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Karley v. Bell6/29/2000
INTRODUCTION
In this medical malpractice case, Matthew Karley and Autumn Wernick (collectively, Appellants) appeal from the trial court's order granting summary judgment based on limitations in favor of Dr. J. Ardis Bell, Family Healthcare Associates, Family Healthcare Associates of Northeast Tarrant County, and Northeast Medical Clinic Association (collectively, Appellees). Because we hold that Appellees established as a matter of law that Appellants' suit is barred by the applicable statute of limitations, we affirm the trial court's order granting summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In April 1993, Shirlee Karley (Karley) began experiencing rectal pain and bleeding. Dr. Bell first examined Karley on April 23, 1993, at which time he diagnosed hemorrhoids and gave her a prescription for Anusol. Karley obtained a refill of Anusol on June 5, 1993. An entry in Karley's chart indicates that on June 22, 1994, Dr. Bell reviewed her chart and called in a refill of Anusol to an Eckerd pharmacy. The parties are in dispute about whether Dr. Bell saw Karley between April 23, 1993 and September 21, 1994. Although Karley contended in her deposition that she had office visits with Dr. Bell on two occasions within these dates, neither she nor Dr. Bell had any record of such visits.
On September 21, 1994, Karley saw Dr. Bell about a lump she had discovered in her right breast and her ongoing problem with rectal bleeding. Still believing that Karley's rectal bleeding was due to hemorrhoids, Dr. Bell again prescribed Anusol. On October 10, 1994, Dr. Bell re-examined Karley, prescribed Anaprox, and advised her to consult a surgeon about possible surgery on her hemorrhoids. Karley saw a surgeon, Dr. James Poettecker, on October 14, 1994, at which time he performed a digital rectal examination and discovered a substantial mass. Dr. Poettecker biopsied the mass and diagnosed colorectal cancer. On October 20, 1994, Karley had surgery to remove the malignant tumor, and doctors discovered that her cancer had metastasized to several of her organs, including her liver.
Karley sent notice of her intent to file a health care liability claim to Dr. Bell on September 12, 1996 and filed suit against Appellees on October 15, 1996. Karley died on June 22, 1997. On January 29, 1998, the trial court signed an order allowing Karley's children, Appellants, to continue the lawsuit in their representative capacities in the place of Karley and in their own right. Appellees filed motions for summary judgment, arguing that the suit was barred by the applicable two-year statute of limitations. The trial court granted the motions for summary judgment. In five issues on appeal, Appellants argue that the suit was filed within the applicable statute of limitations and that, therefore, the trial court erred in granting summary judgment for Appellees on the basis of limitations.
STANDARD OF REVIEW
In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the non-movant.
In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence are disregarded and the evidence favorable to the non-movant is accepted as true. Evidence that favors the movant's position will not be considered unles
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