Bobby NEAGLE, Petitioner, v. George C. NELSON, M.D. et al., Respondents.
No. C-2576.
Supreme Court of Texas.
Jan. 30, 1985.
Rehearing Denied March 6, 1985.
685 S.W.2d 11
We hold that the proper construction of article 2226 is to allow recovery of attorney‘s fees incurred in prosecuting a just claim under the article, even if the amount of the claim is entirely offset by an opposing party‘s claim. This is more consistent with the legislative intent to discourage a party from unnecessarily litigating and defending a just claim within article 2226. Tenneco Oil Co. v. Padre Drilling Co., 453 S.W.2d 814, 819 (Tex.1970). In addition, the statute was formerly strictly construed; however, the legislature amended article 2226 to mandate that “[t]his Act shall be liberally construed to promote its underlying purposes.”
Accordingly, we disapprove of the language in the previously cited cases requiring a net recovery in order to obtain attorney‘s fees under article 2226 or under the DTPA. The judgment of the court of appeals is reversed, and the trial court judgment is affirmed.
WALLACE, J., notes his dissent.
GONZALEZ, J., not sitting.
Phillip Brown, Amarillo, for petitioner.
Paul M. Green, San Antonio, James H. Robichaux and Ben A. Donnell, Corpus Christi, for respondents.
WALLACE, Justice.
This appeal presents an attack on the constitutionality of the limitations provision in the 1977 Medical Liability Act. Bobby Neagle filed this malpractice action against Dr. George C. Nelson, Dr. Roy J. Hotz and two nurses, Nancy S. Kieschnick and Linda N. White. He alleged that a surgical sponge had been left in his abdomen during an appendectomy in which the respondents had participated. Each respondent moved for summary judgment on the ground that
Neagle‘s appendectomy was performed on December 9, 1977, at the Kleberg County Hospital, Kingsville, Texas. He was discharged from the hospital one week later. Dr. Nelson last examined Neagle within a few weeks of his discharge; however, the other respondents did not see Neagle after his discharge from the hospital. Discovery of the sponge occurred in January, 1980, more than two years after the appendectomy, when, after feeling a mass in his abdomen, Neagle submitted to exploratory surgery.
Neagle alleged that the surgical sponge had been left in his abdomen during the operation and that it was impossible for him to discover the sponge until more than two years after the surgery. We presume for purposes of appellate review that Neagle‘s allegations are true. See, Bayouth v. Lion Oil Co., 671 S.W.2d 867 (Tex.1984).
The action of the trial court in granting Nelson‘s motion for summary judgment was based upon the two-year statute of limitations set forth in
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; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided, this subchapter applies to all persons regardless of minority or other legal disability.
This statute purports to establish an absolute two-year statute of limitations for Neagle‘s claim. In Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984), we held that
It is Neagle‘s contention that
We reverse the judgment of the court of appeals and remand this cause to the trial court.
GONZALEZ, J., not sitting.
ROBERTSON, Justice, concurring.
I agree fully with the majority opinion of the court in this cause. I must, however, respectfully disagree with the conclusions stated in Justice Kilgarlin‘s concurrence.
A concurring opinion can perform a useful function in explaining or supplementing opinions, providing guidance for both bench and bar. I have used this vehicle before, when the majority opinion deserved further explanation or could be justified on different legal grounds. See, e.g., Nelson v. Krusen, 678 S.W.2d 918, 925 (Tex.1984) (Robertson, J., concurring); Jensen v. Jensen, 665 S.W.2d 107, 110 (Tex.1984) (Robertson, J., concurring).
