dissenting.
I disagree with the analysis and conclusion in the majority opinion. I would affirm the trial court’s granting of summary judgment.
Because I do not view the majority’s recitation of the facts as being complete and entirely accurate, a review of the facts and pertinent dates are in order. In 1977, Dr. Diaz prescribed the drug, Cytoxan, for the decedent, Michael Westphal, to treat his Hodgkin’s Disease. Dr. Diaz continued to treat Mr. Westphal with Cytoxan until August 6, 1984. That was the last date Dr. Diaz treated the decedent and prescribed the Cytoxan.
In September 1984, while Mr. Westphal and his wife, Carolyn, were vacationing in North Carolina, Mr. Westphal noticed that he was excreting blood in his urine. A North Carolina emergency room physician told him to stop taking the Cytoxan and to see his doctor when he returned to Texas. Subsequently, while the Westphals were continuing their vacation in Colorado, Mr. Westphal experienced another episode of urinary tract bleeding and an inability to urinate. He was hospitalized for two weeks in Colorado and was again cautioned by physicians to not take the Cytoxan. Upon returning home to Texas, Mr. Westphal experienced more urinary tract and bladder problems and was again hospitalized. He sought treatment from another physician, Dr. Weiner, who also instructed Mr. Westphal to not take the Cytox-an. Mr. Westphal never returned to Dr. Diaz for treatment.
From the Fall of 1984 until early 1991, Mr. Westphal continued to experience urinary tract and bladder problems and continued to receive medical care. In early 1991, when he was admitted to the hospital for bladder reconstruction surgery, physicians determined that he had bladder cancer. He died in April 1992.
The majority opinion recites that, while Mr. Westphal was alive, he declined to file suit because he “was led to believe that his condition was a curable effect of the Cytox-an.” I find nothing in the record to support this recitation. Rather, the appellant explains the reason her deceased husband did not file suit was because “he thought he was going to get well.”
In May 1993, appellant, Carolyn Westphal, individually and on behalf of her minor son and her deceased husband’s estate, brought wrongful death and survival actions against Dr. Diaz, alleging medical malpractice. Appellant alleged that Dr. Diaz prescribed the Cytoxan to her deceased husband for an extended period of time and that such prolonged duration and dosage of the Cytoxan proximately caused Mr. Westphal to develop fatal bladder cancer.
*552Appellant’s wrongful death and survival actions are statutory in nature, Tex.Civ.Prac. & Rem.Code Ann. §§ 71.001-71.051 (Vernon 1986 & Supp.1995), and are wholly derivative of the decedent Michael Westphal’s right to have pursued a medical malpractice claim. Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex.1992). The right of a statutory beneficiary to maintain wrongful death and survival actions is entirely derivative of the decedent’s right to have sued for his injuries immediately prior to his death. Id. at 345, 347. Further, the right of a statutory beneficiary to maintain such actions is subject to the same defenses to which the decedent’s action would have been subjected. Id. at 345, 347. In short, a wrongful death and survival action plaintiff stands in the same legal shoes as the decedent. Id. at 347. Thus, if a decedent’s action would have been barred by limitations, then the wrongful death and survival actions based upon the same alleged wrong, are likewise barred. Id. at 345, 348-49.
Dr. Diaz moved for summary judgment on the affirmative defense of limitations. He asserted in his motion that appellant’s wrongful death and survival actions, which are derivative of the decedent Michael West-phal’s right to have sued for medical malpractice, are barred by the two-year statute of limitations set forth in Tex.Rev.Civ.Stat.Ann. art. 4590i, § 10.01 (Vernon Supp.1995).
Appellant urged in her summary judgment response that the article 4590i, § 10.01 statute is unconstitutional because it violates the “open courts” provision of the Texas Constitution to the extent that it purports to have precluded the decedent’s right to sue before he had a reasonable opportunity to discover his bladder cancer injury in April 1991. Further, appellant urged that she filed suit within the proper period of time after the decedent first discovered his bladder cancer.
The trial court granted summary judgment in Dr. Diaz’s favor, and appellant now appeals. By a single point of error, appellant contends the trial court erred by finding that the statute of limitations on the decedent’s medical malpractice claim had run as a matter of law.
