Bobby NEAGLE, Appellant, v. George C. NELSON, M.D., et al., Appellee.
No. 13-82-023-CV.
Court of Appeals of Texas, Corpus Christi.
Sept. 1, 1983.
Rehearing Denied Oct. 6, 1983 (overruled).
Bobby NEAGLE, Appellant, v. George C. NELSON, M.D., et al., Appellee.
The appellant‘s seventh ground of error is overruled and the judgment of the trial court is affirmed.
COHEN, Justice, concurring.
I reluctantly join the court‘s disposition of the appellant‘s final ground of error complaining that the prosecutor‘s jury argument constituted an improper comment on the failure of the accused to testify. I believe such action is required by the majority opinion in Nickens v. State, 604 S.W.2d 101 (Tex.Cr.App.1980, en banc). Although I believe the prosecutor‘s argument in this case is slightly more specific in calling the jury‘s attention to the failure of the accused to testify than was the prosecutor‘s argument in Nickens, supra, I cannot say that the difference is great enough to distinguish the two cases. If we were writing on a clean slate, I would be inclined to hold as did the three dissenters in Nickens; however, the law is to the contrary and I am bound to follow it.
I concur in the affirmance of the judgment.
Paul Green, San Antonio, James H. Robichaux, Corpus Christi, for appellee.
Before NYE, C.J., GONZALEZ and KENNEDY, JJ.
OPINION
NYE, Chief Justice.
This is an appeal from the granting of a summary judgment to all defendants in a medical malpractice case. In December, 1977, George C. Nelson, M.D., Roy J. Hotz, M.D., L. Norris, L.V.N., and N. Stillwell, R.N., appellees, allegedly left a surgical sponge in the appellant‘s abdomen after an appendectomy. The date of last examination or treatment by any defendant was January, 1978. Appellant filed suit in October, 1980. The trial court granted the summary judgment on the ground that the suit was barred by the two-year statute of limitations.
Appellant‘s first argument is that the limitations period should begin when the plaintiff discovers or reasonably could have discovered the negligence of the defendants. See Robinson v. Weaver, 550 S.W.2d 18 (Tex.1977); Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967). Under the “discovery rule,” if applicable, the summary judgment would have been improper because the appellant presented some summary judgment proof that he filed suit within two years after he discovered the negligent treatment by appellees. The current statute of limitations applicable to this action, added by the legislature in 1977, provides in pertinent part:
“Not withstanding 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;”
Tex.Rev.Civ.Stat.Ann. art. 4590i § 10.01 (Vernon Supp.1982) .
This language clearly abrogates the “discovery rule.” Littlefield v. Hayes, 609 S.W.2d 627 (Tex.Civ.App.-Amarillo 1980, no writ). The legislature has now given us an “absolute” two-year statute of limitations in this type of case. Because it is undisputed that appellant did not file his suit within two years of the date of the alleged negligent treatment or the date of last treatment by any of the defendants, the granting of the summary judgment was correct and in conformity with the statute. This point of error is overruled.
In the remainder of his points of error, appellant attacks the constitutionality of
Appellant next contends that the act violates
“No bill, ... shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in its title, such act shall be void only as to so much thereof, as shall not be so expressed.”
“An Act Relating to Health Care Liability Insurance, Certain Providers of Health Care, and Certain Health Care Liability Claims; Providing Penalty; Adding Articles 5.15-1, 5.15-2, and 21.49-42 and Repealing Article 5.82 of the Insurance Code; Amending Article 21.49-3 of the Insurance Code; Amending Section 26.01(b), Business and Commerce Code; Amending Section 1, Chapter 317, Act of the 57th Legislature, Regular Session, 1961 (Article la, Vernon‘s Texas Civil Statutes); Repealing Section 3, Chapter 331, Act of the 64th Legislature, 1975.” 1977 Tex.Gen.Laws, Chapter 817, at 2039.
