Sheri Durham and Denise Jenkins, as Administrator of the Estate of Jessica Haley Durham v. Children's Medical Center of Dallas, Amy Holland, CPNP, David W. Kines, FNP, Lawson Copley, M.D., J. Patrick Hieber, M.D. and Timothy J. Rupp, M.D. , 2016 Tex. App. LEXIS 4302 ( 2016 )

Affirmed and Opinion Filed April 25, 2016
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01464-CV
SHERI DURHAM AND DENISE JENKINS, AS ADMINISTRATOR OF THE ESTATE
OF JESSICA HALEY DURHAM, Appellants
V.
CHILDREN’S MEDICAL CENTER OF DALLAS, AMY HOLLAND, CPNP,
DAVID W. KINES, FNP, LAWSON COPLEY, M.D., J. PATRICK HIEBER, M.D., AND
TIMOTHY J. RUPP, M.D., Appellees
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-11-01231-D
OPINION
Before Justices Myers, Evans, and Whitehill
Opinion by Justice Whitehill
This case presents an issue of first impression: If a 12-year-old person receives medical
treatment and dies more than two years after that treatment ends, does the Texas Constitution’s
Open Courts Clause prevent the running of limitations against otherwise untimely filed survival
and wrongful-death claims against her health-care providers? We conclude that the answer is no
because the Open Courts Clause does not apply to these statutorily created claims.
We also conclude that appellants failed to raise a genuine fact issue regarding fraudulent
concealment.
Accordingly, we affirm the trial court’s take-nothing summary judgment.
I. BACKGROUND
A. Facts.
We draw these facts from appellants’ live pleading and from the summary judgment
evidence:
The decedent, Jessica Haley Durham, was born on November 16, 1993.
In July 2006, Jessica was seriously injured in a car accident in Hawaii. Her injuries
included a broken leg and a ruptured spleen. The Hawaii doctors also diagnosed her to have
dilatation of the ascending aorta that did not appear to be trauma related and for which they
recommended follow-up with a pediatric cardiologist in Texas.
Jessica was transferred to appellee Children’s Medical Center of Dallas, where she
arrived on August 16, 2006. Her general pediatrician, appellee J. Patrick Hieber, M.D., helped
arrange the transfer. But Hieber did not see Jessica after her transfer to Children’s, nor did he
see her again before she died in 2008.
Appellee Timothy Rupp, M.D. and nurse practitioner Lori Thornton treated Jessica when
she arrived at Children’s. That was the only day on which Rupp had any interaction with
Jessica. Jessica was discharged from Children’s that same day with instructions to return to the
Children’s orthopedic clinic on August 21 for follow-up orthopedic surgery.
Appellee Lawson Copley, M.D. evaluated Jessica on August 21, 2006. Jessica was
admitted to Children’s on August 22, and Copley operated on her left leg that same day. She
remained at Children’s until August 31, when she was transferred to Texas Scottish Rite
Hospital. Copley was Jessica’s attending physician during her stay at Children’s.
Appellees Amy Holland, CPNP, and David W. Kines, FNP, also provided health care
services to Jessica during her stay at Children’s.
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Jessica never returned to Children’s after she went to Scottish Rite, and appellants
concede that August 31, 2006, was the “date of Jessica’s last treatment by the Appellees.”1
On December 25, 2008, Jessica suddenly became ill and died because her aorta ruptured.
Jessica was 15 years old when she died.
B. Procedural history.
Appellant Sheri Durham is Jessica’s mother. Appellant Denise Jenkins is the
administrator of Jessica’s estate.
On December 6, 2010, more than four years after appellees last treated Jessica and almost
two years after she died, appellants sent letters to appellees pursuant to civil practice and
remedies code Chapter 74 giving them notice of appellants’ health-care-liability claims.
On February 17, 2011, 73 days after sending their notice letters, appellants sued appellees
asserting survival and wrongful-death claims related to Jessica’s death. The gist of their suit was
that appellees failed to act on the information they had about Jessica’s enlarged aorta and failed
to treat or obtain treatment for that condition.
After appellees unsuccessfully challenged appellants’ expert reports, Children’s Med.
