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Nash v. Selinko12/23/1999
Appellants Billy Nash and Michael Lee Downy filed suit against Dr. Vera Selinko and Sun Belt Regional Medical Center (Sun Belt) for loss of parental consortium based on alleged malpractice committed against their father, Gary Nash. The defendants moved for summary judgment on appellants' claims based on the expiration of the statute of limitations on the father's claims. The trial court granted Nash and Sun Belt's motions and appellants appeal from this ruling.
FACTUAL BACKGROUND
In 1988, Gary Nash fell from a ladder while at work, striking his head. He was taken to Sun Belt Regional Medical Center (Sun Belt) for a CT scan of his head. Dr. Selinko interpreted this CT scan as normal and discharged Mr. Nash. Three years later when his sight began to fail, Mr. Nash went to a neurologist who performed another CT scan. This test revealed the presence of a large tumor in Mr. Nash's brain. After obtaining the 1988 CT scan interpreted by Dr. Selinko, Mr. Nash's neurologist found the tumor visible on that scan as well and advised Mr. Nash to consult an attorney. At this time, Mr. Nash's children, Billy and Michael, were aged nine and eight, respectively. Mr. Nash's radiologist performed surgery to remove the tumor but, due to its position, was only able to remove part of it. After the surgery, Mr. Nash remained blind in one eye and had vision loss in the other. He also had to undergo radiation treatment and chemotherapy.
In 1996, Billy and Michael filed suit against Dr. Selinko and Sun Belt, even though they had not yet reached the age of majority. Billy and Michael were roughly aged sixteen and fifteen when this case was filed on their behalf.
Dr. Selinko and Sun Belt moved for summary judgment on the appellant's loss of consortium claim based on the expiration of the two-year statute of limitations on their father's medical malpractice claim. See TEX. REV. CIV. STAT. ANN. art. 4590i, § 10.01 (Vernon Supp. 2000). In response, appellants claimed that this argument is contrary to the Texas Supreme Court's holding in Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995), which declared the minority tolling provisions of TEX. REV. CIV. STAT. ANN. § 4590i unconstitutional as applied to a minor's direct claim for medical malpractice. Accordingly, appellants asserted that the minors' claims had been tolled under the general tolling statute, TEX. CIV. PRAC. & REM. CODE ANN. § 16.001. The trial court found appellants' claims were extinguished by the expiration of limitations on their father's claim and entered summary judgment for the defendants.
STANDARD OF REVIEW
We review an appeal from a summary judgment to see if the movant established entitlement to summary judgment as a matter of law and to see if any genuine issues of material fact precluded the trial court's grant of summary judgment from. TEX. R. CIV. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). A defendant as the movant, will be entitled to summary judgment if the movant can disprove at least one element of each of the plaintiff's causes of action or can establish all elements of an affirmative defense to each of the plaintiff's claims. See American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). In our review, we take all proof favorable to the non-movant as true and resolve all inferences and doubts in favor of the non-movant. See id.
THE STATUTE OF LIMITATIONS DEFENSE
A child's action for loss of parental consortium due to injuries to a parent was created by the Texas Supreme Court in 1990 in Reagan v. Vaughn, 804 S.W.2d 463 (Tex. 1990), clarified on reh'g, 804 S.W.2d 467 (Tex. 1991). In creating this caus
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