Arredondo v. Hilliard

The trial court’s is af-

firmed. ARREDONDO, Individually

Anna and On

Behalf of the Estate of Alexander Arredondo, Appellant,

Trent HILLIARD, M.D.;

Robert L.M. Robert A.

Westbrook, M.D., Baptist Memorial

Hospital System, Appellees.

No. 04-94-00376-CV. Texas, Appeals

Court of

San Antonio.

June

Rehearing Aug. Overruled O’Neill, Balega, Peter J. F. Sean gave O’Neill & notice of the Balega, Kemmy, Antonio, Thomas G. San death claims on filed appellant. original petition same date.3 She point asserts in one error that trial George Evans, Jr., F. Ruth Greenfield Ma- granting court in summary judgment. erred linas, Anderson, Ryan Weed, P.C., G. Ball & arguments Her include: that section 10.01 Lyons, Rios, Lyons Clem V. Alarcon Irene & apply; not does if it does Rhodes, Inc., Anderson, Bruce E. Brin & apply, fraudulently the defendants concealed Brin, P.C., Antonio, Nye, San Thomas F. action; the causes of that there ais violation Breck, Brin, P.C., Linda C. Brin Corpus & guarantee Texas Christi, appellee. for Constitution process; and denial of due CHAPA, that the C.J., Before statute of limitations are tolled DUNCAN and BUTTS, minority JJ. event because of Alexan-

der.

OPINION Standard Review BUTTS, Justice1. appeal on The issue from a sum appeal summary This judgments is from mary judgment whether the movant estab 'wrongful based on limitations in death ac- lished as a his matter law entitlement Arredondo, individually Anna tions. and as summary judgment by conclusively proving administratrix of the Estate of Alexander genuine that no issue of material fact exists Arredondo, sued Wrongful under the Texas City as to his cause of action or defense. Act, alleging negligence Death Houston v. Authority, Clear Creek Basin Hilliard, Doctors Robert L.M. Robert A. (Tex.1979); Westbrook, Gibbs v. General Baptist Hospi- Memorial System Corp., Motors tal caused the death of Arredondo’s son, 1970); By newborn We for moving Alexander. reverse. Tex.R.Civ.P. 166a. summary running judgment based on the All summary defendants for judg- moved limitations, bur the defendants assumed the ment, relying on the affirmative defense of den of establishing as a matter of law granted limitations. The court trial sum- by the suit Delgado was barred limitations. mary judgment on each death claim Burns, (Tex.1983) (per solely limitations, based on the statute curiam); Rosenbaum, Corp. Zale 4590i, § art. Tex.Rev.Civ.StatAlNN. (Vernon Pamph.1995).2 The court then sev- ered the death claims from the supreme The court further clarified the claims, reserving survival those for trial. standard of review: record is undis- 1. The judgment movant puted that Arredondo admitted Bap- showing has the burden of that there is no Hospital (Baptist) tist for induction of labor genuine material issue of fact and that it is July 16,1991, giving birth Alexander judgment entitled to as a matter of law. morning July caesarean section on the deciding 2. In is a whether not there delivery, 1991. Less than four hours after disputed precluding fact Alexander was to Medical material issue transferred Center (not Hospital party appeal), summary judgment, to this evidence where favorable he died on 1991. the non-movant bewill taken as true. Assigned point to this the Chief 3. regarding case Justice of the No before this error is court Supreme pursuant Court of Texas enlargement of the limitations of section TexGov’t (Vernon 1988). 74.003(b) § Code permitted by 10.01 as section 4.01. Ann. 2. References are to art. TexRev.Civ.Stat.Ann. (Vernon Pamph.1995), 4590i the medical mal- act, practice unless otherwise indicated. health care Every provided tist services and must be staff reasonable inference the newborn.

