*1 SHANNON, and BRA- Before POWERS DY, JJ.
POWERS, Justice. appeals
Marie Basford Atha from the dismissing trial court’s against her malpractice her medical physician, trial Polsky. Morris court dismissed her suit on the that her by the cause of action is barred Ann. set forth Tex.Ins.Code § 4, repealed.1 We affirm 5.82 now judgment. (not attorney ap- her on attorney in an peal) alleged her original petition in the trial on filed court September 25, 1978. In her first amended petition, judgment was original upon which her, alleged rendered to treat her skin ail- commenced leucoderma) or (idiopathic about September In the course of treatment, Polsky prescribed for Atha’s trisoralen, taken use the be exposure to ultraviolet conjunction that she followed prescribed Polsky, remedy result blotched, permanently which she sustained mottled, large skin in areas or reddened body, including Her first her her face. allega- original petition contains amended negli- Polsky’s treatment tions that implied gent express breach contractual duties.2 allege for tort and repealed applicable to causes action both statute is causes of 1. The alleges "arising Throughout, after June of contract. Burns, Delgado August 1977.” 656 S.W.2d no suffer assured her that she would 1983). (Tex. it would her treatment and that implied or properly, implying a breach done original petition is sus- Atha’s first amended addition, pe- express duties. contractual ceptible of an inference that she intended to *2 following The undisputed: complained matters are or the date the of medical treatment that of 1. Polsky’s prescribed treatment еnded ... completed_ the claim May in 1976 when Atha discontinued it added). purpose The of the stat- voluntarily, again. never to follow Pol- abrogate ute judicially is to “dis- made sky’s respect drug actions with to triso- rule” in covery brought against ralen and light, ultraviolet and Atha’s use to physicians which the applies, statute of them, of thus more than occurred two Polsky which class is a member. Nelson v. years before suit was filed. Baylor and University Krusen Medical blotched, mottled, permanently (November Center, Tex.Sup.Ct.J. or reddened skin by condition suffered 1983). Accordingly, con- we Atha was observed more than Atha two they present in case insofar as tentions years before suit was filed and has not trial-court basis attack the on the changed since. does “discovery rule.” The statutе years Within two before suit was however, not, abrogate differ- distinctly filed, Atha he Polsky called and treated her of fraudulent ent doctrine concealment vaginal a for hives. infection and Within against for a equitable estoppel an time, Atha, that Polsky also saw at her assertion of a limitations bar. defendant’s request, in reference to the skin ailment for Peck, Id.; S.W.2d Borderlon treatment, originally sought which she rec- (Tex.1983). in the allege Atha does not ommending drug that she use the oxsora- a claim of fraudulent present conceal- case len, although which she Polsky never used plea. Polsky’s to ment in rebuttal limitation tablets, gave sample her a bottle of the and recommending also seek a new that she Instead, Atha contends art. Houston, of in form treаtment which rec- § permits of a cause of ommendation she never followed. contract, upon breach for tort or of based makes no claim upon these transac- occurring acts or omissions more than two period. tions the limitations years previously, provided has in question, with general maintained the defendant a § 4, provides as follows: relationship ex рhysician, and law, Notwithstanding any tending other no claim to a date within person words, a policy filing ... covered a suit. In other Atha con professional liability insurance cover- the statute of tends limitation is tolled ing person practice relationship licensed to medi- the so cine, exists, of express only ... whether for breach if it even exists in reference tort, implied or сontract or matters medical unassociated with commenced unless the action is filed claim. asserts such a relation case, present breach or in ship was maintained condition, diagnose tition sets forth and numerous acts omissions Atha’s skin both her normal by Polsky conditions; which are to constitute the failing in warn and abnormal proximate permanently treatment; cause of Atha’s discol- danger posed by and Atha of the They may ored skin. be summarized as fol- failing properly prescribe in treatment lows: ailment. her skin negligent prescribing drug a. was in c.Polsky negligent continuing the was in inherently dangerous, unproven, exper- that was develop- despite and related treatment imental, dangerously improper, pre- and in ment of adverse side effects. excessive, scribing improper, dangerous allegations for the We assume Atha’s to be true exposure amounts of to ultraviolet opinion. purposes apparent of limited, this Their remembered, failing negligent b. to monitor breadth is it should be supervise progress treatment they only address Atha’s use fact manner, timely prevent and careful as to so light, it is with ultraviolet trisoralen pеrmanent injury, failing prescribe a safer duty by undisputed that she claims no breach of treatment, light particularly in alternative Polsky unrelated to this method of treatment. failing complexion; properly Atha's fair (em- owing period, within the limitations institution of [the suit].” intermit- phasis office to her “occasional visits Polsky, telephone
