Yancy v. United Surgical Partners Intern.

• Decision Date: 19 October 2007
• Docket Number: No. 05-0925.,05-0925.
• Parties: Eula YANCY, as Guardian of the Person and the Estate of Carletha Yates, an Incapacitated Adult, Petitioner, v. UNITED SURGICAL PARTNERS INTERNATIONAL, INC., Valley View Surgical Center, Inc., and Judith Smith, R.N., Respondents.
• Court: Texas Supreme Court

236 S.W.3d 778

Eula YANCY, as Guardian of the Person and the Estate of Carletha Yates, an Incapacitated Adult, Petitioner, v. UNITED SURGICAL PARTNERS INTERNATIONAL, INC., Valley View Surgical Center, Inc., and Judith Smith, R.N., Respondents.

No. 05-0925.

Supreme Court of Texas.

Argued February 14, 2007.

Decided October 19, 2007.

Bryce J. Denny, Seabaugh, Benson, Keene & Denny, Shreveport, LA, for Petitioner.

Walter A. Herring, O. Rey Rodriguez, Fulbright & Jaworski L.L.P., Vernon L. Krueger, David M. Walsh IV, Chamblee & Ryan, P.C., Dallas, TX, for Respondents.

Chief Justice JEFFERSON delivered the opinion of the Court.

We must decide whether the two-year statute of limitations found in former article 4590i, section 10.01 of the Texas Revised Civil Statutes¹, violates the Texas Constitution's open courts guarantee as applied to an incapacitated plaintiff whose guardian timely filed suit against some defendants but not others. We conclude, contrary to the court of appeals, that the plaintiff presented competent summary judgment evidence of her continuous mental incapacity but nonetheless hold that the open courts guarantee has not been violated here.

I Background

On May 3, 2000, Carletha Yates underwent a lithrotripsy—a surgical procedure to remove kidney stones—at Valley View Surgical Center. During the procedure, Yates suffered a cardiac arrest—allegedly caused by the medical personnel's failure to monitor her oxygen while she was under general anesthesia—and is now comatose. On December 10, 2001, Eula Yancy, Yates's mother and guardian of her estate and person, sued Manuel Ramirez, M.D. and Dallas Pain & Anesthesia Associates for negligence. Almost two years later, on September 2, 2003, Yancy added United Surgical Partners International, Inc.² (United Surgical), Valley View Surgical Center, Inc., and Judith Smith, R.N., (collectively, Valley View) as defendants.

United Surgical and Valley View asserted that limitations barred Yates's claims, and they moved for summary judgment on that basis. In response, Yancy conceded that she filed Yates's claims outside of the two-year statute of limitations but contended that because Yates has "been continuously in a vegetative, comatose state since May 3, 2000 . . . limitations . . . has been tolled and any statutory attempt to void the tolling violates the Texas Open Courts provisions." Yancy attached two affidavits to the summary-judgment response. Anaise "Sis" Theuerkauf, a "certified rehabilitation registered nurse, certified case manager, and life care planner," testified that she visited and assessed Yates at her home and reviewed her medical records. Theuerkauf concluded:

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 [sic] Center. She has been totally disabled continuously since May 3, 2000.

Yancy also filed an affidavit and accompanying report from Cindy Sacker, a registered nurse. Sacker's report noted that the monitor record from Yates's surgery reflected a ten-minute period during which Yates had "no respirations," leading Sacker to conclude that Valley View's nursing staff breached its duty of care and "[a]s a result . . . Yates, has suffered a catastrophic, irreversible, brain injury, rendering her comatose and totally unresponsive, requiring her family to assume responsibility for her care."

Yancy also attached the 137-page deposition transcript of Dr. Manuel Ramirez, the anesthesiologist who attended Yates during the lithrotripsy. Based on his review of the records, Dr. Ramirez testified that near the end of the procedure, Yates's blood-oxygen levels dropped, and she developed "brady [and] asystole." Ultimately, Yates suffered a cardiac arrest, requiring cardiopulmonary resuscitation. Dr. Ramirez intubated Yates and administered epinephrin. Yates's vital signs returned and, accompanied by Dr. Ramirez, she was transferred to Medical City Dallas. Dr. Ramirez recalled speaking with Yancy that day and explaining that Yates had suffered a cardiac arrest, had been resuscitated and had demonstrated good vital signs on transfer, but remained unconscious. While Dr. Ramirez had not seen Yates since the transfer, he had no reason to believe her condition had changed.

