Rebecca C. Gallardo v. Austin Diagnostic Clinic Association

cv5-022.gallardo TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-95-00022-CV



Rebecca C. Gallardo, Appellant

v.

Austin Diagnostic Clinic Association, Appellee



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT NO. 94-08598, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

PER CURIAM

Rebecca C. Gallardo sued the Austin Diagnostic Clinic Association ⁽¹⁾ for personal injuries she suffered while working at the clinic. She appeals the summary judgment awarded to ADC. ⁽²⁾ We will affirm the judgment.

BACKGROUND

Gallardo's temporary employment agency placed her with ADC in May 1988 so that she could train to be a dialysis technician. Early in her training period, she began suffering throat soreness that progressed within hours to interfere with swallowing and breathing. She was rushed to the emergency room and spent several days in the intensive care unit. After her release, she continued to receive medical attention for breathing problems. She had laser surgery on her vocal chords in July 1988. She contends that her continued suffering and consequent treatments have rendered her totally unemployable.

On August 15, 1990, Gallardo sued the workers' compensation carrier of her employment agency. She alleged that she was injured by exposure to haemophilus influenzae while working in an isolation unit at ADC. She complained that the trainees were advised only to wear gloves and that they were never given protective clothing or masks. She asserted that the disease is generally rare, but more common to isolation units. She responded to interrogatories on November 16, 1990 alleging that she contracted the disease in an isolation unit while working unprotected on an unsanitized dialysis machine just taken from a patient. At her November 25, 1991 deposition, she maintained that her exposure to contaminated blood during her training caused her infection.

On July 14, 1994, she filed this negligence and gross negligence suit against ADC. She again alleged exposure to haemophilus influenzae while working at ADC. She claimed she learned of the means of her infection on July 15, 1992 after an Occupational Safety and Health Administration investigation. She reprised her claims that she was exposed by her trainer to a contaminated dialysis machine during training. She also claimed that the trainer instructed her, contrary to the manufacturer's instruction, to clean and re-use a dialyzer.

ADC moved for summary judgment, contending that the statute of limitations barred her claim and that the workers' compensation claim was her exclusive remedy. The court scheduled a hearing on the motion for October 17, 1994. At Gallardo's request, the court on October 7, 1994 rescheduled the hearing until November 22, 1994 to give her a chance to hire an attorney.

ADC supported its motion with Gallardo's pleadings and discovery responses from her workers' compensation suit. She responded with her affidavit, swearing that she first learned in July 1992 that training with the contaminated equipment was an OSHA violation. She also claimed that she first learned in July 1992 of the special connection between haemophilus influenzae and dialysis equipment. She included the affidavit of an ADC nurse familiar with the training procedures who opined that Gallardo could not have contracted the disease through the training program because she had no patient contact or direct patient care. She also included her own affidavit, swearing to her allegations regarding the training using the contaminated machine.

At the hearing, Gallardo orally sought a continuance saying that she had found an attorney six days before who orally agreed to represent her if she could get the summary judgment hearing postponed. ⁽³⁾ The court denied the continuance and granted the motion for summary judgment. The order did not specify on which ground the motion was granted.

DISCUSSION

Gallardo raises three points of error. Two attack the summary judgment and the third attacks the denial of the continuance. Because the court did not specify on which ground it granted the motion for summary judgment, Gallardo must defeat each ground to earn reversal of the order. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989).

Summary judgment

Her first point of error, asserting that the trial court erred by granting summary judgment, has multiple facets. She complains that the trial court erred by admitting inadmissible, incompetent summary judgment evidence that did not meet ADC's burden of proof. She also contends that the trial court erred by "extending its jurisdiction" to the 315th Judicial District. She states the burden of proof, and asserts that issues of negligence and proximate cause generally should not be summarily adjudicated.

Gallardo waived error regarding the admissibility of the evidence. She failed to object or get a ruling on objections regarding ADC's summary judgment proof, thereby waiving error. See Tex. R. App. P. 166a(f); Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 365 (Tex. App.--Houston [1st Dist.] 1994, writ denied).

Neither does the "extension" of jurisdiction justify reversal. Gallardo complains because ADC filed many papers in the trial court below, the 345th Judicial District, bearing captions of 315th Judicial District. The court denied her motion for default judgment in which she argued that ADC therefore had failed to answer in the 345th Judicial District. Gallardo has shown no injury from the miscaptioning. She has not shown lack of service, lack of notice, or lack of filing in the appropriate court case file. Any error was harmless. We cannot reverse the judgment on this basis. See Tex. R. App. P. 81(b)(1).

We will focus our discussion of the summary judgment on the limitations issue. A summary judgment movant must show the absence of a material issue of fact and an entitlement to judgment as a matter of law. Tex. R. Civ. P. 166(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant may win summary judgment by proving all of the elements of an affirmative defense. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984). When seeking judgment on the defense of limitations, a defendant must prove when the cause of action accrued and, if applicable, negate the discovery rule. Burns v. Thomas, 786 S.W.2d 266, 267 (Tex. 1990).

On appeal, we must take evidence favorable to the nonmovant as true, indulge every reasonable inference in favor of the nonmovant, and resolve all doubt in the nonmovant's favor. Nixon, 690 S.W.2d at 548-49. We can consider as grounds for reversal only those issues presented to the trial court in response to the motion by written answer or response. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993).

