Hunsucker v. Rowntree , 815 S.W.2d 779 ( 1991 )

OPINION

BLEIL, Justice.

John and Penelope Hunsucker appeal from an adverse summary judgment rendered in their medical malpractice suit against Robert Rowntree, M.D. The critical inquiry concerns whether evidence of Rowntree’s prescription of medication to Penelope Hunsucker can constitute evidence of continued medical treatment. We hold that it can and reverse the summary judgment.

Penelope Hunsucker first sought treatment from Rowntree, a physician who specializes in internal medicine, on October 4, 1985. Rowntree examined her and prescribed Sectral, a medication for high blood pressure. Penelope Hunsucker returned to Rowntree’s office on October 11, 1985, November 11, 1985, and January 3, 1986, to have her blood pressure checked. On February 13,1986, she returned complaining of bladder problems. After a brief examination, Rowntree referred her to a urologist and refilled her prescription for Sectral.

Rowntree last personally examined Penelope Hunsucker on September 15, 1986. Her complaints at that time were primarily stress related. After examination, Rown-tree continued her Sectral medication. Penelope Hunsucker called Rowntree’s office on May 22, 1987, and requested a refill for Sectral. Rowntree ordered the prescription refilled, and prescribed five additional refills. Hunsucker refilled the prescription four times, from May 22,1987 to December 13, 1987, and, at the time of her stroke on January 5, 1988, had one refill of Sectral left on her prescription.

On July 31, 1989, she sent notice of her intention to file a lawsuit pursuant to Tex. Rev.Civ.Stat.Ann. art. 4590i, § 4.01 (Vernon Supp.1991). She and her husband filed suit on October 30,1989. Rowntree moved for summary judgment on the basis that the Medical Liability and Insurance Improvement Act’s two-year statute of limitations barred the suit. Tex.Rev.Civ.Stat. Ann. art. 4590i, § 10.01 (Vernon Supp. 1991). The trial court granted the motion. The question on appeal is whether the trial court erred in granting Rowntree’s motion for summary judgment on the basis of the statute of limitations because the summary judgment proof raises a genuine issue of material fact concerning when the cause of action accrued.

Summary judgment is proper only if the movant establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 676 (Tex.1979); Wilcox v. St. Mary’s Univ., 531 S.W.2d 589, 592-93 (Tex.1975); Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 379 (Tex.App.-Texarkana 1989, no writ); Tex.R.Civ.P. 166a(c).

When a defendant in a medical malpractice ease moves for summary judgment based on an applicable statute of limitations, the defendant, as the movant, has the burden to show that the statute bars the plaintiff’s suit as a matter of law. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983); Sanchez v. Memorial Medical Center Hosp., 769 S.W.2d 656, 658 (Tex.App.Corpus Christi 1989, no writ). The movant must conclusively establish the date on which the statute of limitations began to run. Delgado v. Burns, 656 S.W.2d at 429; Jones v. Cross, 773 S.W.2d 41, 43 (Tex.App.-Houston [1st Dist.] 1989, writ denied).

Medical malpractice actions are governed by an absolute two-year limitations period. Tex.Rev.Civ.Stat.Ann. art. 4590i, § 10.01 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;

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Section 10.01, therefore, establishes three events which may trigger the running of limitations: (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 was completed. The provision allowing limitations to run from the date the medical or health care treatment that is the subject of the claim is completed applies where the patient’s injury occurs during a course of treatment for a particular condition and the exact date of injury is not ascertainable. In those cases, the limitations period begins to run on the last day of treatment. Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987); Sanchez v. Memorial Medical Center Hosp., 769 S.W.2d at 658. When the precise date of the specific breach or tort is readily ascertainable, the limitations period runs from the date of the breach or tort. Kimball v. Brothers, 741 S.W.2d at 372.

The Hunsuckers argue that Rowntree’s negligence occurred during his continuing treatment of Penelope Hunsucker. If Rowntree’s continuing treatment did not end so long as she was taking medication prescribed by him, then the treatment continued until the date of her stroke, or until January 5, 1988. Rowntree’s attorney argues that a specific date for the alleged breach or tort is ascertainable, that being September 15, 1986, the day Rowntree last examined Penelope Hunsucker.

Although the Hunsuckers do not specifically allege that Rowntree was negligent during a continuing course of treatment, they clearly allege that he was negligent in failing to properly diagnose and treat Penelope Hunsucker’s condition, occluded carotid arteries.¹ Consequently, the limitations statute began to run at the end of the last treatment. Kimball v. Brothers, 741 S.W.2d at 372. The issue we must decide is whether the summary judgment evidence raises a fact question of whether Rowntree last treated Penelope Hunsucker within two years of October 30, 1989.

In support of his motion for summary judgment, Rowntree produced an affidavit in which he states, in pertinent part, the following:

PENELOPE HUNSUCKER sought my treatment on October 4, 1985. At that time, she was complaining of high blood pressure which she noted had been present for about two years. I examined her and prescribed Sectral, a medication to treat high blood pressure. She returned to my office for the nurses to check her blood pressure on October 11, 1985; November 11, 1985; and January 3, 1986. I did not see MRS. HUNSUCKER at any of those times.

