Rotella v. Pederson , 144 F.3d 892 ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10731
MARK ROTELLA,
Plaintiff-Appellant,
VERSUS
WILLIAM M. PEDERSON, M.D., WILLIAM M. PEDERSON, M.D.P.A.,
LESLIE H. SECREST, M.D., LESLIE H. SECREST, M.D.P.A.,
JOHN M. ZIMBUREAN, M.D., JOHN M. ZIMBUREAN M.D.P.A.,
LARRY W. ARNOLD, M.D., LARRY W. ARNOLD, M.D.P.A.,
BRADFORD M. GOFF, M.D., BRADFORD M. GOFF M.D.P.A.,
FRED L. GRIFFIN, M.D., FRED L. GRIFFIN, M.D.P.A.
ANGELA M. WOOD, M.D., ANGELA M. WOOD M.D.P.A.,
GARY LEE ETTER, M.D., GARY LEE ETTER, M.D.P.A.,
GROVER LAWLIS, M.D., GROVER LAWLIS, M.D.P.A.
DALLAS PSYCHIATRIC ASSOCIATES, A Partnership
Defendants-Appellees.1
Appeal from the United States District Court
For the Northern District of Texas
July 14, 1998
Before REAVLEY, DeMOSS and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge.
Plaintiff-Appellant, Mark Rotella (“Rotella”), appeals from
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Rotella’s appeal from the district court order as to
Defendants-Appellees Ronald Fleischmann, M.D. and Ronald
Fleischmann, M.D.P.A. were dismissed with prejudice post-argument.
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the district court’s order granting summary judgment for defendants
based on its finding that Rotella’s claims were barred by
limitations. We affirm.
FACTS AND PROCEEDINGS
On February 19, 1985, Rotella, then age sixteen, was admitted
to Brookhaven Psychiatric Pavilion (“Brookhaven”). Defendants-
appellees are physicians and professional associations which had
treating privileges at Brookhaven during Rotella’s hospital stay.
Although Rotella was initially admitted involuntarily on the
request of his mother and his prior therapist after a suicide
threat, he signed for a voluntary admission rather than face an
involuntary commitment proceeding. He was discharged sixteen
months later, on June 16, 1986, shortly after his eighteenth
birthday. Rotella made several requests for release pursuant to
Texas law. Each time he withdrew his request prior to the
expiration of the 96 hour waiting period, except one occasion when
he was advised that his application was not properly submitted and
he would have to make another application. He characterizes the
withdrawals of his requests for release as coerced.
In April of 1994, Wendy Edelman, another former patient at
Brookhaven, contacted Rotella and urged him to file a lawsuit
against the doctors who had treated them at Brookhaven because the
doctors had based their decisions to keep patients hospitalized on
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economic rather than medical criteria.
In June 1994, Brookhaven’s parent company, Psychiatric
Institutes of America (“PIA”), and PIA’s Texas Regional Director,
Peter Alexis pleaded guilty to charges of fraud and conspiracy.
The underlying fraud related to doctors extending the length of
stay for patients in psychiatric hospitals beyond medical necessity
in order to maximize health insurance benefit payments.
In July 1994, Defendants-Appellees filed suit in Texas state
court against Rotella and his attorney alleging that Rotella
slandered them by telling third parties that they “received a
$10,000 bonus for each bed filled over the Christmas holidays.”
Rotella filed a counterclaim asserting civil rights violations and
state law causes of action arising out of his treatment at
Brookhaven in 1985-86. He alleged that in-patient treatment was
generally inappropriate for his condition and that specific
treatments, such as the use of restraints and limitations on his
movements and privacy, were inappropriate and abusive.
The state court granted summary judgment for defendants on
Rotella’s state claims, finding that they were barred by
limitations and denied defendants’ motions for summary judgment on
the civil rights claims. Rotella’s counterclaim was then severed
and, on March 3, 1997, was removed to federal court.
On June 30, 1997 the district court denied Rotella’s motion to
reconsider summary judgment on the state law claims and, on
reconsideration, granted summary judgment for defendants on the
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civil rights claims, finding that they were barred by limitations
as well. Final judgment was entered for defendants and Rotella
appealed.
