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Finley v. Steenkamp5/18/2000
ppeal. Because Finley failed to preserve error on this issue, we must now determine whether Finley's suit against CDS was barred by limitations.
A. Standard of Review
The appropriate standard to be followed when reviewing a summary judgment is well-established. The movant has the burden to show that no genuine issues of material fact exists and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Calvillo v. Gonzalez, 922 S.W.2d 928, 929 (Tex. 1996); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The movant asserting limitations as the basis for summary judgment assumes the burden to show as a matter of law that the suit is time barred. See Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996); Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983). If the non-movant asserts that a tolling provision applies, the movant must conclusively negate the tolling provision's application to show his entitlement to summary judgment. See Jennings, 917 S.W.2d at 793; Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 n.2 (Tex. 1988).
B. Applicable Law
Section 10.01 of article 4590i provides for a strict 2-year statute of limitations for all health care liability claims. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01. As CDS correctly asserts, however, the limitations period in section 10.01 only applies to health care liability claims, i.e., claims against either a physician or a health care provider. Id. §§ 1.03(4), 10.01. Because it is undisputed that CDS is neither a physician nor a health care provider under the Act, the lawsuit against it is not a "health care liability claim" and is thus governed by the general 2-year statutory limitations period for a personal injury cause of action. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon 1986).
A cause of action for personal injury under section 16.003 of the civil practice and remedies code must be brought within 2 years from the date the cause of action accrues. Id.; Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998). A cause of action accrues when a wrongful act causes an injury. See Childs, 974 S.W.2d at 36; S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). In this case, the undisputed date of Finley's injury was August 7, 1995. The statute of limitations began running on that date; thus, Finley had until August 8, 1997 to timely file his personal injury suit against CDS. He failed to do so until October 20, 1997 - 73 days after the 2-year limitations period expired. As a result, unless the running of the limitations period was tolled, the trial court did not err in granting CDS's motion for summary judgment.
In response, Finley asserts that the section 16.003 statutory period was tolled by the following provision in article 4590i:
(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.
(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(a), (c) (emphasis added). Finley asserts that under the plain language of section 4.01(c) of the Act, his presuit notice to Steenkamp, who is a registered nurse and thus a "health care provider," tolled the applicable statute of limitations for 75
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