indulged favor non-movant favor. any doubts resolved its med- perceived effort to alleviate the its crisis, malpractice legislature enacted ical Property Management v. Mr. Nixon two-years period of limitations. absolute contained in section “The three-date schedule Statutes of Limitations 4590i to aid the 10.01 of Article was intended ascertaining difficulty plaintiff had who Liability and The Medical Insurance occurred, precise date on which (MLIIA) Improvement Act was enacted specifically where the in circumstances legislature perceived of treatment arose from a course See Morrison malpractice insurance crisis. for extended a hospitalization of 205, Chan, 208 v. 699 S.W.2d Brothers, 741 of v. time.” Kimball provides: The limitations section of MLIIA 370, law, Notwithstanding no other “[wjhen precise specific the date of the But liability may com- care claim be health from the facts or tort is ascertainable breach unless the action is filed within menced case, [], requires the of the section 10.01 years from the of the two occurrence period to run from the date or tort or from the date the medical breach case it present or tort.” Id. In the breach subject is or health care treatment that only is one undisputed is that there date hospitalization of the claim or for which which the services and treatment that, completed; provided is made is by physi- provided health care were age years minors under the of 12 shall 17, July Baptist: cians birthday until have their 14th which to file, behalf, or have filed on their the claim. alleged her in her suit Arredondo Except provided, subchapter as herein injuries by defen were caused child’s persons regardless applies to all of minori- has negligence. It been held dants’ ty disability. or other premised is death claim claim, liability upon applica care a health Section 10.01 of MLIIA The death ble limitations is section 10.01 statute of provides: act limitations statute Hollimon, MLIIA v. 847 S.W.2d Blackmon person bring A later must a suit not 1992, 614, (Tex.App Antonio . —San years day than two after the the cause of denied). Baylor College Bangert writ See v. injury action accrues for re- action Medicine, 564, (Tex.App. 881 S.W.2d sulting in death. The cause of ac- action 1994, denied); see [1st Dist.] —Houston writ injured person. crues on the death of the (Tex. 547, Shoukfeh, Goode v. 16.003(b) § & Ann. Tex.Civ.PRAc. Rem.Code writ); v. App. no Todd — Amarillo (Vernon 1986). Parenthood, Planned 19, 1993, July exactly On two after denied); 1993, writ Shi (Tex.App . —Dallas death, wrong- filed the child’s Winsett, 941, 943 daker ful Applying death claims. section 10.01 of denied); App. see San writ — Amarillo the trial noth- court rendered take MLIIA Hosp., 769 chez v. Memorial Medical Ctr. ing judgment for the doctors and (Tex.App —CorpusChristi . Baptist. agree that section 10.01 is the We writ). liability 1989,no Given the health care controlling limitations statute. actions, present claims as the basis “[njotwithstanding any applies section 10.01 that the claims arose The record reflects reasoning by law.” This is buttressed other allegedly negligent acts and treatment from unambiguous definition Baptist by Alexander the two doctors of MLIIA: section July 1991. Dr. Hilliard employees on Alexander; liability claim” means Dr. West- “Health care attended the birth of pro- health care provided to Alexander on that cause action brook services treatment, lack of physician was transferred to the other vider date before he birth; treatment, departure Bap- or other claimed four hours and the hospital after accepted wrong. Home, from standards medical care or Dotson Alamo Funeral safety proximately health care or which (Tex.Civ.App.—San to An writ). injury results in patient, to or death nio Fraudulent conceal patient’s operates Nichols, whether the claim or toll cause ment limitations. contract, Thus, (empha- action sounds in tort 507 S.W.2d at Arredondo would added) required present by competent sis be sum mary judgment evidence material fact issue 1.03(a)(4) Therefore, Section of MLIIA. on each element the defense. present since in the case each claim, liability founded on a health care In her affidavit Arredondo states that the operative for redress is the away monitor, hospital staff turned fetal MLIIA, specified one the doctors and staff refused to answer her though alleged even extent of the distress, questions fetal about would not was death. strips, her show the fetal monitor and failed produce requested strips. later She Fraudulent Concealment asserts the 17th actions demonstrate may Fraudulent concealment be a knowledge wrong actual the defen- defense to an affirmative defense of limita dants, they duty had a to disclose the plaintiff tions under which the has the bur wrong, they and purpose that had a fixed to coming proof den of support forward with to wrong. says conceal the she She was con- Witt, allegation. Weaver v. 561 S.W.2d prolonged difficulty cerned about the of her 792, (Tex.1977) curiam).4 (per 793 In medi presented labor on The 16. evidence cases, malpractice open provi cal courts cogni- affidavit reflects that Arredondo was operates sion to render section 10.01 uncon possibility problems zant with the purports stitutional insofar as it off to cut a procedures. baby birth She knew the was cause of action the action before is known to Hospital transferred to Medical Center brought, exist or before suit can be but because of fetal distress. provision has no effect on the limitations plaintiff discovers the Although requested she avers she while there is still a reasonable time to sue. happening during information of what was Chan, See v. Morrison 699 S.W.2d at procedures, action of the birth and cites the a estoppel “The effect of fraudulent conceal away in turning nurse the fetal monitor and facts, ment party ends when a learns of inability strips her to the fetal monitor obtain conditions, or circumstances which would raising as a fact conceal issue fraudulent reasonably prudent person cause a to make ment, these do not establish statements that which, inquiry, pursued, if would lead dis nursing the actions of the staff constitute covery of the cause concealed of action. wrongful inability negligent acts. The Knowledge of equivalent such facts is in law not, in obtain medical records does and of knowledge the cause of Bor action.” itself, establish fraudulent concealment. Nor Peck, (Tex. 907, derlon v. 661 S.W.2d 908 person’s can loss of of a some rec 1983); Smith, 518, v. Nichols 507 519 S.W.2d be a wrong. allegations ords evidence of The not would be sufficient evidence that

