Mary Rodriguez v. Memorial Medical Center and Steven T. Carawan, M.D.

NUMBER 13-06-162-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MARY RODRIGUEZ, Appellant,

v.

MEMORIAL MEDICAL CENTER AND

STEVEN T. CARAWAN, M.D., Appellees.

On appeal from the County Court at Law No. 1 of Calhoun County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Rodriguez

   On March 17, 2005, appellant, Mary Rodriguez, brought a healthcare liability claim against appellees, Memorial Medical Center (Memorial) and Steven T. Carawan, M.D. Appellees each filed traditional motions for summary judgment. The trial court granted appellees' motions without stating the grounds. Rodriguez, by one issue, contends the trial court misapplied the statute of limitations defense as it applies to her cause of action under section 74.251(a) of the Texas Civil Practices and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a) (Vernon 2005). We affirm.

I. Background

On December 19, 2002, Dr. Carawan performed bipolar hip replacement surgery on Rodriguez at Memorial. Rodriguez was released from the hospital on December 24, 2002. In January 2003, an x-ray revealed that a sponge was left in Rodriguez's body near the area where the surgery had been performed. On February 3, 2003, Dr. Carawan performed a second surgery to remove the sponge. Plaintiff filed suit against Memorial and Dr. Carawan on March 17, 2005, claiming appellees were negligent. Appellees each moved for summary judgment based on the two-year statute of limitations set out in section 74.251(a) of the civil practice and remedies code. See id. The trial court granted summary judgment, and Rodriguez appeals.

II. Standard of Review and Applicable Law

We review the trial court's granting of a traditional motion for summary judgment de novo. Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.--Corpus Christi 2003, no pet.) (op. on reh'g). The issue on appeal is whether the movant met the summary judgment burden by establishing that no issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). In determining whether there is a genuine issue of material fact, we take as true all evidence favorable to the nonmovant. Ortega, 97 S.W.3d at 772. "We do not disregard evidence in support of the motion, but examine the entire record, indulging every reasonable inference and resolving any doubts against the motion." BP Chems., Inc. v. AEP Tex. Cent. Co., 198 S.W.3d 449, 454 (Tex. App.--Corpus Christi 2006, no pet.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005)).

When a defendant moves for summary judgment on the affirmative defense of limitations, it has the burden to conclusively establish that defense by proving the date on which the limitations commenced. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005) (citing Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 220 (Tex. 2003); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999)). Once the movant establishes that the statute of limitations bars the action, the nonmovant must present summary judgment proof raising a fact issue in avoidance of the statute of limitations. KPMG Peat Marwick, 988 S.W.2d at 748. When a trial court grants the defendant's motion without specifying the ground, we will affirm the summary judgment if any of the theories advanced are meritorious. Branton v. Wood, 100 S.W.3d 645, 647 (Tex. App.--Corpus Christi 2003, no pet.).

III. Applicable Law

The applicable statute of limitations 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.

Tex. Civ. Prac. Rem. Code Ann. § 74.251(a) (Vernon 2005). Under the statute, commencement of the limitations period is on one of three dates: (1) the occurrence of the breach or tort, (2) the last day of the relevant course of treatment, or (3) the last date of the relevant hospitalization. Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001); see Marchal v. Webb, 859 S.W.2d 408, 413 n.2 (Tex. App.--Houston [1st Dist.] 1993, writ denied). When the date that the alleged negligence occurred is ascertainable, limitations must begin on that date, and further inquiry into the second and third categories is not necessary. Shah, 67 S.W.3d at 841. The plaintiff may not choose the most favorable date that falls within the three categories. Id.; Earle v. Ratliff, 998 S.W.2d 882, 886 (Tex. 1999); Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998). A party may toll the two-year limitations period for seventy-five days by giving notice of a claim under section 74.051(c). Tex. Civ. Prac. Rem. Code Ann. § 74.051(c) (Vernon 2005).

IV. Analysis

Rodriguez contends that the precise date of the alleged negligence is not ascertainable. We disagree. The date of the surgery when a sponge was left in Rodriguez's body, as set out in her petition, was December 19, 2002. ⁽¹⁾ Assuming that she timely notified appellees of her negligence suit, Rodriguez's suit should have been filed two years and seventy-five days from December 19, 2002. See Shah, 67 S.W.3d at 841. Rodriguez filed suit on March 17, 2005. Section 74.251(a) bars her negligence claim because the date in which the alleged negligence occurred--leaving a sponge in her body during surgery--is ascertainable and because Rodriguez did not file suit within two years and seventy-five days of that date. See Tex. Civ. Prac. Rem. Code Ann. §§ 74.051(c), 74.251(a) (Vernon 2005). We conclude appellees conclusively established that the statute of limitations bars the action and are entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Diversicare, 185 S.W.3d at 846; Provident, 128 S.W.3d at 220; Grant, 73 S.W.3d at 215; KPMG Peat Marwick, 988 S.W.2d at 748.

On appeal, Rodriguez asserts the trial court misapplied the statute of limitations period. Rodriguez alleges she seeks damages not merely for the December 19, 2002, surgery but also for the second surgery to remove the sponge that was performed on February 3, 2005. However, nowhere in her response to appellee's motion for summary judgment did Rodriguez claim that there was negligence during the second surgery. Rodriguez may not raise issues on appeal as grounds for reversal which are "not expressly presented to the trial court by written motion, answer or other response." Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Moreover, even had she raised the issue in the trial court, her summary judgment evidence did not raise an issue of material fact regarding negligence during the second surgery. See KPMG Peat Marwick, 988 S.W.2d at 748. In fact, the evidence presented by Rodriguez shows that she was satisfied with Dr. Carawan's removal of the sponge. During deposition she stated, "Yes, he [Dr. Carawan] removed it [the sponge] very well."

After taking as true all evidence favorable to Rodriguez, and indulging every reasonable inference and resolving any doubts in her favor, without disregarding evidence supporting the motion, we conclude that Rodriguez did not raise a material fact issue in avoidance of the statute of limitations. See KPMG Peat Marwick, 988 S.W.2d at 748; BP Chems., 198 S.W.3d at 454; Ortega, 97 S.W.3d at 772. We overrule Rodriguez's sole issue.

V. Conclusion

We affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 20th day of November, 2007.

1. Even though pleadings, as a general rule, do not qualify as competent summary judgment proof, see Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995), they may constitute summary judgment evidence when they contain statements rising to the level of admitting a fact. See Withrow v. State Farm Lloyds, 990 S.W.2d 432, 436 (Tex. App.--Texarkana 1999, pet. denied). We note that the dates pleaded in Rodriguez's petition filed on March 17, 2005, establish that the surgery where the sponge was left in her body undisputedly occurred on December 19, 2002. See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) ("Assertions of fact, not plead in the alternative, in the live pleadings of a party are regarded as formal judicial admissions" (quoting Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983))). A plaintiff's petition is properly considered on defendant's motion for summary judgment insofar as facts alleged in the pleadings constitute judicial admissions and therefore waive the requirement of any proof of those facts because of their binding effect. See Withrow, 990 S.W.2d at 436; Galvan v. Pub. Utils. Bd., 778 S.W.2d 580, 583 (Tex. App.--Corpus Christi 1989, no writ).