Stone, Joanna and William v. Janice Byrne, M.D., Isabelle Wilkins, M.D., and Baylor College of Medicine--Appeal from 164th District Court of Harris County

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Laws-info.com » Cases » Texas » 1st District Court of Appeals » 2002 » Stone, Joanna and William v. Janice Byrne, M.D., Isabelle Wilkins, M.D., and Baylor College of Medicine--Appeal from 164th District Court of Harris County

State: Texas

Court: Texas Northern District Court

Docket No: 01-01-00959-CV

Case Date: 12/19/2002

Plaintiff: Grimes, Wilbur Keith

Defendant: McFarland, Lois Ann--Appeal from 311th District Court of Harris County

Preview:Stone, Joanna and William v. Janice Byrne, M.D.,
Isabelle Wilkins, M.D., and Baylor College of Medicine-
-Appeal from 164th District Court of Harris County
Opinion issued December 19, 2002
In The
Court of Appeals
For The
First District of Texas
NO. 01-01-00959-CV
JOANNA AND WILLIAM STONE, Appellants
V.
JANICE BYRNE, M.D., ISABELLE WILKINS, M.D., AND BAYLOR COLLEGE OF MEDICINE, Appellees
JANICE BYRNE, M.D., ISABELLE WILKINS, M.D., AND BAYLOR COLLEGE OF MEDICINE, Appellants
V.
JOANNA AND WILLIAM STONE, Appellees
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 99-15945
O P I N I O N
In this medical malpractice action, Joanna and William Stone argue the trial court erred when it granted Janice Byrne,
M.D., Isabelle Wilkins, M.D., and Baylor College of Medicine s (the Defendants) motion for summary judgment
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because (1) the continuing course of treatment tolled the statute of limitations and (2) a material fact issue existed as to
Dr. Byrne. In the event the summary judgment is reversed, the Defendants appeal the trial court s denial of their
motion to dismiss with prejudice based on the Stones failure to provide an adequate expert affidavit. We affirm.
Background
While living in Florida, Joanna Stone became pregnant with twins. In September 1996, at 18 weeks gestation, Stone
underwent an ultrasound examination. She was informed that the ultrasound revealed abnormalities in the female twin
consistent with osteogenesis imperfecta (OI), more commonly known as brittle bone disease.
The Stones moved to Texas, and, on October 4, 1996, Stone had her first obstetrical appointment with Dr. Janice Byrne
at Baylor College of Medicine in Houston. After reviewing Stone s medical records from her Florida physician and
learning of the possibility that the female twin might have OI, Byrne referred Stone to Dr. Isabelle Wilkins, also at
Baylor College of Medicine. Stone underwent numerous ultrasounds while under Byrne s and Wilkins s care, and she
was told OIwas an unlikely diagnosis. // She was told by Dr. Byrne that there were many unanswered questions about
the female twin s condition, most of which would probably not be answered until after the babies were born. Wilkins s
medical records indicate Stone refused an amniocentesis. Joanna Stone gave birth to twins on January 18, 1997, and
the female twin was later diagnosed with OI.
On March 30, 1999, the Stones filed their original petition in which they alleged the Defendants were negligent due to
the following:
a.their continuous failure to properly interpret the ultrasounds performed up to the date of delivery;
b.their continuous failure to properly inform the parents of the risk of the female twin s conditions so that the parents
could make an informed decision about continuing the pregnancy up to the date of delivery; and
c.their continuous failure to recommend further testing which would have identified a severe and irreversible
abnormality up to the date of delivery.
The Defendants filed a motion for summary judgment on the sole ground that the petition was untimely filed.
Limitations
In their first point of error, the Stones argue the trial court should not have granted the Defendants motion for summary
judgment based upon limitations because the Defendants were involved in a course of treatment during Joanna Stone s
pregnancy, whereby the statute of limitations was tolled until that course of treatment was concluded.
Standard of Review
The standard for reviewing a summary judgment under Texas Rule of Civil Procedure 166a(c) is whether the moving
party carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted
as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). A defendant moving for summary
judgment on a statute of limitations affirmative defense must prove conclusively that defense s elements. Velsicol
Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997). In reviewing a trial court s summary judgment, we
resolve all doubts against the movant, and we view the evidence in the light most favorable to the nonmovants. KPMG
Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). Additionally, in determining
whether a disputed material fact issue exists, we take as true evidence favorable to the nonmovant. Am. Tobacco Co.,
Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).
Limitations for Medical Negligence Claims
Section 10.01 provides that, notwithstanding any other law, 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.
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Rev. Civ. Stat. Ann. art. 4590i, 10.01 (Vernon Supp. 2002). However, the statute of limitations is only tolled where the
notice letter is given within the limitations period. Rubalcaba v. Kaestner, 981 S.W.2d 369, 373 (Tex. App. Houston
[1st Dist.] 1998, pet. denied). Consequently, because the Stones did not provide notice until January 14, 1999, any
claim on which the limitations period began to run before January 14, 1997 is barred. See King v. Sullivan, 961
