 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Naugle v. Theard11/2/1995
This is an appeal from a medical malpractice suit, brought pursuant to the Medical Liability and Insurance Improvement Act, Tex.Rev.Civ.Stat.Ann. art. 4590i, wherein Appellant alleges Appellee failed to advise her that both fallopian tubes had been ligated. The trial court granted Appellee's motion for summary judgement on the ground that the suit was barred by limitations. We affirm the judgement of the trial court.
I. SUMMARY OF THE EVIDENCE
After the birth of her third child on July 21, 1990 by cesarean section, Appellant, desiring not to have any more children, requested a bilateral tubal ligation to be performed by Appellee. However, Appellee only ligated her left fallopian tube because he was unable to find Appellant's right tube due to scar tissue. Following the surgery, Appellee treated Appellant in the post-operative period for follow-up care until August 24, 1990. Although the parties are in complete disagreement as to whether Appellee told Appellant that only one fallopian tube was ligated, Appellee did not prescribe birth control for Appellant. Thereafter, Appellant and her family moved to Germany.
In July 1991, Appellant became pregnant and underwent a surgical exploration for a possible ectopic pregnancy. During this operation, the surgeon noted that Appellant's right fallopian tube had not been ligated, a fact that Appellant was notified of on July 10, 1991. Unfortunately, this pregnancy was lost at the end of August.
Although she was using birth control, Appellant again became pregnant in January of 1992. Thereafter, Appellant developed a hydrosalpinx of her right tube, and in October of 1992, Appellant had a right oophorectomy, a bilateral salpingectomy, and a hysterectomy. As a result, Appellant lost her ovarian functions. After the loss of her reproductive organs, Appellant has complained of side effects including vaginal dryness, skin problems, hair loss, and breast pain and tenderness and has been seeing a counselor for mood swings.
On September 3, 1993, Appellant brought a medical malpractice action against Appellee, seeking medical expenses, loss of wages, and compensation for physical and mental pain and suffering. Appellant asserted that Appellee's failure to advise her that he had not ligated her right fallopian tube lead to the subsequent pregnancy and her attendant problems. Appellee moved for summary judgment, contending that the two-year statute of limitations provision of the Texas Medical Malpractice Act barred the claim. The trial court granted summary judgement in favor of Appellee, which precipitated this appeal.
II. DISCUSSION
Appellant attacks the judgement in three points of error, claiming that the trial court erred in granting summary judgement because the cause of action was not barred by the statute of limitations. We begin with the standards we employ to review a summary judgment.
The standard of review on appeal is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that a judgement should be granted as a matter of law. Lier Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Cortez v. Liberty Mut. Fire Ins. Co., 885 S.W.2d 466, 469 (Tex.App. -- El Paso 1994, writ denied). Thus, the question on appeal is not whether the summary judgement proof raises fact issues as to required elements of the movant's cause or claim, but whether the summary judgement proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant's cause or claim. Gibbs v.
Page 1 2 3 4 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|