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Gross v. Kahanek9/16/1999
On Petition for Review from the Court of Appeals for the Fourth District of Texas
Timothy and Nancy Kahanek, individually and on behalf of their daughter Kyndil's estate, sued Dr. Sheldon Gross, alleging that drug treatment prescribed by Dr. Gross caused Kyndil's death. Dr. Gross moved for summary judgment in part on grounds that their claims were barred by the two-year limitations period of Texas Revised Civil Statute article 4590i, ยง 10.01. The trial court granted the motion. The court of appeals reversed and remanded, holding that limitations had not yet run. It concluded that Dr. Gross maintained a continuing course of treatment for Kyndil that ended the day she stopped taking Tegretol, and that Kyndil stopped taking the drug at the time of her death less than two years before suit was filed. 981 S.W.2d 271, 276. We conclude that Dr. Gross's course of treatment ended when another doctor became responsible for refilling the Tegretol prescription. Although limitations ran from that date and bars the Kahaneks' wrongful death action, limitations on their survival action was tolled until Kyndil's death and does not bar that claim. We therefore affirm the court of appeals' judgment on the survival claim, but reverse the court of appeals' judgment on the wrongful death claim and render judgment that the Kahaneks take nothing on that claim.
Kyndil Kahanek was born in 1986 with a congenital heart defect, and subsequently underwent successful heart surgery. In 1990 she suffered a seizure. Kyndil was referred to Dr. Sheldon Gross, a pediatric neurologist in San Antonio. Dr. Gross prescribed the medication Tegretol to control the seizures. The next month the Kahaneks took Kyndil back to Dr. Gross for a follow-up visit. After obtaining tests to determine Kyndil's blood count and Tegretol level, Dr. Gross advised the Kahaneks to continue giving her Tegretol.
On January 20, 1992, the Kahaneks again took Kyndil to Dr. Gross, reporting that she had suffered another seizure. Dr. Gross increased the Tegretol dosage and requested that Dr. Gordon Barth, Kyndil's family physician in Yorktown, conduct a Tegretol-level test. Dr. Gross did not examine Kyndil again, although he last ordered a refill of her Tegretol prescription on August 10, 1992. Dr. Barth began authorizing refills of the medication in September 1992, and Kyndil continued to take Tegretol. On June 12, 1993, Kyndil complained of nausea and abdominal pain. The Kahaneks took her to Santa Rosa Children's Hospital, where she died the next day after her liver and heart stopped functioning. Tegretol poisoning allegedly contributed to her death.
On June 13, 1995, the Kahaneks brought wrongful death and survival actions against Dr. Gross. The Kahaneks alleged that Dr. Gross was negligent and grossly negligent in failing to diagnose the severity of Kyndil's condition, failing to prescribe appropriate medication, failing to recommend an appropriate level of Tegretol, failing to monitor Kyndil properly while she was taking Tegretol, and failing to warn the Kahaneks of the risks associated with Tegretol. Dr. Gross moved for summary judgment, based in part on the Medical Liability and Insurance Improvement Act's two-year statute of limitations. The trial court granted summary judgment for Dr. Gross, and the Kahaneks appealed.
The court of appeals reversed the summary judgment and remanded the case to the trial court. 981 S.W.2d at 278. The court concluded that Dr. Gross and Kyndil maintained a continuing course of treatment for controlling Kyndil's seizures, and that the course of treatment did not end until Kyndil stopped taking Tegretol on the date of her death. Accordingly, the court of appeals held that limitations d
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