Weaver v. Robinson
| Decision Date | 07 April 1976 |
| Docket Number | No. 6494,6494 |
| Citation | 536 S.W.2d 243 |
| Parties | C. W. WEAVER et al., Appellants, v. Cecil A. ROBINSON, M.D., Appellee. |
| Court | Texas Court of Appeals |
James D. Cunningham, Odessa, Little & Little, Jack Little, Big Spring, for appellants.
Finley & Scogin, Kermit, Shafer, Gilliland, Davis, Bunton & McCollum, Inc., W. O. Shafer, James M. O'Leary, Odessa, for appellee.
This is a medical malpractice case. The trial Court entered summary judgment for the doctor on a plea of the two-year statute of limitations. Sustaining a contention that the 'discovery rule' delayed the running of limitations, we reverse and remand.
The Appellant sustained an on-the-job injury on July 26, 1971. The Appellee performed a myelogram on Appellant on August 6, 1971, and a laminectomy on August 10, 1971, at the L 4--5 and L 5--S 1 level. Dr. Robinson continued to see and treat Mr. Weaver until December 29, 1971. On January 25, 1972, the Industrial Accident Board approved a compromise settlement agreement between Mr. Weaver and the workmen's compensation carrier, Hartford Insurance Group. Shortly thereafter, the Appellant saw another orthopedist who initially prescribed a back brace, and then following a myelogram on April 25, 1972, performed a laminectomy on April 26, 1972, and removed a herniated nucleus pulposus from the L 3--4 level. Another operation was performed in December, 1973, with a total laminectomy and a fusion. The patient continued to have back pain and additional surgery was performed for a myelostat implantation to relieve the back pain. Appellant filed suit against Dr. Robinson on April 4, 1974, and his basic complaint is one of an improper diagnosis, particularly with regard to the ruptured disc at the L 3--4 level which he contends was never discovered until the myelogram in April, 1972.
The Appellee pled the two-year statute of limitations and attached to the motion for summary judgment a copy of the compromise settlement agreement and Board's order dated January 25, 1972, approving the settlement agreement. It was contended that limitations began to run when the Board approved the compromise settlement agreement, and that this suit, more than twenty-six months later, was barred by Article 5526, Tex.Rev.Civ.Stat.Ann. The trial Court agreed and entered summary judgment.
The Appellants present five points of error. We have concluded that a fact issue does exist under the discovery rule and sustain the last point.
This is not a true third-party case, since the doctor did not cause the on-the-job injury, and is not liable for damages resulting from such injury, but only for damages arising from any aggravation resulting from his malpractice. Seward v. Robinson, 535 S.W.2d 778 (Tex.Civ.App.--El Paso 1976, writ ref'd n.r.e.). But, in any event, Appellee contends the holding in Campbell v. Sonford Chemical Company, 486 S.W.2d 932 (Tex.1972), controls. In that case, the Court said * * * limitation runs against * * * the employee in third-party actions authorized by Section 6a from the date of the payment of the award of the Industrial Accident Board * * *'.
If the Workmen's Compensation Act was not involved, then normally, where treatment is given or surgery performed, a cause of action accrues immediately if proper care is not exercised by the attending physician. Coffman v. Hedrick, 437 S.W.2d 60 (Tex.Civ.App.--Houston (1st Dist.) 1968, writ ref'd n.r.e.); Axcell v. Phillips, 473 S.W.2d 554 (Tex.Civ.App.--Houston (1st Dist.) 1971, writ ref'd n.r.e.); Stone v. Morris, 476 S.W.2d 901 (Tex.Civ.App.--Fort Worth 1972, no writ); Jirovec v. Maxwell, 483 S.W.2d 852 (Tex.Civ.App.--Corpus Christi 1972, no writ).
But in some instances where the patient is not aware of the malpractice until a later time, the courts have applied the 'discovery rule' to delay the time from which limitations will begin to run. The Texas Supreme Court has applied the rule in two instances. First, in the case where a foreign object is left in a patient, and also, in the case of an unsuccessful vasectomy operation. Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967); Hays v. Hall, 488 S.W.2d 412 (Tex.1972).
Following those decisions, this Court in Sanchez v. Wade, 514 S.W.2d 812 (Tex.Civ.App.--El Paso 1974, no writ), held 'that in a case involving an improper diagnosis, limitations should begin to run when the patient knew, or in the exercise of ordinary care, should have known, of the condition or disease which the doctor failed to properly diagnose.' Such holding is in line with cases from other jurisdictions. See: Medical Malpractice--Limitations, 11 Houston Law Review 826, 842, footnote 115 (1974).
This issue was before the Supreme Court of Hawaii in Yoshizaki v. Hilo Hospital, 50 Haw. 150, 433 P.2d 220 (1967). In that case, the Court stated the issue and its answer thereto as follows:
'This case involves a narrow and precise question. When does the statute of limitation begin to run against a malpractice claim where the plaintiff did not know, nor acting reasonably could have been expected to know, that the defendant negligently diagnosed an ailment?
'We conclude that the statute does not begin to run until the plaintiff knew or should have known of the defendant's negligence. This conclusion is consistent with the legislative prescription to avoid constructions which would lead to absurd results. 6 The injustice of barring the plaintiff's action before she could reasonably have been aware that she had a claim is patent. * * *
Very similar language was used by the Texas Supreme Court in Hays v. Hall, supra, where the Court, in discussing the effect of permitting limitations to run before a party knows that he is injured, said: 'A result so absurd and so unjust ought not to be possible.'
In 1969, in issue was before the Supreme Court of Idaho in Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1969), and there the Court stated the issue and its answer as follows:
'This case presents for decision a single question, to-wit: in an action for medical malpractice involving...
To continue reading
Request your trial
-
Robinson v. Weaver
...the "discovery rule" applies and that a question of fact exists concerning when the plaintiff knew or should have known of his injury. 536 S.W.2d 243. We reverse the judgment of the court of civil appeals and affirm that of the trial The plaintiff injured his back on July 26, 1971. On Augus......
-
Clark v. Memorial Hospital
...are not conclusive and only raise a question of fact for the determination of the fact finder. Weaver v. Robinson, 536 S.W.2d 243, 246 (Tex.Civ.App. El Paso 1976, writ granted on other grounds); Qualls v. Graham General Hospital, 535 S.W.2d 932, 937 (Tex.Civ.App. Fort Worth 1976, n.w.h.); D......
-
Weaver v. Witt
...of that rule, and plaintiff cites as authority for that proposition the court of civil appeals decision in Weaver v. Robinson, 536 S.W.2d 243, 246 (Tex.Civ.App. El Paso 1976), rev'd, 550 S.W.2d 18 (Tex. Supp. The El Paso Court of Civil Appeals based its holding in Weaver v. Robinson on the ......