Shah v. Moss

• Decision Date: 20 December 2001
• Docket Number: No. 00-0091.,00-0091.
• Citation: 67 S.W.3d 836
• Parties: Harshad G. SHAH, M.D., Petitioner, v. Ronald MOSS, Respondent.
• Court: Texas Supreme Court

67 S.W.3d 836

Harshad G. SHAH, M.D., Petitioner, v. Ronald MOSS, Respondent.

No. 00-0091.

Supreme Court of Texas.

Argued January 31, 2001.

Decided December 20, 2001.

Rehearing Overruled March 21, 2002.

Barbara A. Bauernfeind, Wagstaff, Alvis, Stubbeman, Seamster & Longacre, Abilene, Michael B. McKinney, Stubbeman, McRae, Sealy, Laughlin & Browder, Midland, for petitioner.

Drew Mouton, Bancroft, Mouton & Wolf, Big Spring, Denice Smith, Cash Allen, L.L.P., Houston, for respondent.

Justice BAKER delivered the opinion of the Court, in which Justice HECHT, Justice OWEN, Justice JEFFERSON and Justice RODRIGUEZ joined.

The issue in this case is whether limitations bars the plaintiff's medical malpractice claims. Ronald Moss sued Dr. Harshad G. Shah, claiming Dr. Shah negligently performed surgery on Moss's right eye and neglected to provide adequate follow-up treatment. The trial court granted Dr. Shah's summary-judgment motion, which alleged that Moss did not file suit within two years of the tort or breach, as the Medical Liability and Insurance Improvement Act requires. See Tex.Rev.Civ. Stat. art. 4590i, § 10.01. The court of appeals held that Moss's claims were not barred, reversed the judgment, and remanded the cause to the trial court. 7 S.W.3d 690, 694. We disagree and hold that article 4590i section 10.01 bars both Moss's negligent surgery and negligent follow-up treatment claims. Accordingly, we reverse the court of appeals' judgment and render judgment for Dr. Shah.

I. BACKGROUND

On May 9, 1991, Moss first saw Dr. Shah after another eye doctor diagnosed a detached retina in Moss's right eye. On June 21, 1991, Dr. Shah surgically implanted a scleral buckle to keep Moss's retina in place. Moss continued to have problems with his vision after the surgery, but Dr. Shah warned him that removing the scleral buckle could result in another retinal detachment. Moss visited another specialist for an opinion about his blurred vision. And, based on that specialist's recommendation, Dr. Shah removed the scleral buckle on November 28, 1992.

Moss saw Dr. Shah five times for post-surgery "recheck" visits, the first visit occurring two weeks after the November 1992 surgery. Moss then saw Dr. Shah twice in January 1993 for "one month recheck" visits and once in May 1993 for a "three month recheck" visit. Finally, Moss visited Dr. Shah on October 21, 1993, for a final recheck visit.

Moss did not visit Dr. Shah again until a "yearly exam" on November 22, 1994. At that time, Moss complained about a "new floater" in his vision that appeared since the last recheck visit. Dr. Shah discovered that Moss's retina had again detached. Consequently, Dr. Shah repaired the second detached retina on December 12, 1994. But Moss still complained about blurred vision after that surgery. And, despite several other procedures and eventual cataract surgery, Moss eventually lost sight in his right eye. Moss visited Dr. Shah for the last time on July 24, 1995, when Dr. Shah told Moss he could do nothing more to improve his vision.

Moss notified Dr. Shah about his malpractice claims on April 19, 1996, and filed suit on June 28, 1996. In his petition, Moss claims Dr. Shah, in November 1992, negligently removed the scleral buckle that Dr. Shah previously implanted to repair Moss's detached retina. He further alleges that Dr. Shah did not adequately monitor Moss's eye following the surgery. Specifically, Moss claims that Dr. Shah's negligent surgery and failure to carefully monitor Moss's condition on a weekly or monthly basis to detect and prevent further retina detachments caused the eventual blindness in his right eye.

Dr. Shah moved for summary judgment, claiming that the two-year statute of limitations in article 4590i section 10.01 bars Moss's claims. Dr. Shah alleged that Moss should have filed suit within two years after November 28, 1992, the date Dr. Shah surgically removed the scleral buckle. In response, Moss presented Dr. Conrad Moore's affidavit as expert summary-judgment evidence. Dr. Moore opined that Moss's past experiences with a retinal detachment and tears required Dr. Shah to provide Moss with careful and continuous follow-up treatment. He stated that the "removal of the scleral buckle without careful follow-up on a weekly or monthly basis thereafter" was a deviation from the standard of care and caused Moss's second retinal detachment. Dr. Shah then supplemented his summary-judgment evidence with his own affidavit wherein he stated that he did not provide Moss with a continuing course of treatment after the November 1992 surgery. He explained that Moss's retina was attached after that surgery and thus further continuous treatment was unnecessary. Dr. Shah also claimed that Moss's visits from November 1992 through November 1994 were routine periodic checkups. The trial court granted summary judgment for Dr. Shah.