On February 13, 1986, MRS. HUN-SUCKER was complaining of bladder problems. After a limited examination, she was referred to a urologist and her prescription of Sectral refilled at that time.

MRS. HUNSUCKER returned to my office approximately nine months later on September 15, 1986. Her complaints were stress related due to recent deaths and the surgery of her mother. I examined her chest and continued her medication of Sectral. I did not see MRS. HUNSUCKER after September 15,1986. Absent a patient’s making further complaints, any stress test, M.R.I., Doppler, or any other test would have been ordered following an examination, if necessary. A limited examination was conducted at this visit. There was no follow-up exam scheduled. This is the last time I examined MRS. HUNSUCKER.

Apparently, eight months later on May 22, 1987, she telephoned my office, asking for a refill of her medication for high blood pressure. Her prescription was refilled with a prescription that allowed her to refill the prescription five times. At this time, she was not seen or examined by me or anyone from my office. There were no complaints, nor was there any request to see me. This telephone contact was the last contact made with my office. She apparently sought the services of other physicians after May 22, 1987.

MRS. HUNSUCKER suffered a stroke as a result of an occluded carotid artery nine months later. I was not contacted to treat her. She was treated by other doctors and eventually referred to Dallas for treatment. She was also treated by DR. RODNEY MARTIN, an ear, nose and throat specialist, and DR. JACK CO-VIN, a doctor of internal medicine, after May 22, 1987, but before her stroke.

In my opinion, based upon reasonable medical probability, the prescription of Sectral did not cause or contribute to cause her stroke. It is my understanding that the Plaintiffs are claiming that I should have properly examined her or performed additional tests to discover the occluded artery that caused her stroke. While denying that any tests were warranted during my examination, the only dates on which I examined the patient were October 4, 1985; February 13, 1986; and September 15, 1986. These were the only times in which I examined her or would have ordered any tests if necessary.

The Hunsuckers admitted that September 15,1986, was the last time Rowntree physically examined Penelope Hunsucker and that she did not see him after that date.

Penelope Hunsucker’s other contact with Rowntree occurred eight months later, on May 22, 1987, when she phoned requesting a refill of her blood pressure medication. At that time Rowntree renewed the prescription for Sectral and authorized five refills.

If Rowntree’s treatment of Penelope Hunsucker continued through January 5, 1988, while she was taking the Sectral, or even through December 13, 1987, when she last purchased a refill for Sectral, then suit was not barred by limitations, because suit was filed on October 30, 1989, within two years and seventy-five days of those dates.²

We hold that the summary judgment evidence raises a question whether Rowntree’s treatment of Penelope Hun-sucker continued for as long as she was taking the medication which he prescribed during the time for which it was prescribed. This is in keeping with prior pronouncements in Texas and other jurisdictions.

In Scarborough v. Aetna Life Ins. Co., 572 S.W.2d 282 (Tex.1978), the court acknowledged that the general rule was “that ‘medical treatment’ includes more than an operation or a prescription of drugs to relieve or cure a patient’s condition.” 572 S.W.2d at 284. If this be so— that medical treatment encompasses more than a prescription of drugs — prescribing drugs to relieve or cure a condition is more certainly medical treatment. See, e.g., Thomas v. Jacksonville Elec. Auth., 536 So.2d 310, 310-11 (Fla.Dist.Ct.App.1988) (claimant’s refill of prescription medication for period of over two years tolled statute of limitations); City of Orlando v. Blackburn, 519 So.2d 1017, 1018-19 (Fla.Dist.Ct. App.1987) (refill of prescription pain medication for approximately two and one-half years qualified as medical treatment); accord, Freeman v. Mid-South Ins. Co., 197 Ga.App. 445, 398 S.E.2d 727, 728 (1990) (patient’s obtaining refills of prescription medication from drugstore without contacting physician constituted medical services since statute required that physician authorize prescriptions). Earlier, in International Travelers’ Ass’n v. Yates, 29 S.W.2d 980 (Tex.Comm’n App.1930, judgmt adopted), it had been held that administering an anesthetic constituted “medical treatment,” the court holding that, “The physician was treating the assured for a disease with which he was suffering.” 29 S.W.2d at 981. The court commented on the difference between easing pain by anesthetic and easing pain or curing otherwise:

We are unable to see any distinction between medical treatment to relieve pain caused by disease and the giving of an anesthetic to prevent pain resulting from treatment necessary to effect a cure of such disease. Undoubtedly, it would be as much the duty of a physician to use the means known to medical science to prevent the infliction of unnecessary pain upon his patient while engaged in performing an operation to effect a cure of disease with which the patient is suffering as it would be to relieve him of pain necessarily incident to the disease itself. It would seem that one would be as much medical treatment as the other.

