Mata v. Simpson

PAUL W. GREEN,

Justice, dissenting.

The outcome of this limitations case is determined by identifying the date Mata was last treated by Dr. Simpson. The majority holds that Dr. Simpson last treated Mata on the date he suffered a seizure, which was six months after his last visit to Dr. Simpson’s office and eleven days after Dr. Simpson refilled his Doxepin prescription for the last time. Because the date of seizure is not relevant to when Dr. Simpson last treated Mata, I respectfully dissent.

Discussion

A cause of action for medical negligence based on an injury occurring during a course of treatment for a particular condition accrues on the date of the last treatment. See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 10.01 (Vernon Supp.2000); Gross v. Kahanek, 3 S.W.3d 518, 520 (Tex.1999). It is undisputed that Dr. Simpson had been treating Mata for chronic insomnia for a period of almost a year and a half. Since Mata claims Dr. Simpson’s course of treatment caused his injury, his cause of action accrued on the date when Dr. Simpson last treated him. The majority says the date of Mata’s seizure was when he was last treated by Dr. Simpson because on that day “another physician took control of Mata’s treatment.” 27 S.W.3d at 150.

The majority apparently presumes, based on the frequency of Doxepin refills, that Dr. Simpson’s treatment of Mata for insomnia continued beyond the date of the last refill and lasted until Mata was treated for a seizure by Dr. Martin Guerrero, an emergency room physician. But to make that presumption it must be assumed that Dr. Simpson had a continuing duty to monitor Mata’s condition, that the seizure obviated the need for further insomnia treatment, and that Dr. Guerrero “took control of Mata’s [insomnia] treatment” from Dr. Simpson. None of these assumptions are warranted by the evidence.

In order to extend the cause of action accrual date beyond the date of last contact, it must be shown that the doctor had a continuing duty to monitor the condition of his patient. See Gross v. Kahanek, 3 S.W.3d 518, 521 (Tex.l999)(evidence that doctor had duty to monitor patient’s Teg-retol blood levels). There is no evidence in this record, however, that Dr. Simpson had a duty to monitor Mata’s condition beyond his last office visit or beyond the date of the last prescription refill. Moreover, even if it is assumed that Dr. Simpson had a continuing duty to monitor and treat Mata, there is nothing in the record to suggest that Mata’s seizure necessarily marked the end of his insomnia treatment. C.f. In re Estate of Magness, 918 S.W.2d 5, 8 (Tex.App.-Houston [1st Dist.] 1995, writ denied)(reasoning that treatment for depression ended on date of hanging because patient became comatose and was no longer treatable). There is no evidence that Mata’s seizure avoided the need for any further treatment for insomnia. Finally, if it is assumed again that Dr. Simpson had a continuing duty to treat Mata, the evidence does not show that Dr. Guerrero “took control of Mata’s treatment,” which up to then had been Dr. Simpson’s treatment for Mata’s insomnia. See Gross v. Kahanek, 8 S.W.3d at 521 (holding that defendant’s treatment ended when another physician began to authorize patient’s medication refills). The evidence shows only that Dr. Guerrero treated Mata for a seizure of unknown pathology. In short, there is no rational basis for the majority’s conclusion that Dr. Simpson’s treatment of Mata for insomnia ended on the date when another physician treated Mata for something other than insomnia.¹

The majority cites the Gross and Magness cases to support its holding that limitations did not expire. Paradoxically, both of those cases held that limitations barred the plaintiffs cause of action. It should also be pointed out that neither court addressed the precise issue presented here; that is, whether the date of the last prescription is the physician’s date of last treatment. Instead, the courts selected the latest date that could possibly be argued as the physician’s date of last treatment-in Gross, when another doctor took over treatment, and in Magness, when the patient hanged herself-and determined on the basis of that date that the lawsuits were filed outside of the limitations period. Consequently, I find neither case to be particularly helpful when considering whether the date of the last prescription is the date of Dr. Simpson’s last treatment.

Conclusion

On the assumption that Mata was receiving continuous treatment for insomnia, we look to the evidence in determining when Dr. Simpson’s treatment ended. The only competent evidence in the record on that issue comes from Dr. Simpson. He says the latest possible date he could be considered to have treated Mata was on the date he last prescribed medication. He had no further contact with Mata. Unlike Gross, there is no evidence Dr. Simpson had a continuing duty to monitor Mata’s condition beyond the date of his last prescription refill. And unlike Magness, Mata’s seizure was not an event that can be reasonably or even inferentially considered an event marking the end of a course of continuing treatment. Consequently, the only evidence concerning Mata’s last day of treatment by Dr. Simpson is the date of the last Doxepin prescription, April 4, 1994. Accordingly, that is the date the cause of action accrued and when limitations began to run.

In most cases, including this one, it is not difficult to calculate the date by which a lawsuit must be filed. Mata knew when he last obtained a prescription refill. This was the latest contact he had with the doctor who was treating him for insomnia. He had two years from this easily identifiable date in which to file suit against Dr. Simpson. He failed to do so, and now complains to this court that he should have had more time. The majority accommodates him.

But it is the legislature’s prerogative to establish time limitations for filing lawsuits; it is not this court’s prerogative to equitably extend statutory time limitations. Because the majority’s decision is not consistent with the intent of the legislature, I respectfully dissent.

1 . To use an analogy, what if Mata had gone to the emergency room after an automobile accident and Dr. Guerrero told him to stop taking the Doxepin while he treated him with pain killers? Would the majority still conclude that Mata’s cause of action against Dr. Simpson accrued on that date?