When the defendant in a medical malpractice case moves for summary judgment on the affirmative defense of limitations, the defendant/movant bears the burden of showing that the suit is barred by limitations as a matter of law. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983). In reviewing a summary judgment, we must accept all evidence favorable to the nonmovant as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). Further, we must indulge all reasonable inferences in favor of the nonmovant and resolve all doubts in his/her favor. Id. at 549.
Before resolving whether Dr. Diaz sustained his summary judgment burden, it is necessary to ascertain the date on which the statute of limitations started to run on the decedent’s medical malpractice claim had he pursued it before he died. The limitations period for medical malpractice claims, as set forth in the Medical Liability and Insurance Improvement Act, Tex.Rev.Civ.Stat.Ann. art. 4590i, § 10.01 (Vernon Supp.1995), provides:
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....
Thus, the limitations period starts to run on one of three possible 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. Tex.Rev.Civ.Stat.Ann. art. 4590i, § 10.01 (Vernon Supp.1995); Rowntree v. Hunsucker, 833 S.W.2d 103, 104 (Tex.1992); Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987). Here, Dr. Diaz asserted that the limitations period began to run on August 6, 1984—the date Dr. Diaz last treated and prescribed the Cytoxan for the decedent.
Although the article 4590i, § 10.01 statute imposes an absolute two-year limitations period, the statute has been subject to constitutional challenge under the “open courts” provision in the Texas Constitution. Morrison *553v. Chan, 699 S.W.2d 205, 207-08 (Tex.1985). The “open courts” provision provides that “[a]ll courts shall be open, and every person for an injury done him, in his ... person, shall have remedy by due course of law.” Tex Const. art. 1, § 13. This provision is premised upon the rationale that the legislature has no power to make a remedy by due course of law contingent upon an impossible condition. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355 (Tex.1990). Because the very nature of some medical malpractice cases makes it inherently impossible for an injured plaintiff to discover his injury within two years of the actual act of malpractice, Texas courts have used the “open courts” provision to defeat the strict application of the article 4590i, § 10.01 two-year statute of limitations in such cases where justice demands that the plaintiff be given a reasonable opportunity to discover that he had been wronged and bring suit. See e.g., Neagle v. Nelson, 685 S.W.2d 11 (Tex.1985) (concluding that it was impossible for the plaintiff to discover the sponge left in his abdomen within two years after his appendectomy); Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984) (holding that it was impossible for the plaintiffs to discover their son had muscular dystrophy within the applicable two years). Thus, the only means to avoid the absolute two-year statute of limitations under article 4590i, § 10.01, is to show that article 4590i, § 10.01 violates the “open courts” provision.1
To establish an “open courts” violation, a plaintiff must satisfy a two-part test. Bala v. Maxwell, 909 S.W.2d 889, 893 (Tex.1995); Moreno, 787 S.W.2d at 348. First, he must establish that he has a well-recognized common law cause of action. Bala, 909 S.W.2d at 893; Moreno, 787 S.W.2d at 348. Second, he must show that the restriction of his claim is unreasonable when balanced against the purpose of the statute. Bala, 909 S.W.2d at 893; Moreno, 787 S.W.2d at 348. Because the appellant has no common law right to bring either a wrongful death or survival action, she technically cannot establish an “open courts” violation. Bala, 909 S.W.2d at 893.
However, in light of the manner in which appellant formulates her “open courts” provision argument, it is necessary to analyze her argument in terms of Mr. Westphal’s medical malpractice claim had he pursued it immediately prior to his death. A medical malpractice cause of action is a well-established common law cause of action. Moreno, 787 S.W.2d at 357.
A limitations statute violates the “open courts” provision if the statute bars a common law cause of action before the litigant had a reasonable opportunity to (i) discover the wrong and (ii) bring suit. See Krusen, 678 S.W.2d at 923. The relevant inquiry in an “open courts” challenge to article 4590i, § 10.01 is whether the plaintiff had a reasonable opportunity to discover the wrong and bring suit within the two-year statute of limitations period.2 Nelson, 685 S.W.2d at 12; Krusen, 678 S.W.2d at 923; Del Rio v. Jinkins, 730 S.W.2d 125, 128 (Tex.App.—Corpus Christi 1987, writ ref'd n.r.e.) (opinion on reh’g); Desiga v. Scheffey, 874 S.W.2d 244, 247 (Tex.App.—Houston [14th Dist.] 1994, no writ). If the plaintiff was denied this opportunity, then the article 4590i, 10.01 statute is deemed unconstitutional insofar as it cuts off a cause of action before the plaintiff knew a cause of action existed. Nelson, 685 S.W.2d at 12; Krusen, 678 S.W.2d at 923.
