concepcion-romero-individually-and-as-personal-representative-of-the ( 2004 )

Affirmed and Memorandum Opinion filed June 29, 2004

Affirmed and Memorandum Opinion filed June 29, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-01284-CV

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CONCEPCION ROMERO, INDIVIDUALLY AND AS

PERSONAL REPRESENTATIVE OF THE ESTATE OF

ABEL DEL ANGEL, AND AS NEXT FRIEND OF YVONNE ROMERO

AND ABEL DEL ANGEL, IV, AND ABEL JONES, Appellants

V.

THE INSTITUTE FOR REHABILITATION AND RESEARCH, Appellee

On Appeal from the Probate Court No. 1

Harris County, Texas

Trial Court Cause No. 336,372-402

M E M O R A N D U M   O P I N I O N

Appellants, Concepcion Romero, individually and as personal representative of the estate of Abel Del Angel (ADel Angel@), and as next friend of Yvonne Romero and Abel Del Angel, IV, and Abel Jones (collectively ARomero@), appeal the grant of summary judgment in favor of appellee, The Institute for Rehabilitation and Research (ATIRR@).  Romero brought this medical malpractice suit after Del Angel died from respiratory failure. TIRR filed its motion for summary judgment, arguing that Romero=s claim was barred by the statute of limitations.  We affirm.

Background

Del Angel was admitted to the emergency room at Memorial Hermann Hospital (AHermann@) on February 28, 2001, for treatment of a stroke.  He remained there until he was transferred to TIRR^[1] on March 8, 2001, for rehabilitation. Del Angel left TIRR and was readmitted to Hermann on March 13, 2001.  He was then transferred to Memorial Hermann Southwest (ASouthwest@) because of flooding caused by Tropical Storm Allison. Del Angel remained there until his death on June 12, 2001.  Romero filed his amended petition to name TIRR as a defendant on June 19, 2003Cmore than two years and seventy-five days after Del Angel was discharged from TIRR. 

Standard of Review

Romero argues the trial court erred in granting TIRR=s motion for summary judgment.  TIRR filed a traditional motion for summary judgment, and therefore had the burden to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.  Tex. R. App. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).  As a defendant, it must conclusively negate at least one essential element of each of Romero=s causes of action or conclusively establish each element of an affirmative defense.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).  TIRR=s motion rested on the affirmative defense of limitations. In deciding whether a disputed material fact issue exists precluding summary judgment on TIRR=s affirmative defense, we resolve every reasonable inference in favor of Romero and take all evidence favorable to him as true.  See id. 

Analysis

Texas law imposes a two‑year limitation period on healthcare claims.  Tex. Civ. Prac. & Rem.Code Ann. ' 74.251 (Vernon Pamph. 2004).^[2]  If a defendant mails a notice letter to a healthcare provider within the statutory time period, the limitation period is extended another seventy-five days.  Id. ' 74.051.  In order to prevail, TIRR had the burden to prove that June 19, 2003, the date Romero filed his suit against TIRR, was more than two years and seventy-five days prior to the last possible date of breach under the statute.  Delgado v. Burns, 656 S.W. 428, 429 (Tex. 1983) (per curiam). Thus, TIRR had to show that the last possible date of breach was prior to or on April 4, 2001.

The limitation period is measured from one of three dates: (1) the occurrence of the breach or tort; (2) the date that the relevant course of treatment was completed; or (3) the last date of the relevant hospitalization.  Id.; Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987).  A plaintiff Acannot simply choose among any of these dates.@  Bala v. Maxwell, 909 S.W.2d 889, 891 (Tex. 1995).  Rather, the limitation period does not run from any of these three dates, i.e., whichever is later, but from the one that is applicable to the particular circumstances.  Winkle v. Tullos, 917 S.W.2d 304, 310 (Tex. App.CHouston [14th Dist.] 1995, writ denied).  Where the date on which the breach or tort occurred is ascertainable from the facts of the case, the limitation period runs from that date.  Kimball, 741 S.W.2d at 372.  Where that date is not ascertainable, and the injury occurs during a course of treatment for a particular condition, the limitation period runs from the date that treatment was completed.  Id.  Similarly, as in this case, where a claim is based on the hospitalization itself, the limitation period runs from the date the relevant hospitalization was completed. Id.

In his first two issues, Romero contends the trial court erred in granting summary judgment because the facts of this case indicate at least two possible dates under the Medical Liability and Insurance Improvement Act (AMLIIA@) upon which the limitation period may have commenced: the date Del Angel was discharged from TIRR, March 13, 2001, or the date upon which his series of hospitalizations were completed, which was the date of Del Angel=s death, June 12, 2001.^[3]  Romero argues that, although Del Angel was discharged from TIRR on March 13, 2001, he was still being treated for the same condition and was treated for that condition throughout his subsequent hospitalizations with Hermann and Southwest until his death on June 12, 2001.  Romero suggests then that the date of Del Angel=s death was the Alast date of relevant hospitalization@ for purposes of MLIIA.  We disagree.

