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Medina v. Pruiskma8/31/2001
Opinion by Justice Castillo
Appellants Efrain Medina and Aeropajita Villarreal Medina ("Medinas"), individually and as representatives for their minor child(ren), appeal from a summary judgment issued against them and in favor of Drs. Richard Pruiksma and Joseph Behal ("Doctors"). The Medinas sued the Doctors for alleged negligence and medical malpractice occurring on March 27, 1993. Specifically, the Medinas claim that Aeropajita gave birth to twins that day, but the defendants failed to deliver one of the baby boys. The Doctors deny that a second birth occurred and claim that the reference to a second baby in a hospital report was merely a dictation error. In two points of error, the Medinas challenge the summary judgment based on the failure of the Doctors to (1) negate an essential element of the plaintiffs' claims as a matter of law; and (2) conclusively establish all the essential elements of an affirmative defense as a matter of law. We affirm.
Factual Summary
On March 27, 1993, Aeropajita Villarreal gave birth to a baby boy, Efrain Medina, Jr. The treating surgeon-physicians were Dr. Pruiksma and Dr. Behal. The birth was by cesarean section and went smoothly.
There was a discrepancy between the prenatal reports and the post-birth operative report, however. The operative report, made two days after the procedure and signed by both doctors, indicates that two baby boys were delivered - one weighing 936 grams and the other weighing 4 pounds, 14 ounces. Different apgar scores were given for each child. That report was contrary to the ultrasound taken the day of delivery, which showed only one baby in the womb. Likewise, prenatal records showed only one fetal heart tone present on December 9, 1992, and again on January 13, 1993. In his affidavit attached to his motion for summary judgment, Dr. Behal states that the operative report was erroneous, due to a "dictation error."
At some point, the Medinas learned that the operative report contained a reference to the delivery of two babies, instead of one. The Doctors claim that this discovery came early in 1997. As evidence, they produced a February 3, 1997 report in which Aeropajita told a Hidalgo County health care worker that she believed that she had actually delivered twins, but was given only one baby. It is uncertain whether Aeropajita had knowledge of the post-birth operative report at that time or was basing her statement on other evidence or mere conjecture. Appellants claim that they did not learn of the operative report until "on or about May 30, 1998," but they offer no evidence that points to that date as the date of discovery.
The Medinas filed suit on March 8, 1999 against the doctors present during the birth (including Pruiksma and Behal), McAllen Medical Center, and "unknown nurses." All the defendants except Pruiksma and Behal were subsequently non-suited. The suit alleged medical negligence on the part of the defendants, though the claim seems to be that the defendants committed intentional acts in concealing and removing the plaintiffs' second baby boy from the delivery room, effectively kidnapping him. Appellees, as the only two remaining defendants, moved for traditional summary judgment on two bases: (1) under the Medical Liability and Insurance Improvement Act, the suit was time-barred; and (2) the defendants conclusively negated an essential element of the claim. The trial court granted summary judgment, and this appeal ensued.
Standard of Review
The Doctors moved for summary judgment under Texas Rule of Civil Procedure 166a(c) (traditional summary judgment) based upon two grounds: (1) their affirmative defense of statute of l
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