concurring and dissenting.
I concur with the affirmance of the summary judgment granted to Genaro Vasquez, M.D. for the reasons stated in the majority opinion. However, I must respectfully dissent from that portion of the majority opinion which reverses the summary judgment which had been granted to the NME Hospitals, Inc. on statute of limitations grounds and remands the cause of action Raymond Casarez has alleged against the hospital for further proceedings.
The majority has arrived at its conclusion that the statute of limitations discovery rule should be applied to all cases involving claims of negligent infliction of the HIV virus, reasoning that persons infected with the virus may test negative for over a year after exposure and may remain asymptomatic of the disease for months or years. I have no quarrel with the application of the discovery rule in the typical AIDS/HIV case where the exposure to the disease is unsuspected as in the blood transfusion cases. But all AIDS/ HIV cases are not created equal and this case proves the point, that each case should be considered on its own fact situation and merits rather than have the discovery rule applied willy-nilly to all such 'cases.
Without unnecessarily repeating the facts so ably set forth in the majority opinion, it is well to emphasize that Casarez, the plaintiff, is a male nursing assistant, very familiar both by profession and by life-style with the dangers of AIDS transmission from patient to care-giver and with the proper isolation procedures to prevent such transmissions, including the wearing of mask and gloves. Casarez was employed through his employment agency, Medical Personnel Pool, by the patient’s family to provide additional care and knew that his patient was dying from the effects of the AIDS virus. He was initially instructed by Carmen Sanchez of his agency that the only protective clothing he was to wear were gloves so that some members of the patient’s family ignorant of his diagnosis would not know he was dying of AIDS. He was experienced in earing for terminally ill AIDS patients. Obviously he was aware of the possible dangers of contracting AIDS when on April 11, 1989 his patient spewed blood and mucous onto his face, mouth, and arm. Casarez was well-aware prior to the injury of what he has alleged to be the negligent acts and omissions of the hospital.1 He was concerned enough about the danger of contracting the virus that he went in for testing less than thirty days later (May 8). He learned that the test results showed him to be HIV positive on June 19, 1989. Thus, he had in almost twenty-two months in which to file suit before the standard two-year statute of limitations would have run.
Because Casarez himself was not a patient, this is an ordinary negligence cause of action *368for personal injuries, not a medical malpractice case subject to the provisions of the Medical Liability and Insurance Improvement Act, Tex.Rev.Civ.StatAnn. art. 4590i (Vernon Pamphlet 1994). An action for personal injuries must be brought not later than two years after the cause of action accrues. Tex.Civ.PRAC. & Rem.Code Ann. § 16.003(a) (Vernon 1986). Generally, a cause of action accrues when facts come into existence which authorize a claimant to file suit, that is when a wrongful act effects an injury, regardless of when the claimant learned of the injury. Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex.1977); J.K. and Susie L. Wadley Research Institute and Blood Bank v. Beeson, 835 S.W.2d 689, 693 (Tex.App.—Dallas 1992, writ denied). In order to avoid the unjust result where limitations would run before a patient was aware that a negligent act or omission had caused an injury, the Supreme Court created the “discovery rule” as an exception to the general rule to be applied in medical malpractice, and a limited number of other, situations. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990). Under the discovery rule, a cause of action does not accrue until a patient discovers, or through the exercise of reasonable care and diligence should discover, the nature of his injuries. Moreno, 787 S.W.2d at 351; Riojas v. Phillips Properties, Inc., 828 S.W.2d 18, 21 (Tex.App.—Corpus Christi 1991, writ denied). It is only to those causes of action that can be characterized as inherently undiscoverable that the discovery rule applies. American Centennial Ins., Co. v. Canal Ins., Co., 810 S.W.2d 246, 255 (Tex.App.—Houston [1st Dist.] 1991), aff'd in part, rev’d in part on other grounds, 843 S.W.2d 480 (Tex.1992). Although AIDS has been termed “an inherently undiscoverable disease because of its long latency period.” Beeson, 835 S.W.2d at 694. Casarez found out that he was infected with the HIV virus in little more than two months from the date of the injury.
Unlike the blood transfusion cases, such as Beeson and the others cited in the majority opinion, where the plaintiff did not know, and in the exercise of ordinary care and diligence, could not have known of the negligent act or omission until the HIV symptoms had developed, Casarez was very aware of the dangers of not wearing protective equipment and knew as well, at the time, of the occurrence of the hospital’s alleged negligent acts and omissions as he did after he got the results of the test. Although he may not have chosen to file suit over the mere traumatic event of having been spewed upon with the blood and bodily fluids of an AIDS patient, Casarez knew very well of the dangers that such an event posed and of the likelihood, more than a remote possibility, that he could be infected with the HIV virus.
Just because the HIV virus is involved (keeping in mind that this is not a medical malpractice case), Casarez should not be put in a better position than would any ordinary accident-victim who did not discover, and could not have discovered in the exercise of ordinary care, an injury until after the two-year statute had run.
I would affirm the summary judgment granted in favor of the hospital as well as the summary judgment granted in favor of the doctor under the facts of this case.
. In his first amended petition, Casarez alleged that his damages were proximately caused by the hospital's following acts and omissions:
(1) In failing to provide the Plaintiff and other co-workers with protective gowning and a proper place to dispose of said gowning;
(2) In failing to provide the Plaintiff and coworkers of the Plaintiff with goggles and other protective eyewear and facewear while caring for an AIDS patient;
(3) In failing to warn the Plaintiff and others of the dangerous condition of the AIDS patient and the dangers of working with an AIDS patient when not properly protected;
(4) In failing to comply with OSHA and other governmental regulations relating to the care of AIDS patients;
(5) In not following universal precautions in the care and treatment of the AIDS patient; and
(6) In not providing Plaintiff a safe workplace.