Although Romero contends that TIRR failed to meet its burden of proof with regard to establishing the commencement date for the statute of limitations, he does not dispute its evidence, in the form of an affidavit, that Del Angel was discharged from TIRR on March 13, 2001, and the date of discharge was the last day he received treatment from its facility. Nor has Romero cited authority for the proposition that the subsequent hospitalizations should be tacked onto the date Del Angel=s treatment ceased at TIRR, and we have found none. Moreover, the tacking proposed by Romero is contrary to the Texas Supreme Court=s interpretation of the statute.  The supreme court has explained that the purpose of the provision for measuring the statute of limitations from the last date of hospitalization is to aid a plaintiff who was injured during a period of hospitalization, but has difficulty ascertaining the precise date of injury.  Kimball, 741 S.W.2d at 372.  In that situation, the statute resolves doubts about the time of accrual in the plaintiff=s favor by using the last date of hospitalization as a proxy for the actual date of the tort.  Id.  The court noted that the language Athe hospitalization for which the claim is made is completed@ limits the claim to one against a hospital for negligent treatment of a patient.  Id. Romero is suing TIRR for its alleged negligence in failing to properly diagnose and treat Del Angel and implement an appropriate course of treatment for him.  Although Romero has also sued the subsequent hospitals for their alleged negligence, the claim against TIRR is merely for its negligence, and any negligence committed by it had to occur prior to or on the date Del Angel was discharged from its facility.  See id. (finding that claim against doctor was barred by limitations because the claim for his alleged negligence could have only occurred on the date the doctor treated the patient); see also Gross v. Kahanek, 3 S.W.3d 518, 519, 521 (Tex. 1999) (holding that commencement date for statute of limitations began on claim against doctor when patient discontinued treatment with the doctor and sought treatment from another healthcare provider, even though treatment was for the same condition); Earle v. Ratliff, 998 S.W.2d 882, 886 (Tex. 1999) (affirming that commencement date for statute of limitations started on date of surgery because no actionable negligence against that doctor occurred after surgical treatment was completed). 

TIRR did not treat Del Angel after March 13, 2001, so that is the last possible date TIRR could have improperly treated or diagnosed him.  Because Romero filed his claim more than two years and seventy-five days past that date, his claims are barred by the statute of limitations. We overrule Romero=s first two issues.

In his third issue, Romero contends the trial court erred in granting summary judgment because a fact issue exists regarding whether the statute of limitations was tolled until Del Angel=s death because Del Angel may have been mentally incapacitated from the time of his hospitalization with TIRR until the date of his death. Specifically, Romero argues that strict application of the two-year limitation provisions of MLIIA violate the Aopen courts@ provision of Article I, section 13, of the Texas Constitution.  Under the facts of this case, we disagree.

For the open courts provision to apply, Romero had to demonstrate that (1) he had a common-law cause of action that is being restricted and (2) the restriction is unreasonable or arbitrary when balanced against the statute=s purpose.  Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.2d 887, 902B03 (Tex. 2000).  The Texas Supreme Court has determined that, because at common-law a personal injury claim did not survive an injured party=s death, wrongful death or survival actions are only permitted by statute.  Bala, 909 S.W.2d at 893. Thus, the open courts provision cannot apply to such claims.  Id. Because Romero sued under the Wrongful Death and Survival Act, he cannot establish an open courts violation.  We overrule Romero=s third issue.

Having overruled all of Romero=s issues, we affirm the trial court=s judgment.

/s/      Joe L. Draughn

Justice

Judgment rendered and Memorandum Opinion filed June 29, 2004.

Panel consists of Justices Anderson, Hudson, and Draughn.*

*  Senior Justice Joe L. Draughn sitting by assignment.

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^[1]  Del Angel was admitted to TIRR Lifebridge, a chartered hospital, which subsequently merged with TIRR.

^[2]  Effective September 1, 2003, the provisions of Article 4590i of the Revised Civil Statutes, under which the case was filed, are now found in Chapter 74 of the Civil Practice and Remedies Code.  Act of June 11, 2003, 78th Leg., R.S., ch. 204, ' 10.01, 2003 Tex. Gen. Laws. 847, 864.

^[3]  Romero relies on Delgado to argue that, where the limitations period may have commenced upon more than one date, the healthcare provider must offer proof as to which date is appropriate under the circumstances.  See 656 S.W.2d at 429.  Although Romero=s interpretation of Delgado is correct, the facts of the case are distinguishable.  In that case, the plaintiff proposed two possible dates of breach: the date of the last post-operative check or the date a surgical staple was removed from the plaintiff.  Id.  Both dates were dates on which the plaintiff had contact with the doctor=s office.  Id.  Here, however, the second date proposed by Romero is not a date on which Del Angel had contact with TIRR.  In fact, Romero points to no evidence that supports a claim that TIRR treated Del Angel after his discharge from its facility.