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Batten v. Estate of Swope9/16/1999
Marilyn Batten, individually, and Mark Richard Batten, as executor of Roy Swope's estate, appeal the take-nothing summary judgment rendered against their negligence and wrongful death claims brought against Kenneth E. Hunt, M.D. The sole ground of the motion for summary judgment was that the two-year statute of limitations barred the claims against Hunt. We will affirm the judgment.
BACKGROUND
In 1989, following a referral by Swope's primary physician, Thomas Parker, Hunt removed a large, precancerous tumor from Swope's colon. Hunt treated Swope during three subsequent, brief hospitalizations. Hunt did not treat Swope after May 18, 1989.
In 1998, Swope and his wife, Marilyn Batten, sued Hunt and Parker after learning in late 1997 that Swope had colon cancer. They alleged that Parker, his physician from the early 1980s until 1997, was negligent for failing to recommend follow-up colonoscopies or similar diagnostic tests based on Swope's subsequent symptoms. They alleged that Hunt negligently failed to advise Swope of the need for follow-up tests for polyps and tumors. They contended that the doctors' inaction caused Swope's cancer to go undiagnosed until it spread to lymph nodes and the muscle wall surrounding the colon. Swope and Batten alleged that Swope could not have discovered before 1997 either that he had cancer or that the doctors breached the standard of care.
Swope died a few months after filing suit. In October 1998, Mark Batten joined the suit as executor of Swope's estate.
The trial court granted Hunt's motion for summary judgment based on the two-year statute of limitations in the Medical Liability Act. See Tex. Civ. Stat. Ann. art. 4590i, § 10.01 (West Supp. 1999).
DISCUSSION
We review the summary-judgment record to determine whether the movant established the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). We view the record and reasonable inferences therefrom in the light most favorable to the non-movant and resolve against the movant all doubts about the existence of a genuine issue of material fact. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).
Absent tolling or other delay of the limitations period, the causes of action are time-barred. The statute of limitations for these causes of action provides as follows:
Notwithstanding any other law, no health care liability claim may be commenced unless that 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. Tex. Civ. Stat. Ann. art. 4590i, § 10.01. The limitations period runs from one of three dates: (1) the occurrence of the breach or tort; (2) the date the health care treatment that is the subject of the claim is completed; or (3) the date the hospitalization for which the claim is made is completed. Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987). Hunt asserts without contradiction that he last treated Swope on May 18, 1989. Swope did not file this suit until 1998, considerably more than two years after the last treatment.
Hunt's alleged failure to order or advise further testing does not extend the "treatment" period for limitations purposes. See Bala v. Maxwell, 909 S.W.2d 889, 892 (Tex. 1995); see also Rowntree v. Hunsicker, 833 S.W.2d 103, 108 (Tex. 1992). In Rowntree, a doctor examined a patient and prescribed medication for hypertension;
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