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Valentine v. Bessire8/24/1995
Appellants, Sharon and Archie Valentine, brought suit for medical malpractice seeking damages for injuries Sharon Valentine allegedly suffered as a result of negligent treatment by a number of health care providers, including appellee, Dr. Charles Bessire. The trial court granted summary judgement in favor of Dr. Bessire and severed the action against him. This appeal followed.
Sharon Valentine first consulted Dr. Bessire regarding a lump in her breast on April 15, 1991. On October 28, 1991, Mrs. Valentine underwent a radical mastectomy and began chemotherapy. The chronology of the intervening events is undisputed:
4/15/91 Dr. Bessire examined the mass in Mrs.
Valentine's breast and scheduled a mammogram for the following day.
4/16/91 A mammogram was performed. A radiologist, Dr. Neil Longley, interpreted it and determined the mass was benign.
5/14/91 During a follow-up visit, Dr. Bessire examined Mrs. Valentine's breast again and informed her that the mass was unchanged.
6/19/91 Mrs. Valentine consulted Dr. Bernard L.
Rosenfeld regarding the mass in her breast. She was referred to Dr. Patrick Reardon.
7/03/91 Dr. Reardon examined Mrs. Valentine. After examining the 4/6/91 mammogram film and report, he concurred with Dr. Bessire and Longley that the mass was benign.
9/13/91 A biopsy was performed and the mass was found to be malignant.
9/16/91 Mrs. Valentine informed Dr. Bessire of the malignancy and asked for a referral to M.D. Anderson Cancer Center.
10/02/91 Mrs. Valentine was scheduled for a partial, mastectomy but when two additional tumors were discovered, the surgery was postponed.
10/28/91 Mrs. Valentine underwent a radical mastectomy.
10/1/93 The Valentines sent notice of the claim to Dr. Bessire.
12/14/93 The Valentines filed suit.
The Valentines alleged negligence and violations of the Deceptive Trade Practices Act. Dr. Bessire moved for summary judgment on all claims, specifically asserting a statute of limitations bar with regard to the negligence claims. The trial court granted the motion as to all claims and entered a take-nothing judgement against the Valentines. The Valentines do not appeal the granting of summary judgment with regard to the DTPA claims.
In points of error one through five, the Valentines assert the trial court erred in granting summary judgement on their negligence claims based on the running of the two-year statute of limitations. To be entitled to summary judgement under TEX. R. CIV. P. 166a(c), the movant must establish there is no genuine issue of material fact and that it is entitled to judgement as a matter of law. Nixon v. Mr. Property Management Co., Inc, 690 S.W.2d 546, 548 (Tex. 1985); Enchanted Estates Community Ass'n, v. Timberlake Improvement Dist., 832 S.W.2d 800, 801 (Tex. App. -- Houston [1st Dist.] 1992, no writ). When a defendant moves for summary judgement on the basis of the affirmative defense of limitations, it assumes the burden of proving as a matter of law that the suit is barred by limitations. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983). In reviewing the granting of summary judgment, this Court takes as true all evidence favorable to the nonmovant. Nixon, 690 S.W.2d at 549. Every reasonable inference must be indulged in favor of the nonmoving party and any doubts are to be resolved in its favor. Id. at 549.
In their petition, the Valentines alleged Dr. Bessire was negligent in (1) failing to properly treat and properly examine Mrs. Valentine; (2) failing to timely perform a biopsy; (3) failing to infor
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