488 S.W.3d 485
Tex. App.2016Background
- Jessica Durham (b. 1993) injured in July 2006; Hawaii doctors noted an enlarged ascending aorta and recommended pediatric cardiology follow-up in Texas.
- Jessica was treated at Children’s Medical Center of Dallas in August 2006 (last treatment date: August 31, 2006) and thereafter transferred; she died on December 25, 2008 from a ruptured aorta at age 15.
- Plaintiffs Sheri Durham (mother) and Denise Jenkins (administrator of estate) served Chapter 74 notice on December 6, 2010 and sued on February 17, 2011 alleging health-care-liability survival and wrongful-death claims for failure to diagnose/arrange cardiology follow-up.
- Defendants moved for traditional summary judgment asserting claims were barred by Tex. Civ. Prac. & Rem. Code § 74.251(a) (two-year limitations from date treatment completed; tolling for minors under 12 only) and alternatively challenged punitive damages and certain expert evidence; trial court granted take-nothing summary judgment.
- On appeal, plaintiffs argued limitations tolled by minority/Open Courts Clause and by fraudulent concealment; appellants also challenged evidentiary rulings (not reached by court after resolution of limitations and concealment issues).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 74.251(a) tolls limitations for Jenkins’s survival claim because Jessica was a minor | Jenkins: minority tolling / Open Courts principles should toll survival claim until death or thereafter | Defendants: § 74.251(a) controls; tolling applies only for patients under 12; survival claims are statutory and not subject to Open Courts tolling | Held: Survival claim not tolled — Jessica was over 12 when treated, so § 74.251(a) provides no tolling and claim is time‑barred |
| Whether § 74.251(a) tolled Durham’s wrongful-death claim because decedent was a minor who died >2 years after last treatment | Durham: wrongful-death accrues only at death; Open Courts or equitable tolling should prevent pre‑accrual bar | Defendants: § 74.251(a) governs health‑care wrongful‑death claims and is not tolled by minority; legislature preset limitations for statutory wrongful‑death claims | Held: Wrongful‑death claim time‑barred — Open Courts Clause does not apply to statutory wrongful‑death claims; court declines to create new equitable tolling |
| Whether plaintiffs produced a fact issue that fraudulent concealment tolled limitations | Plaintiffs: defendants concealed that cardiology follow-up had not occurred (affirmative assurances), so fraudulent concealment tolls limitations | Defendants: evidence shows at most omissions or uncertainty, not proof they knew of negligence or intentionally concealed it | Held: No genuine fact issue — plaintiffs failed to show defendants actually knew a wrong occurred or had intent/fixed purpose to conceal it; fraudulent‑concealment tolling not established |
Key Cases Cited
- Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995) (Open Courts Clause tolling applies to minors’ common‑law personal‑injury claims)
- Bala v. Maxwell, 909 S.W.2d 889 (Tex. 1995) (statutory wrongful‑death and survival claims are creatures of statute and not protected by Open Courts Clause)
- Brown v. Shwarts, 968 S.W.2d 331 (Tex. 1998) (§ 10.01/§ 74.251 tolling for minors under 12; wrongful‑death claims are not tolled because decedent was a minor)
- Gross v. Kahanek, 3 S.W.3d 518 (Tex. 1999) (survival claims governed by health‑care limitations; tolling analysis consistent with Brown)
- Shah v. Moss, 67 S.W.3d 836 (Tex. 2001) (elements of fraudulent concealment and burden to raise fact issue)
- Earle v. Ratliff, 998 S.W.2d 882 (Tex. 1999) (fraudulent‑concealment requires proof defendant actually knew plaintiff was wronged and concealed it)