tent conversations” case, present Atha does not direct- some which occurred in of continu- ly clearly allege was filed none before suit but ing by Polsky allege nor duty does *3 present in the which does she base her skin ailment consisted treatment of suit. completed within in a series of installments out that Atha’s contention is We are, There years two of suit. considerably more distinctly different however, allegations her first some comprеhensive than the “contin- doctrine of im- original petition might amended uing brought upon as duty” applied in suits ply duty and breach. This is found such duty of a that is coterminous with allegation Polsky that con- first in Atha’s relationship. example, For it has been danger tinuously to warn her of the failed legal held a cause of action for mal- posed the with by trisoralen used normally act or practicе accrues when the light. in the ultraviolet She admitted damages occurs and are ascertain- omission cause, however, injury permanent that her able; however, re- attorney-client while the years her than apparent was to more two continues, lationship exists in the at- there filed and that it has not before suit was torney duty a continuous disclose We cannot conclude that changed since. pertaining to the client the material facts long as the required, was for so is claim and the statute of limitations relationship con- general patient-physician tolled, long relationship con- for so the tinued, danger she had to warn Atha of a tinues, respect suit with to the client’s encountered, resulting in an already upon attorney’s the dis- failure personal- sustained to its fullest extent and Johnson, McClung close those facts. than ly by observed her more two (Tex.Civ.App.1981, 647 S.W.2d Similarly, al- filed. before suit was n.r.e.). Similarly, writ ref’d in Beech v. continually leged assured her (5th States, 345 United F.2d harm from his that she would suffer no Cir.1965), it held mal- was that medical her, summary-judg- treatment of but the States, practice the United allegation this ment “evidence” shows under Tort the Federal Claims Act its in reference to trisoralen be two-year period, governed was limitation Thus, Atha’s used ultraviolet “discovery important More rule.” respect must fall within contention this discussion, for our patient’s it was also held that the “discovery rule” which we her contention government claim that physicians rejected have earlier. provide failed to “proper carе” was not § 5.82, 4 do not diagnosis barred where The terms of art. and treat- “[t]he complained “continuing duty.”3 just continued the doctrine of up until 5.82, learned, care legislative purpose enacting or in the exercise of reasonable art. 3. The learned, “discovery diligence of the harm rule” which should have was abolish § developed law in the common to extend the act or оmission. had occasioned malprac- period resulting Legislature, kinds of certain In the Baylor Uni- period, beyond Nelson v. Krusen tice actions. of the limitations extension Center, explanation supra. An versity nominally provided Medical had in art. required. generally. See medical costs led to increased Redish, Legislative Response to per generally, appliсable to statute of limitations Impli Malpractice including negligence, Crisis: Constitutional generally Medical sonal actions (1977); Tex.Rev.Civ.Stat.Ann., cations, Witherspoon, (Supp.1982), 55 Tex.L.Rev. 759 art. Limiting Liability Constitutionality period Statute two-year commenc limitation where plaintiffs Malpractice, 10 Tex.Tech.L.Rev. Medical es cause of to run (1979). presumes present appeal, рlaced judicial In the construction “accrued.” The "accrued,” validity its and does not attack art. 5.82 upon in the form the word rule,” constitutionality. "discovery effect that the limi establishing the date period kinds of In addition commenced in certain tations or breach as date limitations only after malpractice simply requires filing of suit appeal, and that is her contentiоn that of either: (a) the breach the statute of tolled, of con- limitations is is, statutory tract or commence, tort of which the does com- for so as the plains; (b) rela- “the date the medical treat- continues, tionship even though it contin- ment that is the subject the claim only ues in reference to matters completed_” We which no claim of is made. conclude, however, that Atha has not al- leged a claim within that doctrine and thus 5.82, We do not believe may art. we need not consider the matter further. reasonably interpreted in the manner We turn then to the matter to which she suggested effect, Atha. Atha re- devotes the argument bulk of her quests brief and judicial creation of a disability commences to run under art. "accrued” be an erroneous stаndard since Legislature also included in the statute the alter- concept. 