Chambers v. Conaway

ENOCH, Justice,

dissenting.

I respectfully dissent. As a matter of law, Dr. Spoil’s controverting affidavit is insufficient to establish a duty that Dr. Chambers breached within two years prior to the filing *164of this lawsuit. Accordingly, I would reverse the court of appeals and affirm the trial court’s summary judgment for Dr. Chambers.

I agree with Justice Gonzalez’s concurrence in recognizing that 1) if a condition is one for which the medical community has established procedures for follow-up medical care, 2) the physician is one to whom the patient looks for general, primary medical care, and 3) the physician has actual notice of the existence of that condition in the patient, then a duty may arise for the physician to continue to inquire about that condition on subsequent checkups, even when the purpose of the checkup is for unrelated care. 883 S.W.2d 156, 159, n. 1 (Gonzalez, J., concurring). However, Dr. Spoil’s affidavit does not demonstrate that the medical community has established procedures requiring followup medical care under circumstances such as in this case. See White v. Wah, 789 S.W.2d 312, 316 (Tex.App.—Houston [1st Dist] 1990, no writ) (affidavit must state the standard of care that would be used by a reasonably prudent physician under the same or similar circumstances); see also McCord v. Avery, 708 S.W.2d 954, 956 (Tex.App. —Fort Worth 1986, no writ); Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 217 (Tex.App.—Houston [1st Dist.] 1986, no writ).

Because failure to establish a course of treatment is not a course of treatment in and of itself, the limitations period would begin on June 16, 1986, when Dr. Chambers examined the lump in Mrs. Conaway’s breast and allegedly negligently failed to diagnose the breast cancer, not January 19, 1988, the date of the last appointment between them. See Rowntree v. Hunsucker, 833 S.W.2d 103, 105-06 (Tex.1992); Nykorchuck v. Henriques, 78 N.Y.2d 255, 573 N.Y.S.2d 434, 577 N.E.2d 1026, 1029 (N.Y.1991). I therefore dissent.1

. Because I would hold that Dr. Spoil's affidavit does not establish a duty for follow-up care on the part of Dr. Chambers, it would be neither necessary to reach the vexing question of when the statute of limitations for breach of such a duty would accrue against Dr. Chambers, nor necessary to reconcile this case with Rowntree v. Hunsucker. See 883 S.W.2d 159 (Hecht, J., dissenting); Rowntree v. Hunsucker, at 105-06; Nykorchuck v. Henriques, at 1029.

In response to my dissent, the Court cites Hudnall v. Tyler Bank & Trust Co., 458 S.W.2d 183, 185 (Tex.1970) asserting that I err in construing Dr. Spoil’s affidavit strictly against Conaway. 883 S.W.2d at 158-159. Dr. Spoil’s affidavit is silent on any recognized duty of care within the medical community. Consequently, there is nothing to be construed either strictly or broadly.