Siegfried Pueblitz, M.D. v. Tom Ray Lemen ( 2021 )


Menu:
  •                            NUMBER 13-21-00395-CV
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI – EDINBURG
    SIEGFRIED PUEBLITZ, M.D.,                                              Appellant,
    v.
    TOM RAY LEMEN,                                                         Appellee.
    On appeal from the 93rd District Court
    of Hidalgo County, Texas.
    MEMORANDUM OPINION
    Before Justices Hinojosa, Tijerina, and Silva
    Memorandum Opinion by Justice Silva
    Appellant Siegfried Pueblitz, M.D. filed an amended petition for permissive
    interlocutory appeal seeking to challenge the trial court’s October 29, 2021 amended
    order denying his motion for summary judgment based on the affirmative defense of
    limitations. We deny his petition.
    I.      BACKGROUND
    According to Pueblitz’s amended petition for permissive appeal, Pueblitz
    interpreted the results of a kidney biopsy for appellee Tom Ray Lemen on January 25,
    2017. On January 22, 2019, Lemen was diagnosed with cancer by a different physician.
    Lemen had the kidney surgically removed on February 22, 2019. Lemen filed a medical
    malpractice suit against Pueblitz on March 11, 2021, claiming Pueblitz negligently
    interpreted the biopsy. Pueblitz filed a motion for summary judgment arguing that Lemen’s
    claim was barred by limitations. See TEX. CIV. PRAC. & REM. CODE. ANN. § 74.251(a)
    (creating a two-year limitations period for health care liability claims).
    According to Pueblitz, Lemen invoked the Texas Constitution’s open-courts
    doctrine, which gives litigants a reasonable time to discover their injuries and file suit.
    TEX. CONST. art. I, § 13; Walters v. Cleveland Reg’l Med. Ctr., 
    307 S.W.3d 292
    , 295 (Tex.
    2010). Pueblitz’s petition states that Lemen submitted affidavits from Lemen, his wife,
    and his counsel, which stated “that [he] attempted to retain counsel to bring suit for this
    late-discovered injury, but that health issues, then the COVID-19 pandemic, prevented
    him from retaining counsel.[1]” Pueblitz stated that the affidavits specified that between
    July 2019 and June 2020, Lemen spoke to at least fifteen separate attorneys to represent
    him on the case before he was finally able to find counsel to represent him.
    The trial court denied Pueblitz’s motion for summary judgment but did not state the
    grounds on which it relied. The trial court did make the necessary findings to support a
    permissive appeal and granted Pueblitz’s permission to file a permissive appeal. See TEX.
    1This quote is from Pueblitz’s petition, not Lemen’s affidavits, which were not provided to us for
    consideration.
    2
    CIV. PRAC. & REM. CODE ANN. § 51.014(d). Pueblitz’s petition followed.
    II.    APPLICABLE LAW
    A.     Permissive Appeals
    To be entitled to a permissive appeal from an interlocutory order that is not
    otherwise appealable, the requesting party must establish to the trial court that (1) the
    order “involves a controlling question of law as to which there is a substantial ground for
    difference of opinion” and (2) allowing immediate appeal “may materially advance the
    ultimate termination of the litigation. Id.; see also TEX. R. APP. P. 28.3. If the trial court
    grants permission to appeal, as here, we may accept the appeal if the appeal is warranted
    under the foregoing criteria. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(f). An appellate
    court’s decision to grant or deny a permissive appeal is discretionary. Sabre Travel Int’l,
    Ltd. v. Deutsche Lufthansa AG, 
    567 S.W.3d 725
    , 732 (Tex. 2019).
    B.     Open Courts Doctrine
    The open courts provision of the Texas Constitution provides litigants a reasonable
    time to discover their injuries and file suit without being time-barred by applicable
    limitations periods. Walters, 307 S.W.3d at 295. The doctrine is commonly applied to
    health care liability claims where the malpractice cannot be readily discovered, such as
    errant-sponge cases. See id. at 295–96 (citing Neagle v. Nelson, 
    685 S.W.2d 11
    , 12 (Tex.
    1985)). Under the open courts provision, a claimant must “use due diligence and sue
    within a reasonable time after learning about the alleged wrong” to overcome a limitations
    defense. Yancy v. United Surgical Partners Int’l, 
    236 S.W.3d 778
    , 785 (Tex. 2007)
    (quoting Shah v. Moss, 
    67 S.W.3d 836
    , 847 (Tex. 2001)). Whether a period of time is
    3
    reasonable under the open courts doctrine is ordinarily a question of fact. Gagnier v.
    Wichelhaus, 
    17 S.W.3d 739
    , 745 (Tex. App.—Houston [1st Dist.] 2000, pet. denied)
    (citing Neagle, 685 S.W.2d at 14); DeRuy v. Garza, 
    995 S.W.2d 748
    , 753 (Tex. App.—
    San Antonio 1999, no pet.) (concluding reasonableness of eleven-month delay was a fact
    question precluding summary judgment); see also Chang v. Denny, No. 05-17-01457-
    CV, 
    2019 WL 3955765
    , at *8 (Tex. App.—Dallas Aug. 22, 2019, pet. denied) (mem. op.)
    (upholding a jury finding of reasonableness in a twenty-five-month delay where plaintiff
    offered evidence of time to find correct treatment, complications from the alleged
    malpractice, and difficulty finding an expert witness).
    III.    ANALYSIS
    Having reviewed Pueblitz’s amended petition and the documents attached thereto,
    this Court is of the opinion that Pueblitz has not shown that he is entitled to a permissive
    appeal. A permissive appeal to a denial of summary judgment on that issue would be
    inappropriate because whether Lemen used due diligence and brought his suit within
    reasonable time is a fact question. See Gagnier, 
    17 S.W.3d at 745
    ; TEX. CIV. PRAC. &
    REM. CODE ANN. § 51.014(f) (requiring that a permissive appeal “involves a controlling
    question of law”). Accordingly, we deny Pueblitz’s petition for permissive appeal.
    IV.     CONCLUSION
    We deny appellant’s amended petition for permissive appeal.
    CLARISSA SILVA
    Justice
    Delivered and filed on the
    21st day of December, 2021.
    4
    

Document Info

Docket Number: 13-21-00395-CV

Filed Date: 12/21/2021

Precedential Status: Precedential

Modified Date: 12/27/2021