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Campbell v. MacGregor Medical Association12/14/1995
In this appeal, we are asked to decide whether the claims of Margaret Campbell (Campbell) against the MacGregor Medical Association (MacGregor) for common-law negligence and gross negligence, conspiracy, deceptive trade practices, breach of warranty and breach of contract are barred by the absolute two-year statute of limitations set out in the Texas Medical Liability and Insurance Improvement Act (article 4590i), TEX. REV. CIV. STAT. ANN. art. 4590i, Section(s) 10.01 (Vernon Supp. 1995). We must determine whether a professional association duly licensed by the State of Texas to provide health care as physicians falls within the definition of health care provider in article 4590i, Section(s) 1.03(a)(4). We reverse the summary judgement granted in favor of MacGregor.
Summary of Facts
On April 26, 1988, Danny Campbell drank some Kool-aid contaminated with formaldehyde. He instantaneously started vomiting, felt intense pain and a burning sensation in his stomach and throat. His wife picked him up from work and took him to the MacGregor Medical Clinic, where they told the clinic personnel that Danny had been poisoned. After about 45 minutes, he was seen by an internist, Dr. Arnold Berlin. The lemonade was tested and found to contain formaldehyde. Dr. Berlin concluded that Danny had ingested formaldehyde, but assumed he vomited all of it out of his system. Dr. Berlin did not pump Danny's stomach, order a test to determine the level of formaldehyde in the blood, or treat him with activated charcoal. He did not call poison control or refer Danny to an emergency room. Dr. Berlin treated him with Maalox, advised Danny to continue to take Maalox if he experienced pain, and told him everything would be okay.
Over the next eight months, Danny's condition deteriorated. Swallowing was painful, his stomach hurt whenever he ate, and he suffered intermittent episodes of vomiting. When the stomach pain continued after he switched to a bland diet and when it became virtually continuous, he consulted another doctor. On March 22, 1989, Danny had major surgery on his stomach. Around that time, several doctors suggested that his stomach problems may have been avoided if his stomach had been pumped or he had been fed active charcoal when he originally ingested the formaldehyde.
In July 1989, a portion of Danny's stomach was removed. The remainder was removed in August 1989. On December 28, 1990, Danny died.
Procedural History
MacGregor filed a motion for summary judgement on December 28, 1991, approximately a year after the Campbells filed suit against it. The motion was denied on August 18, 1993. Campbell's tenth amended original petition was filed February 7, 1994. MacGregor filed a second motion for summary judgement on April 20, 1994.
After soliciting and receiving letters from both parties in late August concerning the issue of whether article 4590i applied, the court granted the second motion on September 2, 1994, without specifying any grounds in the order. On October 27, 1994, the court signed an order dismissing the intervention filed by Campbell's former employer and an order of non-suit of Dr. Berlin.
Applicability of Article 4590i
Campbell's first point of error claims that the trial court erred in granting summary judgement to MacGregor based on the statute of limitations in article 4590i. This point turns on whether MacGregor falls within the definition of health care provider in article 4590i, Section(s) 1.03(a)(3).
1. Standard of Review
As MacGregor points out, construction of a statute is a matter of law, not fact. Johnson v. City of Fort Worth, 774 S.W.2d 653, 65
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