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Gross v. Kahanek9/16/1999
n which the statute would run from the date of the last drug treatment, if the course of that treatment is the direct cause of the injury." 833 S.W.2d at 105. As the Kahaneks alleged that the course of treatment with Tegretol was the cause of Kyndil's death, the statute of limitations began to run on the date of Dr. Gross's last drug treatment for Kyndil.
In determining when a course of drug treatment ends, we consider such factors as: (1) whether the physician continues to examine or attend the patient, and (2) whether the condition requires further services from the physician. See id. at 106. The parties do not dispute that Dr. Gross last examined Kyndil on January 20, 1992. Nor do they disagree that he refilled the Tegretol prescription until August 10, 1992. As the Kahaneks presented evidence to suggest that a physician who prescribes Tegretol must continually monitor the patient's blood Tegretol levels, Dr. Gross maintained a continuing course of treatment for Kyndil so long as he was prescribing Tegretol for her. Beginning in September 1992, still more than two years before the Kahaneks filed suit, Dr. Barth prescribed Kyndil's Tegretol and authorized her refills. Because Dr. Gross was no longer authorizing refills of Kyndil's Tegretol prescription as of September 1992, and was therefore no longer responsible for monitoring her blood Tegretol levels, Dr. Gross's course of treatment with Kyndil ended in September 1992.
Limitations on a wrongful death claim based on negligent health care is not tolled or extended because the decedent is a minor. Baptist Mem'l Hosp. Sys. v. Arredondo, 922 S.W.2d 120, 121 (Tex. 1996). Therefore, limitations ran from the completion of treatment in September 1992 and barred the Kahaneks' wrongful death claim when they filed it on June 13, 1995.
The Kahaneks' survival claim, however, is not barred. That action is the same action Kyndil had the day she died and is wholly derivative of Kyndil's rights; the injury is hers, and the damages are those she suffered while alive. See Tex. Civ. Prac. & Rem. Code ยง 71.021; Brown v. Shwarts, 968 S.W.2d 331, 334 (Tex. 1998); Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex. 1992). Because Kyndil was a minor, the limitations period was tolled for her claim until her death. See Brown, 968 S.W.2d at 334; Weiner v. Wasson, 900 S.W.2d 316, 321 (Tex. 1995). Because the Kahaneks filed the survival action within two years and seventy-five days of Kyndil's death, that claim is not barred.
Accordingly, the Court grants Dr. Gross's petition for review, and without hearing oral argument, see Tex. R. App. P. 59.1, affirms the court of appeals' judgment on the survival claim, reverses the court of appeals' judgment on the wrongful death claim, and renders judgment that the Kahaneks take nothing on their wrongful death claim.
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