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Morrell v. Finke11/3/2005
ring Mfg. Co. v. Peterson, 28 Tex. Civ. App. 194, 67 S.W. 133, 135 (Tex. Civ. App. 1902, writ dism'd) ("Historically, in Texas, the right to recover for medical costs incurred in behalf of the minor is a cause of action belonging to the parents, unless such costs are a liability as to the minor's estate.").
b. Limitations on Parent's Claim
The statute of limitations governing health care liability claims is two years, except that minors under the age of twelve have until their fourteenth birthday to file a health care liability claim or to have one filed on their behalf. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.251 (Vernon 2004). The Morrells' claim for Madeline's medical expenses until she reaches the age of eighteen belongs to them individually; it does not belong to Madeline, and they are not bringing this claim on her behalf. See Sax, 648 S.W.2d at 666; Kennedy, 778 S.W.2d at 555; Kennedy, 505 S.W.2d at 397; Bering Mfg. Co., 67 S.W. at 135. Consequently, the Morrells had two years from "the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed" to file suit. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.251. Madeline was delivered on December 31, 1994; the Morrells sued Dr. Finke, the clinic, and the hospital on August 28, 1996. On March 30, 1999, they added as defendants Nurses Fenton, Stephens, and Walker. Accordingly, because the Morrells did not assert their claims for Madeline's medical expenses against Nurses Fenton, Stephens, and Walker until after limitations had run, the trial court erred by denying the nurses' motion for JNOV on the ground that the Morrells' claims against them were barred by the statute of limitations. We sustain the nurses' fourth issue.
VI. Conclusion
Having sustained the nurses' third issue challenging the imposition of joint and several liability upon Rose Fenton, R.N.C., we modify the judgment by deleting the provisions imposing joint liability on Nurse Fenton so that her liability is several only, for five percent of the damages awarded in the judgment. See TEX. R. APP. P. 43.2(b). Having sustained the nurses' fourth issue claiming that the Morrells' claim against them for Madeline's past medical expenses is barred by the statute of limitations, we reverse that portion of the trial court's judgment imposing liability upon the nurses individually for Madeline's past medical expenses. We render judgment that the Morrells take nothing from the nurses individually on their claim for Madeline's past medical expenses. Having overruled the balance of Defendants' issues and the Morrells' issues challenging the JNOV, we affirm the trial court's judgment in all other respects.
EN BANC
GARDNER, J. filed a dissenting opinion in which CAYCE, C.J. joins.
HOLMAN and MCCOY, JJ. recused.
DISSENTING OPINION
I respectfully dissent because there is no evidence that any breach of the standard of care either by the nurses or by Dr. Finke was a cause-in-fact of Madeline's injuries.
DR. FINKE
The majority opinion fails to bridge the "fatal gap" in the evidence of cause-in-fact. Dr. Ater's opinions on causation were never linked to any breach of the standard of care by Dr. Finke as testified to by Dr. Rice. The opinion of Dr. Rice was that Dr. Finke was negligent in failing to decide on a C-section by 7:27 p.m. with delivery by 7:35 p.m. But Dr. Ater testified that all of Madeline's injuries occurred during the ten or fifteen-minute period of the forceps delivery and were proximately caused by the trauma of the forceps deli
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