Yancy v. United Surg. Part. Intern., Inc., 05-04-00791-CV.

• Decision Date: 12 July 2005
• Docket Number: No. 05-04-00791-CV.,05-04-00791-CV.
• Citation: 170 S.W.3d 185
• Parties: Eula YANCY, As the Guardian of the Person and The Estate of Carletha Yates, An Incapacitated Adult, Appellant v. UNITED SURGICAL PARTNERS INTERNATIONAL, INC., Valley View Surgical Center, Inc., and Judith Smith, R.N., Appellees.
• Court: Texas Supreme Court

170 S.W.3d 185

Eula YANCY, As the Guardian of the Person and The Estate of Carletha Yates, An Incapacitated Adult, Appellant v. UNITED SURGICAL PARTNERS INTERNATIONAL, INC., Valley View Surgical Center, Inc., and Judith Smith, R.N., Appellees.

No. 05-04-00791-CV.

Court of Appeals of Texas, Dallas.

July 12, 2005.

Rehearing Overruled September 13, 2005.

Bryce J. Denny, Cook Yancy King & Galloway, Shreveport, LA, for Appellant.

Walter Andrew Herring, Vernon L Krueger, Chamblee & Ryan, P.C., Oscar Rey Rodriguez, Fulbright & Jaworski L.L.P., Dallas, for Appellee.

Before Justices MORRIS, FRANCIS, and LANG-MIERS.

OPINION

Opinion By Justice MORRIS.

In this medical malpractice case, the trial court granted summary judgment in favor of United Surgical Partners International, Inc., Valley View Surgical Center, Inc., and Judith Smith, R.N. on the ground that the claims against them had been filed outside the limitations period. Eula Yancy, as the guardian of the person and the estate of Carletha Yates, appeals the trial court's judgment contending the statute of limitations governing Yates's claims is unconstitutional as applied to her. Specifically, Yancy argues the statute of limitations violates the "open courts" provision of the Texas Constitution because Yates has been mentally incapacitated continuously since the incident from which her claims arose. After reviewing the summary judgment record, we conclude the trial court properly granted summary judgment in favor of United, Valley View, and Smith because Yancy did not present any competent summary judgment evidence in response to the defendants' motion for summary judgment to create a fact issue about Yates's alleged continuous mental incapacity. We affirm the trial court's judgment.

I.

In May 2000, Carletha Yates underwent a lithotripsy procedure at Valley View Surgical Center. It is alleged that during the course of the procedure, Yates suffered cardio-pulmonary arrest resulting in a permanent anoxic brain injury. Some time after the incident, Yates's mother, Eula Yancy, was appointed as the guardian of both Yates and her estate.

On December 10, 2001, Yancy, in her capacity as Yates's guardian, filed a medical malpractice suit on behalf of Yates against Manuel R. Ramirez, M.D., the anesthesiologist who treated Yates during her surgery, and Ramirez's professional association, Dallas Pain & Anesthesia Associates, P.A. Yancy alleged Ramirez was negligent in his care and treatment of Yates and that this negligence proximately caused Yates's injuries. She also alleged that Ramirez acted with malice and sought punitive damages.

On September 2, 2003, Yancy filed a first amended petition and, for the first time, asserted claims for medical negligence and malice against the appellees in this appeal, United Surgical Partners International, Inc., Valley View Surgical Center, Inc., and Judith Smith, R.N. All three defendants answered and filed motions for summary judgment based on the statute of limitations. United, Valley View, and Smith argued the claims against them were governed by former article 4590i, and under article 4590i, all claims must be brought within two years of the date the cause of action accrued. It is undisputed that Yates's claims accrued in May 2000.

In her response to the motions, Yancy conceded the suit against United, Valley View, and Smith was filed outside the limitations period. Yancy argued, however, that the statute of limitations did not bar Yates's claims because the statute was unconstitutional as applied to Yates. According to Yancy, Yates has been mentally incapacitated continuously since the date of her surgery as a result of the defendants' negligence. Therefore, the application of a limitations period to Yates's claims would violate the "open courts" provision of the Texas Constitution.

In support of her response, Yates submitted the affidavits of two registered nurses: Anaise "Sis" Theuerkauf, CRRN, CCM and Cindy Sacker, RN, BSN, CNOR. Theuerkauf testified she was a certified rehabilitation nurse, certified case manager, and life care planner. She further stated,

It is my opinion based upon personal observations, assessment, interviews and review of her medical records and diagnoses of her treating physicians that Carletha Yates is in a comatose, vegetative state, and, based on my review of her medical records, she has been in such a condition consistently and uninterrupted since her anoxic brain injury suffered on May 3, 2000, while a patient at Valley View Surgery Center. She has been totally disabled continuously since May 3, 2000.