Ctr. of Dallas v. Durham, 402 S.W.3d 391 (Tex. App.—Dallas 2013, no pet.), appellees filed
summary judgment motions based on limitations. The motions also raised alternative partial
summary judgment grounds attacking Durham’s claim for punitive damages. Appellants filed a
single combined summary judgment response. Appellees filed reply briefs, some of which
included objections to appellants’ summary judgment evidence.
The trial judge sustained some objections to appellants’ evidence and overruled others.
The trial judge also granted all the summary judgment motions, resulting in a take-nothing
1
Some appellees contend that their particular “date of last treatment” of Jessica was before August 31, but they all concede that appellants
alleged that they negligently treated Jessica sometime in August 2006.
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judgment. Appellants filed a new-trial motion, which the trial judge denied. Appellants timely
appealed.
II. STANDARD OF REVIEW AND BURDENS OF PROOF
We review a summary judgment de novo. Smith v. Deneve, 285 S.W.3d 904, 909 (Tex.
App.—Dallas 2009, no pet.).
When we review a traditional summary judgment for a defendant, we determine whether
the defendant conclusively disproved an element of the plaintiff’s claim or conclusively proved
every element of an affirmative defense. Id. We take evidence favorable to the nonmovant as
true, and we indulge every reasonable inference and resolve every doubt in the nonmovant’s
favor. Id. A matter is conclusively established if ordinary minds could not differ as to the
conclusion to be drawn from the evidence. In re Estate of Hendler, 316 S.W.3d 703, 707 (Tex.
App.—Dallas 2010, no pet.).
“A summary judgment movant on limitations bears the burden to ‘(1) conclusively prove
when the cause of action accrued, and (2) negate the discovery rule, if it applies and has been
pleaded or otherwise raised, by proving as a matter of law that there is no genuine issue of
material fact about when the plaintiff discovered, or in the exercise of reasonable diligence
should have discovered the nature of its injury.’” Equitable Recovery, L.P. v. Heath Ins. Brokers
of Tex., L.P., 235 S.W.3d 376, 385 (Tex. App.—Dallas 2007, pet. dism’d) (quoting KPMG Peat
Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999)). The discovery
rule is not at issue in this case. If the movant carries its burden, the nonmovant must produce
evidence raising a genuine fact issue in avoidance of limitations. Id.
III. ISSUES
Appellants raise six issues:
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1. Was limitations tolled as to Jenkins’s survival action because Jessica was
a minor who was still alive more than two years after the date of her last
medical treatment?
2. Was limitations tolled as to Durham’s wrongful-death claims because
Jessica was a minor who was still alive more than two years after the date
of her last medical treatment?
3. Did appellants raise a genuine fact issue regarding whether appellees
engaged in fraudulent concealment, which would toll limitations?
4. Did the trial court err by granting summary judgment as to appellants’
claims for punitive damages?
5. Did the trial court err by deeming the expert report of Dr. Ron Blair
irrelevant to fraudulent concealment?
6. Did the trial court err by sustaining appellees’ objections to the expert
reports of Dr. Ron Blair, Dr. Sandra Clapp, and Dr. Charles Kleinman?
For the reasons discussed below, we conclude that appellants’ claims are time-barred as a
matter of law. We also conclude that appellants did not raise a genuine fact issue on fraudulent
concealment.
IV. ANALYSIS
A. The Law of Limitations.
1. The Statute.
The parties agree that civil practice and remedies code § 74.251 supplies the applicable
statute of limitations. Section 74.251(a) provides:
Notwithstanding any other law and subject to Subsection (b), 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 14th birthday in which to file, or have filed on their behalf, the claim.
Except as herein provided this section applies to all persons regardless of
minority or other legal disability.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a) (emphases added).
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Section 74.251(b) is a ten-year statute of repose, id. § 74.251(b), which does not apply in
this case.
Moreover, § 74.251(a) is virtually identical to its predecessor, Texas Revised Civil
Statutes article 4590i, § 10.01.2 See Adams v. Gottwald, 179 S.W.3d 101, 103 (Tex. App.—San
Antonio 2005, pet. denied) (quoting both statutes). Several cases relevant to our analysis were
decided under § 10.01. See, e.g., Brown v. Shwarts, 968 S.W.2d 331, 333 (Tex. 1998) (quoting
§ 10.01). We thus occasionally refer to § 10.01 in our discussion.
