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Jennings v. Burgess3/7/1996
March 7, 1996
On Application for Writ of Error to the Court of Appeals for the Fifth District of Texas
Argued on December 5, 1995
Justice Baker delivered the opinion of the court in which Chief Justice Phillips, Justices Hecht, Cornyn, Enoch, Spector, Owen and Abbott join. Justice Gonzalez concurring.
This is a medical malpractice case. Mary and Jimmie Burgess sued Dr. Jerry D. Jennings, Dr. A. Bryant Manning and two health insurance companies for negligent treatment of a basal cell carcinoma. The trial court granted Jennings a summary judgement based on limitations grounds. The trial court severed the Burgesses' claim against Jennings from their claims against the other defendants, and the Burgesses appealed the unfavorable summary judgment.
The Burgesses sued Jennings in the trial court on several grounds. However, on appeal, the Burgesses only challenged the trial court's holding that limitations applied to their claim that Jennings negligently referred Mary Burgess to Manning, another general practitioner, rather than to a specialist as she requested. On this issue, the court of appeals reversed the trial court's judgement and remanded the cause for trial. 903 S.W.2d 388. The court of appeals held that the Texas Constitution's open courts provision prevented the absolute two-year statute of limitations from applying to Mary Burgess' claim against Jennings. The court of appeals did not consider Jennings' claim that even if the open courts provision applied, the Burgesses did not file suit within a reasonable time after discovery of the alleged malpractice. The court of appeals held that because Jennings raised this argument for the first time in his reply to the Burgesses' response, and did not raise it in his motion for summary judgment, he did not properly present the argument to the trial court and the court of appeals could not consider it.
We disagree with the court of appeals. We hold that the open courts provision does not apply in this case, and that limitations bars the Burgesses' claim against Jennings. Therefore, we need not consider the court of appeals' holding that Jennings did not properly present his claim that the Burgesses did not file suit within a reasonable time. We reverse the court of appeals' judgement and render judgement that the Burgesses take nothing from Jennings.
BACKGROUND FACTS
On March 3, 1989, Jennings diagnosed a nasal lesion on Mary Burgess as a basal cell carcinoma. After the initial diagnosis, Jennings did not examine or treat the lesion. Instead, he referred Mary to Manning, a general practitioner.
Manning first treated the lesion on March 3, 1989, and continued to treat the condition for over two years. On May 3, 1991, Manning advised Mary to consult a specialist and referred her to Dr. James W. Ward, a plastic surgeon . Ward examined Mary on May 7, 1991. He discovered that the cancer had invaded her nose. Ward performed surgery on Mary's nose in June 1991.
Mary admits she intended to pursue a claim against Jennings and Manning in June 1991. She wrote Ward on July 15, 1991 and requested that he forward all records about the alleged mismanagement of her condition to her attorney. The Burgesses notified Dr. Jennings of their claim on March 3, 1993, and filed suit on May 13, 1993.
PROCEDURAL HISTORY
A. The Trial Court
In the trial court, the Burgesses alleged that Jennings negligently treated Mary because he did not protect her against the cancer's continuing invasion of her nose. They further alleged that Jennings was negligent because he did not biopsy the lesion on each occasion Jennings treate
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