Opinion issued May 8, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-01-00235-CV
ROBBIE WESTBROOK AND LOIS WESTBROOK, Appellant
V.
MARK MCBATH, M.D., Appellee
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Cause No. 2000-10581
MEMORANDUM OPINION
This is a medical malpractice case. The plaintiffs/appellants, Robbie and Lois Westbrook, are appealing the trial court’s judgment that was entered after the trial court granted the defendant/appellee, Dr. Mark McBath’s, motion for summary judgment and motion to dismiss. We affirm.
Factual Background
The uncontroverted summary judgment evidence establishes that on July 2, 1993, Dr. McBath placed a “groshong catheter” in Mr. Westbrook’s chest for long-term antibiotic therapy. On August 24, 1993, after Mr Westbrook’s therapy ended, Dr. McBath performed a “catheter fragment retrieval” on Mr. Westbrook in an attempt to remove the “groshong catheter.” Dr. McBath never saw Mr. Westbrook again as a patient after the August 24th surgery.
On January 6, 1998, Dr. Griffith performed a CT scan on Mr. Westbrook’s chest that showed a long length of catheter extending through the left main pulmonary artery segment and into a branch of the left pulmonary artery. Dr. McBath had failed to remove the entire catheter during the August 24th surgery, and it had remained in Mr. Westbrook’s body since that time. On January 12, 1998, Mr. Westbrook learned about the presence of the catheter in his body that Dr. McBath had failed to remove. Mr. Westbrook testified by deposition that the only catheter that had ever been inserted in his chest was the one Dr. McBath had inserted. Dr. Griffith immediately referred Mr. Westbrook to a specialist to have the catheter removed. One year later, on January 5, 1999, Dr. Weiner successfully removed the catheter.
On March 8, 2000, appellants filed this lawsuit seeking damages from Dr. McBath for his alleged negligence. Dr. McBath filed a motion for summary judgment based, in part, on the running of the two-year statute of limitations found in article 4590i, section 10.01, of the Texas Medical Liability and Insurance Improvement Act. Tex. Rev. Civ. Stat. Ann. Art. 4590i, § 10.01 (Vernon Supp. 2003). The trial court entered summary judgment for McBath.
Discussion
In their first point of error, appellants assert the trial court erred in granting summary judgment because McBath did not establish his affirmative defense of limitations bar as a matter of law. We disagree because, even if appellants are correct that the discovery rule applies under the “open courts” provision of the Texas Constitution, and even if the evidence raises a fact issue about fraudulent concealment of McBath’s alleged negligence, the uncontroverted fact remains that appellants discovered, on January 12, 1998, that the catheter had been left in Mr. Westbrook’s chest by McBath. Appellants did not file suit until March 8, 2000, more than two years after their discovery of the alleged negligence. Appellants’ suit against McBath is therefore barred by the two-year statute of limitations as a matter of law.
Accordingly, the trial court properly granted McBath’s motion for summary judgment. We overrule appellants’ point of error one.
In light of our disposition of appellants’ first point of error, we need not address the merits of point of error two dealing with McBath’s motion to dismiss, and we decline to do so.
Conclusion
We affirm the trial court’s judgment.
Margaret Garner Mirabal
Justice
Panel consists of Justices Taft, Mirabal, and Price.