To show to estoppel wrongful entitlement ef defendants knew their actions were concealment, plaintiff negligent they fect of fraudulent purposefully and con (1) must knowledge show: actu the defendants had cealed the from Arredondo. See (2) Rudd, 818, (Tex. al knowledge wrong, of the the defen v. Wilson 814 S.W.2d 823 purpose 1991, dants had a fixed App. to conceal the [14th Dist.] writ de — Houston supreme definitively express 4. The court has not ruled was submitted that clear and lan whether the doctrine of fraudulent concealment guage of article 10.01 con abolishes fraudulent operates running toll the of limitations in exception cealment as an to the of limita statute Sterling death cases. Moreno See v. Peck, tions. Borderlon v. 661 S.W.2d Inc., Drug, 787 S.W.2d n. 1 ( 1983) (Barrow, dissenting, joined by J. Tex. disagreement There has application on the been court with Wallace, JX). Pope, Campbell, and of the doctrine in MLIIA case. It nied). Further, trary purpose when balanced statement “feel[s]” the “true facts” were con and basis of the statute. she her, hospital staff inten cealed from Votteler, 661, 666 v. 648 S.W.2d Sax tionally hid from her information which 1983). problem or would have led her to believe if supreme ruled in court Moreno occurred, merely con- mistake in treatment is recognized at was not com a cause clusory. Conelusory are not suf statements law, legislatively creat mon but instead raising a ficient evidence ed, legislative limitation or any subsequent fact on an of fraudulent con issue element does not abrogation of the cause of action Sanchez, cealment. at 659. S.W.2d open of the Texas violate courts requires Fraudulent concealment evidence I, Constitution, article section 13. Common specific demonstrating facts actual knowl recognize a cause of action for law did not edge wrong purpose and a to conceal Moreno, at 355- death. knowledge. Desiga Scheffey, such See Hosp., 56. See Rose v. Doctors (Tex.App. [14th — Houston Todd, 841, 845 (Tex.1990); at 127. writ). Dist.] Ramos, In Felan earlier, estoppel As noted effect (Tex.App. Corpus writ de Christi — party fraudulent concealment ends when nied), two-year held stat the court facts, conditions, learns of and circumstances unreasonably ute restricted the decedent’s inquiry discovery lead which would for medical mal common law cause of action Knowledge cause of action. concealed provi practice and violated the equivalent knowledge such facts patient had sion of the Constitution. That Borderlon, cause action. at mentally incompetent, allegedly been case Arredondo had over surgery, of for about three result alleged negli months from the of date the mentally incompetent at time of was the if gence or mistreatment to even the two- sue of The court reasoned that her cause death. year period limitations had not been tolled. capabil action was cut off before she had the impossible Arredondo did not have an bur- know, ity opportunity to had a reasonable or limitations, den because of the statute of as therefore, it; learn of the limitations stat to argues. she The record discloses that she at ute of 10.01 was tolled. Id 116-17. See potential of a aware the Henderson, Tinkle v. 19th, defendants the date of death. ref'd) (the two-year App. Tyler writ — Since no evidence shows statute, applied mentally as to a knowledge that had the defendants actual incompetent plaintiff, open the violated any they wrong negligence or or that had a provision). courts purpose any wrong negli- fixed to conceal or two-year present In the the case statute gence, judicially we conclude the created ex- limitations, strictly applied, if would unrea- ception of de- fraudulent concealment as a sonably cognizable Alexander’s cause restrict operated fense would not have to toll limita- Further, malpractice. of action for tions. two-year that it can be seen statute limitations, strictly applied, be un- if would Common Law Causes applied to the minor after bal- reasonable as Open Courts Provision ancing purpose and basis of the MLIIA. I, Construing Tex- article section 13 of the Constitution, supreme court as has said: Rights Due Process litigants’s right re- analyzing to presented