Also, according to § 74.051(c)’s plain terms, the § 74.251(a) limitations period is tolled
for 75 days if the claimant gives notice of his or her claim as Chapter 74 requires. CIV. PRAC. &
REM. § 74.051(c).
2. Section 74.251(a) applies to statutorily created wrongful-death and survival
claims.
At common law, a person did not have his or her own cause of action for the death of
another person. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 644 (Tex. 2009) (orig.
proceeding). The legislature, however, created such a cause of action by enacting the Wrongful
Death Act. Id.; see also CIV. PRAC. & REM. §§ 71.001–.012.
Civil practice and remedies code § 16.003(b) provides the general limitations period for
wrongful-death claims. But § 74.251(a) overrides § 16.003(b) if the wrongful-death claim is also
a health-care-liability claim. See Bala v. Maxwell, 909 S.W.2d 889, 892–93 (Tex. 1995) (per
curiam) (interpreting § 10.01). Furthermore, § 74.251(a)’s tolling provision for minors under
age 12 does not apply to an adult’s wrongful-death claim based on the death of a minor under 12.
See Baptist Mem’l Hosp. Sys. v. Arredondo, 922 S.W.2d 120, 121 (Tex. 1996) (per curiam)
(interpreting § 10.01).
2
Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2052 (amended 1993 and 1995), repealed by Act of June 2,
2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.
–6–
Similarly, at common law a person’s own personal-injury claims did not survive his or
her death. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005). The
legislature, however, replaced this rule by enacting the survival statute, which provides that “[a]
personal injury action survives to and in favor of the heirs, legal representatives, and estate of the
injured person.” CIV. PRAC. & REM. § 71.021(b). A personal-injury claim brought on a deceased
person’s behalf is commonly called a “survival action” or a “survival claim.” See, e.g., Austin
Nursing Ctr., 171 S.W.3d at 848 (using both terms).
Unlike wrongful-death claims, there is no separate statute of limitations for survival
claims. Brown, 968 S.W.2d at 333. If a survival claim is also a health-care-liability claim,
however, it is governed by § 74.251. See Gross v. Kahanek, 3 S.W.3d 518, 521 (Tex. 1999) (per
curiam) (applying article 4590i’s limitations provisions to survival action).
3. The Open Courts Clause and Personal-Injury Claims.
The supreme court in Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995), established that
the Texas Constitution’s Open Courts Clause, TEX. CONST. art. I, § 13, limits the statute of
limitations’ effect on a minor’s common-law personal-injury claim. In that case, Dr. Weiner
operated on Wasson when Wasson was 15 years old. Weiner, 900 S.W.2d at 317. Just over four
years later, Wasson sued Dr. Weiner for negligence. Id. The trial court granted summary
judgment for Dr. Weiner based on limitations. But the court of appeals reversed, and the
supreme court agreed with the court of appeals. Id. Specifically, the supreme court held that
§ 10.01 was “unconstitutional as applied to minors because it purports to cut off Wasson’s cause
of action before he reaches majority, an age at which he may lawfully sue on his own behalf.”
Id. at 318. The court then considered what statute of limitations applied to Wasson’s claim and
held that civil practice and remedies code Chapter 16’s general limitations and tolling provisions
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applied, thereby giving Wasson two years after reaching age 18 to sue. Id. at 321. Weiner’s
holdings apply to § 74.251. Adams, 179 S.W.3d at 103.
But the Open Courts Clause does not apply to statutory claims, and both survival and
wrongful-death claims are statutory claims. Bala, 909 S.W.2d at 893. More specifically,
“wrongful-death and survival claimants cannot establish an open-courts violation because they
‘have no common law right to bring either.’” Horizon/CMS Healthcare Corp. v. Auld, 34
S.W.3d 887, 903 (Tex. 2000) (quoting Bala, 909 S.W.2d at 893).
4. Limitations in Health-Care-Liability Claims Arising from a Minor’s Death.
The supreme court has twice addressed limitations in health-care-liability claims arising
from a minor’s death (but both cases involved minors who were under 12 when they died).
In Brown v. Shwarts, Christina Brown was in her pregnancy’s third trimester when Dr.
