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Deruy v. Garza5/19/1999
REVERSED AND REMANDED
Elizabeth DeRuy appeals the trial court's granting of summary judgment in favor of Dr. Homero Garza on her medical malpractice claim. In a sole point of error, DeRuy argues that the trial court erred in granting summary judgment upon its finding that her suit was barred by limitations. We reverse and remand.
I.
DeRuy was referred to Garza, a gastroenterologist, by Dr. Mark Thornton, her primary care physician, on October 10, 1990 for complaints of pain in the abdominal area. In December of 1990, Garza performed an endoscopy and biopsies, and recommended further evaluation of DeRuy's liver functions. In January of 1991, DeRuy was admitted to the hospital, at which time Garza performed two more biopsies. At that time, Thornton made a preliminary diagnosis of biliary cancer and Garza concurred, noting that DeRuy was a patient with probable biliary carcinoma. On January 11, 1991, Garza performed a scope procedure of DeRuy's esophagus and stomach, at which time he recommended stent placement. On January 12, 1991, DeRuy was discharged from the hospital by Thornton with a diagnosis of biliary carcinoma. DeRuy underwent chemotherapy with Dr. Frank Schell beginning in February of 1991.
On June 7, 1994, DeRuy was admitted to emergency room complaining of severe illness and pain. Garza saw DeRuy in the hospital, and recommended that Dr. Joseph Johnson perform an endoscopy. Shortly thereafter, DeRuy underwent gall bladder surgery performed by Dr. Stewart Johnson, who told DeRuy that she had been suffering from gall bladder disease, not biliary cancer. DeRuy filed suit against Garza and Thornton on June 7, 1995.
Garza successfully moved for summary judgment on limitations grounds, and his claims were severed from those of the remaining defendants for purposes of making his judgment final.
II.
In a sole point of error, DeRuy argues that the trial court erred in granting summary judgment in favor of Garza upon finding that her suit was barred by limitations. DeRuy argues that her claim is timely brought under either of two alternative theories: first, that under the open courts exception to the Medical Liability and Insurance Improvement Act, she brought suit within a reasonable time following the discovery of her misdiagnosis, or second; that she brought suit within the two- year statute of limitations because Garza continued to treat her through June 1994.
Garza contends that the last date he provided medical treatment to DeRuy was October 9, 1991. Accordingly, Garza contends that limitations ran as to him on October 9, 1993, and any claim brought after that date is time barred. As an alternate defense, Garza says that even if the open courts provision applies, the claim is time-barred because DeRuy learned of the misdiagnosis in June 1994, but did not file suit until June 1995. Garza contends this is not a reasonable time as there was almost a year between discovery and suit.
When a plaintiff's cause of action accrues for limitations purposes under section 10.01 of the Medical Liability and Insurance Improvement Act is a question of law. Chambers v. Conaway, 883 S.W.2d 156, 159 (Tex. 1993). A party moving for summary judgment on the basis of limitations must conclusively establish the bar of limitations. Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996); Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983). If the non-movant asserts that a tolling provision applies, the movant must conclusively negate the tolling provision's application to show his entitlement to summary judgment. Jennings, 917 S.W.2d at 793; Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 n. 2 (Tex.1988).
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