Shawna Lyn Borth v. John C. Kelleher, Jr., M.D., Panhandle Plastic Surgery, P.A.

NO. 07-01-0054-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 18, 2002

______________________________

SHAWNA LYN BORTH, APPELLANT

V.

JOHN C. KELLEHER, JR., M.D. AND

PANHANDLE PLASTIC SURGERY, P.A., APPELLEES

_________________________________

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 87,370-D; HONORABLE DON EMERSON, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Proceeding pro se, Shawna Lyn Borth appeals the judgment of the trial court that

she take nothing against John C. Kelleher, Jr., M.D., and Panhandle Plastic Surgery, P.A.

(Kelleher) on her medical malpractice action. By four issues, Borth contends that (1) Texas

statutes, rules, and other authorities defining abandonment of a patient and fraudulent

concealment by a physician pertain to Kelleher and trump the two-year statute of
limitations; (2) the physician-patient relationship was not properly terminated because

Kelleher’s services were not completed because he referred her to other doctors when she

was still having chronic sinus infections; (3) Kelleher’s reply to Borth’s Response to

Defendant’s Motion for Summary Judgment and Brief in Support Thereof was not filed

three days prior to the hearing as required by the Texas Rules of Civil Procedure; and (4)

Plaintiff’s Oral Deposition Transcript does not meet the same standards for admissibility

as evidence offered during a regular trial. Based on the rationale expressed herein, we

affirm the judgment of the trial court.

On July 25, 1991, Kelleher, a plastic surgeon, performed a corrective

septorhinoplasty on Borth. Following the surgery, Borth had several postoperative visits

where she complained of sinus problems. Kelleher referred her to two ear, nose and throat

specialists and made his last consultation with her on January 3, 1994. However, after this

date, Borth did see other physicians for a variety of reasons. In October 1997, she

consulted Dr. Eisemann, also a plastic surgeon, because she was unhappy with the

surgery performed by Kelleher and was contemplating legal action; however, Eisemann

told Borth that he did not think that Kelleher did anything incorrectly and, in his opinion, the

surgery did not cause her nasal stuffiness or congestion.

In her deposition, Borth acknowledged that on March 11, 1993, she asked Kelleher:

“What did you do wrong? I was never sick before I had this surgery and now I’m sick all

the time.” Then, on November 16, 1998, she filed her first medical malpractice suit.

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Following a nonsuit of this action, Borth refiled the underlying suit March 23, 2000.

Kelleher responded by filing a traditional motion for summary judgment, contending that

Borth’s claims were barred by the statute of limitations. Before we consider her issue, we

first set forth the appropriate standard of review.

STANDARD OF REVIEW

In reviewing a summary judgment, this Court must apply the standards established

in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985):

1. The movant for summary judgment has the burden of showing that there
is no genuine issue of material fact and that it is entitled to judgment as a
matter of law.

2. In deciding whether there is a disputed material fact issue precluding
summary judgment, evidence favorable to the non-movant will be taken as
true.

3. Every reasonable inference must be indulged in favor of the non-movant
and any doubts resolved in its favor.

For a party to prevail on a motion for summary judgment, he must conclusively establish

the absence of any genuine question of material fact and that he is entitled to judgment as

a matter of law. Tex. R. Civ. P. 166a(c). A movant must either prove all essential

elements of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least

one essential element of the non-movant's cause of action. Randall's Food Markets, Inc.

v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has established a right

to summary judgment, the non-movant has the burden to respond to the motion for

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summary judgment and present to the trial court any issues that would preclude summary

judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.

1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st Dist.] 1996,

writ denied). When a summary judgment does not specify or state the grounds relied on,

the summary judgment will be affirmed on appeal if any of the grounds presented in the

motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Insurance Co.

of N. Am. v. Security Ins., 790 S.W.2d 407, 410 (Tex.App.--Houston [1st Dist.] 1990, no

writ). Issues which the non-movant contends preclude the granting of a summary

judgment must be expressly presented to the trial court by written answer or other written

response to the motion and not by mere reference to summary judgment evidence.

McConnell v. Southside School Dist., 858 S.W.2d 337, 341 (Tex. 1993). Issues not

expressly presented to the trial court in writing shall not be considered on appeal as

grounds for reversal. Tex. R. Civ. P. 166a(c). Further, all theories in support of or in

opposition to a motion for summary judgment must be presented in writing to the trial court.

Casso v. Brand, 776 S.W.2d 551, 553 (Tex. 1989). Additionally, pleadings do not

constitute summary judgment proof. Clear Creek Basin Authority, 589 S.W.2d at 678.

Borth does not present a general issue complaining that the trial court erred in

granting summary judgment which would have allowed her to raise all possible grounds

upon which summary judgment should have been denied. See Malooly Brothers, Inc. v.

Napier, 461 S.W.2d 119, 121 (Tex. 1970). Instead, she presents four issues which do not

concisely state her contentions and state conclusions without addressing any specific error.