4§ *4 omits that The author provision native discussed in the correctly text of this nevertheless makes the that the opinion: patient's physician does, the provision suit alternative of the statute in its covered the wording, statute must be commenced accommodate the continuous treat- doctrinе, within two "from the date the medical ment doctrine. That a common as subject treatment that is the of the enjoyed claim ... law doctrine “never much use in Tex- completed_’’ as,” Perdue, provision This alternative Malprac- Law Texas Medical im- of course, plies, tice, 825, (1974). of that if the tort or 11 Hous.L.Rev. 834 breach occurred more required than two before Before wе are to consider whether filed, patient's malpractive 5.82, suit is the provision the alternative promulgates, in art. § 4 (a) statute, still be maintained if: the tort or breach as a the continuous treat- part doctrine, occurred as of “the medical treatment that ment we must first determine whether claim"; (b) subject of the and that treat- the record in Atha’s case completed ment was permits of the her to invoke the doctrine. date suit was filed. Continuous treatment synonymous is not held to be standard, statutory Under the measur- continuing patient-phy- with the former ing period the limitations relationship. the date the sician It embodies the treat- "accrued,” patient’s cause of action the several negli- ment for that condition out of which the jurisdictions developed arisen, state had gence one or more continuing to have ways by patient which a could avoid the negligent limita- the act rather than the continu- after ation tions bar when his general action asserted a tort or the relation- occurring period: outside the ship. limitations While the termination of the treatment (a) judicial "discovery creation of the rule” dis- can be the time of accrual where there is no above; (b) application longer cussed of the limi- negligence injury affirmative act of and the period generally treatment, tation allowed gen- for actions results from the course of the contract, patient's allega- statutory period eral rule is that the is not claim; (c) recognition tions raised postponed such a specific of the when there is a act of fraudulent negligence though concealment as a physician even contin- estoppel against plea for patient his of the long limitations ues to treat the as the condi- bar; (d) judicial course, and creation of the aggravated by common tion it. Of if law “termination rule” or negligence "continuous treаtment injury discovers the dur- theory,” permitted by where ing continuing the facts of the treatment the rationale for Comment, Analysis Legislative case. An theory State meaning ceases to have and the Crisis, Responses Malpractice to the Medical cause action accrues and the statute com- 1975 Duke L.J. point. 1430-32. Atha contends mences to run at that present appeal Id., provision that the alternative at 834. The last sen 5.82, 4, in art. relative foregoing quotation § date her treat- tence in the refers to the completed, incorporates statutory ment was "discovery in a rule” used sense different from avoiding form the last-named means of the limi- its former use under art. 5526. Here it is used exception tations bar. as an doctrine, to the continuous treatment has, indeed, much, suggested One author apply pa which does not "where the stating tient, treatment, provision that the alternative in art. to termination of the dis covers, discover, may prove "escape 4 an opportunity valve which would or has an allow the courts to construe a cause injury”; of action as act of and his and where accruing casе, negli- exception later than the [sic] date of the arises from the facts of the Comment, gent though act or omission." Medical Lia- cases ... hold that even the treat ”[t]he terminated, bility Improvement yet peri Insurance Act Texas: ment has not the limitation Legislative Amputation The New Procedure od commences to run from the time the Annot., Rights, Baylor pertinent Patients' L.Rev. 484-85 discovers facts.” 80 A.L. (1978). patient’s (1961). The date the cause of action R.2d treatment that is particular toll “medical those created statute for similar to claim,” See, Tex.Rev. both ing period of limitations. (tolling limitations without ex- imply Civ.Stat.Ann. arts. 5535 that the limitation minors, personal per married on actions on the relevant ception commences to run persons age prisoners, and sons under date. mind), (tolling limitations