dress, litigant has also an alternative first we note that First, satisfy. argument application in her case it must be two criteria statute, two-year litigant cognizable sec- has a the absolute shown MLIIA, process being due 10.01 of violated the common law cause of action that is tion I, 19 of the Second, rights granted article litigant must show restricted. provides: arbi- Constitution. The section restriction is unreasonable or Texas deprived citizen of justification No this State shall be sufficient or the restriction life, liberty, Pedraza, property, privileges rights liberty immu- involved.” Rose, disenfranchised, earlier, nities or in manner 698. As S.W.2d at noted except by the due course of the law of the S.W.2d at sets out and discusses the land. purposes MLIIA in section delineated 1.02(b). I, § art. prevail 19. To this Tex.Const.

argument, litigant a long- must overcome the case, Because the circumstances of this standing presumption in favor an act of however, we have no need to determine Rose, legislature. at protections whether the constitutional process and the due process requires Procedural due guaranty were violated. This is because aggrieved party opportuni an be afforded specific exception legislative sec- contained ty, meaningful at a meaningful time and in a protects rights tion 10.01 those and makes manner, complaint. to be heard on her Lo unnecessary. mentally in- Unlike the gan v. Zimmerman Brush U.S. Tinkle, competent decedents in Felan and 1148, 1158-59, 102 S.Ct. 71 L.Ed.2d 265 right bring pre- minor’s suit uniquely (1982); Marshall, Financing, MJR Inc. served. (Tex.App. 840 S.W.2d 5 — Dallas writ). Death of the Minor process requires Due that a limita Arredondo submits that defen length be adequate permit tions dants failed establish as a of law matter party rights. enforce his When the their affirmative defense of limitations. The party has free access to courts for a contention is that the defendants failed to ordinarily of time sufficient for an Alexander, minor, prove that did not have diligent person legal proceed to commence viable cause action at the of his time ings protect rights, the limitations death. See, period is adequate. e.g., reasonable and Nelson, 678 Eighteen S.W.2d at 918. months death statute au after the accrual of a cause of action has been beneficiary thorizes an a decedent’s held to be a reasonable which to time only person injured if the would have been Morrison, bring suit. See 699 S.W.2d at bring entitled an action if to for the he 207-08. Co., Ingersoll-Rand had Russell v. lived. 343, (Tex.1992); 841 S.W.2d 345 Tex.Civ. rights, including Vested matured 71.003(a) (Vernon § Peac. & Rem.Code Ann. action, protected by causes are also the 1986). wrongful aIf death action does not process provisions due Texas both the and exist because the decedent could not main United States v. Constitutions. Middleton immediately tain an in his right action own Co., 96, 185 Light Power Texas Tex. 108 death, reason, before for whatever then (1916), 152, aff'd, 556 S.W. 249 U.S. 39 S.Ct. Russell, wrongful action ever death accrues. 227, (1919); 63 L.Ed. 527 Const., U.S. Thus, 841 at right S.W.2d 348. of a the § 14 I Amendment art. Tex.Const. statutory beneficiary wrongful to maintain a cases, process In substantive due we balance entirely is death action the de derivative of gain public resulting the to the welfare from inju to right cedent’s have sued for his own legislation against severity the of its ef immediately death, subject ries before and is personal rights. property fect on In the to defenses to the same which the decedent’s (Tex. 493, of B.M.N., Interest 570 503 subject. action have would been at 347. Id. writ); Civ.App 1978, no Pedra . —Texarkana Tibbs, 695, (Tex.App.— za v. 826 appellate 697 The court must first determine w.o.j.). [1st Houston Dist.] writ dism’d whether is a each Arredondo’s actions one, violating case, “A law is unconstitutional as due and in it present derivative is [only] process arbitrary when it is unrea clear that action is next each derivative. We sonable, and the latter the social ability bring occurs when look to minor’s action necessity defendants; is against law is meant to serve not a is this evaluation (Vernon operative Pamph.1995), provides the ability to made in of the minor’s sue terms liability all health care immediately limitations his death the defendants before claims, I including resulting in death. those July 19, 1991. bring failed to agree further Arredondo express to the of sec- Pursuant proof judgment forward sufficient 10.01, Alexander, minor, was not tion fraudulent fact issue as her raise a two-year bound the absolute See American concealment defense. Petrofi before, pro- period. out the statute As set Allen, na minor, age shall vides that a under have however, disagree, Russell v. I either file, birthday in until his 14th which to (Tex. Ingersoll-Rand 841 S.W.2d behalf, have his his health care claim. filed on 10.01, 1992), applies proviso in or the section of limita- Arredondo contends statute wrongful death to and Arredondo’s saves alleged tions was tolled from the date of the cause of action. injuries, July until the date of the minor’s malprac not a medical Russell did involve agree. time death on At the We claim, supreme court did not tice and the causes of were Alexander’s death his action raised purport even to resolve issues Therefore, beneficiary, derivative viable. Indeed, appeal. in this the court Arredondo, filing not time-barred from was that, possibility “un expressly left within two wrongful death claims statutes, may a limitations der other of his We conclude that the defen- death. begin benefi to run death movants, dants, not sum- as did sustain their Russell, death.” prior ciaries decedent’s mary judgment burden establish conclu- (citing at n. 8 Wilson v. sively had not tolled that limitations been as Rudd, (Tex.App S.W.2d 818 . —Houston minor, Alexander, to the until the date his denied), which did Dist.] writ [14th death, were and that causes not claim). malpractice involve medical We Consequently, viable that time. the sum- at must, therefore, proviso construe sec mary judgment fails evidence to show that with usual rules tion 10.01 accordance judgment the defendants were entitled to construction, statutory which mandate that upon a matter of law based limitations. The give legislative intent ex we effect point of error sustained. pressed plain unambiguous lan in the judgments The are and the reversed guage Citizens Bank v. of the statute. See causes for trial. remanded Bank, First State Frank, 1979); Minton DUNCAN, Justice, dissenting. majority The holds “the statute of expressly proviso [governing Arredondo’s “minors, age of 12 states under the death from date of the action] tolled birthday in years until their 14th shall have alleged injuries, July until the date of behalf, file, on which or have filed their July by 19” virtue [Alexander’s] death on proviso thus tolls the accrual claim.”1 basis, proviso in 10.01. section On only liability claim of a health care majority summary judg- reverses the A by a minor. claim is filed or on behalf of holding judgment, I ment. From this by filed wrongful is not claim death action respectfully dissent. behalf; a claim to minor nor is it or on by a damages suffered minor.2 agree majority

