This summаry judgment case arose from a medical malpractice suit. This is an appeal from an order granting summary judgment on the ground that plaintiffs’ suit was barred by the two-year statute of limitations. Sylvia Fitzpatrick (hereafter referred to individually as “appellant”), joined by her husband, filed this action to rеcover for the alleged malpractice of defendant-appellee, Julius Marlowe, in treating her for sinus and other nasal problems. Appellee filed his motion for summary judgment alleging therein that appellant’s suit was barred by the two-year statute of limitations, Art. 5526, Tex.Rev.Civ.Stat. Ann. At the hearing on the motion for summary judgment appellant sought to establish that appellee had fraudulently induced her to postpone taking action on her cause for malpractice. Appellant’s contention was found to be without merit and the motion was granted. Appellants thereafter timely filed this appeal.
Appellants bring forward one point of error asserting that the trial court erred “in not holding that the statute of limitations was tolled by the fraudulent misrepresentations of Defendant until a time within two years before the filing of this suit.” The summary judgment evidence in the present case consists of the depositions of appellant and answers of Dr. Tolbert S. Wilkinson to interrogatories with all his written records in connection with treatment and examination of appellant attached to said answers.
The thrust of appellants’ lawsuit as reflected in their original petition is predicated upon the alleged negligent conduct of appellee-physician, Dr. Julius Marlowe, Jr., his fraudulent concealment thereof and misrepresentation of the true facts, which conduct allegedly occurred during surgery upon the appellant’s nose in Januаry 1972 and March 1973 and in subsequent followup treatment of appellant’s condition during 1972 and through the latter part of 1973. Appellants alleged in their original petition that:
“Defendant, with intent to deceive Plaintiffs and induce them to refrain from bringing an action against him for malpractice, fraudulently cоncealed] from Plaintiffs his negligent and careless acts in the course of said operations to Plaintiff’s, SYLVIA FITZPATRICK, nose and fraudulently lolled [sic] them into the belief that the condition of her nose was a natural result of the operation and would improve with time and various treatments that he intendеd to give to Plaintiff, SYLVIA FITZPATRICK. By Defendant’s promises and representations to Plaintiffs that such treatment would repair and correct the condition of her nose, induce Plaintiffs to refrain from consulting with or receiving further treatment from other physicians. Defendant’s false statements and representations were made with intent that Plaintiffs would rely thereon, to protect Defendant from any demand or claim by Plaintiffs for damages within the time allowed by the statute of limitations. In *193 truth and in fact, Defendant knew Plaintiffs, SYLVIA FITZPATRICK, true condition at all times since March 2, 1973, and Plaintiffs believed, relied and acted on Defendаnt’s false statements and representations concerning such condition. By Defendant’s wrongful conduct and fraudulently concealing from Plaintiffs the nature and extent of Plaintiff’s condition caused by Defendants negligence, Plaintiffs, in the exercise of reasonable diligence, did not discover Defendant’s fraud until February 1975 when she consulted a plastic surgeon and was advised by such surgeon that her condition was the result of Defendant’s negligence and would never improve. . . .”
In determining the matter of rendering or affirming a summary judgment in favor of a party, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s claim or cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or morе of the essential elements of the plaintiff’s cause of action.
Gibbs v. General Motors Corp.,
The summary judgment evidence shows that in September of 1971 appellant went to appellee for treatment of a sinus сondition. Appellee performed surgery on appellant to rectify this condition and to remove a small bump from the bridge of her nose. This was done in January of 1972. After the surgery, appellee told appellant the swelling would go down and the bump, which persisted, would go away. In March of 1973, appellee performed a second operation on appellant’s nose in an effort to correct the rise, which had never subsided. Now, as a result, instead of a bump, appellant’s nose was quite red and depressed in the area where the bump used to bе. Appellee again told appellant that this condition would heal. When appellee realized that the dip in appellant’s nose would not heal by itself, he told appellant that he would give her cortisone but that, because she was now pregnant, the cortisone trеatment would not begin until the termination of the pregnancy. Appellant’s child was born in February of 1974, but the cortisone treatments were never begun. Appellant was last treated by appellee in November of 1973. About the time the baby was delivered, appellant began to doubt that the dip would heal.
