Affirmed and Memorandum Opinion filed January 22, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00001-CV
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MIRNA ACOSTA, INDIVIDUALLY AND AS NEXT FRIEND, NATURAL PARENT, AND LEGAL GUARDIAN OF DENIS ACOSTA, Appellant
V.
MEMORIAL HERMANN HOSPITAL SYSTEM, MEMORIAL HERMANN HOSPITAL SYSTEM D/B/A MEMORIAL HERMANN SOUTHWEST HOSPITAL AND GREATER HOUSTON ANESTHESIOLOGY, P.A., Appellees
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Cause No. 2003-29841A
M E M O R A N D U M O P I N I O N
Appellant, Mirna Acosta, Individually and as Next Friend, Natural Parent, and Legal Guardian of Denis Acosta, filed suit against appellees, Memorial Hermann Hospital System, Memorial Hermann Hospital System D/B/A Memorial Hermann Southwest Hospital (collectively AMemorial Southwest@), and Greater Houston Anestheiology, P.A. (AGHA@) asserting various health care liability claims. Arguing all of appellant=s individual claims were barred by limitations, appellees separately filed motions for summary judgment, which the trial court granted. We affirm.
Factual and Procedural Background
On February 13, 1996 appellant arrived at Memorial Southwest already in active labor. At the time appellant was admitted to the hospital, she was eight centimeters dilated. Soon thereafter, appellant=s attending physician ordered that appellant receive epidural anesthesia. A short time later, a Memorial Southwest nurse deleted the attending physician=s order for epidural anesthesia from the computer. Appellant was then prepped for and ultimately completed her labor and delivery without epidural anesthesia.
Appellant=s labor and delivery were difficult. Appellant experienced a great deal of pain making her uncooperative and unable to participate in the efforts to vaginally deliver the baby. During the efforts to vaginally deliver appellant=s baby, he experienced a drop in his heart rate. Following four unsuccessful efforts to deliver the baby by vacuum extraction, the physicians proceeded with a cesarian section. Nine months after his birth, appellant=s son was diagnosed with cerebral palsy.
On May 29, 2003, appellant filed a health care liability claim on behalf of her son against Memorial Southwest and her treating physicians to recover for the neurological injuries he allegedly sustained at birth. At the time the suit was originally filed, appellant made no claims in her individual capacity. During discovery, a labor and delivery nurse at Memorial Southwest testified during her deposition that appellant was likely denied epidural anesthesia based on her economic status. In response to that testimony, in May 2005, appellant amended her pleadings to add individual health care liability claims and claims for patient=s rights violations under section 321.003 of the Texas Health and Safety Code against Memorial Southwest. In June 2005 appellant filed a separate lawsuit against GHA, which was eventually consolidated with her original lawsuit. Appellees moved for summary judgment on appellant=s individual claims, arguing, among other things, that appellant=s claims were barred by limitations. The trial court granted appellees= motions. The trial court then severed appellant=s individual causes of action making the summary judgments final and appealable. This appeal followed.
Discussion
Appellant raises nine issues on appeal challenging the trial court=s granting of appellees= motions for summary judgment. However, as we determine the limitations issue is dispositive, we need not address appellant=s remaining issues challenging the other grounds for summary judgment raised by Memorial Southwest.
A. The Standard of Review
The movant for summary judgment has the burden to show there is no genuine issue of material fact and is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant moving for summary judgment on a statute of limitations affirmative defense must prove conclusively that defense=s elements. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). If the movant establishes that the statute of limitations bars the action, the nonmovant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. Diversicare General Partners, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). In determining whether there is a genuine fact issue precluding summary judgment, evidence favorable to the non-movant is taken as true and the reviewing court makes all reasonable inferences and resolves all doubts in the non-movant=s favor. Nixon, 690 S.W.2d at 548B549. If there is no genuine issue of material fact, summary judgment should issue as a matter of law. Hasse v. Glazner, 62 S.W.3d 795, 797 (Tex. 2001). We review a trial court=s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
B. Which Law Governs Appellant=s Individual Health Care Liability Claims?
In her fourth issue on appeal, appellant contends her individual claims are governed by the now repealed Article 4590i rather than Chapter 74 of the Civil Practice and Remedies Code as urged by appellees. We agree with appellant.
