Tinkle v. Henderson

• Decision Date: 30 April 1987
• Docket Number: No. 12-86-0079-CV,12-86-0079-CV
• Citation: 730 S.W.2d 163
• Parties: Patricia Ann TINKLE, Appellant, v. B.W. HENDERSON, M.D., et al., Appellees.
• Court: Texas Court of Appeals

Page 163

730 S.W.2d 163

Patricia Ann TINKLE, Appellant, v. B.W. HENDERSON, M.D., et al., Appellees.

No. 12-86-0079-CV.

Court of Appeals of Texas,

Tyler.

April 30, 1987.

Rehearing Denied May 29, 1987.

Blake Bailey, Bailey, Pierce & Negem, Thomas W. Hathaway, Hathaway & McClendon, Tyler, for appellant.

Forrest G. Braselton, Nacogdoches, Robert Fairchild, Fairchild, Price, Russell & Thomas, Center, for appellees.

BILL BASS, Justice.

This is an appeal from a summary judgment granted in favor of the defendant health care providers in a medical malpractice case. The primary question presented is the constitutionality of the strict limitations provisions of Tex.Ins.Code Ann. art. 5.82, § 4 (Vernon 1981) (repealed), ¹ as applied to a person of unsound mind. We reverse the trial court and remand the cause for trial.

Robert Tinkle entered Memorial Hospital in Nacogdoches with persistent shoulder pain. On April 26, 1977, he underwent an arthogram of the right shoulder under the direction of his treating physicians, defendants Drs. Henderson and Jorgenson. The following day Tinkle suffered a severe morphine reaction. He was discovered in acute respiratory distress and his doctors ordered him transferred to the intensive care ward. Tinkle's arrival at the intensive care unit was delayed because his bed would not fit into the elevator. After some delay a stretcher was summoned and Tinkle was carried to intensive care. He was apparently without oxygen during the transfer. It is the plaintiff's contention that this period without oxygen left Tinkle mentally incapacitated to the extent that he has not since been able to handle his own affairs. Tinkle was discharged May 4, 1977. Although in March 1978 an attorney wrote the hospital asking for copies of Tinkle's medical records, no lawsuit was filed until 1983, and the notice required under the Tort Claims Act ² was not given.

Plaintiff Tinkle alleges the defendant hospital was negligent in failing to check his vital signs with sufficient frequency, in continuing morphine injections despite his reaction to the drug, in failing to promptly notify his doctors of his condition, and in failing to timely and continuously administer the oxygen that, it is claimed, would have probably prevented the brain damage he suffered. Plaintiff claims the defendant doctors were negligent in ordering the surgical procedure, in failing to advise him of its hazards and in failing to promptly come to the hospital after they had been notified that he was in distress.

The defendant hospital moved for summary judgment contending the plaintiff's claim was barred, both by his failure to give notice to the hospital of the occurrence upon which his suit was based as required by the Texas Tort Claims Act, and by the limitation provisions of former art. 5.82, § 4 of the Insurance Code.

The defendant doctors also asked for summary judgment based upon their plea of limitation. The trial court granted summary judgment for all defendants.

The applicable statute of limitations is found in a repealed article of the Insurance Code:

Notwithstanding any other law, no claim against a person or hospital covered by a policy of professional liability insurance covering a person licensed to practice medicine or podiatry or certified to administer anesthesia in this state or a hospital licensed under the Texas Hospital Licensing Law, as amended (Article 4437f, Vernon's Texas Civil Statutes), whether for breach of express or implied contract or tort, for compensation for a medical treatment or hospitalization may be commenced unless the action is filed within two years of the breach or the tort complained of or from the date the medical treatment that is the subject of the claim or the hospitalization for which the claim is made is completed, except that minors under the age of six years shall have until their eighth birthday in which to file, or have filed on their behalf, such claim. Except as herein provided, this section applies to all persons regardless of minority or other legal disability.

Tex.Ins.Code Ann. art. 5.82, § 4 (Vernon 1981) (repealed) (emphasis supplied).

Plaintiff contends that his mental incompetency, if proven, tolled the running of the statute, and that since the summary judgment proof demonstrated the existence of a material fact issue as to his mental capacity, summary judgment was improper. Plaintiff urges that that part of the article which requires a health care liability suit to be brought within two years of the occurrence that is the basis of the claim "regardless of minority or other legal disability" is unconstitutional in its application to persons of unsound mind because it violates the open courts provision of the Texas Constitution.

In the plaintiff's view, our decision should be governed by the Texas Supreme Court's decision in Sax v. Votteler, 648 S.W.2d 661 (Tex.1983). In Sax, the Supreme Court addressed the constitutionality, as applied to a minor plaintiff, of the same absolute two-year limitation on medical malpractice actions, contained in the statute in question in this case. The Court held that since the statutory limitation forever foreclosed Lori Beth Sax's cause of action before she was legally able to sue, without providing a reasonable substitute, the limitation provision unconstitutionally abrogated her right to redress. 648 S.W.2d at 667. The Court rejected the argument that the child's parents could be relied upon to bring a malpractice suit within the time prescribed, reasoning that the parents might also be minors, or ignorant, lethargic or lacking in concern. Id.

In two significant decisions since Sax, the Supreme Court of Texas has held essentially the same limitation provision unconstitutional under the "open courts" provision to the extent that the limitation attempts to bar an injured person's right to sue before that person has had a reasonable opportunity to discover the wrong and bring suit. See Nelson v. Krusen, 678 S.W.2d 918, 922 (Tex.1984) (negligent failure to diagnose Mrs. Nelson as a genetic carrier of Duchenne muscular dystrophy); Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex.1985) (surgical sponge left in abdomen).

The Texas Constitution guarantees that Texas citizens bringing common law causes of action will not unreasonably be denied access to the courts. Tex.Const. art. I, § 13. Therefore "[a] statute ... that unreasonably abridges a justiciable right to obtain redress for injuries caused by the wrongful acts of another amounts to a denial of due process" under this article and is void. Sax, 648 S.W.2d at 665; see Hanks v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944, 948 (Tex.1932).

Sax prescribed a two-part test for analyzing asserted violations of the "open courts" provision. It must be shown (1) that the litigant has an established common law cause of action, and (2) that the restriction upon that cause is unreasonable when the extent to which the restriction affects the litigant's right to redress is balanced against the purpose of the challenged statute or ordinance. Sax, 648 S.W.2d at 666. In determining the restrictive effect of the statutory provision at issue, the court must also consider whether the legislature has avoided an unconstitutional result by providing a substitute remedy or by leaving a reasonable alternative at common law. ³

In Sax, the child plaintiff clearly had an established cause of action for personal injuries. The general purpose of the statute was to improve the availability and affordability of liability insurance to health care providers in the wake of a perceived crisis arising from an inordinate increase in health care liability claims. While acknowledging the legitimacy of these objectives, the Sax court said they cannot be accomplished by a means that forever prevents minors from having their day in court to complain of medical malpractice. Since a child cannot bring a cause of action on its own, the court found that the limitation provision in the statute effectively abolished the minor's right to bring a well-established common law cause of action without providing a reasonable alternative. When balanced against the purposes of the act, the Supreme Court found...