Stover v. Gormley

• Decision Date: 12 July 1994
• Docket Number: No. 07-93-0144-CV,07-93-0144-CV
• Citation: 883 S.W.2d 278
• Parties: Marion STOVER, Appellant, v. Jerold W. GORMLEY, D.D.S., Appellee.
• Court: Texas Court of Appeals

Page 278

883 S.W.2d 278

Marion STOVER, Appellant, v. Jerold W. GORMLEY, D.D.S., Appellee.

No. 07-93-0144-CV.

Court of Appeals of Texas,

Amarillo.

July 12, 1994.

Order Overruling Rehearing Aug. 19, 1994.

Leighton Cornett, Paris, for appellant.

Peterson, Farris, Doores & Jones, Barry D. Peterson, Amarillo, for appellee.

Before DODSON, BOYD and POFF, JJ.

BOYD, Justice.

In this appeal, appellant Marion Stover (Stover) challenges a take-nothing summary judgment in favor of appellee, Jerold W. Gormley, D.D.S. (Gormley). In one point of error, she contends that the trial court erred in entering the summary judgment for the reason that Gormley failed to establish his affirmative defense of limitations as a matter of law so as to entitle him to the judgment. For reasons hereinafter stated, we affirm the judgment in part and reverse it in part.

HISTORY OF THE CASE

On September 14, 1988, Stover contacted Gormley regarding a surgical procedure to Gormley performed the operation on September 27, 1988 and Stover was released from the hospital on September 30, 1988. After the surgery, Stover informed Gormley that she was experiencing significant pain and numbness in her upper lip, nose, and surrounding areas of her face. Stover returned to see Gormley on several occasions for follow-up care and also to seek relief from the problems she experienced after the surgery. According to Gormley's records, he last treated Stover on January 30, 1990 and, on that date, he referred her to Dr. Paullus for a post-operative neurological evaluation. On March 8, 1990, after a telephone conversation with Paullus's neurological technician, Gormley referred Stover to "the district clinic" for funding of additional studies in Dallas. On March 15, 1990, according to his records, Gormley referred Stover to a specialist in Dallas for additional neurological diagnostic studies. However, according to Stover, when she last called Gormley in March of 1990, he told her that she was "on [her] own" and that if she wanted to have the nerve test done in Dallas, she would have to do it at her own expense.

improve Stover's ability to wear dentures. Gormley initially intended to perform a bone graft to help provide the necessary support to retain Stover's dentures; however, he subsequently proposed to perform a skin graft to accomplish the same objective and Stover agreed to that procedure.

Stover sent a written notice of claim to Gormley on November 8, 1990 ¹ and filed the instant suit on February 22, 1991. In her petition, Stover alleged that Gormley "improperly performed [the] surgery and improperly treated plaintiff after the surgery." Gormley did not file an exception to Stover's failure to allege more specifically the shortcomings of the post-surgical treatment. Stover also alleged that Gormley was negligent in choosing to perform a skin graft rather than a bone graft.

Read as a whole and in the light in which we must review them, Stover's allegations are sufficient to assert that Gormley committed medical malpractice in that he was negligent in his choice of the surgical method, in his performance of the surgery, and in his post-surgery treatment. Stover also sufficiently alleged that Gormley violated several provisions of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA) as a result of certain alleged false representations he made. ²

Gormley successfully moved for summary judgment on the basis that the two-year limitation periods provided by the Texas Medical Liability and Insurance Improvement Act ³ and the DTPA ⁴ had run on both the negligence and DTPA claims.

LEGAL STANDARDS AND STANDARDS OF REVIEW

In order for a defendant to prevail on a motion for summary judgment, he or she must disprove, as a matter of law, at least one of the essential elements of each of the plaintiff's causes of action, Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991), or establish one or more defenses as a matter of law, Bryant v. Gulf Oil Corp., 694 S.W.2d 443, 445 (Tex.App.--Amarillo 1985, writ ref'd n.r.e.). The standards for reviewing a motion for summary judgment, as set out by the Texas Supreme Court in Nixon v. Mr. Property Management Company, 690 S.W.2d 546 (Tex.1985), are well established. They are:

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

judgment, evidence favorable to the non-movant will be taken as true.