Shwarts treated her for health problems. 968 S.W.2d at 333. Four days later, Brown went to a
different doctor and prematurely gave birth to a son, Dillon, who died the next day. Id. Brown
and her husband timely gave Dr. Shwarts notice of their claims, which tolled limitations for 75
days, and then filed a wrongful-death and survival lawsuit against Dr. Shwarts two years and 76
days after Dr. Shwarts treated Brown. Id. at 333, 334. The supreme court held that the Browns’
wrongful-death claims were time-barred. Specifically, under § 10.01, the two-year limitations
period began to run when the allegedly negligent treatment occurred, and “[l]imitations on a
wrongful death action based on negligent health care is not tolled or extended because the
decedent was a minor.” Id. at 334 (citing Baptist Mem’l Hosp. Sys., 922 S.W.2d at 121). Thus,
although the Browns’ timely notice to Dr. Shwarts tolled limitations for 75 days, they still filed
their wrongful-death claims one day too late. Id.
The Browns’ survival action, however, was timely because it was “the same action Dillon
had the day he died” and § 10.01 tolled limitations to age 14 for injury claims by patients under
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12 years old when the treatment occurred. Id. Although Dillon’s death stopped the tolling on his
personal-injury claims and started limitations running against the Browns’ survival claims,
Dillon’s prior tolling period meant that the Browns’ survival claims were timely. Id. at 334–35.
The supreme court also decided similar issues in Gross v. Kahanek, 3 S.W.3d 518 (Tex.
1999) (per curiam). The Kahaneks’ daughter Kyndil suffered from seizures, and Dr. Gross
treated her with a drug regimen until September 1992. Id. at 519. Another doctor continued the
drug regimen thereafter. Id. Kyndil died on June 13, 1993, at the age of either six or seven,
allegedly from drug poisoning. Id. at 519–20. The Kahaneks asserted wrongful-death and
survival claims against Dr. Gross on June 13, 1995. Id. at 520.
The supreme court held that the wrongful-death claims were time-barred under § 10.01
because (i) the evidence conclusively established that Dr. Gross last treated Kyndil in September
1992 and (ii) wrongful-death claims are not tolled because the decedent is a minor. Id. at 521.
But the survival claim was not time-barred because limitations on Kyndil’s personal-injury claim
was tolled until her death and the survival claim was filed within two years and 75 days after she
died. Id.
B. First Issue: Was the statute of limitations tolled as to appellant Jenkins’s survival
claims because Jessica was a minor?
1. Section 74.251(a) tolling does not apply.
Our task in construing § 74.251(a) is to ascertain and effect the legislature’s intent. See
City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). We initially limit our
review to the text’s plain meaning as the sole expression of legislative intent, unless the
legislature has supplied a different meaning by definition, a different meaning is apparent from
the context, or applying the plain meaning would lead to absurd results. Abutahoun v. Dow
Chem. Co., 463 S.W.3d 42, 46 (Tex. 2015). We read the statute as a whole and interpret it so as
to give effect to every part. City of San Antonio, 111 S.W.3d at 25.
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Under § 74.251(a), limitations began to run on any personal-injury claim arising from
appellees’ conduct no later than August 31, 2006, which is the last day that any appellee treated
Jessica. See CIV. PRAC. & REM. § 75.251(a). Because Jessica was 12 years old when appellees
treated her, § 74.251(a)’s tolling provision for minors under 12 does not apply. See id.
Accordingly, under § 74.251(a)’s plain language and this case’s undisputed facts, Jenkins’s
survival action is time-barred unless a different tolling doctrine applies.
2. Minority age tolling does not apply.
Appellants argue that limitations was tolled because Jessica was a minor. They rely on
four cases for support: Weiner, Adams, Brown, and Gross. These cases, however, do not support
appellants’ argument.
Specifcally, Weiner and Adams stand for the general point that, because of the Open
Courts Clause, § 74.251(a) does not apply to a minor’s common-law personal-injury claims
arising from health care. Weiner, 900 S.W.2d at 318; Adams, 179 S.W.3d at 103. Jessica was a
minor, so had she survived her final illness, limitations would have been tolled for her personal-
injury claims until she turned 18. From that result, Jenkins extrapolates that it would also be
unconstitutional to apply § 74.251(a) to her statutory survival action. We disagree.
