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Neal-Moreno v. Kittrell5/28/1999
The Court withdraws its order of September 16, 1999, denying the petition for review; the petition is reinstated to the Court's active docket. The Court will not rule on the petition until the court of appeals disposes of all pending motions. It is counsels' responsibility to immediately notify this Court of any court of appeals' decisions. See Tex. R. App. P. 53.7(b). The Court dismisses as moot the motion for rehearing November 4, 1999.
PATRICIA NEAL-MORENO AND ARTHUR MORENO, INDIVIDUALLY AND A/N/F GABRIEL MORENO AND SARAH JANE MORENO, APPELLANT
v.
DAVE W. KITTRELL, M.D., APPELLEE
From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 97-CI-11311 Honorable Andy Mireles, Judge Presiding
The opinion of the court was delivered by: Karen Angelini, Justice
Dissenting opinion by: Tom Rickhoff, Justice
Sitting: Tom Rickhoff, Justice Paul W. Green, Justice Karen Angelini, Justice
AFFIRMED
This appeal arises from the grant of summary judgment in favor of the defendant, Dr. Dave Kittrell (Dr. Kittrell), in a medical malpractice case. Appellants, Patricia Neal-Moreno (Moreno), Arthur Moreno, individually, and a/n/f Gabriel Moreno and Sarah Jane Moreno, appeal the trial court's grant of summary judgment in one point of error. We affirm.
Facts and Procedural Background
Moreno first sought medical care from Dr. Kittrell on March 20, 1995, due to irregular menses. Thereafter, Moreno became pregnant and returned to Dr. Kittrell on May 1, 1995. Dr. Kittrell performed a pap smear on Moreno on that date. Although the pap smear indicated an abnormality, Moreno was not informed. Dr. Kittrell cared for Moreno during her pregnancy, and the child was born on December 14, 1995. Moreno failed to keep any follow-up appointments following the birth of her child. In July 1996, she returned to Dr. Kittrell complaining of bleeding since the child's birth. On July 30, 1996, Dr. Kittrell performed an emergency endometrial biopsy, which revealed Moreno had squamous cell carcinoma, or cervical cancer.
Moreno filed suit on August 5, 1997, alleging that Dr. Kittrell was negligent in his care and treatment of her by failing to timely treat the cervical cancer. Dr. Kittrell filed a motion for summary judgment asserting the affirmative defense of expiration of the statute of limitations. Specifically, Dr. Kittrell contended in his motion that the statute of limitation began to run on May 1, 1995, when he performed the first pap smear on Moreno. Moreno responded to the motion for summary judgment asserting that material issues of fact existed as to when the statute of limitations began to run and that the constitutional "open courts" exception to the statute of limitations in medical malpractice cases applied. Moreno filed an affidavit attesting that she was not told of the abnormal results of the pap smear test performed on May 1, 1995, until July 30, 1996, and consequently, the statute of limitations began to run on July 30, 1996. Moreno also attached to her response authenticated medical records relating to her treatment by Dr. Kittrell. The trial court granted Dr. Kittrell's motion for summary judgment without setting forth the grounds upon which summary judgment was based. Moreno brings this appeal.
Standard of Review
In a summary judgment proceeding, the moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., Inc., 6
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