Estate of Magness ex rel. Magness v. Hauser

OPINION

MIRABAL, Justice.

The trial court granted summary judgment, based on a statute of limitations bar, against the plaintiffs in a medical-malpractice, wrongful-death, and survival lawsuit. We affirm.

In their first point of error, plaintiffs assert the trial court erred in granting summary judgment because plaintiffs’ causes of action were timely filed in compliance with Tex.Civ.Prac. & Rem.Code Ann. § 4590i (Vernon Pamph.1995).

Plaintiffs are the Estate of Virginia Du-bose Magness, deceased, and her husband and children. It is uncontested that Virginia Dubose Magness attempted suicide by hanging on July 28, 1989, she lapsed into a coma as a result, and died two days later. Defendant Dr. Harris Hauser, a psychiatrist associated with defendant Memorial Neurological Association, had treated Magness over a period of years for long-standing psychological problems and recurring bouts with depression. The chronology of events immediately preceding Magness’s death are undisputed:

July 13, 1989: last office visit with Dr. Hauser
July 15, 1989: last prescription written by Dr. Hauser for Magness
July 24, 1989: last prescription filled by Magness
July 28, 1989: Magness attempted suicide and lapsed into a coma
July 30, 1989: Magness died, never having come out of the coma.

On June 25, 1991, plaintiffs served notice of claim letters pursuant to art. 4590i, § 4.01 (Vernon Pamph.1995). On October 14, 1991, suit was filed.1 The issue presented is whether suit was timely filed against Dr. Hauser and Memorial Neurological Association.

To be entitled to summary judgment under Tex.R.Civ.P. 166a(c), the movant must establish there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548 (Tex.1985); Enchanted Estates v. Timberlake Improvement Dist., 832 S.W.2d 800, 801 (Tex.App.—Houston [1st Dist.] 1992, no writ). When a defendant moves for summary judgment on the basis of the affirma*7tive defense of limitations, it assumes the burden of proving as a matter of law that the suit was barred by limitations. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983). In reviewing the granting of summary judgment, this Court takes as true all evidence favorable to the nonmovant. Nixon, 690 S.W.2d at 549. Every reasonable inference must be indulged in favor of the nonmoving party, and any doubts are to be resolved in its favor. Id. at 549.

Because plaintiffs’ wrongful death and survival actions are health care liability claims, they are governed by the Medical Liability and Insurance Improvement Act, Tex.Rev.Civ.Stat.Ann. art. 4590i. Bangert v. Baylor College of Medicine, 881 S.W.2d 564, 566 (Tex.App.—Houston [1st Dist.] 1994, writ denied). Subject to certain tolling provisions, section 10.01 of the Act provides that a suit must be brought within two years of one of three dates: (1) the occurrence of the breach or tort; (2) the date the health care treatment that is the subject of the claim is completed; or (3) the date the hospitalization for which the claim is made is completed. Rowntree v. Hunsucker, 833 S.W.2d 103, 104 (Tex.1992); Tex.Rev.Civ.StatAnn. art. 4590i, § 10.01 (Vernon Pamph.1995). All parties agree that under section 10.01 as applied to this case, the controlling date is “(2) the date the health care treatment that is the subject of the claim (was) completed.”

The applicable tolling provision is found in section 4.01(c) of the Act, which states “[n]o-tice given as provided in this Act shall toll the applicable statute of limitations to and including a period of 75 days following the giving of the notice_” Tex.Rev.Civ.Stat. Ann. art. 4590i, § 4.01(e) (Vernon Pamph. 1995). Defendants agree that plaintiffs complied with the statutory notice provision, and admit the 4590i two-year limitations period was tolled for 75 days.

The issue in this case is: When did the statute of limitations begin to run, i.e., on what date was defendants’ health care treatment of Magness completed?

Plaintiffs argue that suit could be timely filed two years and 75 days from July 30, 1989, the date of Magness’ death, and therefore the October 14, 1991 filing of suit was timely. Defendants offer alternative dates from which to begin counting. In their original motion for summary judgment, defendants argued “treatment ended” on the date of Magness’ last office visit, July 13, 1989. Although not abandoning this argument, defendants contended in their supplemental motion for summary judgment that, at the latest, limitations began running on July 28, 1989, the date Magness attempted suicide and lapsed into a coma from which she never emerged. Defendants reason that because Magness was immediately rendered brain-dead from the suicide attempt, her psychiatric treatment necessarily ceased at that time. Under this theory, the last date plaintiffs could have timely filed suit was Friday, October 11, 1991, three days before the date plaintiffs actually filed suit, meaning the Monday, October 14,1991 filing was too late.

The provision in section 10.01 that permits the limitations period to run “from the date the medical or health care treatment is completed” contemplates a situation where the plaintiffs injury occurs during a course of treatment for a particular condition, and the only readily ascertainable date is the last day of treatment. Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987). Determining when treatment has concluded for purposes of section 10.01 simply amounts to deciding when a plaintiffs cause of action accrues, and the question of when a claim accrues is one of law and not fact. Chambers v. Conaway, 883 S.W.2d 156, 159 (Tex.1993).

The date of a doctor’s last examination of a patient is not necessarily the triggering event for the statute of limitations in a medical malpractice suit. Rowntree, 833 S.W.2d at 105. There are some situations in which the statute would run from the date of the last drug treatment, if the course of that treatment is the direct cause of the injury. Id.

In the present case, plaintiffs alleged that as a direct result of defendants’ negligent course of treatment of Magness’ depres*8sion, including the prescribing of the wrong medicine and the failure to heed Magness’ pleas for a medication change, Magness committed suicide by hanging herself. The summary judgment evidence showed that Magness was under the psychiatric care of Dr. Hauser from May 1986 through July 1989. Dr. Hauser diagnosed Magness as suffering from “affective disorder, severe retarded depression.” During Magness’s last visit with Hauser on July 18, 1989, Hauser instructed Magness to return to his office in a few weeks. Throughout the course of his treatment of Magness, Dr. Hauser prescribed medicine for her to take. He last prescribed medication on July 15, 1989, and the prescription was filled by Magness on July 24, 1989.

We conclude the evidence established that Dr. Hauser’s course of treatment of Magness was continuing until the date she hung herself, July 28, 1989. As a result of the hanging, Magness was brain-dead and comatose, and therefore not treatable by Dr. Hauser; Magness remained in that comatose state until her death two days later, on July 30, 1989.

We hold, as a matter of law, that plaintiffs’ cause of action against Dr. Hauser and Memorial Neurological Association accrued on July 28, 1989, the date of the hanging. Accordingly, the time for filing suit against defendants expired Friday, October 11,1991, three days before the original petition was filed in this case. Therefore, the trial court properly granted summary judgment in favor of defendants.

We overrule plaintiffs’ point of error one.

Because our ruling on point of error one is dispositive of the case, we do not need to address the merits of points of error two and three, and we decline to do so.

We affirm the judgment.

. The trial court previously granted summary judgments in favor of defendants Herbert P. Edmondson, Jr., M.D., William H. Fleming, M.D., and Nelson A. Berrios, M.D. Plaintiffs voluntarily nonsuited defendant Memorial Southwest Hospital. Harris M. Hauser, M.D. and Memorial Neurological Association are the only remaining defendants.