Although Weiner says that § 10.01 (now § 74.251) “is unconstitutional as applied to
minors,” 900 S.W.2d at 321, Jessica was, upon her death, no longer a minor. See Brown, 968
S.W.2d at 334 (“Once Dillon died, he ceased to be a minor under twelve years old . . . .”).
Weiner and Adams, which involved common-law personal-injury claims, do not address survival
claims that exist only by statute and therefore receive no protection from the Open Courts
Clause. See Bala, 909 S.W.2d at 893. Thus, Weiner and Adams, which is to the same effect as
Weiner, are not on point.
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Next we consider Brown and Gross. Brown and Gross each applied tolling to survival
claims filed after a patient under age 12 died, but the opinions do not specify whether the tolling
arose from (i) § 10.01’s tolling provision itself or (ii) applying the Open Courts Clause. Jenkins
argues that Brown and Gross relied on the Open Courts Clause and, because the Open Courts
Clause applies to all minors, limitations was tolled for Jenkins’s survival claims until Jessica’s
death.3 We reject Jenkins’s argument.
First, Brown quotes the statutory tolling provision in support of its holding that
limitations was tolled during the infant patient’s life:
[L]imitations on Dillon’s action began to run the day Shwarts treated him.
Section 10.01 provides, however, that “minors under the age of 12 years shall
have until their 14th birthday in which to file, or have filed on their behalf, the[ir]
claim.” The effect of this provision was to toll all running of limitations on
Dillon’s claim until his death. Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995).
968 S.W.2d at 334 (emphasis added). Thus, Dillon’s parents had two years and 75 days from the
day Dillon died to file their survival claims, which they timely did. Id. at 335. But Jessica was
over 12 when appellees treated her, so the statute did not toll limitations on her claims.
Accordingly, Jenkins cannot invoke statutory tolling for her statutory survival claims.
Second, Gross simply reiterates Brown. Again, the case involved a survival claim filed
after a minor under 12 died. 3 S.W.3d at 519–20. And again, the court held that limitations was
tolled until the minor’s death, which made the survival claim timely. Id. at 521. Although the
Gross court did not cite the statutory tolling provision, it did cite Brown to support its tolling
analysis, and Brown cites the statutory tolling provision for its holding.
Jenkins, however, argues that (i) both Brown and Gross also cite Weiner in support of the
tolling analysis, and (ii) thus the Open Courts Clause was the basis for the Brown and Gross
3
Appellants’ reply brief asserts that they are not relying on the Open Courts Clause. But they rely on Weiner, which is an Open Courts
Clause case, and on arguments that Brown and Gross are also Open Courts Clause cases.
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holdings because Weiner was decided based only on the Open Courts Clause. We are not
persuaded.
To begin, although Weiner differs from Brown and Gross in that Weiner was asserting
his own common-law personal-injury claim, it does serve to illustrate how minority tolling
provision works in the abstract. Weiner thus helps explain how minority tolling applies to the
statutory claims in Brown and Gross.
Additionally, as shown above, Brown relied specifically on § 10.01’s statutory tolling and
did not mention the Open Courts Clause. Also, Gross cited Brown and was factually similar to
Brown in that both cases involved patients under 12. Because § 10.01’s statutory tolling was
available in Gross just as it was in Brown, the better reading of Gross is that the court relied on
statutory tolling.
Moreover, reading Brown and Gross as statutory tolling cases keeps them consistent with
the supreme court’s other holdings that (i) survival claims are statutory in nature and (ii) the
Open Courts Clause therefore does not apply to survival claims. See Horizon/CMS Healthcare
Corp., 34 S.W.3d at 903; Bala, 909 S.W.2d at 893.
In sum, Open Courts Clause analysis applies to common-law claims, and statutory tolling
analysis applies to statutory claims. Because Jenkins’s survival claims are statutory claims, the
Open Courts Clause does not apply. Since Jessica was over 12 when appellees treated her, there
is no statutory tolling for Jenkins’s survival claims. See CIV. PRAC. & REM. § 74.251(a).
For the above reasons, we reject appellants’ first issue.
C. Second Issue: Was limitations tolled as to appellant Durham’s wrongful-death
claims because Jessica was a minor and she died more than two years after appellees
last treated her?