The Texas Supreme Court equates “discovery of the wrong” with “discovery of the *554cause of action” and treats the two terms as synonymous. See Hellman v. Mateo, 772 S.W.2d 64, 66 (Tex.1989). Whether an injured party had a reasonable opportunity to discover his cause of action turns on whether the party discovered, or should have discovered, his cause of action. Id. at 66.
As applied to the facts of this case, the relevant inquiry then is whether the decedent discovered, or should have discovered, his cause of action and then timely filed suit within the two year period following his last treatment date with Dr. Diaz in August 1984. Dr. Diaz asserts that the decedent discovered his cause of action in the Fall of 1984 when he discovered the first symptom of his Cytox-an-induced injury — his urinary tract bleeding. Appellant argues otherwise, claiming the decedent first discovered his cause of action in 1991 when he first learned of his bladder cancer. In essence, appellant contends the two medical conditions — the urinary tract bleeding and the bladder cancer— represent two separate injuries, each with two separate causes of action. I disagree.
Under Texas law, it is well settled that a plaintiff has but one cause of action for the losses, injuries, and damages arising and resulting from a single breach of duty. Pecorino v. Raymark Indus., Inc., 763 S.W.2d 561, 569 (Tex.App.—Beaumont 1988, writ denied). Here, appellant alleged in her petition that Dr. Diaz breached his duty by wrongfully overpreseribing the Cytoxan for the decedent. Also, appellant alleged in her petition and acknowledged in her deposition that such overtreatment of the Cytoxan proximately caused the decedent to develop urinary tract bleeding and urinary problems, as well as fatal bladder cancer; the decedent’s bladder cancer developed some years after his urinary tract bleeding. Further, appellant acknowledged in her affidavit that the Cytoxan caused both the bladder cancer and the urinary tract bleeding when she stated, “In my mind the cancer diagnosis was a different injury from Cytoxan than the bleeding which Mike had been experiencing before.”
Analogous federal ease law is instructive on this issue. In a Fifth Circuit case, Graffagnino v. Fibreboard Corp., Mr. Graffagnino developed asbestosis and then later developed mesothelioma. Graffagnino, 776 F.2d 1307, 1308 (5th Cir.1985), Both medical conditions resulted from his exposure to asbestos. Id. When Mr. Graffagnino was alive, he filed suit to recover damages for his asbestosis injury and received a settlement. Id. Later, after he developed fatal mesothelioma and died, his wife filed suit to recover damages for his mesothelioma injury. Id. The Graffagnino court, in a per curiam opinion, espoused:
Under Texas law, exposure to asbestos can give rise to only a single cause of action for all injuries that are caused by that exposure, whether or not all the injuries have become manifest at the time the cause of action accrues.
Id.
In another Fifth Circuit asbestos case, Gideon v. Johns-Manville Sales Corp., the court opined that, once injury results, there is but a single tort and not a series of separate torts for each resultant harm. Gideon, 761 F.2d 1129, 1136 (5th Cir.1985). A cause of action “inheres in the causative aspects of a breach of a legal duty, the wrongful act itself, and not in the various forms of harm which result therefrom....” Id. at 1136-37 (quoting 24 A.L.R. Single Cause of Action § 2[a] (4th ed. 1983)). The Gideon court held:
Under Texas law, therefore, [the plaintiff] has but one cause of action for all damages caused by the defendant’s legal wrong; the diseases that have developed and will in probability develop are included within this cause of action, for they are but part of the sequence of harms resulting from the alleged breach of legal duty.
Gideon, 761 F.2d at 1137 (our emphasis added).
