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Husband Misses Statute of Limitations for Medical Malpractice Claim

ct-scan-70995-m-3Failure to file a medical malpractice claim within the time limits can result in your claim being barred. In the recent case of Gale v. Lucio, a doctor and wellness center appealed on the issue of whether the plaintiff could invoke the open courts provision of the state constitution to toll the statute of limitations in a wrongful death and survival claim brought by his wife.

The plaintiff’s wife was a patient of the doctor and wellness center. The wife visited the doctor in order to get her blood pressure checked. The doctor ordered a chest x-ray, which revealed she had a density in her left lung base. A mammogram and CT scan were ordered. The scan showed a wedge-shaped mass on the woman’s left lung, but the plaintiff claimed the wife and he were never informed of the results. The doctor said her office called and mailed the results.

The wife came back for routine appointments and claimed she had a cough. The doctor ordered another chest x-ray that showed a new growth on her lung. After that, the wife was diagnosed with stage IV metastatic lung cancer. The couple sued the doctor for medical malpractice, claiming that the doctor had failed to report the abnormal CT scan to her in a timely fashion and to refer her to a pulmonologist, which caused a delay in her diagnosis.

The husband asserted claims for loss of consortium and loss of household services due to the doctor’s negligence in failing to tell the woman of the CT scan results. The woman died in 2012. The next year, the husband amended his petition in his individual capacity and also as his wife’s estate’s representative. The amended petition contained a suggestion of death under Texas Rule of Civil Procedure 151. The facts were similar, but the action was brought under the Texas Wrongful Death Act and Texas Survival Statute. He asked for loss of care, loss of companionship, and emotional pain. He also sought damages on behalf of his wife’s estate for her pain and anguish and medical expenses.

The doctor moved for summary judgment, claiming the suit was filed outside the two-year statute of limitations for medical malpractice. The husband argued summary judgment was inappropriate because there was a factual issue whether the case fell within the open courts exception to the two-year statute of limitations. He argued that he and his wife hadn’t discovered the malpractice until after the two-year statute of limitations, running from the date of the malpractice, had expired. Under the open courts doctrine, a litigant has a reasonable time to discover injuries and file suit. The suit was filed 10 months after discovering the malpractice.

The trial court denied the motion for summary judgment but granted the defendant’s motion for permission to appeal the order denying the motion for summary judgment. The issue was whether an estate representative could invoke the open courts provision to toll the statute of limitations in a wrongful death and survival claim originally filed as a negligence claim by the decedent before dying.

On appeal, the court explained that the petition was untimely, and the claims were barred by the statute of limitations. The husband bore the burden of raising a fact issue to show that the open courts guarantee applied to his case. He had to show he didn’t have a reasonable opportunity to discover an alleged wrong and bring suit before the expiration of the limitations period. He explained that the malpractice happened in or around 2009, when the doctor learned of the abnormal results of the CT scan and failed to tell the wife of the results or refer her for treatment. The wife was not misdiagnosed. The failure to report test results was not an injury that was inherently hard to discover or fraudulently concealed from her and her husband. The appellate court reversed the trial court order.

If you or a loved one is injured as a result of medical negligence, the experienced San Antonio medical malpractice attorneys at Carabin & Shaw may be able to help. Call our office for more information at 1-800-862-1260.

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