As noted above, § 74.251(a) overrides the general wrongful-death statute of limitations
for health care liability claims. See Bala, 909 S.W.2d at 892–93. And under Chapter 74’s plain
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terms, Durham’s wrongful-death claims are time-barred because she sued more than two years
and 75 days after appellees last treated Jessica. See CIV. PRAC. & REM. § 74.251(a). Because the
Open Courts Clause does not apply to wrongful-death claims, it also does not affect
§ 74.251(a)’s operation in wrongful-death cases. See id. (“Except as herein provided this section
applies to all persons regardless of minority or other legal disability.”); Bala, 909 S.W.2d at 893;
Baptist Mem’l Hosp. Sys., 922 S.W.2d at 121–22.
Brown reinforces this result. The Brown court said:
Limitations on a wrongful death action based on negligent health care is not tolled
or extended because the decedent was a minor. . . . This means that an action for
the wrongful death of a child who lives more than two years after a prenatal injury
will as a rule be barred by limitations, but the same result ensues when the
decedent is an adult. . . . While there are circumstances when this result will seem
harsh, it is well within the Legislature’s prerogative to prescribe the limitations
period for a wrongful death claim which, it must be remembered, did not exist at
common law and is a creature of statute.
968 S.W.2d at 334 (citations omitted). The court adhered to this reasoning regarding a post-natal
injury in Gross, 3 S.W.3d at 521. Brown’s reasoning thus applies fully here.
Part of Durham’s argument is that it would be illogical to allow tolling for survival
claims but not for wrongful-death claims. But, because we have concluded that there was no
tolling for Jenkins’s survival claims, there is no inconsistency in our applying the Brown analysis
and rejecting tolling for Durham’s wrongful-death claims. Moreover, to the extent that there is
an inconsistency in these statutory regimes, that is for the legislature to address, not us.
Durham also argues that we should recognize equitable tolling because § 74.251(a)
operates unfairly when a minor dies more than two years after the date of last treatment,
effectively barring a beneficiary’s wrongful-death claim before it accrues. But the supreme court
has accepted that result when the deceased person is an adult. Diaz v. Westphal, 941 S.W.2d 96,
97–101 (Tex. 1997). Accordingly, we decline to adopt the new equitable tolling doctrine
Durham proposes.
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Durham further argues that Russell v. Ingersoll-Rand Co., 841 S.W.2d 343 (Tex. 1992),
supports her position. Russell, however, was decided under the general wrongful-death statute of
limitations. See id. at 344. Russell, the original plaintiff in that case, sued in 1982 related to
chronic obstructive pulmonary disease. Id. His case was still pending when he died in 1988, and
his survivors then sued seven new defendants for wrongful death. Id. The supreme court held
that the new wrongful-death claims derived from Russell’s rights, and that those claims were
barred because Russell’s personal-injury claims against the new defendants would have been
time-barred had he brought them in 1988. Id. at 345–52.
Durham reasons that because Jessica’s personal-injury claims would not have been time-
barred had she lived to assert them, Russell means Durham’s derivative wrongful-death claims
are likewise timely. We are not persuaded because Russell did not involve § 74.251(a), which
bars Durham’s wrongful-death claims regardless of any rights Jessica would have had she
survived. Thus, Russell is distinguishable.
At oral argument, Durham argued that the ten-year statute of repose in § 74.251(b)
suggests that the statute of limitations in § 74.251(a) must be subject to tolling. See Walters v.
Cleveland Reg’l Med. Ctr., 307 S.W.3d 292, 298 (Tex. 2010) (“Put simply, a ten-year repose
period has no purpose unless the two-year limitations period has exceptions . . . .”). We are not
persuaded by Durham’s argument because § 75.251(a) is already subject to several tolling rules
and we find no basis for judicially creating a new tolling rule for that statute.
For example, by its own terms, § 74.251(a) provides tolling for patients under 12 (but
also specifically excludes tolling for minors 12 or older). And the Open Courts Clause
effectively tolls the statute for minors’ common-law personal-injury claims. Weiner, 900 S.W.2d
at 318–21; see also Walters 307 S.W.3d at 293–94 (reiterating that there is Open Courts tolling
in “surgical sponge cases”). And, as we discuss below, fraudulent-concealment tolling can be
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available in health-care-liability cases. But it does not follow from these discrete tolling
doctrines that we should create a new tolling doctrine for wrongful-death claims involving the
death of a minor occurring more than two years after the last medical treatment. Such a
development in the law is not for us, an intermediate appellate court, to address. Cf. Martin v.