of unsound is tolled Finally, from whether time aside personal periods when statute, suggest- it has not been under the from the is absent resident defendant statutory or rule judicial to us that ed State), (suspending once suspending the time has effect of an ad qualification or until months begins run. ministrator or executor on death of reasons, we foregoing For the defendant) (1958 Supp. plaintiff or interpretation of art. advanced 1982). Accordingly, judg- affirm the Atha. we Moreover, position is ex more trial court. “discovery implied in the treme than that rule,” interpretation for under BRADY, Justice, dissenting. give us one could would have My reading respectfully dissent. full conse know of and its indicates a summary judgment affidavits yet delay quences permissibly physician’s treatment of continuance of the willing to his suit for so as he is *5 same skin condition. This appellant for the inter conduct “occasional office visits and fact to be determined would raise a issue telephone mittent conversations” with a a trier the facts on trial physician. interpretation Her would re-at merits. “long mal tach the tail” effect of medical Nelson, supra,
practice claims which de Further, majority’s appears that the it Legislature clared the intended sever 5.82, 4, pro- article which construction of further, enactment of art. 4. Still limita- possible different dates vides interpretation totally would defeat run, begins makes the two dates tions legislative judgment purposes to the the same: (repose of the limitation statute “Suit must be filed encouragеment adjudica of settlements or (1) or the tort com- of the breach doc tions while recollections are fresh and plained of or available) against the weighed uments (2) treat- from the date medical might claims possibility well-founded subject is the of the ment that See, consequence. be barred Robinson completed_” is Weaver, (Tex. 550 S.W.2d 20-21 v. majority’s interpretation, 1977).4 Under Finаlly, nothing in the words of pa- use treatment ended Legislature in suggests that statute prescription drug tient of the interpretation for which Atha tended the discontinued, com- was the tort contends; which indeed, the of the statute was sense same would be the plained at of. This also contrary for its force is directed is the medical treatment date as the date particular of the the date completed. subject of the claim completion is the “complained of” and date general. fact that a meritorious page The at the Court states: 4. 550 S.W.2d might thereby is an be rendered nonassertible primary purpose limita- a statute of [t]he unfortunate, by-product op- of the right occasional compel is to the exercise of tions of limita- limitatiоns. All statutes so that eration of a reasonable time during opportunity de- opposing party provide which has a fair some tions time However, while witnesses are available fend assertible. of action is the cause in their minds.... Statutes remedy evidence fresh legal preclusion alone not directed merits of limitations are enough justify judicial exception to the сase, they of the are the result individual statute. legislative of merits cases assessment legislature provisions made the two disjunctive and it seems they obvious were PROPERTIES, INC., ZIPPY et not intended to mean the same date. al., Appellants, would hold that the medical treatment that claim the case at bar BOYD, Appellee. Bob prescribing is not the drug, and the appellant’s use, discontinuanсe of its but No. 10-83-155-CV. completion rather Appeals Texas, Court of continuing appellant treatment of for the Waco. Appellant same skin condition. would then have two from this date in which Feb.
file suit. Rehearing Denied March
An example may problem: illustrate the gives
A doctor drug which
results harmful side effects and discon-
tinues the drug. treatment with that He
then tries to alleviate the side effects and original malady drug with another for a
period of years, but fails. Under the
majority’s construction, the date limitations
begins to run for both dates set out in the day would be the the doctor discon-
tinued treatment with the
caused the side effects. That is the last
date the negligently by pre- doctor acted
scribing and that is the date on particular
which that type of treatment completed. dates, congruity *6 me,
seems to always would be the case
under majority’s construction. .reading
After af-
fidavits, appears there was a controvert-
ed fact issue of whether or not there was
continuing treatment within two-year
period prior to suit. This issue should be
determined the trier of fact a trial
on the merits. would reverse the of the trial sustaining
court summary motion for
judgment.