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Westphal v. Diaz3/21/1996
03/21/1996
On appeal from the 319th District Court of Nueces County, Texas.
OPINION ON MOTION FOR REHEARING
We overrule Dr. Diaz's motion for rehearing and motion for rehearing en banc. Since we issued our opinion in this case, the Texas Supreme Court has interpreted the minors' tolling provision of the Medical Liability Act. See Baptist Memorial Hosp. Sys. v. Arredondo, 39 Tex. Sup. Ct. J. 286 (February 9, 1996) (per curiam). Because our decision in this case is based on our interpretation of the same tolling provision, we write briefly to address Baptist Memorial Hospital.
The Baptist Memorial Hospital case involved parents who sued the hospital after their newborn baby died. As in our case, their wrongful death claim was governed by the statute of limitations from the Medical Liability Act:
Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or hospitalization for which the claim is made is completed; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim.
Tex. Rev. Civ. Stat. Ann. art. 4590i, Section(s) 10.01 (Vernon Supp. 1996) (emphasis supplied). The language italicized above is the minors' tolling provision, which the Arredondos tried to apply to their wrongful death suit. The San Antonio Court of Appeals held that the adult wrongful death claimants could use the minors' tolling provision because the decedent was a minor. See Arredondo v. Hilliard, 904 S.W.2d 754, 760-61 (Tex. App.--San Antonio 1995), rev'd sub nom. Baptist Memorial Hosp. Sys. v. Arredondo, 39 Tex. Sup. Ct. J. 286 (February 9, 1996) (per curiam).
The supreme court disagreed:
This provision tolls a claim's accrual only when it is filed by a minor or on a minor's behalf. A statutory beneficiary files a wrongful death action to recover her own damages based on a minor's death. Therefore, the tolling provision of section 10.01 that applies to a minor does not apply to an adult's wrongful death claim.
Baptist Memorial Hosp. Sys., 39 Tex. Sup. Ct. J. at 287 (citation omitted).
In our case, we applied the minors' tolling provision to Eric Westphal's statutory claims because he is a minor with a wrongful death claim filed on his behalf. We expressly distinguished between Eric's claim and his mother's claim because Carolyn Westphal could not make use of the minors' tolling provision. Accordingly, we applied the same interpretation of this tolling provision that the supreme court approved by rejecting the San Antonio court's contrary interpretation.
Furthermore, the Baptist Memorial Hospital decision shows the importance of analyzing the statutory wrongful death claim separately from the underlying common law claim for malpractice. See id. Because the wrongful death claim is a derivative claim, a defendant moving for summary judgement based on limitations may argue that the claim is barred because
(1) the claimant's statutory wrongful death claim was not filed within two years from the date the wrongful death claim accrued, or
(2) the decedent's common law personal injury claim would not have been filed within two years from the date the personal injury claim accrued if the claim had been filed immediately before the decedent died.
Longoria v. United Blood Services, 907 S.W.2d 605, 613-14 (Tex. App.-- Corpus Christi 1995, writ requested); see generally Russell v. Ingersoll
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