In 2003, the Texas Legislature amended and re-codified the statutory provisions contained in Article 4590i into Chapter 74 of the Civil Practice and Remedies Code. As part of this process, the Texas Legislature specifically addressed the issue of when Chapter 74 would take effect:
Except as otherwise provided in this section or by a specific provision in an article, this Act applies only to an action filed on or after [September 1, 2003,] the effective date of this Act. An action filed before the effective date of this Act, including an action filed before that date in which a party is joined or designated after that date, is governed by the law in effect for that purpose.
Act of September 1, 2003, 78th Leg., ch. 204, 2003 Tex. Sess. Law Serv., ' 23.02(d) (Vernon) (codified in Tex. Civ. Prac. & Rem. Code Ann. ' 74.001 (Vernon 2005)).
In this case, appellant originally filed suit against Memorial Southwest and other defendants on May 29, 2003, well before the effective date of Chapter 74. She amended her petition to add her individual claims on March 8, 2005. On June 19, 2005, appellant filed a separate lawsuit against GHA. GHA moved to consolidate the two cases and the 2005 lawsuit was consolidated into appellant=s original lawsuit. Based on the plain language of the enabling provision of Chapter 74, former Article 4590i, not Chapter 74, controls this case, including the case against GHA.[1]
C. Does the Article 4590i Statute of Limitations Violate the Open Courts Provision of the Texas Constitution?
In her first issue, appellant contends her individual claims are not barred by the two-year statute of limitations contained in section 10.01 of Article 4590i because that provision violates the open courts provision in the Texas Constitution. Act of May 30, 1977, 65th Leg., R.S., ch. 817, ' 1, sec. 10.01, 1977 Tex. Gen. Laws 2039, 2052, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 884. We disagree.
To avoid limitations under section 10.01 of Article 4590i, an injured party must file a medical malpractice claim within two years from one of the following events: (1) the date the breach or tort occurred; (2) the date the treatment that is the subject of the claim is completed; or (3) the date the hospitalization for which the claim is made is completed. West v. Moore, 116 S.W.3d 101, 105B06 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (citing former Tex. Rev. Civ. Stat. Ann. Art. 4590i, ' 10.01 (Vernon Supp. 2003)). A plaintiff may not choose among alternative limitation periods in bringing her claim. Id. at 106. When the date of the alleged tort or breach is ascertainable, limitations begin to run from that date. Shah, 67 S.W.3d at 843.
The Texas Constitution guarantees that persons bringing common-law claims will not unreasonably or arbitrarily be denied access to the courts. Id. at 841 (citing Tex. Const. art. 1, ' 13). A statute that unreasonably or arbitrarily abridges a person=s right to obtain redress for injuries another person=s harmful act causes is an unconstitutional due course of law violation. Id. at 842. Consequently, the Texas Constitution=s open courts provision protects a person from legislative acts that cut off a person=s right to sue before there is a reasonable opportunity to discover the wrong and bring suit. Id. The legislature cannot abrogate the right to bring a well-established common-law claim without showing that the statute=s objectives and purposes outweigh denying the constitutionally guaranteed right of redress. Id. The open courts doctrine is premised on the rationale that the legislature has no power to make a remedy by due course of law contingent upon an impossible condition. Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex. 1997).
