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Kahanek v. Gross6/24/1998
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 95-CI-08425
Honorable Michael Peden, Judge Presiding
Dissenting opinion by: Karen Angelini, Justice
REVERSED AND REMANDED
This appeal arises from a grant of summary judgment in favor of the defendant, Dr. Sheldon Gross, in a medical malpractice case. In five points of error, appellants, Timothy and Nancy Kahanek, argue that: (1) the trial court erred in denying appellants' motion for continuance; (2) the trial court erred in granting appellee's motion for summary judgment; (3) the trial court erred in imposing sanctions against appellants' counsel; and (4) that the Bexar County district court system violated appellants' due process, equal protection, and open courts guarantees. We reverse the judgment of the trial court and remand for a trial on the merits.
Factual Background
In 1986, Kyndil Kahanek was born with a congenital heart defect and underwent successful heart surgery. In June, 1990, Kyndil experienced a seizure and the Kahaneks were referred to Dr. Sheldon Gross, a pediatric neurologist. To control Kyndil's seizures, Dr. Gross prescribed the drug Tegretol. Dr. Gross also scheduled a follow up visit for Kyndil. On July 13, 1990, the Kahaneks took Kyndil to Dr. Gross for the scheduled follow up visit. Dr. Gross obtained tests to determine Kyndil's blood count and Tegretol level. After further consultation, Dr. Gross advised the Kahaneks to continue the treatment of Kyndil's seizures with Tegretol.
On January 20, 1992, Kyndil experienced another seizure, and the Kahaneks returned to Dr. Gross. During this visit, Dr. Gross increased the Tegretol dosage and requested a Tegretol-level test from Dr. Barth in the Yorktown Medical Clinic. In addition, Dr. Gross authorized Dr. Barth to continue refilling Kyndil's Tegretol prescription as needed.
Approximately a year and a half later, on June 12, 1993, Kyndil complained to her parents of nausea and abdominal pain. The Kahaneks sought treatment at Santa Rosa Children's Hospital. Kyndil's heart and liver ceased to function and Kyndil died on June 13, 1993. Dr. Gross did not examine Kyndil between January 20, 1992 and the date of her death, but Kyndil continued to take the prescribed medication in keeping with Dr. Gross's instructions. Although the record on appeal is poorly organized with several supplementations, and the medical records themselves are somewhat incomplete, Dr. Gross admitted in his affidavit, dated June 21, 1995, that he last ordered a refill of Tegretol for Kyndil on August 10, 1992. Dr. Gross moved for summary judgment based on the two-year statute of limitations in the Medical Liability Act, and the trial court granted the motion.
Motion For Continuance
In their first point of error, the Kahaneks argue the trial court erred in denying their motion for a continuance on the hearing for summary judgment. The Kahaneks reiterate their argument from the trial court that the early date of the hearing did not allow the Kahaneks an opportunity to obtain critical discovery. We disagree.
The Kahaneks filed suit under the cause number now on appeal on June 6, 1995. Dr. Gross filed a motion for summary judgment on July 14 and the court set the hearing date for August 30. The Kahaneks argue the requests for discovery were delivered on the date of filing and that Dr. Gross's answers to the discovery requests were essential to the investigation of the case and preparation for the motion for summary judgment. The Kahaneks rely on two Houston decisions which held that the trial court's grant of summary judgment within two or t
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