DONALD STREICH v. DR. JERRY PALLARES--Appeal from 197th District Court of Cameron County

   NUMBER 13-02-698-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

DONALD STREICH, Appellant,

v.

DR. JERRY PALLARES, Appellee.

 On appeal from the 197th District Court

of Cameron County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Rodriguez and Garza

   Opinion by Chief Justice Valdez

Appellant, Donald Streich, appeals from the trial court=s order granting summary judgment in favor of appellee, Jerry Pallares, M.D., on a medical malpractice suit due to the late filing of the claim. In the sole issue presented, appellant claims the trial court erred by improperly selecting the commencement date of the two-year limitations period and granting the summary judgment. We affirm.

I. STANDARD OF REVIEW

We review the trial court=s granting of a traditional motion for summary judgment de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Alejandro v. Bell, 84 S.W.3d 383, 390 (Tex. App.BCorpus Christi 2002, no pet.). To prevail on a summary judgment motion, a moving party must establish that no genuine issue of material fact exists and judgment should be granted as a matter of law. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). In deciding whether there is a genuine issue of material fact, we resolve any doubt against the movant, and view the evidence in a light most favorable to the nonmovant. Id.

A defendant moving for summary judgment on the affirmative defense of a tolled limitation statute has the burden of conclusively establishing that defense. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant must (1) conclusively prove when the action accrued, and (2) negate the discovery rule if it applies and has been pleaded or raised. Id. If the movant establishes that the statute of limitations bars the action, the nonmovant must then offer proof raising a fact issue to avoid summary judgment. Id.

 II. ANALYSIS

Appellant alleges that appellee failed to diagnose a lytic bone lesion at his L4 vertebrae during an examination on December 29, 1999, but that due to a continuing course of treatment by a different doctor for this same condition, the two-year limitation period did not toll until March 2, 2000, the date that the lesion was finally discovered. Appellant also alleges that appellee failed to negate all the elements of the discovery rule. He asserts that the date the malpractice occurred is a question of fact for a jury and not one of law.

Former article 4590i, section 10.01 of the Texas Revised Civil Statutes governs this case since it was filed before September 1, 2003. Act of May 30, 1977, 65th Leg., R.S., ch. 817, __ 1.01 -12.01, 1977 Tex. Gen. Laws 2039-2053 (as amended) (henceforth Aformer Tex. Rev. Civ. Stat. art. 4590i@), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, _ 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at Tex. Civ. Prac. & Rem. Code __ 74.001 et seq. (Vernon Supp. 2004-05)).

The former statute created an absolute two year limitations period in which to bring suit on health care liability claims. Id.; Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987). One of three dates was used to calculate the commencement of this period: (1) the occurrence of the breach or tort, (2) the date the medical or health care treatment that is the subject of the claim is completed, or (3) the date the hospitalization for which the claim is made is completed. See former Tex. Rev. Civ. Stat. Ann. art. 4590i, _ 10.01; Kimball at 372. A plaintiff could not simply choose the most favorable date, but rather, if the specific date of the negligence could be ascertained, then the limitations period commences upon that date. Earle v. Ratliff, 998 S.W.2d 882, 886 (Tex. 1999). In other words, if the date of the occurrence of the breach or tort is ascertainable, then an inquiry into the second and third categories is unnecessary. Shah, 67 S.W.3d at 841 (Tex. 2001).

When a claim accrues is a question of law, and not one of fact. Chambers v. Conaway, 883 S.W.2d 156, 158-59 (Tex. 1993). Appellant was examined by appellee on a single date, December 29, 1999. Appellee=s alleged failure to diagnose the lytic lesion occurred on that date. When a doctor fails to properly diagnose a patient, the continuing nature of that failure alone does not extend the limitation period. Bala v. Maxwell, 909 S.W.2d 889, 892 (Tex. 1995). As such, the commencement of the limitation period occurred on December 29, 1999, the last date appellee treated appellant and had a chance to perform his alleged duties. See Shah, 67 S.W.3d at 843.

The only evidence appellant offers to refute this finding and prove a continuing relationship is his personal affidavit in which he states, ADuring this time period I continued to keep my doctors informed of my pain, discomfort and numbness.@ However, the record reflects no other visit to appellee and no connection to or treatment by appellee in any form beyond December 29, 1999. Even if the standard of care required the ongoing monitoring of appellant, course-of-treatment limitations will not be applied if the date of the tort is ascertainable. See id. at 845.

Appellant also alleges that appellee failed to negate all the elements of the discovery rule. Although appellee at one time would have needed to negate the elements of the discovery rule in order to obtain summary judgment, this rule was abolished for health care liability claims when the 65th legislative session enacted the Medical Liability and Insurance Improvement Act. See former Tex. Rev. Civ. Stat. Ann. art. 4590i, _ 10.01; Morrison v. Chan, 699 S.W.2d 205, 208 (Tex. 1985). With the abolishment of the discovery period, all health care liability claims must now be brought within the two-year period allotted by the statute. Although appellant was unaware of the alleged malpractice until two months after it occurred, this still left him approximately twenty-two months in which to file suit. He could have also obtained an additional seventy-five days, prior to filing suit in the trial court, upon timely notice served to the physicians and healthcare providers involved. See former Tex. Rev. Civ. Stat. Ann. art. 4590i, _ 4.01(c). Since appellant failed to timely file notice pursuant to section 4.01(c), the final date on which he could file was December 29, 2001, or two years after the alleged breach. As such, appellant=s April 9, 2002 filing was barred by the statute of limitations.

Accordingly, we overrule appellant=s sole issue presented.

 III. CONCLUSION

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this 7TH day of July, 2005.