Roberts v. Southwest Texas Methodist Hospital

OPINION

PEEPLES, Justice.

Diane Roberts sued Southwest Texas Methodist Hospital and Dr. Peter Weston for negligence and battery. The hospital moved for summary judgment on the *143grounds that the claim was barred by limitations and that it had no duty to obtain Roberts’ informed consent. The trial court granted the motion and ordered a severance. Roberts argues that summary judgment was not authorized on the grounds urged in the motion. We reverse and remand.

Roberts was admitted to the hospital as an outpatient for a diagnostic laparoscopy and a dilation and curettage, to be performed by Dr. Weston. She consented to undergo a laparoscopy, laparotomy, dilation and curettage, and any other procedures which he, in his professional judgment, might deem necessary after the operation had begun. During surgery Dr. Weston determined that additional procedures were required. He instructed a hospital nurse to contact Roberts’ mother to obtain her consent, even though Roberts was an adult. Roberts’ mother gave permission and Dr. Weston removed Roberts’ ovaries, fallopian tubes, uterus, and appendix.

Roberts was discharged from the hospital on February 18, 1987. She gave notice of her health care liability claim to Dr. Weston on February 13, 1989, but gave no notice to the hospital. She filed suit against both the doctor and the hospital on April 27, 1989. She alleged that Dr. Weston had performed procedures on her without her consent and that he was negligent in several ways, and that the hospital’s nurses had aided and encouraged Weston in doing the unauthorized surgery.

The hospital’s motion for summary judgment asserted two separate grounds: (1) that Roberts’ claim against it was barred by limitations, and (2) that it had no duty to obtain Roberts’ informed consent. Because the judgment does not specify the ground on which it was based, to obtain reversal Roberts must show that each ground alleged was insufficient to support it. See Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 79 (Tex.1989). There is no suggestion in this appeal that Dr. Weston faced an emergency and could not obtain consent and remove the organs later.

I.

The limitations issue requires interpretation of two parts of the Medical Liability and Insurance Improvement Act. TEX. REV.CIV.STAT. ANN. art. 4590i (Vernon Supp.1991). Section 4.01 of the act states:

(a) Any person or his authorized agent asserting a health care liability claim shall give written notice of such claim by certified mail, return receipt requested, to each physician or health care provider against whom such claim is being made at least 60 days before the filing of a suit in any court of this state based upon a health care liability claim.
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(c) Notice 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, and this tolling shall apply to all parties and potential parties.

TEX.REV.CIV.STAT.ANN. art. 4590i, § 4.01 (Vernon Supp.1991) (emphasis added). The statute mandates notice to each defendant prior to the running of limitations, but extends the limitation period for 75 days for all potential parties if notice is given to any defendant.

Roberts sent a notice of claim to Dr. Weston on February 13, 1989, two years after her surgery, which tolled the statute of limitations (at least as to the doctor) for 75 days. See id. § 4.01(c). She filed suit against Weston and the hospital on April 27, 1989, more than 2 years after the surgery, but within 2 years and 75 days of it.

The hospital asserts that the notice to Dr. Weston did not toll the statute of limitations as to it because Roberts did not send it a notice of claim as required by § 4.01(a). It concludes that because she did not file suit within two years of her surgery, the statute of limitations bars her claim. Roberts replies that because she sent a timely notice of claim to Dr. Weston, § 4.01(c) tolled the statute of limitations as to both the doctor and the hospital.

Two Texas courts have addressed this issue. One has held that notice to a hospital does not toll limitations as to a doctor *144because § 4.01(a) requires notice “to each physician or health care provider.” See Maddux v. Halipoto, 742 S.W.2d 59 (Tex.App.—Houston [14th Dist.] 1987, no writ). Maddux did not cite or consider § 4.01(c), which says that notice tolls limitations for 75 days, and “this tolling shall apply to all parties and potential parties.” A year after Maddux a second court considered both § 4.01(a) and § 4.01(c) and reached a different conclusion. In Rhodes v. McCarron, 763 S.W.2d 518 (Tex.App.—Amarillo 1988, writ denied), the plaintiff had sent timely notice to three defendant doctors. The court held that this entitled the plaintiff to an extra 75 days to sue a fourth doctor, but that the plaintiff could not tack on additional 75-day periods. The court concluded that notice to one defendant tolls the statute of limitations for a single 75-day period “for all health care providers, whether known or unknown at the time the notice is given.” Id. at 522.

We believe that Rhodes correctly interpreted the statute. The hospital urges us to follow Maddux instead of Rhodes for several reasons. Limitations, it says, should be tolled only for unknown potential parties. In Maddux the plaintiff knew about the potential party; in Rhodes he did not. Roberts clearly knew where she had undergone surgery, and therefore the hospital says that she should have known to give it notice. This argument has considerable force, but the legislature did not see fit to enact it and we therefore cannot adopt it in the face of § 4.01(c).

The hospital also argues that the language in subsection (c) — “this tolling shall apply to all parties and potential parties” — originally pertained to a screening panel that was included in earlier drafts and should have been deleted when the screening panel concept was deleted. But we must interpret and enforce the wording of the act as the legislature passed it, not as it perhaps should have been worded. We must presume that each word in a statute was used for a purpose, and we cannot ignore language unless it is necessary to give effect to the legislature’s clear intent. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981).

We do not accept the hospital’s suggestion that the Rhodes interpretation of § 4.01 will encourage claimants to notify defendants piecemeal, which would frustrate the statute’s purpose of reducing malpractice claims by forcing the litigants to discuss them before filing suit. In any event the supreme court has held that this purpose is served adequately by abating the suit for 60 days, instead of dismissing it, when notice was not given. Schepps v. Presbyterian Hosp., 652 S.W.2d 934, 938 (Tex.1983). We are bound by the Schepps holding.

We hold that notice to Dr. Weston tolled the statute of limitations for 75 days as to the hospital, that Roberts filed her suit within that extended period, and that even though she has never given notice to the hospital, under Schepps its only remedy is to have the suit abated.

II.

We cannot uphold the summary judgment on the second ground urged in the hospital’s motion — that it had no duty to obtain Roberts’ informed consent. Roberts did not plead lack of informed consent. She pleaded that Dr. Weston removed parts of her body without her consent — that is, that he committed a battery — not that he failed to inform her of the risks of surgery. The court could not have rested the summary judgment on this informed-consent ground because the argument was not responsive to Roberts’ pleaded cause of action.

The hospital defends the judgment on two other grounds that were not properly presented to the trial court. It says that § 6.02 has abolished the cause of action for battery, and that as a matter of law its nurses did not aid and encourage a battery by Dr. Weston. We cannot consider these arguments because the hospital’s motion did not mention them. A summary judgment can be upheld only on grounds that were expressly set forth in the written motion. TEX.R.CIV.P. 166a(c); City of Houston v. Clear Creek Basin Authority, *145589 S.W.2d 671, 677 (Tex.1979). The hospital's motion did not address Roberts’ allegations that its nurses aided and encouraged a battery, and it did not contend that § 6.02 eliminated the cause of action for battery. It did make these arguments later in a brief, but its motion said only that limitations barred the suit and that hospitals have no duty to give informed consent. Apart from limitations, the motion simply did not address the cause of action for battery. The trial court could not have granted summary judgment on grounds that were not included in the motion, and likewise we cannot uphold it on unstated grounds.

We reverse the judgment and remand the cause for further proceedings.