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

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.
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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
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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.
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