dissenting.
Because I believe the majority opinion incorrectly concludes that Chilkewitz’s malpractice claim is barred by limitations and, in doing so, makes a significant change in established precedent, I respectfully dissent.
This is a health care liability claim. Chil-kewitz originally brought suit against Morton I. Hyson, M.D. (“Hyson M.D.”), another doctor, and a hospital. In his first amended petition, Chilkewitz did not again name Hy-son M.D. but instead named Morton I. Hy-son, M.D., P.A. (“Hyson P.A.”) as defendant. The original petition was filed within the two-year limitations period provided by the Medical Liability and Insurance Improvement Act. See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 10.01 (Vernon Supp.1998). However, the first amended petition naming Hyson P.A. was not filed within two years of the accrual of Chilkewitz’s cause of action. Accordingly, *575the majority concludes that Chilkewitz’s claim against Hyson P.A. is barred by limitations. I respectfully disagree.
Chilkewitz contended in the trial court and contends here that Hyson P.A. was misnamed in plaintiffs original petition but was correctly served. Additionally or alternatively, Chilkewitz contends that Hyson P.A. was properly made a party in the original petition when it was sued under its assumed or common name of Hyson M.D. as allowed by rule 28 of the Texas Rules of Civil Procedure.
Rule 28 authorizes suit against a business entity in its common or assumed name.1 The rule provides:
Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right, but on motion by any party or on the court’s own motion the true name may be substituted.
Tex.R. Civ. P. 28. Chilkewitz presented evidence that Hyson M.D. was the assumed or common name of Hyson P.A. The factual sufficiency of that evidence is not challenged. Instead, Hyson P.A. asserts (and the majority accepts) the legal argument that rule 28 has no application to a plea of limitations in a medical malpractice case because the rule falls within the grasp of the phrase, “[n]ot-withstanding any other law,” in section 10.01. See Tex.Rev.Civ. Stat. ANN. art. 4590i, § 10.01 (Vernon Supp.1998). Therefore, for purposes of this opinion, we take as true the factual allegation that Hyson M.D. is a common or assumed name for Hyson P.A.2
Under rule 28, a subsequent amendment alleging the true name of a defendant relates back to the date of the filing of the original petition if the original petition named that defendant in its assumed or common name. Rule 28 is not a tolling provision for purposes of section 10.01 of article 4590i. Rather, it is a procedural rule promulgated by the supreme court governing pleadings and practice. See Bailey v. Vanscot Concrete Co., 894 S.W.2d 757, 759 (Tex.1995). Rule 28 simply prescribes the terms and conditions for proper pleading of parties, the concomitant result of which is that the statute of limitations ceases to run as to the defendant named and served in accordance with the rule.
In light of the specific language of rule 28, I conclude that when the original petition naming Hyson M.D, the assumed or common name of Hyson P.A., was served upon Morton I. Hyson M.D., Hyson P.A.’s chief executive officer, jurisdiction was perfected over Hyson P.A. Because the suit against Hyson P.A. was timely under section 10.01 of article 4590i, appellee’s claims were not time barred.
The majority concludes otherwise. Germane to the majority’s holding is the text of section 10.01, which provides in relevant part:
Notwithstanding 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.... Except as herein provided, this subchapter applies to all persons regardless of minority or other disability.
Tex.Rev.Civ. Stat. Ann. art. 4590i, § 10.01 (Vernon Supp.1998) (emphasis added). The majority concludes that in cases other than medical malpractice suits, rule 28 serves to toll the applicable limitations provision. Therefore, the majority reasons that rule 28 is included in the phrase, “any other law.” *576Accordingly, the majority holds that the provisions of rule 28 are inapplicable to calculations of the limitations period in a medical malpractice case because section 10.01 mandates that suit must be filed within two years “notwithstanding any other law.”
I agree that statutory tolling provisions not specifically enumerated in section 10.01 cannot serve to lengthen the limitations period in a medical malpractice case. However, for reasons earlier stated, rule 28 does not fall within the phrase “notwithstanding any other law.” Moreover, the “notwithstanding any other law” provision was not invoked because the “action” was filed within two years.
The cases cited by the majority holding that tolling provisions are inapplicable to medical malpractice cases all concern tolling provisions statutorily mandated in the Texas Civil Practice and Remedies Code. For example, the absence from the state of a person against whom a cause of action may be maintained ordinarily tolls the running of the applicable statute of limitations for the period of the person’s absence. See Tex. Crv. PraC. & Rem.Code Ann. § 16.063. In Hill v. Milani, 686 S.W.2d 610, 611 (Tex.1985), the supreme court held that provision is inapplicable in a medical malpractice case because of the restrictive language of section 10.01. See also, Rascoe v. Anabtawi, 730 S.W.2d 460, 461 (Tex.App. — Beaumont 1987, no writ) (statutory limitations provision for survival actions, which suspends the limitations period for twelve months after death, does not apply to extend the time for filing health care liability claims); Waters v. Del-Ky, 844 S.W.2d 250, 256 (Tex.App. — Dallas 1992, no writ) (unsound mind tolling provision inapplicable in health care liability claim).