Clinical Pathology Labs., Inc., 343 S.W.3d 885, 892 (Tex. App.—Dallas 2011, pet. denied)
(judicial exceptions to employment-at-will doctrine must be created by the supreme court).
We thus reject appellants’ second issue.
D. Third Issue: Did appellants raise a genuine issue of material fact regarding whether
fraudulent concealment tolled limitations?
1. Applicable Law.
The supreme court recognized fraudulent concealment as a viable ground for tolling
limitations under § 10.01. See, e.g., Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001); Borderlon v.
Peck, 661 S.W.2d 907 (Tex. 1983). Similarly, the courts of appeals have continued to apply
fraudulent concealment under § 74.251(a). See, e.g., Limon v. Yahagi, No. 13-12-00019-CV,
2012 WL 3133804, at *3–6 (Tex. App.—Corpus Christi Aug. 2, 2012, no pet.) (mem. op.).
On summary judgment, the party seeking to avoid limitations based on fraudulent
concealment bears the burden of raising a genuine fact issue on each of its elements. Bertrand v.
Bertrand, 449 S.W.3d 856, 868 (Tex. App.—Dallas 2014, no pet.); see also Shah, 67 S.W.3d at
841.
The elements of fraudulent concealment are (1) the defendant actually knew that a wrong
occurred, (2) the defendant had a fixed purpose to conceal the wrong, and (3) the defendant
concealed the wrong from the plaintiff. Shah, 67 S.W.3d at 841. Thus, fraudulent concealment
requires more than evidence that the physician was negligent; it also requires evidence “that the
defendant actually knew the plaintiff was in fact wronged, and concealed that fact to deceive the
plaintiff.” Earle v. Ratliff, 998 S.W.2d 882, 888 (Tex. 1999) (footnote omitted). Finally,
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fraudulent-concealment tolling ends when the plaintiff discovers the fraud or could have
discovered the fraud with reasonable diligence. Shah, 67 S.W.3d at 841.
2. Application of the Law to the Facts.
For the reasons discussed below, we conclude that appellants failed to raise a genuine
fact issue regarding whether appellees actually knew that a wrong occurred or that they had a
fixed purpose to conceal the wrong.4
The alleged wrongs in this case are appellees’ alleged failures to assess, diagnose, and
treat Jessica’s enlarged aorta and their alleged failures to tell Durham that they had not done so.
For purposes of fraudulent concealment, however, it is not enough that appellees may have
known that they did or did not do these things; appellants had to produce evidence that appellees
knew their conduct was negligent. See Shah, 67 S.W.3d at 846 (plaintiff’s affidavit failed to
show “that Dr. Shah knew, after the November 1992 surgery, that he was negligent”); Earle, 998
S.W.2d at 888 (plaintiff must show that defendant “actually knew the plaintiff was in fact
wronged”). And appellants had to produce evidence that appellees had a fixed purpose to
conceal their negligence. See Shah, 67 S.W.3d at 841.
Appellants’ evidence does not create a reasonable inference that appellees actually knew
that a wrong occurred or that they had a fixed purpose to conceal it. Instead, their evidence
shows only what appellees did and did not do when they treated Jessica in August 2006. We
summarize this evidence as follows:
Dr. Hieber
Dr. Hieber, Jessica’s pediatrician, who did not see her after she returned from Hawaii,
testified by deposition that he saw the Hawaii doctors’ notes that Jessica needed to consult with a
4
As noted above, the trial court sustained some objections to appellants’ evidence. Appellants’ fifth and sixth issues address those rulings.
For purposes of analyzing appellant’s third issue, we assume, without deciding, that the trial court erred in sustaining those objections, and we
have considered all the evidence that appellants have cited in their appellate brief to support their fraudulent-concealment issue.
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pediatric cardiologist, and that he did not do anything to determine whether she received a
pediatric follow-up.
Dr. Rupp and Nurse Thornton
Dr. Rupp and Nurse Thornton saw Jessica in the Children’s emergency room when she
arrived from Hawaii. Rupp did not say anything in his August 16, 2006 discharge notes about
Jessica’s enlarged aorta.