Likewise, the prescription of drugs is indistinguishable from other such medical treatment. A common thread that seems to run through the cases is that, in considering what constitutes medical treatment, that term must be viewed in a broad and reasonable light. Saying just that, and citing with approval from Order of United Commercial Travelers v. Shane, 64 F.2d 55, 59 (8th Cir.1933), a Texas court of appeals continued discussing the term treatment: “It includes not merely the actual operation in a surgical case or the giving of a prescription in a nonsurgical case, but also the preliminary examination, including sometimes an exploratory operation or an exploratory examination.” Provident Life and Accident Ins. Co. v. Hutson, 305 S.W.2d 837, 839-40 (Tex.Civ.App.-Beaumont 1957, writ ref'd n.r.e.) (emphasis added).

A reasonable interpretation of the term medical treatment is called for. The term treatment is defined as: “A broad term covering all the steps taken to effect a cure of an injury or disease; including examination and diagnosis as well as application of remedies.” Black’s Law Dictionary 1502 (6th ed. 1990). The words, “care,” “treatment,” or “attendance,” as used in provisions requiring that the insured receive medical care, have been held to include the sending of medicine and prescriptions through the mail or by friends. See An-not., 84 A.L.R.2d 375, 396 (1962); see also 44 AM.JuR.2d Insurance § 1494 (1982). These same words have also been held to include self-administered treatment under the advice of a physician. 44 Am.Jur.2d Insurance § 1494.

In this summary judgment case, we must view the evidence in the light most favorable to the nonmovants, the Hunsuck-ers. Further, we must give the term treatment or the term medical treatment both a broad and reasonable interpretation. In so doing, and in using common sense or applying the language of the mentioned cases at least as a matter of fact, we conclude that a trier of fact could find that Rowntree gave Penelope Hunsucker “medical treatment” within two years of the filing of this lawsuit.

An additional consideration in this case is whether or not Rowntree carried his burden of conclusively establishing the date on which the limitations period commenced. See Jones v. Cross, 773 S.W.2d at 43; see also Delgado v. Burns, 656 S.W.2d at 429. Unless the summary judgment record conclusively shows one specific date on which the limitations period commenced, Rown-tree, as the movant, has not met his burden.

In this case, as in the Jones case, the Hunsuckers allege in their petition and affirm in their depositions that Penelope Hunsucker called Rowntree’s office to obtain a refill on May 22, 1987, and again in August or September of 1987. Additionally, in his deposition John Hunsucker states that his wife obtained a refill of her high blood pressure medication by telephone “after May 22, 1987.” We must accept as true the Hunsuckers’ relevant allegations, and, if the pleadings and the sworn depositions, when liberally construed, indicate a fact question, summary judgment is improper. See Jones v. Cross, 773 S.W.2d at 43; Abbott v. City of Kaufman, 717 S.W.2d 927, 929 (Tex.App.-Tyler 1986, writ dism’d).

In his affidavit in support of his motion for summary judgment, Rowntree states only that, “I did not see MRS. HUNSUCKER after September 15, 1986.” This does not conclusively establish that his treatment of her ceased as of that date.

The Hunsuckers’ pleadings and sworn depositions, given a liberal construction, allege that Rowntree was negligent during a continuing course of treatment that ended within two years of the filing of this suit. Rowntree’s assertion that he did not see Penelope Hunsucker after September 15, 1986, fails to conclusively establish a specific beginning date for the two-year limitations period.

Because an issue of fact was raised as to whether this suit was barred by limitations, we hold that the trial court erred in granting summary judgment. The case is reversed and remanded for a trial.

1 . The Hunsuckers’ original petition alleges in pertinent part:

Plaintiff would show the Court that on the occasion in question the acts of Defendant ROWNTREE fell below the standard of care of a reasonably prudent physician or other health care provider of the same specialty, locality and school of practice and constituted negligence and professional malpractice in the following particulars:

(1) In failing to conduct a proper examination of PENELOPE HUNSUCKER, which examination would have disclosed her condition;

(2) In failing to consult with, and/or refer, PENELOPE HUNSUCKER to a qualified specialist to aid in diagnosing the occluded arteries and providing the medical care required by PENELOPE HUNSUCKER;

(3) In failing to timely diagnose that PENELOPE HUNSUCKER was suffering from occluded carotid arteries;

(4) In failing to timely perform, or refer PENELOPE HUNSUCKER to a surgeon to timely perform, a bypass of the occluded carotid arteries;

(5) In failing to monitor, interpret, assess and report pertinent observations related to the condition of PENELOPE HUNSUCKER;

Each of the aforementioned acts or omissions on the part of the defendant constituted negligence and professional malpractice, and each of such acts was a direct and proximate cause of stroke sustained by PENELOPE HUNSUCKER and the delay of treatment therefor which in all probability has caused her to sustain a stroke and suffer permanent impairment as a result thereof.

2 . If notice of intent to file malpractice claim is given before the two year limitations period expires, the statute is tolled for a period of seventy-five days from the date of notice. See Kimball v. Brothers, 712 S.W.2d 538, 540 (Tex.App.-Waco 1986), aff’d, 741 S.W.2d 370 (Tex.1987); Tex.Rev.Civ.Stat.Ann. art. 4590i, § 4.01(c) (Vernon Supp.1991).