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Medina v. Pruiskma8/31/2001
by Boy"
Under The Medical Liability and Insurance Improvement Act, section 10.01, a minor plaintiff twelve years old or younger is not restricted to the general two-year statute of limitations. Tex. Rev. Civ. Stat. Ann. art. 4590i §10.01 (Vernon Supp. 2001). Rather, in such circumstances a minor has until age fourteen to file suit. Id. Therefore, this statute does not bar the suit brought by the appellants on behalf of their son, Efrain Medina, Jr., who was not yet six at the time suit was filed.
However, there is no cognizable common law or statutory claim that could have been brought on behalf of Efrain, Jr. Siblings are not entitled to loss of consortium damages. Ford Motor Co. v. Miles, 967 S.W.2d 377, 383 (Tex. 1998). Nor are siblings entitled to bring suit for wrongful death. Tex. Civ. Prac. & Rem. Code Ann. §71.004 (Vernon 1998). The Medinas failed to allege any alternative cause of action entitling their son to recovery. Therefore, the trial court was correct in granting summary judgment as it concerned Efrain, Jr.
The Medinas also sued on behalf of "unknown new born baby boy." However, they failed to plead or offer any proof of damages specific to that unknown child. Indeed, neither party even addresses the claims of the alleged unknown child in their briefs to this Court. See Tex. R. App. P. 38.1(h) (describing the requirements for an appellant's brief). Further, the Medinas have failed to offer competent summary judgment evidence that an unknown child exists, apart from the uncontrovertedly erroneous hospital report. We know of no authority allowing for a claim to be brought on behalf of an unknown, unnamed person, absent a demonstration that such a person in fact exists. Accordingly, we cannot say that the trial court abused its discretion in dismissing appellants' claims on behalf of an unknown child. Breach of Duty & Causation
By their first point of error, the Medinas appeal from the summary judgment granted in favor of the Doctors based on the Doctors' failure to conclusively negate an essential element of the claim. In order to recover for medical malpractice, the plaintiff must prove (1) the duty of the doctor to act according to a certain standard of care; (2) a breach of that duty; (3) injury or harm to the plaintiff; and (4) a causal link between the breach and the injury. Klug v. Ramirez, 830 S.W.2d 801, 804 (Tex. App.-Corpus Christi 1992, no writ). The Doctors argued in their motion for summary judgment that they had presented sufficient evidence to negate two of the essential elements of the claim: breach of duty and causation. In light of our disposition of this case on the issue of the affirmative defense of limitations, we do not reach this point of error. SeeTex. R. App. P. 44.1.
Conclusion
The trial court properly granted summary judgment against appellants Aeropajita and Efrain Medina on the basis of the Doctors' affirmative defense of limitations. The trial court further properly granted summary judgments against Efrain, Jr., who does not have a viable cause of action for the alleged acts of the Doctors, and against "unknown baby boy," where the Medinas have failed to provide competent summary judgment evidence demonstrating his existence. Therefore, we affirm the judgment of the trial court.
Do not publish. Tex. R. App. P. 47.3.
Opinion delivered and filed this 31st day of August, 2001.
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