OPINION
This is а medical malpractice case. Yvonne Ruth Lopez sued Dr. B.W. Hink for damages for negligence allegedly occurring in connection with surgery performed on Lopez by Dr. Hink on August 13, 1980. The last time Dr. Hink saw, treated or examined Lopez was on March 2, 1981. Suit was filed on December 27,1985. Dr. Hink filed a motion for summary judgment based solely on the ground that Lopez’s suit was barred by the two-year statute of limitations, Tex.Rеv.Civ.Stat.Ann. art. 4590i, § 10.01 (Vernon Supp.1988). The motion for summary judgment was granted. Lopez appeals.
Appellant’s sole point of error is that the trial court erred in granting appellee’s motion for summary judgment. Appellant’s *450 principal contention is that appеllee is es-topped from relying on the limitations defense because of his fraudulent concealment of certain facts that he had a duty to disclose to appellant.
In the summer of 1980, when appellant was eighteen years of age, she visited her family doctor, Dr. J.A. Piskie, for a physical examination prior to entering college. For some years appellant had neurofibro-matosis and had had benign neurofibromas removed. While examining appellant, Dr. Piskie suspected a mass in her right lower abdominal area and referred her to Dr. B.W. Hink, a surgeon. Dr. Hink advised appellant that surgery was necessary. Appellant consented to the surgery. During the operation no biopsy of the neurofibro-ma was done to determine whether the growth was malignant. According to Dr. Hink, a frozen section was not done by the pathologist, who preferred to wait for multiple permanent sections.
After the surgery was completed, Dr. Hink told appellant that her surgery was necessary and that in order to remove the neurofibroma it hаd been necessary to cut and sacrifice the femoral nerve.
In appellant’s affidavit, attached to her respоnse to Dr. Hink’s motion for summary judgment, she stated that following the surgery Dr. Hink failed to tell her that the growth he had removed was in fact benign and not malignant. In responding to Dr. Hink’s motion for summary judgment, appellant contended that Dr. Hink’s failure to tell her that the growth removed by him was benign constituted fraudulent concealment which estopped him from relying on the limitations defense.
In
Borderlon v. Peck,
Therefore, this court must determine whether the summary judgment proof raised a fact issue concerning fraudulent concealment by Dr. Hink.
The summary judgment proof established the following:
1. After the August 13, 1980 surgery Dr. Hink informed appellant that her right femoral nerve had been cut and sacrificed during the surgery.
2. After the surgery Dr. Hink told appellant that the cutting of the femoral nerve was a necessary result of her condition and that the removаl of the neuro-fibroma by the surgery was necessary.
3. After the surgery appellant could not use her right leg.
4. By January of 1981 appellant knew she had right femoral nerve palsy and knew that it was the result of Dr. Hink’s surgery.
Appellee argues that this summary judgment proof established his limitations defense as a matter of law. He contеnds there was no concealment by him.
Appellant contends there was concealment and that it was fraudulent. In her written resрonse to the motion for summary judgment appellant expressly relies on her pleadings, her attached affidavit and an unverifiеd report from Dr. Kurt Weiss, the pathologist, as summary judgment proof of fraudulent concealment. Clearly, appellant’s pleаdings do not constitute summary judgment proof.
City of Houston v. Clear Creek Basin Authority,
Also, there is no summary judgment proof that if the growth that was removed
*451
was benign it should not have been removed if removal required the cutting or sacrifice of the fеmoral nerve. There is no summary judgment proof that because the growth was benign the cutting or sacrifice of the femoral nervе was unnecessary. Appellant makes these contentions in her response to Dr. Hink’s motion for summary judgment, but her only proof is the hearsay statement in her affidavit that Dr. Vincent Riccardi in May of 1985 told her that her femoral nerve had been cut unnecessarily, that it wаs not a necessary consequence of her neurofibromatosis and that her problem with her right leg need not have ocсurred. These hearsay statements by appellant do not constitute summary judgment proof.
Youngstown Sheet and Tube Co. v. Penn.,
The only summary judgment proof on the issue оf fraudulent concealment is appellant’s statement in her affidavit that Dr. Hink never told her the growth he removed was benign. In the absеnce of any summary judgment proof that the growth in fact was benign and that appel-lee should not have sacrificed the femоral nerve to remove a benign growth, appellant has failed to offer any summary judgment proof of fraudulent concealment that will estop appellee from relying on the limitations defense.
In appellant’s second argument in support of her sole point of error she mistakenly relies on Tex.Ins.Code Ann. art. 5.82 § 4. That statute applied only to physicians who were insured, but it was rеpealed in 1977. Art. 4590i § 10.01, the limitations statute applicable in the instant case, has no provision limiting it to insured physicians. Appellant’s аrgument is without merit.
Finally, appellant argues the discovery rule applies and prevents the barring of her cause of action by the limitations statute. She argues that her cause of action did not accrue until she discovered her “legal injury” in 1985. The supreme court held in
Morrison v. Chan,
Appellant’s sole point of error is overruled. The judgment of the trial court is affirmed.