Although some of Yates's medical records were submitted as summary judgment evidence, the records made a part of the summary judgment record pertained only to Yates's pre-operative assessments and her surgery on May 3, 2000. There are no medical records concerning Yates's condition after the surgery in the summary judgment record.

In Sacker's affidavit, she stated she was a registered nurse and a certified operating room nurse. Sacker further states that she reviewed Yates's medical records from Valley View as well as various manuals, job descriptions, and depositions. Sacker goes on to opine that

Based upon my personal review, knowledge, experience and belief,... [it] is my opinion that Valley View Surgery Center and nurse Judith Smith breached their duty of care owed to their patient, Carletha Yates, and that the breaches of duty and the applicable standards of care resulted in damage to Carletha Yates suffering a permanent anoxic brain injury.

Attached to Sacker's affidavit is a report she wrote setting forth her conclusions relating to the alleged breaches of the applicable standard of care by the Valley View Surgical Center nursing staff. At the end of the report, Sacker states that Yates "... has suffered a catastrophic, irreversible, brain injury, rendering her comatose and totally unresponsive, requiring her family to assume responsibility for her care."

United, Valley View, and Smith objected to Yancy's summary judgment evidence arguing, among other things, that Theuerkauf's and Sacker's affidavits contained unsupported conclusions and failed to show how they were qualified to testify regarding Yates's alleged mental incapacity. The defendants argued that because the affidavits were incompetent summary judgment evidence, Yancy failed to meet the threshold legal requirement of showing that Yates was mentally incapacitated continually since the date of her injury. Because Yancy failed to raise a fact issue about Yates's alleged mental incapacity, the defendants contended Yancy could not show the statute of limitations was unconstitutional as applied to Yates.

The record does not contain a written ruling on the defendants' objections to the summary judgment evidence. The trial court, however, granted summary judgment in favor of the defendants and dismissed the suit against them with prejudice. Yancy then non-suited her claims against Ramirez and Dallas Pain & Anesthesia Associates making the judgment final. Yancy brings this appeal challenging the summary judgment in favor of United, Valley View, and Smith.

II.

It is undisputed that the claims brought in this suit are health care liability claims and are subject to the rules and requirements of former article 4590i of the Texas Revised Civil Statutes.¹ Section 10.01 of article 4590i states that "[n]otwithstanding 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." See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 10.01, 1977 Tex. Gen. Laws 2052, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.09, 2003 Tex. Gen. Laws 864, 884 (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.251 (Vernon 2005)). The section further states the limitations period applies regardless of "legal disability." Id. This court and others have held that general tolling statutes tolling limitations periods due to unsound mind or mental incompetence of the plaintiff are part of the "other law" to which section 10.01 refers and makes such tolling statutes inapplicable to health care liability claims. See Jones v. Miller, 964 S.W.2d 159, 164 (Tex.App.-Houston [14th Dist.] 1998, no pet.); Waters v. Del-Ky, Inc., 844 S.W.2d 250, 255-56 (Tex.App.-Dallas 1992, no writ). Thus, there is no tolling provision for mental incapacity applicable to claims under article 4590i.

As part of their motions for summary judgment, United, Valley View, and Smith submitted evidence showing that Yates's claims arose out of her surgery at Valley View and the date of her surgery and final treatment at Valley View was May 3, 2000. The defendants also submitted a copy of the first amended petition showing that suit against them was not filed until September 2, 2003-more than two years after the occurrence made the basis of Yates's claims. This proof was sufficient to show, as a matter of law, that Yates's claims were filed outside the limitations period. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 10.01, 1977 Tex. Gen. Laws 2052, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.09, 2003 Tex. Gen. Laws 864, 884 (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.251 (Vernon 2005)).

As stated above, Yancy did not dispute she filed Yates's claims outside the two-year limitations period. Yancy's sole argument to defeat the defendants' motion for summary judgment was that the statute of limitations as applied to Yates's claims would violate the "open courts" provision of the Texas Constitution. Yancy's argument was based on her assertion that Yates was completely and continuously mentally incompetent from the date of her surgery until the date suit was filed and, therefore, had no...