Texas Civil Practice and Remedies Code section 74.251 sets forth the statute of limitations on health care liability claims. The limitations period is measured from the occurrence of the breach or tort, or the last date of treatment, or the last date of relevant hospitalization. The plaintiff can’t choose the date most favorable to him or herself. Instead, the limitations period begins to run on the date of the breach if it was ascertainable. At that point, the plaintiff needs to give written notice of the claim to a doctor at least 60 days before filing a complaint.
In Estate of Klovenski v. Kapoor, an appellate court considered a failure to diagnose cancer case. The plaintiffs brought wrongful death and survival claims against the defendant doctor on the grounds that the doctor failed to diagnose cancer in the decedent.
The decedent had complained to the doctor about a mass in her left thigh in 2006 and was told it was not problematic and didn’t require medical care. When the decedent continued to experience pain, she complained again and again, but the doctor told her she didn’t have anything to worry about. Another doctor eventually determined that the mass was cancerous, and the decedent died in the summer of 2007. Her survivors asserted that the doctor had been negligent in failing to diagnose cancer and treat the decedent and that this failure caused her death.
The doctor denied the allegations and argued that the statute of limitations barred the claim. The survivors’ expert report stated in detail that the doctor failed to diagnose cancer on multiple occasions.
The doctor filed both a no-evidence and traditional summary judgment motion, arguing in both that the statute of limitations barred the claims because the survivors didn’t send notice of their claims or file suit within two years of February 2007. The doctor also argued that there was no evidence he breached the duty to diagnose in March 2007, the date after the February 2007 date alleged in the survivors’ petition. As evidence for his motion, the doctor submitted his typed and handwritten notes for the different office visits. For the March visit, he had noted that the decedent’s MRI and CT scans from another doctor showed possible rhabdomyosarcoma and possible liver metastasis.
The plaintiffs responded to the summary judgment by noting that the relevant medical records had already been filed by them and adding deposition transcripts that buttressed their claims that the decedent had repeatedly asked the doctor to diagnose and treat the mass. However, they didn’t explain discrepancies between their expert’s allegations and the doctor’s notes.
The motion for summary judgment was granted. The plaintiffs appealed. The appellate court explained that on a traditional summary judgment motion, a defendant needs to either disprove an essential element of a plaintiff’s claim or plead and establish every essential element of an affirmative defense. At that point, the plaintiff needs to raise a genuine issue of material fact in order to avoid summary judgment.
In this case, the appellate court found that the summary judgment evidence conclusively proved the doctor’s affirmative defense of a statute of limitations bar. The court found that the doctor had diagnosed the decedent’s cancer in March 2007 during her fifth visit and referred her to another doctor for cancer treatment.
In this case, the plaintiffs argued the limitations period should run from March 2007 as the last day the doctor failed to diagnose the decedent. Alternatively, they argued it should run from that day because it was the last date of continuous treatment. The court determined that the dates of the breach were the dates of the doctor’s failure to diagnose, which were ascertainable.
The doctor had failed to diagnose the decedent in December 2006, January 2007, and February 2007. Therefore, the statute of limitations had begun to run on those dates. The plaintiffs hadn’t filed within two years of any of these dates and therefore were barred by the statute of limitations. Since the doctor had diagnosed and treated the decedent in March 2007, he was not negligent on that date, and limitations were not measured from that date. The court affirmed summary judgment for the doctor.
If you are hurt because of a physician’s medical negligence, it’s important to retain experienced personal injury attorneys. 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.