Moss appealed, arguing that his claims are not time-barred because Dr. Shah engaged in a negligent course of treatment for Moss's eye problem that continued until his last office visit on July 24, 1995. The court of appeals agreed and reversed the trial court's judgment, holding that limitations did not bar Moss's negligence claims. 7 S.W.3d at 694. The court relied on the part of section 10.01 that provides that limitations begins to run from the date the medical treatment that is the subject of the claim is completed. Tex. Rev.Civ. Stat. art. 4590i, § 10.01.

We granted Dr. Shah's petition for review to determine if article 4590i section 10.01 bars Moss's medical negligence claims.

II. THE PARTIES' CONTENTIONS

Dr. Shah argues that Moss's two medical-negligence claims are time-barred under article 4590i section 10.01. First, he argues that limitations bars Moss's negligent-surgery claim because the surgery occurred on an ascertainable date and thus limitations runs from that date for any resulting injuries. See Earle v. Ratliff, 998 S.W.2d 882, 887 (Tex.1999) (holding that limitations began on surgery date because the plaintiff did not allege post-surgical negligence); Gormley v. Stover, 907 S.W.2d 448, 449-50 (Tex.1995) (same). Specifically, Dr. Shah contends, Moss's negligent-surgery claim is barred because his suit was not brought within two years after the November 1992 surgery.

Second, Dr. Shah argues that limitations also bars Moss's negligent follow-up treatment claim. He contends that Moss's allegation that Dr. Shah should have ordered weekly or monthly exams after the surgery does not establish a course of treatment, because this Court has held that "`[w]hile 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.'" Bala v. Maxwell, 909 S.W.2d 889, 892 (Tex.1995) (quoting Rowntree v. Hunsucker, 833 S.W.2d 103, 108 (Tex.1992)). Dr. Shah urges that limitations could run only from dates Moss actually visited the office. Therefore, the last date Dr. Shah could have breached any duty to provide additional follow-up care was on October 21, 1993, the last recheck visit. Dr. Shah further maintains that the November 22, 1994, visit when he discovered Moss's second retinal detachment was not part of any course of treatment because it was only a yearly exam.

In response, Moss argues that limitations runs from the last day Dr. Shah treated Moss for eye problems and not the November 1992 surgery date. He contends that Dr. Shah engaged in a course of treatment for Moss's retinal problems from the November 1992 surgery date until July 24, 1995, the last time Dr. Shah saw Moss. Moss maintains that the November 1992 surgery removing the scleral buckle, coupled with the inadequate follow-up care and monitoring, caused his injury. Therefore, the two-year limitations period did not begin to run until the last date Dr. Shah saw Moss. See Tex.Rev.Civ. Stat. art. 4590i, § 10.01.

Additionally, Moss contends that Dr. Shah was not entitled to summary judgment on Moss's fraudulent-concealment claim because Dr. Shah's summary-judgment motion did not discuss this allegation. Moss also argues that applying section 10.01 to bar his claims violates the Texas Constitution's open courts provision. See Tex. Const. art. I, § 13.

III. APPLICABLE LAW

A. LIMITATIONS FOR MEDICAL NEGLIGENCE CLAIMS

Article 4590i section 10.01 measures the limitations period for medical negligence claims from one of three dates: (1) the occurrence of the breach or tort, (2) the last date of the relevant course of treatment, or (3) the last date of the relevant hospitalization. Tex.Rev.Civ. Stat. art. 4590i, § 10.01; Husain v. Khatib, 964 S.W.2d 918, 919 (Tex.1998). A plaintiff may not choose the most favorable date that falls within section 10.01's three categories. Husain, 964 S.W.2d at 919. Rather, if the date the alleged tort occurred is ascertainable, limitations must begin on that date. Earle, 998 S.W.2d at 886. And if the date is ascertainable, further inquiry into the second and third categories is unnecessary. Husain, 964 S.W.2d at 919; Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987).

However, there may be instances when the exact date the alleged tort occurred cannot be ascertained. The second category in section 10.01 contemplates such 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." Kimball, 741 S.W.2d at 372. But before the last treatment date becomes relevant to determining when limitations begins, the plaintiff must establish a course of treatment for the alleged injury. Rowntree v. Hunsucker, 833 S.W.2d 103, 105 (Tex.1992). Moreover, if the defendant committed the alleged tort on an ascertainable date, whether the plaintiff established a course of treatment is immaterial because limitations begins to run on the ascertainable date. Husain, 964 S.W.2d at 919-20.

B. FRAUDULENT...