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Erickson v. Cigarroa6/15/2005
Sitting: Karen Angelini, Justice, Sandee Bryan Marion, Justice & Phylis J. Speedlin, Justice.
AFFIRMED
Brent Erickson and Traci Erickson, individually, appeal the partial summary judgment of the trial court. Appellants raise three issues on appeal. We overrule all three issues and affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
In January and February of 1997, Dr. Deborah Neigut evaluated Caitlin Erickson, a five-month-old female with a history of severe congenital malformations and medical conditions, for bloody bowel movements and persistent constipation. Dr. Neigut performed suction rectal biopsies on Caitlin. The tissue samples were evaluated by pathologists Dr. Josefine Heim-Hall and Dr. Victor Saldivar at Santa Rosa Children's Hospital. Based upon their evaluations, Caitlin was diagnosed with Hirschsprung's disease of the lower colon. As a result, in February 1997, Dr. Francisco Cigarroa performed a preliminary diverting colostomy procedure for Caitlin, followed by a removal of the affected section of Caitlin's colon in April 1997.
Post-surgery, Caitlin continued to experience complications and irregular elimination patterns, however, and in October 2001, she was admitted to Methodist Children's Hospital of South Texas for abdominal pain and fever. During the hospitalization, Dr. Eduardo Ibarguen-Secchia, a gastroenterologist, obtained the original pathology slides and had them reviewed by the pathologists at Methodist. The results of the October 2001 review identified "no evidence of Hirschsprung disease."
As a result, on May 12, 2003, Brent and Traci Erickson, individually and as next friend of Caitlin, a minor, filed suit against Dr. Heim-Hall and Dr. Saldivar, alleging acts and omissions constituting medical malpractice. In an amended petition filed on September 8, 2003, the Ericksons added Dr. Neigut and Dr. Cigarroa as defendants to the suit. Specifically, the Ericksons allege that Dr. Neigut improperly performed rectal biopsies on Caitlin, leading to the misdiagnosis of Hirschsprung's disease. Additionally, the Ericksons contend that Dr. Cigarroa negligently performed unnecessary surgeries on Caitlin, including a colostomy and partial resection of Caitlin's colon.
Dr. Cigarroa and Dr. Neigut moved for partial summary judgment as to Brent and Traci Ericksons' individual claims on the ground that they were barred by the two-year statute of limitations contained within article 4590i, section 10.10 of the Texas Medical Liability and Insurance Improvement Act. After a hearing, the trial court granted the motion as to the parents claims only, and ordered that they take nothing on their claims against Dr. Cigarroa and Dr. Neigut. The trial court further severed that part of the cause from the Ericksons' action against Dr. Heim-Hall and Dr. Saldivar. The Ericksons appeal from the partial summary judgment of the trial court.
STANDARD OF REVIEW
The standard of review for a traditional summary judgment is well-established. The movant for summary judgment must show there is no genuine issue of material fact and that she is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant moving for summary judgment on a statute of limitations affirmative defense must prove conclusively that defense's elements. Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997). When reviewing a summary judgment, we take as true all evidence favorable to the non-movant and indulge every reasonable inference and resolve any doubts in the non-movant's favor. Nixon, 690 S.W.2d at 548-49. Because the propriety of
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