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Casey v. Methodist Hospital9/14/1995
This is an appeal from a take-nothing summary judgement rendered in favor of appellee, the Methodist Hospital, in a medical malpractice action brought by appellant, Terry Casey. In two points of error, Casey contends that the trial court erred in rendering summary judgement in favor of Methodist. We affirm the trial court's judgment.
I. FACTS AND PROCEDURAL POSTURE
On June 5, 1988, Casey injured her left ring finger while working at Ben Taub Hospital. She sought treatment for her injury later that afternoon at Methodist's emergency room, where she was treated with pain medication and an ice pack and was then released. Casey returned to the hospital's emergency room later that night, complaining of pain and swelling. Her doctor thought the pain was due to vasospasm, or constriction of the artery, and gave her a carpal tunnel block with pain medication and then released her. When Casey returned again the next morning still experiencing problems, she was admitted as a patient. An arteriogram was performed on her on June 7, and she was subsequently diagnosed with blockage of the arteries of her left hand. A specialist was consulted, and surgery to correct the blockage was performed on June 8. Casey was discharged from Methodist on June 11, 1988, but returned for two follow-up visits in July and August 1988. Casey claims that Methodist failed to properly diagnose and treat the arterial occlusion in her hand during her two emergency room visits on June 5, 1988. On June 4, 1990, pursuant to TEX. REV. CIV. STAT. ANN. art. 4590i, Section(s) 4.01 (Vernon Supp. 1995), Casey's attorney notified Methodist of Casey's claim for damages resulting from her treatment at the hospital on June 5, 1988, and requested copies of Casey's medical records.
Casey filed suit against Methodist on August 24, 1990. Methodist did not provide Casey with a copy of her medical records, however, until after suit was filed. Methodist moved for summary judgment on the basis that Casey's claims were barred by the statute of limitations. Casey then amended her petition, claiming that Methodist fraudulently concealed her medical records from her, thereby preventing her from discovering the date her injury occurred. On January 18, 1994, the trial court rendered summary judgement in favor of Methodist. Casey now appeals asserting that the trial court erred in finding that her claim was barred by limitations because: (1) the statute had not run as a matter of law; and (2) Methodist failed to show that there was no genuine issue of material fact concerning Casey's allegations of fraudulent concealment and lack of discovery.
II. STANDARD OF REVIEW
Summary judgement is proper only when the movant shows that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); TEX. R. CIV. P. 166a(c). For a defendant to prevail on a motion for summary judgment, it must either:
(1) disprove at least one element of the plaintiff's cause of action; or (2) plead and conclusively establish each essential element of an affirmative defense to the plaintiff's cause of action. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984); Marchal v. Webb, 859 S.W.2d 408, 412 (Tex. App. -- Houston [1st Dist.] 1993, writ denied).
Once a movant has produced competent evidence to establish a right to summary judgment, the burden shifts to the non-movant to introduce evidence to raise an issue of fact that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Marchal, 859 S.W.2d at 412. In deciding whether there is a disputed
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