On the day of the summary judgment hearing, Valley View challenged Yancy's summary judgment evidence, asserting that Theuerkauf's affidavit testimony was vague, ambiguous, misleading, and conclusory, and that Sacker's testimony was uncorroborated. United Surgical did not object to Yancy's proof. The trial court granted the motions.³ Yancy settled with and dismissed Ramirez and the Dallas Pain & Anesthesia Associates from the suit, making the summary judgments final.

Yancy appealed, and the court of appeals affirmed. 170 S.W.3d 185. The court examined the summary judgment evidence and objections and concluded that, because the objections raised matters of substance, not form, "the failure to obtain a ruling did not waive the objections" because "[o]bjections to the substance of an affidavit may be raised for the first time on appeal." Id. at 191. The court held that both affidavits were conclusory, and that neither Theuerkauf nor Sacker were qualified to testify to Yates's medical condition. The court did not mention Dr. Ramirez's testimony nor any other summary judgment evidence. The court of appeals affirmed, holding that Yancy failed to present competent evidence of Yates's alleged continuous mental incapacity and, therefore, failed to raise a fact issue about the constitutionality of the statute of limitations for health care liability claims as applied to her. Id. at 192-93. We granted Yancy's petition for review. 50 Tex. Sup.Ct. J. 65 (Oct. 27, 2006).

II Summary Judgment Burden of Proof

Yancy argues that, as the movants, the respondents bore the burden of conclusively negating an open courts violation, and that because their motions did not address the open courts provision, they failed to meet their burden. To support her position, she relies on authority requiring a defendant to negate the discovery rule as a matter of law once the plaintiff has pleaded it. See Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex. 2000); Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex.1997).

We confronted this very question in Shah v. Moss, 67 S.W.3d 836, 846-47 (Tex. 2001). In that case Moss sued Shah for medical negligence, and Shah moved for summary judgment based on section 10.01's limitations provision. Id. at 839. Moss countered that section 10.01 violated the open courts guarantee. Id. at 841. We said, "it was Moss's burden to raise a fact issue demonstrating that . . . the open courts guarantee applies." Id. at 846-47. Unlike the discovery rule, which a defendant must negate once the plaintiff has pleaded it, a plaintiff who asserts that the open courts provision defeats limitations bears the burden of raising a fact issue. See also Brown v. Shores, 77 S.W.3d 884, 888-89 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (Brister, C.J., concurring).

Thus, Yancy had the burden to present evidence of Yates's continuous mental incapacity. See Tinkle v. Henderson, 730 S.W.2d 163, 167 (Tex.App.-Tyler 1987, writ ref'd). The court of appeals held that Yancy failed to provide competent summary judgment evidence regarding Yates's mental capacity and, therefore, failed to meet that burden. 170 S.W.3d at 192-93. We disagree.

When reviewing a summary judgment, we "must examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion." City of Keller v. Wilson, 168 S.W.3d 802, 824-25 (Tex.2005) (emphasis added). Here, the evidence included not only the two affidavits discussed by the court of appeals, but the anesthesiologist's deposition testimony and Yates's medical records.⁴ Theuerkauf averred that she "personally visited and assessed Carletha Yates in her home," and it was her 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 [her] review of [Yates's] medical records, she has been in such a condition consistently and uninterrupted since . . . May 3, 2000."

The court of appeals concluded that the affidavit was not competent evidence because Theurkauf did not show herself qualified to render an opinion on Yates's medical diagnosis, and Theurkauf's statement that Yates had been in a "comatose, vegetative state" consistently since her surgery was "wholly conclusory in nature." 170 S.W.3d at 191-92. Theuerkauf's qualifications consisted of a statement that she is "a certified rehabilitation registered nurse, certified case manager, and life care planner who has been duly licensed in nursing in Louisiana, Texas, Mississippi, Arkansas, Alabama, and Tennessee." Even assuming that she was not qualified as an expert, she was still free to offer testimony of her personal observations. The lower court recognized that Theuerkauf, a registered nurse, would have been competent to testify that "the plaintiff was unresponsive, uncommunicative, and incapable of caring for herself."⁵ 170 S.W.3d at 192. We see no meaningful distinction between that description and Theuerkauf's actual testimony that Yates was "comatose" and in a "vegetative state." Theuerkauf's affidavit supports an inference that Yates is currently mentally incapacitated.

Also included in the summary judgment evidence were Valley View's medical records of Yates's lithrotripsy procedure. Those records show that, during...