Palmer v. Varner5/25/2000
This is an appeal by plaintiff, John William Palmer, from a take- nothing summary judgment granted in favor of defendant, Roy Varner, M.D., a psychiatrist, in a medical malpractice case. We affirm.
Palmer asserts the trial court erred in granting Dr. Varner's motion for summary judgment, which was based on statute of limitations.
The following facts are undisputed:
(1) Dr. Varner is the Medical Director, Chief of Staff, and an attending physician at the Harris County Psychiatric Center in Houston, Texas.
(2) Palmer was hospitalized at the Harris County Psychiatric Center from June 8, 1995 to June 23, 1995; his admitting diagnosis was paranoid schizophrenia.
(3) Dr. Varner examined Palmer on June 9, 1995.
(4) Palmer was again hospitalized at the Harris County Psychiatric Center from August 15, 1997 to September 12, 1997.
(5) Palmer filed this lawsuit on August 13, 1999. Palmer, a pro se litigant throughout this entire matter, alleges that Dr. Varner misdiagnosed his medical condition.
Dr. Varner moved for summary judgment, asserting as single ground, that Palmer's suit was barred by the two-year statute of limitations under the Medical Liability and Insurance Improvement Act. Tex. Rev. Civ. Stat. Ann. art. 4590i, ยง 10.01 (Vernon Supp. 2000). The trial court granted Dr. Varner's motion.
Summary Judgment Standard
Summary judgment under Rule 166a(c) is proper only when the movant establishes there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Long v. State Farm Fire & Cas. Co., 828 S.W.2d 125, 126-27 (Tex. App.-Houston [1st Dist.] 1992, writ denied). In reviewing the granting of a summary judgment, we assume all evidence favorable to the non-movant is true. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). We indulge every reasonable inference and resolve any reasonable doubt in favor of the non-movant. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
A defendant is entitled to summary judgment by conclusively establishing all elements of an affirmative defense, such as statute of limitations, as a matter of law. Science Spectrum, Inc., 941 S.W.2d at 911; Jones v. Legal Copy, Inc., 846 S.W.2d 922, 924 (Tex. App.-Houston [1st Dist.] 1993, no writ). Once the defendant produces evidence entitling the defendant to summary judgment, the plaintiff must present evidence raising a fact issue. Walker, 924 S.W.2d at 377; Haight v. Savoy Apartments, 814 S.W.2d 849, 851 (Tex. App.-Houston [1st Dist.] 1991, writ denied).
Summary Judgment Evidence
Dr. Varner attached his own affidavit to his motion for summary judgment. In the affidavit, Dr. Varner stated: (1) he treated Palmer only once, on June 9, 1995, when he was covering for another staff psychiatrist; (2) Palmer had been involuntarily admitted on June 8, 1995 and was discharged on June 23, 1995; (3) Dr. Varner's only involvement in Palmer's care "was to evaluate him on the day after his admission, write a progress note, and complete the first medical certificate"; (4) he had no involvement in Palmer's care during the 1997 hospitalization; and (5) he performed a thorough review of Palmer's medical records for the 1997 hospitalization to confirm he had no involvement in 1997.
Palmer filed a one page, hand-written, unsworn response to the summary judgment motion, asserting that Dr. Varner also examined him on August 15, 1997, and, therefore, that the suit filed August 13, 1999 was timely. Attached to th
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