After this case was briefed, the Texas Court of Appeals at
Fort Worth handed down two opinions addressing limitations issues
in the context of former psychiatric patients suing PIA and related
doctors and entities. See Savage v. Psychiatric Institute of
Bedford, Inc., 965 S.W.2d 745 (Tex.App.-Fort Worth 1998, writ
requested); see also Slater v. National Medical Enterprises, Inc.,
962 S.W.2d 228 (Tex.App.-Fort Worth 1998, writ requested). While
neither opinion directly disposes of every issue before this court,
both support the district court’s determination that Rotella’s
claims are time barred.
ANALYSIS
Statute of limitations
We review the district court’s grant of summary judgment on
the basis of limitations de novo. Wallace v. Texas Tech Univ., 80
F.3d 1042, 1046 (5th Cir. 1996).
Rotella does not dispute that his suit was filed more than
four years after he was discharged from Brookhaven, but posits
several theories for tolling the statutes of limitations. Rotella
bears the burden of proof on each of his tolling theories. See
Weaver v. Witt, 561 S.W.2d 792, 794, n.2 (Tex. 1977).
a. Are Rotella’s Claims Health Care Liability Claims?
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All health care liability claims must be brought within two
years of “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.”
TEX.REV.CIV.STAT.ANN. art. 4590i, § 10.01 (Vernon Supp. 1997).
Rotella contends that his case is fundamentally one of fraud which
is governed by a four year statute of limitations.
In Shannon v. Law-Yone, 950 S.W.2d 429 (Tex. App.-Fort Worth
1997, writ denied), the Fort Worth Court of Appeals considered this
limitations question in a context that was nearly identical to this
case. Shannon was a voluntary inpatient at Brookhaven for six
weeks during 1989. Shannon brought suit in 1993 alleging that
Brookhaven doctors and other employees fraudulently induced him to
lengthen his stay and coerced him into waiving a release that he
requested resulting in emotional strain, trauma and anguish. The
court held that Shannon’s common law fraud claim is not a “health
care liability claim” as defined by art. 4590i and it is therefore
governed by the four-year fraud statute of limitations. Id. at
438. Making an “Erie guess”2 as to how Texas courts would resolve
this issue based on the intermediate Texas appellate court opinion
in Shannon, we hold that the four-year statute of limitations
applies to Rotella’s fraud claims.
b. Counterclaims - § 16.069, Texas Civil Practice and Remedies Code
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See Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
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Rotella’s claims were originally filed as counterclaims to a
petition brought by defendants against him, his attorney and
another former patient in state court. The original suit alleged
that Rotella slandered defendants in 1994 by stating that the
defendants “received a $10,000 bonus for each bed filled over the
Christmas holiday.” Under Texas law, an individual who has a
counterclaim which is otherwise time-barred may file that
counterclaim within thirty days of the date his answer is due, if
the counterclaim “arises out of the same transaction or occurrence
that is the basis of [the] action.” § 16.069(a) TEX.CIV.PRAC.& REM.
CODE ANN. (Vernon 1986). Rotella claims that there is a “critical
link” between the alleged 1994 statement and his 1984-86 stay at
Brookhaven because the slander suit alleged that Rotella had
harbored ill will toward his doctors since his Brookhaven
treatment. He also argues that the counter claims “arose out of”
the same occurrence because Rotella’s lawyer was also named as a
defendant in the slander suit and a reasonable juror could conclude
that the slander suit was a preemptive strike to intimidate Rotella
and his attorney and prevent them from filing suit against the
defendants.
The district court rejected this argument, holding that
Rotella’s counterclaim did not arise from the same transaction and
therefore could not be revived under § 16.069. Relying on Hobbs
Trailers v. J.T. Arnett Grain Co., Inc., 560 S.W.2d 85, 88-89 (Tex.
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1977)(addressing art. 5539c, the predecessor statute of § 16.069),
the district court reasoned, “This conclusion is consistent with
the purposes of the statute. ‘The statute was intended to prevent
a plaintiff from waiting until an adversary’s valid claim arising
from the same transaction was barred by limitation before asserting
his own claim.’”