It is certainly possible that the views so ably expressed in Justice Kilgarlin‘s concurrence may, in some future case, become the majority opinion of this court. The
One question remaining for this court‘s future consideration is whether the legislature has abolished the “discovery rule” of Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967). It is suggested that “the clear intent of the legislature” in passing
As I have pointed out once before, Nelson v. Krusen, 678 S.W.2d 918, 928 (Tex.1984) (Robertson, J. concurring), legislative history is not the beginning point for analysis of a statute. “It is the duty of courts to construe a law as written, and, if possible, ascertain its intention from the language used therein....” Government Personnel Mut. Ins. Co. v. Wear, 151 Tex. 454, 251 S.W.2d 525, 529 (1952). I am not convinced that the plain language of
I am even more troubled by the suggested use of an “analogy” to workers’ compensation law to answer the question of what a permissible delay for a malpractice plaintiff might be. As a method of reasoning, analogy draws its strength from similarity. It is difficult to perceive any relevant similarity between development of the test in Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370, 372 (1948) and the task that would confront the Texas Supreme Court in medical malpractice.
On the other hand, there are numerous distinctions. For example, in Hawkins the court sought diligently to follow the letter of a limitation statute; this court has constitutionally invalidated the “analogous” malpractice statute. Further, the statute in Hawkins provided only thirty days for giving notice of injury, as opposed to two years under the “analogous” statute considered here, a factor that must surely have flavored decisions on “good cause” for delay in workers’ compensation cases. Compare
The last observation suggests one easy alternative to a strained analogy to workers’ compensation law. While the malpractice limitations period may be unconstitutional as applied to a particular case, principles of common law and equity remain. This court has previously recognized that even where a statutory limitation period is not applicable, the equitable doctrine of laches may nonetheless operate to prevent the assertion of a stale claim. See, e.g., City of Fort Worth v. Johnson, 388 S.W.2d 400 (Tex.1964).
A further alternative to the workers’ compensation analogy would exist if this court were to find the language of the statute consistent with the continued existence of the “discovery rule.” Quite simply, the statutory two-year period would run from the date of discovery, since the statute would not be unconstitutional as applied.
Other and better legal and equitable theories may well exist. The purpose of this
KILGARLIN, Justice, concurring.
Because there are questions that the court opinion leaves unanswered, I find it necessary to write a concurring opinion. Hopefully, it will aid our state‘s bench and bar in resolving questions in what is now an imprecise area of the law.
We have held today that
There is also a question of the length of time Neagle has in which to file suit after discovery of his injury. We did not discuss this in Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984). Nor is this question discussed in the court‘s opinion. In Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967), this court adopted the standard for medical malpractice cases involving a physician leaving a foreign object in a patient‘s body. We held that the statute of limitations did not begin to run until such time as the patient discovered, or reasonably should have discovered, the foreign object. But, is Gaddis v. Smith still viable? To answer that question, one must examine the language of the statute. A cursory reading of
I must conclude, therefore, that the clear intent of the legislature was to overrule the Gaddis v. Smith holding that limitations did not begin to run until after discovery of the foreign object. To the extent that the legislative enactment is constitutional and remains unchallenged, this court must accommodate the legislative intent. Therefore, it is quite obvious that we cannot now reinstate a limitations period that would allow for suits to be filed within two years after the date of discovery.
But, if we do not allow two years after discovery in which to file suit, what is a permissible delay? The most apt analogy to discovery after limitations has run can be found in worker‘s compensation law, where if a claimant has good cause for a late filing of his claim, he is not barred from asserting that claim. Because “good cause” was not defined by statute, this court established a test for determining its existence. That test is whether the claimant prosecuted his claim with that degree of diligence that an ordinary prudent person would have exercised under the same or similar circumstances. The determination of diligence was held to be ordinarily a question of fact, only to be determined against a claimant as a matter of law, when the evidence, construed most favorably for the claimant, admitted no other conclusion. Hawkins v. Safety Casualty Co., 146 Tex. 381, 384, 207 S.W.2d 370, 372 (1948). We also said in Hawkins that “a reasonable time should be allowed for the investigation, preparation and filing of a claim after the seriousness of the injuries is suspected or determined. No set rule could be established for measuring diligence in this respect. Each case must rest upon its own facts.” 207 S.W.2d at 373.
In my opinion, the standard used in worker‘s compensation cases is a proper
I agree with the majority that