Thornton testified by deposition that she was aware of Jessica’s aortic condition when
she saw Jessica in the Children’s emergency room. She also said that Durham told her that
Durham was very distraught over her financial condition and said that she wanted the “excessive
costs” to stop before Jessica was transferred to Scottish Rite Hospital.
Appellants assert that Durham denied that this conversation ever occurred, but her
affidavit does not contain such a denial. Durham, however, did say in her affidavit that Thornton
and Rupp told her that all of Jessica’s medical needs at the time were met and that Jessica needed
only additional orthopedic care.
Thornton acknowledged that the pediatric cardiology consult was an unresolved issue
when Jessica left the hospital.
Nurse Holland
Medical records showed that on August 22, 2006, Nurse Holland ordered a cardiology
consult. On that same day a “hold” on that consult was ordered, and a “2 view chest x-ray to
evaluate aorta” was ordered instead. Dr. Tejas Shah testified that the x-ray was not the
appropriate test for the enlarged aorta.
Durham testified by affidavit that, after Jessica’s August 22, 2006 surgery, she told
Holland that there was some concern about Jessica’s enlarged aorta while she was in Hawaii.
She further said:
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Amy Holland told and assured me that she would arrange for a cardiologist to
evaluate Jessica’s aorta, and that unless I heard otherwise from a cardiologist or
another member of Jessica’s healthcare team at [Children’s], I should assume that
the enlarged aorta had been so evaluated and that evaluation yielded no further
concern requiring additional medical intervention.
Durham also said that (i) Holland later told Durham that a cardiology consultation for further
evaluation of Jessica’s aortic condition had been ordered, and (ii) no one at Children’s ever told
her that the consultation had been held or canceled.
Expert witness Dr. Blair
Appellants’ expert witness Ron Blair, M.D., furnished an affidavit in which he
incorporated his attached supplemental expert report by reference. His report opined that each
appellee (and Nurse Thornton) breached the applicable standard of care.
We assume without deciding that appellants’ evidence raises a fact issue as to whether
appellees were negligent in treating Jessica and in informing Durham about what appellees had
and had not done. But appellants produced no evidence that appellees knew they were negligent.
The evidence suggests that at least some of the various health-care providers involved in
Jessica’s care knew, at various times, that Jessica had not been evaluated by a pediatric
cardiologist and that Durham had not been told of that fact. The evidence, however, does not
support an inference that any appellee actually knew that he, she, or it had been negligent when
that appellee failed to follow up on the pediatric-cardiology consultation or when that appellee
failed to advise Durham that the consultation had not occurred.
Nor does the evidence support an inference that any appellee had a fixed purpose to
conceal a wrong from appellants.
Without some evidence of these elements, appellants did not raise a genuine fact issue
regarding fraudulent concealment. See Shah, 67 S.W.3d at 846 (plaintiff failed to raise a fact
issue that “Dr. Shah knew about the alleged negligence” or intended to conceal it).
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We thus reject appellants’ third issue.
V. CONCLUSION
We have rejected appellants’ first, second, and third issues. It is unnecessary for us to
consider their fourth, fifth, and sixth issues.
For all of the above reasons, we affirm the trial court’s judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
141464F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SHERI DURHAM AND DENISE On Appeal from the County Court at Law
JENKINS, AS ADMINISTRATOR OF THE No. 4, Dallas County, Texas
ESTATE OF JESSICA HALEY DURHAM, Trial Court Cause No. CC-11-01231-D.
Appellants Opinion delivered by Justice Whitehill.
Justices Myers and Evans participating.
No. 05-14-01464-CV V.
CHILDREN’S MEDICAL CENTER OF
DALLAS, AMY HOLLAND, CPNP,
DAVID W. KINES, FNP, LAWSON
COPLEY, M.D., J. PATRICK HIEBER,
M.D. AND TIMOTHY J. RUPP, M.D.,
Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellees Children’s Medical Center of Dallas, Amy Holland,
CPNP, David W. Kines, FNP, Lawson Copley, M.D., J. Patrick Hieber, M.D. and Timothy J.
Rupp, M.D. recover their costs of this appeal from appellants Sheri Durham and Denise Jenkins,
as Administrator of the Estate of Jessica Haley Durham.
Judgment entered April 25, 2016.
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