter when it struck appellant's affidavit. Additionally, appellant relies on the Texas Supreme Court decision in Schepps v. Presbyterian Hosp., 652 S.W.2d 934 (Tex.1983), which held that suit should be abated for 60 days until certified mail notice is given rather than barring the suit merely for failure to give notice. However in Schepps, unlike this case, the plaintiffs filed suit prior to the expiration of limitations but failed to give the required statutory notice. In the case before us, the notice of claim was sent more than two years after the alleged tort and suit was filed after the limitations period had expired. Therefore, appellant's argument is without merit. Kimball v. Brothers, 741 S.W.2d 370, 371-72 (Tex.1987).

Appellant also claims that the granting of the second motion for summary judgment was in error because improper notice was given between the time of filing and hearing. On October 16, 1989, Dr. Hulse filed and set his second motion for summary judgment and by certified mail sent notice to the appellant. Appellant asserts that three days must be added to the 21-day period before hearing pursuant to Rules 21a and 166a(c) of the Texas Rules of Civil Procedure. Accordingly, the hearing was to be held either on November 9 or 10 instead of the November 8th hearing date. We disagree.

Rule 21a does not change the notice requirements of rule 166a(c). Lynch v. Bank of Dallas, 746 S.W.2d 24, 25 (Tex.App.--Dallas 1988, writ denied). Sufficient notice of a summary judgment hearing still requires only twenty-one days. Id. In calculating the twenty-one days, the movant must exclude the day of service and the day of hearing. Id.; Gulf Refining Co. v. A.F.G. Management 34 Ltd., 605 S.W.2d 346, 349 (Tex.Civ.App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.). Service by mail is complete upon deposit of the paper, properly addressed in a post office or official depository. TEX.R.CIV.P. 21a. Therefore, appellant was given twenty-two days' notice prior to the November 8th hearing in accordance with the rules. Appellant's first...