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Magness v. Hauser8/31/1995
The trial court granted summary judgment, based on a statute of limitations bar, against the plaintiffs in a medical-malpractice, wrongful-death, and survival lawsuit. We affirm. In their first point of error, plaintiffs assert the trial court erred in granting summary judgment because plaintiffs' causes of action were timely filed in compliance with TEX. CIV. PRAC. & REM. CODE ANN. 4590i (Vernon Pamph. 1995).
Plaintiffs are the Estate of Virginia Dubose Magness, deceased, and her husband and children. It is uncontested that Virginia Dubose Magness attempted suicide by hanging on July 28, 1989, she lapsed into a coma as a result, and died two days later. Defendant Dr. Harris Hauser, a psychiatrist associated with defendant Memorial Neurological Association, had treated Magness over a period of years for longstanding psychological problems and recurring bouts with depression. The chronology of events immediately preceding Magness's death are undisputed:
July 13, 1989: last office visit with Dr. Hauser
July 15, 1989: last prescription written by Dr. Hauser for Magness
July 24, 1989: last prescription filled by Magness
July 28, 1989: Magness attempted suicide and lapsed into a coma
July 30, 1989: Magness died, never having come out of the coma.
On June 25, 1991, plaintiffs served notice of claim letters pursuant to art. 4590i, Section(s) 4.01 (Vernon Pamph. 1995). On October 14, 1991, suit was filed. The issue presented is whether suit was timely filed against Dr. Hauser and Memorial Neurological Association. 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, 690 S.W.2d 546, 548 (Tex. 1985); Enchanted Estates 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 was 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.
Because plaintiffs' wrongful death and survival actions are health care liability claims, they are governed by the Medical Liability and Insurance Improvement Act, TEX. REV. CIV. STAT. ANN. art. 4590i. Bangert v. Baylor College of Medicine, 881 S.W.2d 564, 566 (Tex. App.- -Houston [1st Dist.] 1994, writ denied). Subject to certain tolling provisions, section 10.01 of the Act provides that a suit must be brought within two years of one of three dates: (1) the occurrence of the breach or tort; (2) the date the heath care treatment that is the subject of the claim is completed; or (3) the date the hospitalization for which the claim is made is completed. Rowntree v. Hunsucker, 833 S.W.2d 103, 104 (Tex. 1992); TEX. REV. CIV. STAT. ANN. art. 4590, 10.01 (Vernon Pamph. 1995). All parties agree that under section 10.01 as applied to this case, the controlling date is "(2) the date the health care treatment that is the subject of the claim (was) completed."
The applicable tolling provision is found in section 4.01(c) of the Act, which states " otice given as provided in this Act shall toll the applicable statute of limitations to and including a period of 75 days following the giving of the notice . . .
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