Opinion
05-21-00121-CV
08-09-2022
YOLANDA VILLEGAS, Appellant v. VASDEV RAI, M.D. AND COSMETIC SURGICAL CENTER, P.A.,Appellees
On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-11205
Before Justices Partida-Kipness, Reichek, and Goldstein
MEMORANDUM OPINION
BONNIE LEE GOLDSTEIN JUSTICE
Appellant Yolanda Villegas appeals the trial court's grant of appellees'motion for traditional summary judgment on limitations. In one issue, Villegas contends that summary judgment was improper because there was a genuine issue of material fact as to when she knew or should have known of her injury. We affirm. Because all issues are settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4.
Vasdev Rai, M.D. (Dr. Rai) and Cosmetic Surgical Center, P.A. (the Center).
BACKGROUND
Dr. Rai is a licensed surgeon in the State of Texas and the owner of the Center. On December 16, 2016, Dr. Rai performed surgery on Villegas including a modified mastoplexy with implants, an abdominoplasty, and liposuction of the flanks. Following the surgery, Villegas continued to see Dr. Rai at the Center for postoperative care. Under Dr. Rai's care, Villegas's wound did not heal properly, and she suffered from necrosis, infections, and pus accumulation. Villegas sought a second opinion from a wound-care specialist. Her last day of treatment from Dr. Rai and the Center was February 21, 2017.
After February 21, 2017, employees of the Center contacted Villegas via email on two occasions about scheduling follow-up appointments. Villegas responded to the second email on March 14, 2017, stating, in relevant part (errors in original):
About a follow up appointment, I am not sure I need to see Dr. Rai just yet. His method for healing my wood were not update to the time we are living now. It cause me so much pain and suffering. I am under the care of a wound specialist who is using the last advance medicine in order to heal my wound with no pain. It is a long process. so progress have been really slow affecting my job and my family. I lost my faith in Dr. Rai and I don't see the need to come visit him for now.
I am sure I will be scar for life due to the huge of the wound, and I will see what I will do about that when the times come.
I was going to Dr. Rai office to do change of bandage and cleaning my wound because I didn't have anyone to do it for me. But the last two time I try to go. Dr. Rai was having surgery and Matilde couldn't assist me. so I have not choice that tough it up and do it myself.
After that, I got used to. An even though it is still too much for me to see me this way, I am doing my own cure now and visit my wound specialist once at week.
It is too depressed for me to see Dr. Rai. So I rather don't. After this email, Villegas did not request additional treatment from Dr. Rai. Villegas's only visits to the Center after this date were on August 7, 2017, to request her medical records, and August 10, 2017, to retrieve them.
On August 6, 2019, Villegas filed suit against appellees asserting claims for negligence, gross negligence, and intentional infliction of emotional distress. Appellees filed an answer, which they later amended, asserting the affirmative defense of limitations among other defenses. On July 28, 2020, appellees moved for traditional summary judgment on their limitations defense. Villegas responded on January 22, 2021, arguing that the discovery rule applied and there was a genuine issue of material fact as to when she knew or should have known of her injury. In reply, appellees argued that the discovery rule has been abrogated in Texas for health care liability claims. In a surreply, Villegas argued that the discovery rule was still available and, alternatively, its abrogation violates the Open Courts provision of the Texas Constitution. On January 29, 2021, the trial court granted appellees' motion and entered an order that Villegas take nothing on her claims. The order disposed of all claims and all parties. This appeal followed.
Villegas's brief on appeal does not include any constitutional arguments. We therefore conclude that her constitutional challenge has been abandoned.
DISCUSSION
I. Standard of Review
We review summary judgments de novo. Frost Nat. Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). The traditional summary judgment movant must show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994). When reviewing a traditional summary judgment granted in the defendant's favor, we determine whether the defendant conclusively disproved at least one element of the plaintiff's claim or conclusively proved every element of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). If the defendant conclusively proves every element of an affirmative defense, the plaintiff must "then adduce summary judgment proof raising a fact issue in avoidance of that affirmative defense." Motient Corp. v. Dondero, 269 S.W.3d 78, 82 (Tex. App.- Dallas 2008, no pet.). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Beesley v. Hydrocarbon Separation, Inc., 358 S.W.3d 415, 418 (Tex. App.-Dallas 2012, no pet.). In making this determination, we take evidence favorable to the non-movant as true and indulge every reasonable inference and resolve any doubts in favor of the non-movant. Sysco Food Servs., 890 S.W.2d at 800.
II. Analysis
"Limitations statutes afford plaintiffs what the legislature deems a reasonable time to present their claims and protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise." Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990). Section 74.251(a) sets a two-year limitations period for health care liability claims. See Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a). Specifically, the health care liability statutory limitations provides in pertinent part:
[N]o health care liability claim may be commenced unless the action is filed within 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[.]
See Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a); see also Mitchell v. Methodist Hosp., 376 S.W.3d 833, 835 (Tex. App.-Houston [1st Dist.] 2012, pet. denied) ("Health care liability claims have a two-year limitations period, commencing from (1) the occurrence of the breach or tort, (2) the last date of the relevant course of treatment, or (3) the last date of the relevant hospitalization."). "A plaintiff may not choose the most favorable date that falls within [the] three categories." Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001). "[I]f the date the alleged tort occurred is ascertainable, limitations must begin on that date" and "further inquiry into the second and third categories is unnecessary." Id. If the date is not ascertainable, the plaintiff must establish a course of treatment for the alleged injury, in which the last treatment date becomes relevant to determining when limitations begins. Id.
Villegas concedes that she did not receive treatment from appellees after February 21, 2017, but argues that the discovery rule saves her claims from the statute of limitations. Appellees argue that the discovery rule no longer applies in health care liability claims. We agree with appellees.
The discovery rule is a court-fashioned doctrine "intended to assist courts in construing limitations statutes that expressly define the triggering event as the date a plaintiff's cause of action 'accrued.'" Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex. 1997). It "suspends accrual, and thus the running of limitations, 'until the plaintiff knew or in the exercise of reasonable diligence should have known of the wrongful act and resulting injury.'" Id. (quoting S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996)). Although originally adopted in a medical malpractice case, the discovery rule was abrogated by the Legislature for medical malpractice claims. See Morrison v. Chan, 699 S.W.2d 205, 208 (Tex. 1985) (stating that the predecessor to § 74.251(a) "imposes an absolute two-year statute of limitations"). As the supreme court has explained:
It is undeniable that the statute of limitations contains no discovery rule. We fashioned such a rule in a 1967 sponge case to suspend an earlier limitations provision. Gaddis v. Smith, 417 S.W.2d 577, 580 (Tex. 1967). The Legislature in 1975 abrogated the court-fashioned discovery rule. See Sax v. Votteler, 648 S.W.2d 661, 663 n. 1 (Tex. 1983) (discussing the Professional Liability Insurance for Physicians, Podiatrists, and Hospitals Act of 1975, 64th Leg., R.S., ch. 330, § 1,
1975 Tex. Gen. Laws 864, 865, which removed the "accrual" language that had led the Court to find a discovery rule embedded within the statute). Accordingly, in a 1985 case, this Court acknowledged that the Legislature had abrogated the discovery rule. Morrison v. Chan, 699 S.W.2d 205, 208 ("[In Gaddis, we] held that a cause of action does not accrue until the plaintiff knows, or has reason to know, of his injury. In contrast, article 5.82, section 4 contains no accrual language and thus imposes an absolute two-year statute of limitations regardless of when the injury was discovered.") (emphasis omitted) (quoting Nelson v. Krusen, 678 S.W.2d 918, 920 (Tex.1984)).Walters v. Cleveland Reg'l Med. Ctr., 307 S.W.3d 292, 298 n.28 (Tex. 2010) (citing Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a)). Section 74.251(a) remains as originally enacted in 2003. This is not a foreign object case; rather, Villegas acknowledged that she would be scarred for life, seeking a second opinion and treatment due to wound care concerns. Walters controls, and therefore, we conclude that the discovery rule does not apply in this case.
Because it is undisputed that Villegas's claims are health care liability claims, the statute of limitations began to run from the occurrence of the breach or tort or, if that date is not ascertainable, the last date of the relevant course of treatment, or the last date of the relevant hospitalization. See Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a); Mitchell, 376 S.W.3d at 835; Shah, 67 S.W.3d at 841. Villegas alleges that appellees "breached the applicable standard of care while providing medical care and treatment to [Villegas] by engaging in numerous improper acts and omissions" including failing to provide proper care and treatment to the wound, failing to refer Villegas to a wound care specialist, failing to monitor Villegas's condition, and failing to render immediate care to Villegas when she showed signs of infection. Villegas informed the Center in her email on March 14, 2017, that she was seeing another wound care specialist for treatment, lost faith in and would not be returning to see Dr. Rai. Subsequent visits to Dr. Rai's office on August 7 and 10, 2017, were to request and retrieve her medical records. The last date Villegas received medical treatment from Dr. Rai was February 21, 2017.
Because appellees conclusively established that Villegas did not receive medical treatment from Dr. Rai after February 21, 2017, that is the last date on which appellees could have breached the standard of care as it was the last date of the relevant course of treatment. See Shah, 67 S.W.3d at 841. Thus, Villegas's claims accrued, at the latest, on February 21, 2017. As Villegas filed this lawsuit on August 6, 2019, more than two years later, Villegas's claims were time-barred. See Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a).
We overrule Villegas's sole issue on appeal.
CONCLUSION
We conclude that the trial court did not err in granting summary judgment on appellees' affirmative defense of limitations and affirm the trial court's judgment.
In their brief, appellees ask us to impose sanctions against Villegas on the ground that this appeal is frivolous and brought in bad faith. We decline to do so on the record before us.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees VASDEV RAI AND COSMETIC SURGICAL CENTER, P.A. recover their costs of this appeal from appellant YOLANDA VILLEGAS.