A suit for negligence causing personal injury must be filed within two years of the accrual of the cause of action. Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (West 1986). A cause of action accrues when the wrongful act causes injury. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990). The discovery rule tolls the accrual date only when the cause of action is undiscoverable. Snyder v. Eanes Indep. Sch. Dist., 860 S.W.2d 692, 699 (Tex. App.--Austin 1993, writ denied). The discovery rule tolls the running of the statute until the plaintiff discovered or, in the exercise of reasonable diligence, should have discovered the nature of her injury. Id. The statute of limitations on medical malpractice does not begin to run until the injury is discovered--e.g., a surgical sponge left in the body, Gaddis v. Smith, 417 S.W.2d 577, 580 (Tex. 1967), or continued post-vasectomy fertility, Hays v. Hall, 488 S.W.2d 412, 414 (Tex. 1972). The fact to be discovered is the injury, not all of the elements of the cause of action. Seibert v. General Motors Corp., 853 S.W.2d 773, 777 (Tex. App--Houston [14th Dist.] 1993, no writ).

Gallardo filed this suit on July 14, 1994. To survive the limitations bar, her cause of action must have accrued on or after July 14, 1992.

ADC's summary judgment evidence showed that Gallardo knew of her injury well before July 14, 1992. She herself asserts that she fell ill in June 1988 within three days of the alleged exposure. In her 1990 petition, 1990 interrogatory responses, and 1991 deposition in the workers' compensation case, she asserted that she had contracted the disease from exposure to haemophilus influenzae that occurred while working for the isolation unit at the Austin Clinic.

Gallardo's response did not demonstrate a genuine issue of material fact. She omitted her claim that the illness rendered her incompetent to learn of her injury, thus waiving it under McConnell. See 858 S.W.2d at 343. ⁽⁴⁾ She asserted in her response that the 1992 OSHA investigation provided her the first notice that the dialysis machine had come from a strict isolation unit and was "infectiously contaminated" rather than just "dirty." She swore in her supporting affidavit that the 1992 OSHA report provided her first clue that using a contaminated machine for the training procedure violated OSHA standards. She also swore that she first learned in late July 1992 that haemophilus influenzae was distinctly associated with the dialysis environment and can cause several different illnesses.

None of these assertions shows that she first learned of her injury in July 1992. Learning that a procedure violated a federal regulation is not the same as learning that the procedure caused an illness. Learning that a bacterium can cause several illnesses is not the same as learning that it can cause the illness suffered. Learning that a bacterium is peculiarly associated with a particular environment might be significant in another case; here, however, the evidence conclusively and undisputedly showed that Gallardo had asserted in the workers' compensation case well before July 1992 that she contracted the disease from the dialysis clinic. ⁽⁵⁾

We overrule point one.

Continuance

We review the denial of a motion for continuance of a summary judgment hearing for abuse of discretion. Landry v. Texas Am. Bank/Fort Worth, N.A., 788 S.W. 162, 163-64 (Tex. App.--Fort Worth 1990, no writ); see also Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). Courts generally view plaintiffs as less likely than defendants to need continuances to defeat summary judgment motions because plaintiffs have presumably investigated their own cases. Martinez v. Flores, 865 S.W.2d 194, 197 (Tex. App.--Corpus Christi 1993, writ denied). A court abuses its discretion when it acts unreasonably, arbitrarily, or without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).

We cannot say that the court committed error, much less reversible error. Before seeking the continuance, Gallardo, acting pro se, had competently filed a petition and a motion for default judgment. Though ADC's summary judgment motion had been on file for only two months when the court denied the continuance, Gallardo had a month earlier filed pro se a response to the motion for summary judgment with attached evidence. The case had been on file for only four months, but the injury was more than six years old when the court denied the continuance. In response to the original setting of the hearing, Gallardo had requested and received a continuance of the hearing for more than a month so that she could seek counsel. The record does not reflect a similar request before the second setting. Perhaps most important, we see no way that counsel would have changed the result. Unless counsel could turn back time, Gallardo's claims would be barred by the statute of limitations regardless. Any error was harmless. See Tex. R. App. P. 81(b)(1).

We overrule point three.

CONCLUSION

Our resolution of points of error one and three provides a sufficient basis on which to sustain the summary judgment. We therefore need not consider point of error two or any point dealing with the alternate basis of the motion for summary judgment. Tex. R. App. P. 90(a).

We affirm the judgment of the trial court.

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed: June 7, 1995

Do Not Publish

1. Gallardo's petition and subsequent documents name "Austin Diagnostic Clinic & Association" as the defendant. The order granting summary judgment follows the defendant's practice and omits the ampersand.

2. Gallardo's claims against two unknown defendants were disposed of by the Mother Hubbard clause in the summary judgment. Those claims are not part of this appeal.

3. Though no written motion appears in the record, ADC concedes that Gallardo orally sought a continuance. ADC also confirms the nature of her request.

4. In any event, her petition and responses during 1990 and 1991 in the workers' compensation case would critically undermine a claim of incompetence.

5. Gallardo's claim that she first discovered the higher incidence of haemophilus influenza at dialysis clinics in 1992 is directly contradicted by her petition and discovery responses during 1990 and 1991 in the workers' compensation case. Her previously asserted knowledge of the source of the infection renders this dispute immaterial.