A procedural rule, such as rule 28, is distinct from a statutory law such as those found in the civil practice and remedies code. Procedural rules are promulgated by the Texas Supreme Court and relate to the method of trial. Owens-Corning v. Martin, 942 S.W.2d 712, 721 (Tex.App. — Dallas 1997, no writ). Rule 28 identifies the parties against whom suit may be maintained. For example, in Cummings v. HCA Health Services, 799 S.W.2d 403 (Tex.App. — Houston [14th Dist.] 1990, no writ), plaintiff died of cardiac arrest while a patient at Tidelands General Hospital. His estate filed a medical malpractice action against Hospital Corporation of America (HCA) d/b/a Tidelands General Hospital. After limitations expired, plaintiff filed an amended petition naming HCA Health Services Inc. d/b/a Tidelands General Hospital as a defendant for the first time. The trial court granted summary judgment to HCA Health Services on the basis of limitations. Id. In its opinion reversing, the appellate court reasoned that Tidelands General Hospital was the assumed name of HCA Health Services. Pursuant to rule 28, so long as suit against the assumed name was timely, suit against the business entity itself was also timely. Id. at 405.
Here, Hyson M.D. filed a motion for summary judgment on the basis that he did not perform the surgery, own the equipment used in the surgery, or supervise any of the surgical personnel. In response, Chilkewitz amended his petition to reflect Hyson P.A. as the defendant. In response, the same attorneys who had represented Hyson M.D. moved for summary judgment on behalf of Hyson P.A. on the basis of limitations. This is the exact course of action that rule 28 was intended to prevent. In this case, rule 28 did not, in contravention of section 10.01, toll or extend the two-year limitations period. Chil-kewitz still had to, and did, commence his lawsuit within two years. Rule 28 only allows Chilkewitz to initially assert his cause of action against the assumed or common name of the business entity ultimately hable. See Bailey v. Vanscot Concrete Co., 894 S.W.2d at 759-60.
Here, it is undisputed Hyson P.A. was put on notice when Hyson M.D. was served and Hyson P.A. immediately commenced its defense of Chilkewitz’s claim. Thus, the purposes which statutes of limitations serve have been fully met here. See Palmer v. Enserch Corp., 728 S.W.2d 431, 433 (Tex.App. — Austin 1987, writ ref d n.r.e.).
A case directly on point is Dougherty v. Gifford, 826 S.W.2d 668 (Tex.App. — Texar-kana 1992, no writ). Gifford timely filed a medical malpractice suit naming the defendant as M.K. Dougherty d/b/a Marshall K. *577Dougherty M.D. & Associates. Later, outside the limitations period, Gifford named Marshall K. Dougherty & Associates, P.A. On appeal, Dougherty asserted that Gifford’s claims against the professional association were barred by limitations. The court of appeals disagreed. The court concluded that Gifford merely misnamed Dougherty in his original petition; therefore, limitations was tolled and Gifford’s subsequent amendment related back to the date of the original opinion. Id. at 676 (citing Enserch, 794 S.W.2d at 4r-5). The court noted that the primary purpose of limitations is to force the plaintiff to file suit within a reasonable period of time so that a defendant has a fair opportunity to gather competent and reliable information. Id. at 677. The statute should not apply in circumstances where no party is misled or disadvantaged by the error in the pleading. Id. Dougherty was not misled or prejudiced by the mere fact that his association was not sued as a professional corporation. Dough-erty was the sole owner, director and operator of the corporation. Service was effected upon him, and the same attorney represented him throughout the litigation. Id.3
The majority states “the question before us is whether, in the light of the restrictive language in section 10.01, either the doctrines of misnomer or assumed name can toll the limitations period contained in the Act.” In framing the issue, the majority incorrectly concludes rule 28 falls within the doctrine of misnomer. I disagree there exists a “doctrine” of assumed name subject to the annulment of section 10.01. Rather, suit against a defendant in its assumed or common name is a practice allowed by rule 28 to obtain jurisdiction over a defendant. The practice of suit and service upon a defendant in its assumed or common name is not a tolling provision per se although, as with any proper filing and service, limitations ceases to run on behalf of the defendant sued.
I agree we must examine the wording of section 10.01 with the presumption the legislature intended a just and reasonable result. However, none of the public policy considerations cited by the majority to support its strict application of limitations in medical malpractice eases is implicated in the practice allowed by rule 28. A defendant sued in its assumed or common name has actual notice of the alleged claims within the limitations period and presumably has the same opportunity to gather competent and reliable evidence before the claims become stale that it would have if sued in its legal name. On the contrary, rule 28 justly ends the practice of defendants filing a general denial and then waiting until the statute of limitations runs before disclaiming responsibility and pointing to the party actually responsible. See Bailey v. Vanscot Concrete Co., 894 S.W.2d at 760. I do not contend, as the majority asserts, Rule 28 takes precedence over section 10.01 in contravention of the Texas Constitution. What I conclude, quite simply, is Rule 28 is not “any other law.”
Hyson P.A.’s other points of error, if sustained, would result in either a new trial or reformation of judgment. I express no opinion on the merits of those points.
. The record reflects that Chilkewitz first referenced rule 28 in his second amended petition filed in November 1990. After the trial court denied Hyson P.A.'s motion for summary judgment on limitations grounds, Chilkewitz filed his third through sixth amended petitions that omitted references to rule 28. The reference to rule 28 reappears in his seventh amended petition filed at the close of trial.
. As noted by the majority, the parties agreed that any factual determinations relating to the issue of limitations would be determined by the judge rather than the jury. By denying Hyson P.A.’s motion for judgment notwithstanding the verdict, the trial court impliedly found that one of the matters in avoidance of limitations, either rule 28 or misnomer, applied to defeat the limitations bar.
. The majority declines to follow the holding in Dougherty and the holding in Cummings v. HCA Health Services (discussed supra op. at 572-573) because those courts did not expressly consider the legislative history of the Medical Liability and Insurance Improvement Act. Because there is no conflict between rule 28 and the medical liability act, it was unnecessary for either court to consider the act’s legislative history.