Further, in Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336, 337-38 (1954), the Texas Supreme Court held that a cause of action accrues at the time of the wrongful conduct, not on the date when the extent of the damages were fully ascertainable. The Fromme court explained that limitations will run from the time the wrongful act was committed and -will bar an action for damages resulting from the wrongful act, *555even if the damages were not fully developed during the limitations period. Fromme, 269 S.W.2d at 337-38 (citing Houston Water Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36, 37 (1888)).
Based on the foregoing Texas and federal case law, I conclude that here the decedent discovered, or should have discovered, his cause of action when he experienced his initial injury and learned that it was caused by Dr. Diaz’s wrongful overprescription of the Cytoxan. Having so concluded, I now turn to the dispositive issue at hand — whether Dr. Diaz sustained his summary judgment burden and proved as a matter of law that the decedent discovered his cause of action within the two-year limitations period, but failed to timely file suit.
Dr. Diaz asserts in his summary judgment motion that the decedent learned, as early as the Fall of 1984, that his injury — the urinary tract bleeding — was caused by Dr. Diaz’s wrongful conduct. As his summary judgment evidence, Dr. Diaz submitted excerpts from appellant’s deposition. In her deposition, appellant testified that, in the Fall of 1984 when the decedent first experienced his urinary tract problems, at least two doctors told him that he had been taking the Cytoxan for too long and advised him to quit taking it. Further, appellant testified that the reason Mr. Westphal did not go back to see Dr. Diaz was “[bjecause we had doctors tell us that he had been on [the Cytoxan] too long.” Appellant also testified that at that time, both she and the decedent shared the belief that Dr. Diaz had done wrong and made an error in professional judgment by keeping the decedent on the Cytoxan as long as he did. Appellant further testified that, back in the Fall of 1984, both she and the decedent knew and believed that “Dr. Diaz had done [the decedent] wrong and had caused him injury.” The injury to which she was referring was the decedent’s initial urinary tract bleeding and bladder problems.
Appellant offered no contradictory evidence to raise a fact issue as to when the decedent discovered his initial urinary problems and the cause of these problems.
Under article 4590Í, § 10.01, the two-year statute of limitations on decedent’s claim started to run on August 6,1984 — the date of Dr. Diaz’s last treatment. The limitations period expired, at the latest, on approximately October 21, 1986.3 Dr. Diaz submitted uncontroverted summary judgment evidence proving the decedent discovered his cause of action in the Fall of 1984, well within the limitations period. Appellant, however, did not file suit until May 1993, more than six years after the limitations period had expired. The trial court therefore properly granted summary judgment in favor of Dr. Diaz on his limitations defense.
Accordingly, I would overrule appellant’s sole point of error and affirm the judgment of the trial court.
. It is significant to note that article 4590i, § 10.01 abolished application of the “discovery rule” in medical malpractice cases governed by the Medical Liability Act. Morrison, 699 S.W.2d at 208. The "discovery rule” is a judicially constructed test, which is used to determine when a cause of action accrued. Moreno, 787 S.W.2d at 351. When applied, the "discovery rule" operates to toll the running of the statute of limitations until the time that the plaintiff discovers, or through the exercise of reasonable care and diligence should discover, the nature of his injury. Id.
. The "open courts” provision inquiry and analysis is somewhat similar to, but should not be confused with, the “discovery rule.” See Del Rio v. Jinkins, 730 S.W.2d 125, 128 (Tex.App.—Corpus Christi 1987, writ ref’d n.r.e.); Desiga v. Scheffey, 874 S.W.2d 244, 247-48 (Tex.App.—Houston [14th Dist.] 1994, no writ). The inquiry in a "discovery rule" case is whether the plaintiff discovered, or through the exercise of reasonable care and diligence should have discovered, the nature of his injury. Moreno, 787 S.W.2d at 351.
. This date takes into account the seventy-five day tolling period had the Westphals given proper notice of their medical malpractice claim, pursuant to Tex.Rev.Civ.Stat.Ann. art. 4590i, § 4.01 (Vernon Supp.1995). According to article 4590i, § 4.01(c), proper notice "shall toll the applicable statute of limitations to and including a period of 75 days following the giving of the notice_" TexRev.Civ.Stat.Ann. art. 4590i, § 4.01(c) (Vernon Supp.1995).