Id. at 548-49.

DISCUSSION

The parties acknowledge that Stover's notice of claim and petition were filed more than two years after the surgery, but less than two years after the end of her treatment by Gormley. Bearing that in mind, we will first deal with the limitations provision of the Texas Medical Liability and Insurance Improvement Act (the Act).

Section 10.01 of the Act 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....

Tex.Rev.Civ.Stat.Ann. art. 4590i, § 10.01 (Vernon Supp.1994). This section establishes three possible dates from which medical malpractice liability claims may run: (1) the date 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. Rowntree v. Hunsucker, 833 S.W.2d 103, 104 (Tex.1992); Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987). The date Stover was released from the hospital is not significant to this case, therefore, we need only determine which of the other two possible dates the limitation period on Stover's claim began to run.

Stover takes the position that the surgery and follow-up care were all part of a single course of treatment. Therefore, it is her position that her last day of treatment is the date from which the limitations provision of the Act must run. In his motion for summary judgment, Gormley argued that the only instance in which any negligence on his part may have occurred was during Stover's September 27, 1988 surgery and, therefore, the filing of the petition was outside the two-year limitation period. We review that contention, as we must, according to the standards set forth in Lear Siegler, Bryant, and Nixon.

To determine if Gormley has proven, as a matter of law, the affirmative defense of limitations with regard to his alleged medical malpractice, we must examine more closely the causes of action raised by Stover's petition. In the second paragraph of her petition, Stover alleged that Gormley was negligent in three respects: first, in deciding to perform a skin graft instead of a bone graft; second, in performing the procedure in a manner that was below the standard of care normally exercised by a doctor performing that procedure; and third, in providing substandard follow-up care. In support of her position that the last date of treatment is the only ascertainable date from which limitations can run, she argues that these three acts of negligence were part of a continuing course of treatment. We disagree.

The present case is very similar to Shook v. Herman, 759 S.W.2d 743 (Tex.App.--Dallas 1988, writ denied), and we find that court's decision helpful. In that case, the plaintiff had eye surgery on August 9, 1982. Id. at 744. The doctor who performed the surgery also provided follow-up care. The same doctor performed a second surgery on the same eye on November 30, 1983 and also provided the follow-up care for that surgery.

The plaintiff contended that these events constituted an ongoing chain of events that were not separable into specific breaches or torts, thereby preventing the statute of limitations from running until the course of treatment provided by the doctor was completed. Id. at 745. En route to rejecting that contention, the Dallas Court of Appeals cited the proposition espoused in Kimball, 741 S.W.2d at 372, that when the precise date of a breach or tort can be ascertained, that is the date from which limitations run. See also Marchal v. Webb, 859 S.W.2d 408, 413 (Tex.App.--Houston [1st Dist.] 1993, writ denied) (on rehearing); Dougherty v. Gifford, 826 S.W.2d 668, 673 (Tex.App.--Texarkana 1992, no writ). With this proposition in mind, the court treated the plaintiff's petition as alleging four negligent events: the first surgery, its follow-up care, the second surgery, and its follow-up care. Shook, 759 S.W.2d at 746. Finding the first three events occurred more than two years before the plaintiff filed her notice of claim and petition, the court affirmed a summary judgment in favor of the defendant on the basis of limitations. Parenthetically, the summary judgment as to the fourth event was affirmed because the court found the defendant established the absence of negligence in that matter. Id. at 747.

We find the proposition stated and followed in Shook and the cases cited therein is applicable here. Therefore, we will apply the same proposition in analyzing Gormley's contention as to the applicability of the limitations bar in this case. Although Stover argues that all of the treatment provided by Gormley constituted a single course of treatment, her petition actually alleges two negligent events, the surgical procedure and the ensuing care. As the ending date of each of these events is readily ascertainable, the limitation period provided by section 10.01 of the Act must be calculated from those respective dates.

From this perspective, we find that the trial court did not err in granting Gormley summary judgment...