Appellant saw a Dr. Smith, a plastic surgeon, in the latter part of 1974, who advised her that more corrective surgery would be necessary. Appellant saw Dr. Smith only once. Appellant by her deposition testified that even though Dr. Smith recommended additional surgery to correct the condition “he couldn’t guarantee me results because it wasn’t a virgin nose, I had already had surgery done on it twice, it wasn’t like it was a nose that had never been operated on.” The first time she knew she needed corrective surgery was in the latter part of 1974 when Dr. Smith so advised her. In Februаry 1975, appellant saw Dr. Wilkinson who also told her that surgery would be needed because her nose had been “messed up,” and that plastic surgery was needed to correct it. Appellants filed this suit on December 10, 1975.
It was about six months after the first surgery in January 1972 before the swelling *194 subsided to the extent that appellant could see that the bump had not subsided. After the January surgery appellee advised her to put cocoa butter on the affected part of her nose. She did so but to no avail. The bump remained. After the cocoa butter failed to correct the situatiоn, appellee suggested more surgery in which he “would rasp it down.” The appellee did perform the second surgery in March 1973. The first time Mrs. Fitzpatrick looked at her nose after the second surgery she “noticed that it was real red across my nose and it was just a big dip in my nose like he had just taken part of my nose away and then it healed a little bit and he said it would take a while for it to heal.” Appellant, in her deposition, testified that about July 1973 after the swelling was gone “the dip was there and the bump was still on my nose” and “the redness on it”; that after the second surgery she saw appеllee about once a month; and that for the first couple of months appellee would check her nose but did not say much until after “the swelling had gone down and the dip and the redness were still there.” Appellant further testified that by that time she was pregnant and that appellee told her he couldn’t do anything because she was pregnant, but that after she had the baby he would give her some cortisone. The baby was born in February of 1974 but the cortisone treatments were never begun. She never saw appellee professionally after the baby was born. She did go to his office for allergy shots which were given by the nurse.
She realized since September 1973 that the dip and redness were there but relied upon appellee’s professional advice that an elapse of time and the use of cocoa butter and cortisone shots would correсt the condition. It was not until she visited Dr. Smith in the latter part of 1974 and Dr. Wilkinson in February 1975 that she knew the appel-lee had misrepresented the true facts about her condition caused by his negligence which he was aware of and concealed such facts which induced her to refrain from bringing this cаuse of action within two years from the time of the surgery performed by the appellee. She was repeatedly told by the appellee that her condition would improve, thereby implying to her that it was not permanent.
The chief question here is: At what time did the statute of limitations begin tо run?
A cause of action based upon actionable fraud accrues when the fraud is discovered or by the exercise of reasonable diligence should have been discovered.
Gaddis v. Smith,
We think
Grady v. Faykus,
In the case at bar appellant had no expertise concerning the treatment of her type of injury. She relied on appellee’s statements promising future treatment аnd improvement. She could not be expected to know that appellee’s acts had created an injury for which she had a cause of action. This was not made known to her until her visit to Dr. Smith in 1974.
Appellee relies solely on
Nichols
v.
Smith,
Limitations is not deemed applicable on either of two theories: (1) the discovery rule is applicable to negligent treatment (as opposed to negligent diagnosis);
Robinson v. Weaver,
As to the negligent treatment count, what was necessary for plaintiff to discover was not that her nose had a depression in it and redness, but that the depression and redness were caused by the manner the operation was performed and would not heal. On the misrepresentation and fraudulent concealment counts it was necessary for Mrs. Fitzpatrick to discover the misrepresentation itself. Under the evidence, we deem that whether she should have discovered either of those facts sooner is a fact issue for the trier of fact to determine from the evidence.
For the reasons above stated the trial court’s judgment is reversed and remanded for a trial on its merits.