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See Tex. R. App. P. 38.1(e) and (h). However, because we are required to review briefs

liberally, Texas Rules of Appellate Procedure 38.9, we will first consider the issues of

fraudulent concealment and the statute of limitations.

By her first and second issues, Borth contends that abandonment of a patient and

fraudulent concealment “trumps” the two year statute of limitations and that the physician

patient relationship was not terminated. We disagree. Medical malpractice actions are

governed by article 4590i of the Texas Revised Civil Statutes Annotated which provides

that a suit must be brought within two years of (1) the date the tort occurs; (2) the date the

healthcare treatment that is the subject of the claim ends; or (3) the date the hospitalization

for which the claim is made ends. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01 (Vernon

Supp. 2002). When the precise date of the negligence can be ascertained, limitations

begins to run on that date and subsequent treatment is immaterial. Husain v. Khatib, 964

S.W.2d 918, 919 (Tex. 1998). Therefore, termination of the physician patient relationship

is immaterial. See id. Here, Borth claims that her injuries occurred during the surgery on

July 25, 1991. Because the date of the tort was ascertainable, the period for limitations

began to run on that date and Borth was required to file suit by July 25, 19931 unless she

could establish that the limitations period had been tolled. See Borderlon v. Peck, 661

S.W.2d 907, 909 (Tex. 1983).

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Borth’s last visit with Kelleher was January 3, 1994. Even assuming arguendo that
the limitations period began on this date, her action would still be precluded on January 3,
1996.

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 Without alleging any specific act or omission of negligence, by her response to

Kelleher’s traditional motion for summary judgment, Borth alleges that Kelleher fraudulently

concealed “the wrong.” Although a physician owes a duty to disclose a negligent act or a

fact that an injury occurred, and a failure to make disclosure constitutes fraudulent

concealment, the estoppel effect ended when Borth learned of facts, conditions, or

circumstances that would have caused a reasonably prudent person to make inquiry,

which, if pursued, would lead to the discovery of the concealed cause of action. See

Thames v. Dennison, 821 S.W.2d 380, 384 (Tex.App.–Austin 1991, writ denied). Here,

Borth’s testimony reveals that she knew of the alleged tort on March 11, 1993. In part, her

deposition testimony revealed the following:

* * *

Q: . . . when you look back at these medical records, is
that [March 11, 1993] when you believe that your sinus
problems began?
A: Yes, I know for a fact it is because I told him on that
exact date, “What did you do wrong? I was never sick
before I had this surgery and now I’m sick all the time.”
Q: You told Dr. Kelleher that?
A: I told Dr. Kelleher that.
Q: On that date of March 11th of 1993?
A: Yes.
* * *
Q: How long have you believed that he was negligent in
that surgery?

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 A: On March 11th, I believe it was, 1993, when I told him
–when I asked him what he did wrong and he said he
didn’t do anything wrong, I knew on that date that
something was wrong.

Borth cannot now claim that she did not know of her alleged cause of action after admitting

that she knew that something was wrong on March 11, 1993. See Velsicol Chemical Corp.

v. Winograd, 956 S.W.29 529, 531 (Tex. 1997). Even if the cause was fraudulently

concealed, limitations would no longer be tolled after the date that Borth knew a cause of

action existed, i.e. March 11, 1993. Id. Therefore, the statute of limitations ran, at the

latest, March 11, 1995.

Moreover, the plaintiff must show the healthcare provider (1) actually knew a wrong

occurred, (2) had a fixed purpose to conceal the wrong, and (3) did conceal the wrong from

the patient. Earle v. Ratliff, 998 S.W.2d 882, 888 (Tex. 1999). In order to defeat a statute

of limitations defense with fraudulent concealment, a plaintiff must raise a fact issue by

summary judgment evidence. Id. Borth presented no summary judgment evidence raising

a fact issue, and therefore the limitations period was not tolled and bars her claim. See id.

at 889.2 Borth’s first two issues are therefore overruled.

By her third issue, Borth contends that Kelleher’s reply to her response to the motion

for summary judgment was untimely. We disagree. Issues not expressly presented to the

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This proposition has been recently stated in Shah v. Moss, 45 Tex. S. Ct. J. 247,
252-253, 2001 Tex. LEXIS 131 (December 20, 2001).

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trial court in writing shall not be considered on appeal as grounds for reversal. Tex. R. Civ.

P. 166a(c); Clear Creek Basin Authority, 589 S.W.2d at 677. Borth did not bring her

objection to the attention of the trial court and thus preserved nothing for review. See Tex.

R. App. P. 33.1; Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999).

Issue three is overruled.

By her fourth issue, Borth contends that her deposition transcript was not competent

summary judgment evidence. Prior to the summary judgment hearing, Borth filed a motion

to suppress her oral deposition. However, it is not apparent from the record if she

presented this motion to the trial court or obtained a ruling. Therefore, Borth failed to

preserve the error and the issue presents nothing for review. Tex. R. App. P. 33.1; Wal-

Mart Stores, Inc., 997 S.W.2d at 280. Borth’s fourth issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis
Justice

Do not publish.

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