Kahanek v. Gross , 1998 Tex. App. LEXIS 3840 ( 1998 )

ANGELINI, Justice,

dissenting.

I respectfully dissent because I believe the trial court properly granted summary judgment on the statute of limitations issue.

Dr. Gross moved for summary judgment on the ground that the Kahaneks’ cause of action was barred by the statute of limitations. Specifically, Dr. Gross claimed that the cause of action accrued when he last saw Kyndil Kahanek in January, 1992. Therefore, according to Dr. Gross, the Plaintiffs petition, filed three years and five months later on June 13, 1995, was filed beyond the time for filing suit as set forth in Section 10.01 of the Medical Liability and Insurance Improvement Act.¹ Dr. Gross’ summary judgment evidence included his own affidavit in which he states that he last saw Kyndil Kahanek on January 20, 1992, and that he “instructed the parents to bring the child to Dr. Barth in Yorktown to obtain Tegretol Blood levels in two weeks.” Dr. Gross further states that the last Tegretol prescription he filled was on August 10, 1992, and that “[t]his was the last contact of any kind [he] had with this child.” Finally, Dr. Gross states that Dr. Barth gave Kyndil prescription refills from September, 1992, until her death.

The Kahaneks filed a response to Dr. Gross’ summary judgment motion. They did not dispute or controvert the dates set forth in Dr. Gross’ affidavit. Instead, the Kaha-neks argued that the statute of limitations did not begin to run until Kyndil’s death on June 13, 1993, and, as derivative beneficiaries, they were not time-barred from filing their lawsuit within two years of Kyndil’s death. Thus, according to the Kahaneks, their petition, filed on June 13, 1995, was timely. Nowhere in their response did the Kahaneks contend that Dr. Gross had failed to meet his summary judgment burden based on a theory of “continuing course of treatment” established by the refilling of prescriptions. Clearly, when the summary judgment motion was heard, the only issue pertaining to limitations before the trial court was whether the statute ran from the date Dr. Gross last saw Kyndil or from the date of her death. On appeal, the Kahaneks continue to argue, among other things and without citation to authority, that the statute of limitations did not begin to run until Kyndil’s death. This argument is clearly wrong. See TEX.REV.Crv.STATANN.art. 4590i, §10.01 (Vernon Supp.l997)(stating statute of limitations in medical malpractice cases runs from last date of treatment); Bala v. Maxwell, 909 S.W.2d 889, 891 (Tex.1995)(holding that section 10.01 of the Medical Liability and Insurance Improvement Act provides the applicable limitations period for wrongful death claims based on medical malpractice).

Alternatively, and for the first time in this lawsuit, the Kahaneks contend that if the statute of limitations begins to run on the last day of treatment, this is a “continuous course of treatment” case. They urge that Dr. Gross’ refilling of the Tegretol prescription constitutes a continuous course of treatment and that the statute of limitations was thereby extended. The Kahaneks do not say how far the course of treatment extended, but point out that it was Dr. Gross’ burden to firmly establish when the course of treatment ended.

The supreme court has made it clear that the non-movant in a summary judgment situation “must expressly present to the trial court, by written answer or response, any issues defeating the movant’s entitlement.” McConnell v. Southside School Dist., 858 S.W.2d 337, 343 (Tex.1993). The response must fairly apprize the movant and the court regarding issues the non-movant believes should defeat the motion. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). Further, the rules of civil procedure provide that “[i]ssues not expressly presented to the trial court by .written motion answer or other response should not be considered on appeal as grounds for reversal.” Tex.R.Civ.P. 116a(c). The non-movant’s failure to raise issues in a proper response cannot, however, supply by default the proof necessary to establish the movant’s right to summary judgment. McConnell, 858 S.W.2d at 343. The movant’s summary judgment must still stand or fall on its own merit. Id.

Dr. Gross moved for summary judgment, contending the last date of treatment in this case was January 20, 1992. His summary judgment proof established January 20,1992, as the last day he treated Kyndil. The Ka-haneks did not dispute that the last date Dr. Gross treated Kyndil was January 20, 1992, nor did they argue that the refilling of prescriptions constituted a continuous course of treatment. Instead, they urged that the statute of limitations ran from date of death rather than from last date of treatment. Thus, they did not preserve the issue of whether a continuing course of treatment existed beyond January 20, 1992, for appeal. See Woods v. William M. Mercer, 769 S.W.2d 515, 518 (Tex.1988) (holding matter in avoidance of statute of limitations is waived if not affirmatively raised); Marshall v. First Baptist Church of Houston, 949 S.W.2d 504, 508-09 (Tex.App.—Houston [14th Dist.] 1997, no writ) (finding basis for tolling statute of limitations waived where it was not raised in response to motion for summary judgment).

Even if, as the majority contends, Dr. Gross’ affidavit raises an issue as to whether the last date of treatment was extended by the refilling of the prescription, the uncontro-verted evidence shows Dr. Gross last refilled the prescription in August, 1992. Further, Dr. Gross’ uncontroverted affidavit states that he had no further contact with Kyndil, and that Dr. Barth filled the prescription from September, 1992, until Kyndil’s death. There is no controverting evidence to show that Dr. Gross filled any prescriptions beyond August, 1992. Therefore, the latest the statute of limitations could have accrued was in September, 1992. The lawsuit was filed June 13, 1995, which is still well beyond the limitations period.

For these reasons I dissent and would affirm the trial court’s judgment.

1 . The limitations provision of the Medical Liability and Insurance Improvement Act states:

Notwithstanding any other law, no 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; provided that, minors under the age of 12 years shall have until their 14 th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided, this subchapter applies to all persons regardless of minority or other legal disability.

Tex.RevCiv Stat. Ann art. 4590i, § 10.01 (Vernon Supp.1997).