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Karley v. Bell6/29/2000
cause Appellants did not expressly present to the trial court the September 21, 1994 date, they cannot now rely on that date to bring their case within the statute of limitations.
Furthermore, we have already determined that because the dates of Dr. Bell's negligence, if any, are readily ascertainable, it is not necessary to apply the course-of-treatment rule in this case. Thus, the limitations period is measured from October 10, 1994 only if that date is the date of the alleged tort. On October 10, 1994, Dr. Bell did exactly what Appellants contend he should have done on the previous two visits-he examined Karley and referred her to a surgeon for additional examinations, which led to the discovery of her cancer. Because Dr. Bell did not breach his duty to conduct or recommend a complete physical examination on October 10, 1994, the limitations period could not have begun on that date.
CONCLUSION
Because Appellees have established each element of the affirmative defense of limitations as a matter of law, summary judgment was proper. We therefore overrule Appellants' issues on appeal and affirm the trial court's order granting summary judgment.
PUBLISH
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