To establish an open courts violation in an Article 4590i case, a litigant must first show a cognizable, common-law claim that Article 4590i=s limitations provision restricts. Shah, 67 S.W.3d at 842. Then the litigant must show the restriction is unreasonable or arbitrary when balanced against the statute=s purpose and basis. Id. The limitations provision in Article 4590i, section 10.01, does not violate the open courts guarantee if the plaintiff had a reasonable opportunity to discover the alleged wrong and bring suit within the limitations period. Id. The open courts doctrine has no effect on the limitations period when the plaintiff discovers his injury while there is still a reasonable time to sue. Hogan v. Hallman, 889 S.W.2d 332, 337 (Tex. App.CHouston [14th Dist.] 1994, writ denied). Under the open courts doctrine, courts must determine what constitutes a reasonable time for a claimant to discover her injuries and file suit. Yancy v. United Surgical Partners Int=l, Inc., 236 S.W.3d 778, 784 (Tex. 2007).
Here, appellant contends the wrong she experienced and for which she brought suit, was the discriminatory denial of epidural anesthesia on February 13, 1996. Because there is no doubt as to when the alleged tort occurred, limitations are measured from that date. Id. at 843. Because the alleged tort date is ascertainable, and because appellant did not file suit within two years of that date, to avoid summary judgment on limitations, appellant had the burden to produce summary judgment evidence sufficient to raise a fact issue concerning the applicability of the open courts doctrine. Earle v. Ratliff, 998 S.W.2d 882, 889 (Tex. 1999). Appellant argues her summary judgment evidence establishes that she did not have a reasonable opportunity to discover the allegedly discriminatory motive behind her failure to receive epidural anesthesia on February 13, 1996 thus invoking the open courts doctrine. We disagree that appellant had to discover the allegedly discriminatory motive behind her failure to receive epidural anesthesia for the limitations period to begin running on her claims. Cases adjudicating Title VII discrimination claims are instructive. Under Title VII, the claimant=s knowledge of a discriminatory act, not the claimant=s knowledge that the act had a discriminatory motive, triggers limitations. See, e.g., Pacheco v. Rice, 966 F.2d 904, 906 (5th Cir. 1992) (holding that Title VII requires notice of a claim be filed within thirty days of a discriminatory event or action, not when a claimant apprehends that the event was motivated by a discriminatory purpose); Merrill v. Southern Methodist University, 806 F.2d 600, 605 (5th Cir. 1986) (holding that the focus of when a Title VII claim accrues is not on the date the victim first perceives a discriminatory motive caused an act, but the date of the act itself). In this case, the evidence is undisputed that appellant experienced such a painful labor and delivery that she was uncooperative and unable to meaningfully participate in the effort to vaginally deliver her son. It is also undisputed that while appellant was unaware of the existence of epidural anesthesia at the time of her delivery of her son, she learned about epidural anesthesia and its use to reduce the pain of childbirth within six months of her son=s birth. Finally, it was undisputed that appellant=s son was diagnosed with cerebral palsy, allegedly a result of his difficult birth, within nine months of his birth. Because the focus is on the allegedly wrongful act and not the discriminatory motive, this undisputed summary judgment evidence establishes that appellant had sufficient information within nine months of her son=s birth to investigate and discover the allegedly wrongful denial of epidural anesthesia and bring suit within the limitations period. This constitutes a reasonable time as a matter of law and the open courts doctrine does not apply. Accordingly, the trial court did not err when it granted appellees= motions for summary judgment on appellant=s Article 4590i causes of action. Hogan, 889 S.W.2d at 337. We overrule appellant=s first issue.
D. Does the Doctrine of Fraudulent Concealment Toll the Article 4590i Statute of Limitations?
In her second issue on appeal, appellant asserts that her individual article 4590i claims are not time barred because the doctrine of fraudulent concealment tolled the running of the statute of limitations until she discovered the fraud or could have discovered the fraud by the exercise of reasonable diligence. Once again, we disagree.
Fraudulent concealment is based upon the doctrine of equitable estoppel. Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983). Where a defendant is under a duty to make disclosure but fraudulently conceals the existence of a cause of action from the party to whom it belongs, the defendant is estopped from relying on the defense of limitations until the party learns of the right of action or should have learned thereof through the exercise of reasonable diligence. Id. The estoppel effect of fraudulent concealment ends when a party learns of facts, conditions, or circumstances which would cause a reasonably prudent person to make inquiry, which, if pursued, would lead to discovery of the concealed cause of action. Id. at 909. Knowledge of such facts is in law, the equivalent to knowledge of the cause of action. Id.