Appellees urge us to affirm the district court, arguing that
Rotella’s claims arose from his hospital stay, while the slander
claim arose out of a statement made eight years later in a related
but separate incident. Therefore, Appellees argue, § 16.069 does
not control, because the counterclaims did not arise out of the
same incident. In Leasure v. Peat, Marwick, Mitchell & Co., 722
S.W.2d 37 (Tex.App.-Houston[1st Dist.] 1986, no writ), a Texas
court held that Leasure’s counterclaims based on an audit that Peat
Marwick had performed in 1976-77 did not arise from the same
transaction or occurrence as Peat Marwick’s original claim for
malicious prosecution which was based on Leasure’s 1980 lawsuit.
Id. at 38-39. The court emphasized that Peat Marwick’s claim,
while it had some relationship to the 1976-77 audit that was the
subject of the counterclaim, was based on Leasure’s alleged
wrongful conduct which occurred some three years later.
Rotella cites two cases to rebut the holding in Leasure,
neither of which convince us that the district court’s reliance on
Leasure was misplaced. Fluor Engineers and Constructors, Inc. v.
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Southern Pacific Transp. Co., 753 F.2d 444, 449 (5th Cir. 1985),
summarily states, without analysis, that the claims in question
arose out of the same transaction. Barraza v. Koliba, 933 S.W.2d
164, 168 (Tex.App.-San Antonio 1996, writ denied), held that a suit
seeking to construe a title conveyance document and a counterclaim
alleging that one party misrepresented what was being conveyed by
that document arose from the same transaction. We agree with the
district courts’ conclusion that Rotella’s claims and the state
court slander claims arose from two separate incidents.
Finally, the preemptive strike argument is meritless. Either
the claims were already time-barred and there was nothing left to
preemptively strike or they are not time-barred and they do not
need § 16.069 for revival.
We therefore hold that § 16.069 does not operate to revive
Rotella’s time-barred counterclaims.
c. The Discovery Rule
Art. 4590i indicates that its limitations provisions apply
regardless of any other law or legal disability. The Texas Supreme
Court nonetheless held the statute unconstitutional to the extent
that it cuts off a party’s ability to bring suit before having a
chance to discover the injury. Consequently, a party must have a
reasonable opportunity to discover an injury and bring suit within
a reasonable time after the party knows, or reasonably should have
known of an injury. See Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex.
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1985).
Rotella contends that he did not discover his injury until
April of 1994 when he spoke to Wendy Edelman, and that it was not
reasonably possible for him to have discovered it prior to that
date. He reasons that the emotional disorders that resulted from
the defendants’ wrongful acts were impossible for him to detect on
his own and affected his ability to understand and pursue his
remedies.
A party is deemed to be aware of an injury and its cause when
a reasonable person, under the same circumstances, exercising
reasonable diligence, would be aware of it. See Cathedral of Joy
Baptist Church v. Village of Hazelcrest, 22 F.3d 713, 717 (7th Cir.
1994). Section 16.001, TEX. CIV. PRAC. & REM. CODE, provides that a
person of unsound mind is under a legal disability and that “[i]f
a person entitled to bring an action is under a legal disability
when the cause of action accrues, the time of the disability is not
included in the limitations period.” The district court found that
there was no summary judgment evidence in the record to support a
finding that Rotella lacked the requisite mental capacity when he
was discharged in June of 1986. Rotella does not specifically
assert that he qualifies for unsound mind tolling pursuant to §
16.001. Rather, he contends that he has created a fact question on
whether he knew or should have known of his injury earlier.
Rotella knew what happened during his hospitalization, who was
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involved in his treatment and how it impacted him at time of his
release. Therefore, he was on notice of his injury on the date of
his release, at the latest. See Slater v. National Medical
Enterprises, Inc., 962 S.W.2d 228, 233 (Tex.App.-Fort Worth 1998,
writ requested). Rotella’s argument relies on his mental illness
to excuse his late filing, while not specifically evoking or
establishing the elements of tolling based on an unsound mind
theory. Without resort to a mental incapacity argument under §
16.001, his discovery argument fails.
d. Fraudulent concealment
Under Texas fraudulent concealment law, a defendant must be
charged with a legal duty through a special relationship to reveal
the concealed facts to the plaintiff before he can claim tolling
under this theory. See Dougherty v. Gifford, 826 S.W.2d 668
(Tex.App.-Texarkana 1992, no writ). The duty to disclose in
medical contexts ends when the physician-patient relationship ends.
