Roberto DEL RIO, Appellant, v. Roger E. JINKINS, M.D. and Valley Radiologists & Associates, Appellees.
No. 13-86-400-CV
Court of Appeals of Texas, Corpus Christi.
April 16, 1987.
Rehearing Denied May 14, 1987.
725 S.W.2d 125
Defense counsel presented several witnesses who testified favorably for appellant. Appellant took the stand and testified that he did not give Figueroa a ride, did not go to Berglund‘s home, did not burglarize Berglund‘s home, and did not go to the barber shop that day. On cross-examination, the prosecution established that appellant had been previously convicted of three felonies and had served time in the penitentiary. Appellant admitted that he had been a burglar, and had been previously convicted of burglarizing another house and a restaurant.
Defense counsel established that appellant‘s first conviction occurred when he was nineteen years old, and that he had served four years for possessing four marijuana cigarettes. He also established that appellant had plead guilty to the two previous burglary charges. Appellant explained that he was not pleading guilty to this burglary charge because he did not commit this burglary, as he had the other two.
After both sides rested in the guilt phase, defense counsel, outside the presence of the jury, made a motion for instructed verdict to dismiss the enhancement paragraphs of the indictment because the State had not proved the prior convictions. Counsel pointed out that the charge on the indictment read “Burglary of a habitation and habitual felony offender.” Counsel argued the habitual offender portion was “really a part of the indictment and not just part of the punishment phase.” The motion was denied. The charge submitted to the jury did not mention the enhancement portions of the indictment. There is nothing in the record to reflect that the jury was allowed to take the indictment with them into the jury room.
It is clear from the record that defense counsel was aware that enhancement allegations are only relevant during the punishment phase. Counsel was obviously objecting to the habitual felony offender label on the indictment.
The State‘s evidence on identity in this case was weak. The case was primarily based on circumstantial evidence. Defense counsel, in his professional judgment, obviously believed that appellant should take the stand and deny any involvement in the offense. Counsel offered the testimony of Figueroa who was present at the incident and who said that appellant was not involved. If appellant was to testify, his previous felony convictions were relevant and admissible. See Cisneros v. State, 692 S.W.2d 78, 83 (Tex.Crim.App.1985);
We cannot say that defense counsel‘s trial strategy was erroneous or unreasonable under the circumstances. Counsel‘s misplaced motion was a minor, isolated mistake which in no way harmed appellant. Counsel demonstrated a thorough grasp of the facts of this case and held the State to its strict burden of proof. Based upon this record, we find appellant was afforded reasonably effective assistance of counsel.
Appellant‘s points of error are overruled.
The judgment of the trial court is AFFIRMED.
Paul Green, San Antonio, for appellees.
Before NYE, C.J., and KENNEDY and DORSEY, JJ.
OPINION
NYE, Chief Justice.
In this medical malpractice case, Roberto Del Rio appeals from a summary judgment granted in favor of his doctor and the medical group of which his doctor was a member. The summary judgment was granted solely on the ground that Del Rio filed his suit outside the statutory limitations period. Because a fact issue exists on whether or not Del Rio knew or should have known that his injury was allegedly caused by Dr. Jinkins’ negligence, we reverse and remand this case for trial.
Del Rio alleged in his petition that Dr. Jinkins negligently performed radiation treatment on him which led to severe stomach problems. In his deposition, Del Rio, a Mexican national, testified to the following facts. Del Rio developed cancer in one of his testicles and came to the United States for treatment. He was admitted into the hospital by Dr. Steve Foster. On March 27, 1982, Del Rio underwent surgery on his testicle, and from June 2, 1982 to June 18, 1982, he underwent radiation treatments administered by Dr. Jinkins. Beginning about twenty days after the treatments ended, Del Rio began experiencing pain in his abdomen. He was re-hospitalized in August of 1982 and another physician, Dr. George Zey, informed him he probably had a stress-related ulcer. Surgery on his stomach followed. On December 13, 1982, Dr. Jinkins met with Del Rio for a “check-up,” but they did not discuss any relationship between the radiation treatments and his stomach problems.
According to Del Rio, he was never informed by anyone that his stomach problems were probably caused by the radiation treatments until September of 1984. Both Dr. Marion Lawler, a consulting physician, and Dr. Zey testified by deposition or affi-
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; . . . .
By granting summary judgment, the trial court held that Del Rio‘s suit was not timely filed within this two-year limitations period. Del Rio brings five points of error attacking this holding.
By his fourth point of error, Del Rio contends that a material fact issue exists as to whether or not he knew or should have known that his stomach problems were allegedly caused by Dr. Jinkins’ radiation treatments.
This Court has recently addressed the applicable law involved in a case such as this with very similar facts. In Wun-Yi Tsai v. Wells, 725 S.W.2d 271 (Tex.App.-Corpus Christi, 1986, writ requested), Mrs. Wells successfully sued her gynecologist for surgery negligently performed. On appeal, the doctor alleged the trial court erred in overruling his motion for instructed verdict on the ground that the applicable statute of limitations,
[S]ince Regina Wells did not have a reasonable opportunity to discover the wrong within the two-year limitation period, the open courts provision of the Texas Constitution prevents the cause of action from being barred by limitations.
Obviously, a material fact issue exists of whether Del Rio knew or should have known that his injury was allegedly caused by Dr. Jinkins’ radiation treatments. A summary judgment is improper if a material fact issue exists and is raised by summary judgment evidence. Griffin v. Rowden, 654 S.W.2d 435, 435-36 (Tex.1983);
If the ultimate trier of fact determines that Del Rio did not know nor, through reasonable diligence, could have known of the nature of his injury, the two-year limitation period is unconstitutional as applied to him and he has a reasonable time in which to bring suit.1 Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex.1985); Nelson v. Krusen, 678 S.W.2d 918, 923 (Tex.1984);
By his fifth point of error, Del Rio asserts that the summary judgment was improper since a material fact issue exists regarding Dr. Jinkins’ alleged fraudulent concealment of the connection between the radiation treatments and Del Rio‘s stomach problems.
It is not necessary for us to address appellant‘s other points of error as they are not controlling.
The summary judgment is REVERSED and the cause is REMANDED for trial.
OPINION ON MOTION FOR REHEARING
NYE, Chief Justice.
By their first and second points of error on rehearing, appellees assert that this Court applied an incorrect standard of review. They correctly point out that in Morrison v. Chan, 699 S.W.2d 205 (Tex.1985), the Supreme Court held that the legislature had abrogated the “discovery rule” in cases governed by the Medical Liability and Insurance Improvement Act.
Our opinion on original submission correctly applied the “reasonable opportunity to discover” test. However, we inadvertently used the term “knew or should have known” several times. The two terms have very technical meanings and should not be interchanged. Any reading of our opinion on original submission that we were applying the “discovery rule” is expressly disavowed. It should be understood that we relied instead on our Wells opinion, which accurately explains the proper test to be applied. The proper terminology is used in our footnote in the original opinion. We have carefully reconsidered all of appellees’ points of error on rehearing and they are overruled.
A fact issue exists of whether Del Rio had a reasonable opportunity to discover the nature of his injury. This case is REVERSED AND REMANDED for trial.