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Karley v. Bell6/29/2000
s it is uncontroverted. The summary judgment will be affirmed only if the record establishes that the movant has conclusively proved all essential elements of the movant's cause of action or defense as a matter of law.
In this case, Appellees moved for summary judgment on the affirmative defense of limitations. A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law.
DISCUSSION
The parties agree that this cause of action is governed by the Medical Liability and Insurance Improvement Act of Texas (the MLIIA). Section 10.01 of the MLIIA establishes an absolute two-year statute of limitations for health care liability claims:
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 . . . .
Section 4.01(a) of the MLIIA requires any person asserting a health care liability claim to give written notice of the claim to each physician and health care provider at least sixty days before filing suit. Notice given in accordance with section 4.01(a) tolls the applicable statute of limitations for seventy-five days, effectively creating a two-year-and-seventy-five-day statute of limitations. Because Karley sent notice of her claim to Appellees, she had two years and seventy-five days from when the limitations period began during which to file suit. Thus, Karley's suit, filed on October 15, 1996, was timely if the limitations period began on or after August 1, 1994.
The primary issue on which the parties disagree and that we must resolve is when the limitations period began. Section 10.01 of the MLIIA measures the limitations period from one of three possible dates: (1) the date of the tort; (2) the last date of the relevant course of treatment; or (3) the last date of the relevant hospitalization. Although section 10.01 specifies three possible dates, the Texas Supreme Court has repeatedly held that a plaintiff may not simply choose the most favorable of the three dates. If the date of the negligence can be ascertained, the limitations period must be measured from that date.
In this case, Appellants argue that the specific date of the negligence cannot be ascertained and that Dr. Bell's negligence occurred during a continuing course of treatment, which started on April 23, 1993, when Dr. Bell first examined Karley, and continued until October 10, 1994, when Dr. Bell examined Karley for the last time and referred her to a surgeon. Appellants therefore assert that the limitations period did not begin until the last date of treatment, October 10, 1994, and that this suit is not barred by the statute of limitations. Conversely, Appellees contend that the date of Dr. Bell's negligence, if any, is readily ascertainable; that the limitations period began on April 23, 1993, the date of Karley's first visit to Dr. Bell; and that the suit is therefore time barred.
In Husain, the Texas Supreme Court addressed a factual scenario analogous to the case now before us. The plaintiffs in Husain argued that the doctor was negligent in not taking actions that would have led to earlier discovery of Khatib's cancer. The plaintiffs further asserted that because the negligence occurred during an ongoing course of treatment, the limit
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