S.W.2d287, 292 (Tex. App. Houston [1st Dist.] 1997, pet. denied).
Article 4590i section 10.01 measures the limitations period for medical negligence claims from one of three dates: (1)
the occurrence of the breach or tort, (2) the last date of the relevant course of treatment, or (3) the last date of the
relevant hospitalization. Tex. Rev. Civ. Stat. Ann. art. 4590i, 10.01; Husain v. Khatib, 964 S.W.2d 918, 919 (Tex.
1998). A plaintiff may not choose the most favorable date that falls within section 10.01's three categories. Husain, 964
S.W.2d at 919. Rather, if the date the alleged tort occurred is ascertainable, limitations must begin on that date. Shah v.
Moss, 67 S.W.3d 836, 841 (Tex. 2001). And if the date is ascertainable, further inquiry into the second and third
categories is unnecessary. Husain, 964 S.W.2d at 919.
However, there may be instances when the exact date the alleged tort occurred cannot be ascertained. The second
category in section 10.01 contemplates such a situation wherein the patient s injury occurs during a course of treatment
for a particular condition and the only readily ascertainable date is the last day of treatment. Kimball v. Brothers, 741
S.W.2d 370, 372 (Tex. 1987). But, before the last treatment date becomes relevant to determining when limitations
begins, the plaintiff must establish a course of treatment for the alleged injury. Rowntree v. Hunsucker, 833 S.W.2d
103, 105 (Tex. 1992). Moreover, if the defendant committed the alleged tort on an ascertainable date, whether the
plaintiff established a course of treatment is immaterial because limitations begins to run on the ascertainable date.
Husain, 964 S.W.2d at 919-20.
Negligent Interpretation of Ultrasounds
The first act of negligence alleged in the Stones petition is the Defendants continuous failure to properly interpret the
ultrasounds performed up to the date of delivery.
Dr. Byrne s affidavit attached to her motion for summary judgment indicates she performed ultrasounds on Joanna
Stone on November 5, 1996 and December 17, 1996 and Dr. Wilkins performed ultrasounds on October 4, 1996 and
January 10, 1997. //
When the date of the alleged tort or breach is ascertainable, limitations begins to run from that date. Husain, 964
S.W.2d at 919. This rule applies even if the exact date on which the injury occurred is unknown. Id. If the date the
doctor s alleged negligence took place can be ascertained, then there are no doubts to resolve and we must measure
limitations from that date. Id.
Accordingly, we conclude that the last date on which Dr. Wilkins could have failed to interpret the ultrasounds was on
January 10, 1997, the day she interpreted the ultrasound, and the last date on which Dr. Byrne could have failed to
interpret the ultrasounds was on December 17, 1996. Because the Stones filed notice on January 14, 1999, more than
two years after Drs. Wilkins and Byrne allegedly failed to accurately interpret the ultrasounds, limitations bars this
claim. See Tex. Rev. Civ. Stat. Ann. art. 4590i, 10.01; Shah, 67 S.W.3d at 845.
Failure to Properly Inform of Risks and Recommend Testing
The second act of negligence alleged in the Stones petition is the Defendants continuous failure to properly inform the
parents of the risk of the female twin s conditions so that the parents could make an informed decision about
continuing the pregnancy up to the date of delivery. The third act of negligence is the Defendants continuous failure to
recommend further testing which would have identified a severe and irreversible abnormality up to the date of
delivery.
These two theories of negligence are dependent upon and relate back to the Stones claim that the Defendants fail[ed] to
properly interpret the ultrasounds. As such, they, too, have a readily ascertainable starting date.
Accordingly, we conclude that the last date on which Dr. Wilkins could have breached her alleged duty to inform and
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duty to recommend further testing to the Stones was on January 10, 1997, the last day she performed an ultrasound on
Joanna Stone. Because the Stones filed notice on January 14, 1999, more than two years after Dr. Wilkins allegedly
neglected to provide the proper information, limitations bars this claim. See Tex. Rev. Civ. Stat. Ann. art. 4590i, 10.01;
Shah, 67 S.W.3d at 845.
Additionally, we conclude that the last date on which Dr. Byrne could have breached her alleged duty to inform and
duty to recommend further testing was on December 17, 1996, the last day she performed an ultrasound on Stone.
Because the Stones filed notice on January 14, 1999, more than two years after Dr. Byrne allegedly neglected to
provide the proper information, limitations bars this claim. See Tex. Rev. Civ. Stat. Ann. art. 4590i, 10.01; Shah, 67
S.W.3d at 845.
We overrule the Stones first point of error.
Fact Issue
In their second point of error, the Stones argue the trial court should not have granted Dr. Byrne s motion for summary
judgment because a fact issue existed as to whether Dr. Byrne was negligent within the statutory period.
Having already determined the Stones causes of action fell on a readily ascertainable date, we overrule the Stones
second point of error.
Conclusion
Because we have held the summary judgment was proper, we need not address the defendants cross-point alleging that
the Stones expert report was inadequate. We affirm the judgment.
Frank C. Price
Justice
Panel consists of Justices Taft, Alcala, and Price. //
Do not publish. Tex. R. App. P. 47.
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