I recover with that section 10.01 Rather, a claim wrongful action is Liability Im death of the Medical and Insurance statutory Act, benefi- filed on behalf of provement art. 4590i Tex.Rev.Civ.Stat. severed, Wasson, to, claim as- ment the survival S.W.2d 316 1. But see Weiner v. (Tex.1995) representative (holding proviso of Al- unconstitutional as serted Arredondo as extending peri- applied pro- minors Accordingly, estate. whether exander’s birthday). od until minor’s 20th applies to viso 10.01 the survival in section appeal. this court on is not before opinion, judge majority trial 2. As in the noted appellees' judg- motion for denied the 762-770

ciary damages. to collect Ms or her own See

Landers v. B.F. Goodrich (Tex.1963). Accordingly, express proviso

terms of the in section 10.01render it

inapplicable wrongful death claims such as

Arredondo’s. tolling

Absent proviso effect of the 10.01,

section wrongful Arredondo’s death ac- July 17, 1991,

tion accrued on the date the

appellees’ hospitalization medical care and completed. Accordingly,

Alexander was Ar-

redondo’s death action became prior

time-barred filing to its unless, as argues,

1993— applied is unconstitutional as under I,

article sections 13 and 19 of the Texas

Constitution. I,

Clearly, article section 13 of the Texas

Constitution —the provision—

cannot statutory save Arredondo’s

death Sterling action. See Moreno v. Drug, (Tex.1990); see also Hosp.,

Rose v. Doctors I, Article section 19 is likewise

unavailable; simply it cannot be said that days

two less than two is an unreason- inadequate

able or in these Chan,

circumstances. See Morrison v. light foregoing, I would affirm appellees. in favor of

Case Details

Case Name: Arredondo v. Hilliard

Court Name: Court of Appeals of Texas

Date Published: Aug 17, 1995

Citation: 904 S.W.2d 754

Docket Number: 04-94-00376-CV

Court Abbreviation: Tex. App.