Assuming without deciding that appellees had a duty of disclosure to appellant, the fraudulent concealment doctrine does not save appellant=s individual article 4590i causes of action. As discussed above, the evidence is undisputed that (1) appellant experienced such a painful labor and delivery that she was uncooperative and unable to meaningfully participate in the effort to vaginally deliver her son; (2) appellant learned of the existence of epidural anesthesia within six months of her son=s birth; and (3) appellant=s son was diagnosed with cerebral palsy within nine months of his birth. Knowledge of these facts would cause a reasonable person to inquire and discover any potential causes of action against appellees even if the claim were somehow concealed. Because appellant waited nine years after she learned of the above facts before filing suit against appellees, her fraudulent concealment defense fails as a matter of law and her individual article 4590i claims are barred by limitations. We overrule appellant=s second issue on appeal.
E. Does Limitations Bar Appellant=s Individual Patient=s Bill of Rights Claim?
In her third issue, appellant contends the discovery rule provision found in section 321.003 of the Health and Safety Code tolled the running of limitations until she discovered the discriminatory motive behind the fact she did not receive epidural anesthesia on February 13, 1996. Once again, we disagree.
Assuming without deciding that Health and Safety Code section 321.003 creates a cause of action for a non-mental health patient at a hospital such as Memorial Southwest and that said cause of action is governed by a statute of limitations separate and distinct from appellant=s article 4590i health care liability claims, limitations still bars appellant=s claim. Section 321.003(f) requires that a plaintiff file suit not later than the second anniversary of the date on which the person=s injury is discovered. Tex. Health & Safety Code Ann. ' 321.003(f) (Vernon 2001). The discovery rule suspends the accrual of a cause of action, and thus the running of limitations, only until a plaintiff knew or in the exercise of reasonable diligence should have known of the wrongful act and resulting injury. Diaz, 941 S.W.2d at 99.
As pointed out above, the evidence is undisputed that (1) on February 13, 1996, appellant experienced such a painful labor and delivery that she was uncooperative and unable to meaningfully participate in the effort to vaginally deliver her son; (2) appellant learned of the existence of epidural anesthesia within six months of her son=s birth; and (3) appellant=s son was diagnosed with cerebral palsy within nine months of his birth. Knowledge of these facts would cause a reasonable person to inquire and discover any potential causes of action against appellees thus triggering the running of the statute of limitations. Regardless of whether appellant=s individual causes of action accrued on February 13, 1996, August 13, 1996, or November 13, 1996, because appellant waited nine years after the birth of her son to file her lawsuit asserting her individual claims suit against appellees, those claims are barred by limitations.
As we have overruled appellant=s issues challenging the trial court=s summary judgment based on limitations, we need not address appellant=s remaining issues challenging the other grounds for summary judgment asserted by Memorial Southwest. Tex. R. App. P. 47.1.
Conclusion
Having overruled all of appellant=s issues on appeal necessary for a final disposition of the appeal, we affirm the trial court=s summary judgments.
/s/ John S. Anderson
Justice
Judgment rendered and Memorandum Opinion filed January 22, 2008.
Panel consists of Chief Justice Hedges and Justices Anderson and Guzman.
[1] Ultimately, the decision as to which law governs is a distinction without a difference as both the old and the new statutes impose an absolute two-year statute of limitations. Compare Tex. Civ. Prac. & Rem. Code Ann. ' 74.251(a) (Vernon 2005) (ANotwithstanding 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 . . . .@) with Act of May 30, 1977, 65th Leg., R.S., ch. 817, ' 1, sec. 10.01, 1977 Tex. Gen. Laws 2039, 2052, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 884 (ANotwithstanding 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 . . . .@).