Tsai v. Wells, 13-86-124-CV

• Decision Date: 26 November 1986
• Docket Number: No. 13-86-124-CV,13-86-124-CV
• Parties: Wun-Yi TSAI, Appellant, v. Regina Suzette Wright WELLS and Her Husband, Glenn Wells, Appellees.
• Court: Texas Court of Appeals

Page 271

725 S.W.2d 271

Wun-Yi TSAI, Appellant, v. Regina Suzette Wright WELLS and Her Husband, Glenn Wells, Appellees.

No. 13-86-124-CV.

Court of Appeals of Texas,

Corpus Christi.

Nov. 26, 1986.

Rehearing Denied Feb. 19, 1987.

Steve Gonzalez, Ryan & Marshall, Houston, for appellant.

Lawrence Madigan, Moriarity & Madigan, Houston, and Bruce E. Anderson, Davis & Davis, P.C., Austin, for appellees.

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

OPINION

KENNEDY, Justice.

Appellees brought suit against appellant ¹ for medical malpractice. After a trial to a jury, appellees recovered $319,000.00 as damages, $590,000.00 in exemplary damages, and prejudgment interest of $119,863.65. Appellant brings six points of error. We affirm the judgment of the trial court.

Appellant was appellee Regina Wells' gynecologist from late 1977 until September of 1981. In 1979, Regina Wells complained to appellant of pain in her lower right pelvic region. On March 10, 1980, appellant performed a laparoscopic examination upon Regina Wells. Based upon this examination, appellant diagnosed Regina Wells as having lacerations of the broad ligament. Appellant proceeded with an exploratory laparotomy and repaired lacerations in the anterior and posterior broad ligaments. In 1982, appellant moved to California and Regina Wells began using Dr. Wallis as her gynecologist. In October of 1982, Dr. Wallis informed Regina Wells of possible complications due to appellant's broad ligament repair. On February 27, 1983, Regina Wells was taken to Gulf Coast Medical Foundation's emergency room for severe pelvic pain. On March 3, 1983, Dr. Wallis diagnosed Regina Wells as suffering from pelvic inflammatory disease, and on April 28, 1983, he performed surgery to treat the infection. Appellees allege that the operation performed by appellant on March 10, 1980, and specifically the use of silk sutures in repairing the broad ligament lacerations, was negligent and resulted in Regina Wells' pelvic inflammatory disease. ² The pelvic inflammatory disease necessitated the removal of Regina Wells' right tube and ovary and caused scarring to the left tube and ovary.

On July 20, 1983, appellees gave notice, pursuant to Tex.Rev.Civ.Stat.Ann. art. 4590i, § 4.01(a) (Vernon Supp.1986), of their health care liability claim. Appellees filed suit on October 11, 1983, which was three years, four months, and eighteen days after the date of the medical treatment for which the claim is made. ³

Appellant, by his first point of error, complains that the trial court erred in overruling appellant's motion for directed verdict based on the applicable statute of limitations. The Medical Liability and Insurance Improvement Act, Tex.Rev.Civ.Stat.Ann. art. 4590i, § 10.01 (Vernon Supp.1986), provides that:

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 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. Except as herein provided, this subchapter applies to all persons regardless of minority or other legal disability.

"The Legislature enacted the Medical Liability and Insurance Improvement Act to alleviate a perceived medical malpractice insurance crisis in the state of Texas.Art. 4590i, § 1.02. In an effort to accomplish this goal, the legislature adopted an absolute two-year limitations period." Morrison v. Chan, 699 S.W.2d 205, 208 (Tex.1985). Thereby, the legislature abolished the discovery rule in cases governed by the Medical Liability Act. Id. However, the open courts provision of the Texas Constitution protects a person from legislative acts that abridge the right to sue before that person has a "reasonable opportunity to discover the wrong" and bring suit. Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex.1985); Nelson v. Krusen, 678 S.W.2d 918, 923 (Tex.1984); Tex. Const. art. I, § 13.

The open courts provision creates a modified discovery rule. If a claimant has a reasonable opportunity to discover the wrong within the two-year limitation period, then the two-year limitation is absolute and the limitation period will not be tolled despite the date of discovery of the injury. See Morrison v. Chan, 699 S.W.2d at 208. If a claimant does not have a reasonable opportunity to discover the wrong within the two-year limitation period, then section 10.01 of article 4590i violates the open courts provision of the Texas Constitution and the cause of action is not barred by limitations. See Nelson v. Krusen, 678 S.W.2d at 923.

There is sufficient evidence to support the jury's finding that Regina Wells did not have a reasonable opportunity to discover the wrong until April 28, 1983. Although Regina Wells testified that pain returned to her pelvic region within three months of the operation, she testified that she reported this to appellant as she continued using him as a gynecologist for eighteen months following the surgery. Appellant testified that he found no post-operative complications, and that Regina Wells did not report any post-operative pain. Dr. Wallis testified that the silk sutures, which create an inflammatory reaction and produce the potential for infections, were the cause of Regina Wells' pelvic inflammatory disease. Dr. Wallis determined this based upon the operation he performed on April 28, 1983.

Therefore, since Regina Wells did not have a reasonable opportunity to discover the wrong within the two-year limitation period, the open courts provision of the Texas Constitution prevents this cause of action from being barred by the absolute two-year limitation. See Nelson v. Krusen, 678 S.W.2d at 923; Tex. Const. art. I, § 13. We overrule appellant's first point of error.

Appellant, by his second and third points of error, complains that the trial court erred in excluding evidence that Regina Wells had contact with gonorrhea.

Following the surgery performed by appellant, in September of 1980, Regina Wells reported to appellant that she had sexual contact with a person infected with gonorrhea. ⁴ Dr. Wallis and appellant agree that gonorrhea can cause pelvic inflammatory disease. In fact, the two major causes of pelvic inflammatory disease are surgical operations and infections. Gonorrhea comes within the realm of infections. Further, appellant stated that if Regina Wells had gonorrhea, that gonorrhea could have caused the pelvic inflammatory disease. Appellant based this opinion on reasonable medical probability. However, there was no evidence in the record that Regina Wells had contracted gonorrhea. When Regina Wells reported the "contact" to appellant, he gave her medication but did not take a culture to determine whether she ever contracted the infection. The only culture was done in 1983, three years later, and proved negative.

The question before us is whether there is a distinction between a reasonable medical probability and a medical possibility. A possible cause becomes "probable" when, based upon the facts of the case, it becomes more likely than not that the injury was a result of its action. Parker v. Employers Mutual Liability Insurance Co., 440 S.W.2d 43, 47 (Tex.1969). In the instant case, appellant is unable to testify that the sexual contact with a person infected with gonorrhea caused the injury (pelvic inflammatory disease). Rather, appellant can only testify that contracting gonorrhea could cause the injury, and there is no evidence that Regina Wells contracted gonorrhea. Therefore, the inference that would result from appellant's...