See Thames v. Dennison, 821 S.W.2d 380, 384 (Tex.App.-Austin 1991,
writ denied). Rotella does not dispute that his relationship with
defendants ended on June 16, 1986 when he was discharged from
Brookhaven. Under Thames, his fraudulent concealment theory does
not save his causes of action from the limitations bar.
However, Rotella argues that Thames, an intermediate Texas
appeals court decision, cannot serve as the basis of this court’s
decision because it relies on language from the dissent in
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Borderlon v. Peck, 661 S.W.2d 907 (Tex. 1983), and is inconsistent
with the Texas Supreme Court’s majority opinion in that case. We
disagree with Rotella’s reading of Borderlon. In fact, the
Borderlon majority opinion holds only that art. 4590i did not
abolish fraudulent concealment as a defense to limitations in
medical malpractice actions. Id. at 908. It recognizes that a
claim of fraudulent concealment must be based solely on the
physician-patient relationship. Id. The Borderlon majority
states, “The estoppel effect of fraudulent concealment ends when a
party learns of facts, conditions, or circumstances which would
cause a reasonably prudent person to make inquiry, which if
pursued, would lead to discovery of the concealed cause of action.”
Id. at 908. Rather than focusing on the end of the patient-doctor
relationship, the majority focused on the fact that the
patient/plaintiff had information that put her on inquiry just four
days after the end of that relationship and still outside the
limitations period. We do not read the Borderlon majority as
inconsistent with the Borderlon dissent regarding the effect of the
termination of the doctor/patient relationship. Neither is
Borderlon’s holding inconsistent with Thames on this issue.
Finally, Rotella’s reliance on Gatling v. Perna, 788 S.W.2d 44
(Tex.App.-Dallas 1990, writ denied), is misplaced. That opinion
states that it could not, as a matter of law, fault a
psychologically disturbed patient for relying on an opinion
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expressed by a psychiatrist, under whose regular care she had been
for four years, to the exclusion of a physician she had consulted
on only one occasion. 788 S.W.2d at 47. However, Gatling
continued under her long-term psychiatrist’s care through the time
she rejected the other doctor’s warning. Therefore, the holding in
Gatling does not inform the question of the effect of the
termination of the doctor/patient relationship.
After the duty to disclose ended at Rotella’s discharge, the
limitations period began to run as soon as the injury was
discovered or when it might have been discovered by the exercise of
reasonable diligence. See Slater v. National Medical Enterprises,
Inc., 962 S.W.2d 228, 233 (Tex.App.-Fort Worth, 1998, writ
requested). Because the discovery rule does not extend the
limitations period beyond the end of Rotella’s hospital stay, the
argument for fraudulent concealment tolling fails as well.
3. Rotella’s claims under 42 U.S.C. § 1983.
There is no federal statute of limitations for civil rights
actions brought pursuant to § 1983. Consequently, courts
construing § 1983 “borrow” the forum state’s general personal
injury limitations period. See Owens v. Okure, 488 U.S. 235, 249-
50 (1989). Because the Texas statute of limitations is borrowed in
§ 1983 cases, Texas’ equitable tolling principles also control. See
Board of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S.
478, 485 (1980). Therefore our conclusions relative to Rotella’s
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state tolling claims control this question as well.
Rotella argues that Texas fraudulent concealment doctrine is
inconsistent with the federal fraudulent concealment doctrine
because the federal doctrine does not hold that the duty to
disclose in a medical context ends when the physician/patient
relationship ends. First, no authority supports this contention.
At most, federal law is silent on this point. Second, such
inconsistency is irrelevant. Although a state’s tolling provisions
cannot be inconsistent with the policies underlying § 1983, there
is no authority for the proposition that it must be consistent with
the federal tolling provisions. See Rubin v. O’Koren, 644 F.2d
1023, 1025 (5th Cir. 1981). Rotella makes no argument, and we see
no basis for holding, that the Texas tolling laws are inconsistent
with policies underlying § 1983. Therefore, we conclude that the
district court correctly dismissed the federal claims because they
are likewise barred by limitations.
CONCLUSION
Based on the foregoing, we affirm the district court’s
dismissal because Rotella’s claims are barred by the applicable
statutes of limitations.
AFFIRMED.
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