The test of sufficiency of a legislative title is whether it gives reasonable notice of contents of the bill to an average legislator or interested citizen. Hayman Construction Co. v. American Indemnity Co., 471 S.W.2d 564 (Tex.1971). This provision of the Constitution, as well as the title of the questioned statute, is to be liberally construed in favor of constitutionality. Robinson v. Hill, 507 S.W.2d 521, 524 (Tex.1974). Under these standards, we find that the title of H.B. No. 1048 was sufficient to give reasonable notice of its contents and that
In his remaining points of error, appellant claims that the act violates various provisions of the Texas and United States Constitutions by granting a class of defendants special privileges and immunities, depriving appellant of his right to open courts, due process of law, and denying equal protection of the law. A proper analysis of these complaints requires the factual determinations of whether there is a reasonable basis for any classifications made by the act, whether the legislature has acted unreasonably or arbitrarily, whether the limitations period provided is so short as to amount to a denial of a reasonable opportunity to enforce a claim. See Sax v. Votteler, 648 S.W.2d 661 (Tex.1983); Robinson v. Hill, supra; Kentucky Union Co. v. Kentucky, 219 U.S. 140, 31 S.Ct. 171, 55 L.Ed. 137 (1910); Wilson v. Iseminger, 185 U.S. 55, 22 S.Ct. 573, 46 L.Ed. 804 (1902).
In the instant case, appellant‘s summary judgment evidence was insufficient to raise material fact issues concerning the reasonableness of the act. The appellant made no attempt to research the legislative action or to supply summary judgment evidence of a basis for the unconstitutionality of the act. The record is void in this regard. In such situations, we must presume the validity of the act. If any factual examination is to be supplied from outside the record to inquire into the constitutionality of legislation, such adventure should be done by our Supreme Court. It cannot be done by an intermediate court of appeals. See Miller v. Hood, 536 S.W.2d 278 (Tex.Civ.App.-Corpus Christi 1976, writ ref‘d n.r.e.); see also Jones v. International Association of Firefighters, 601 S.W.2d 454 (Tex.Civ.App.---Corpus Christi 1980, writ ref‘d n.r.e.); Burnett v. City of Houston, 442 S.W.2d 919 (Tex.Civ.App.-Houston [14th Dist.] 1969, writ ref‘d); Nelson v. Krusen, 635 S.W.2d 582 (Tex.App.--Dallas 1982, writ granted). All of appellant‘s remaining points of error are overruled.
The judgment of the trial court is affirmed.
GONZALEZ, Justice, dissenting.
I respectfully dissent. I would sustain appellant‘s fifth and seventh points of error and hold that the two year statute of limitations deprives appellant of due process of law in violation of the
In the recent case of Sax v. Votteler, 648 S.W.2d 661 (Tex.1983), the Court struck down
Generally, a State is free to prescribe a period of limitations within which claims must be asserted or be barred and such limitation does not constitute a denial of due process unless the time period is so short as to amount to a denial of a reasonable opportunity to enforce the claim. Kentucky Union Co. v. Kentucky, 219 U.S. 140, 31 S.Ct. 171, 55 L.Ed. 137 (1910). As stated by the United States Supreme Court in Wilson v. Iseminger, 185 U.S. 55, 22 S.Ct. 573, 46 L.Ed. 804 (1902):
“It may be properly conceded that all statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right in the courts.... [W]hat shall be considered a reasonable time must be settled by the judgment of the legislature, and the courts will not inquire into the wisdom of its decision in establishing the period of legal bar, unless the time allowed is manifestly so insufficient that the statute becomes a denial of justice....”
In all such cases the question is one of reasonableness, and we have, therefore, only to consider whether the time allowed in this statute is, under all the circumstances, reasonable. Of that the legislature is primarily the judge, and we cannot overrule the decision of that department of government, unless a palpable error has been committed. In judging of that, we must place ourselves in the position of the legislators, and must measure the time of limitations in the midst of the circumstances which surrounded them, as nearly as possible....” 185 U.S. at 62-3, 22 S.Ct. at 575-76.
A similar test is applied to determine the validity of a statute under our Open Courts Provision: does it unreasonably abridge a justifiable right to obtain redress for injuries caused by the wrongful acts of another so as to amount to a denial of due process? Sax v. Votteler, 648 S.W.2d at 665.
The primary purpose of the Act was to remedy or correct the climate created by a “medical malpractice crisis” which had arisen within our State.
As stated by then Secretary of the United States Department of Health, Education and Welfare, Mr. Casper Weinberger:
“There is a great deal of concern about medical liability insurance. There is very little definitive information to document or help us understand clearly the problem.” Hearings before the Subcommittee on Health of the Committee on Labor and Public Welfare, United States Senate, 94th Congress, 1st Session, p. 319 (1975) (hereinafter “Senate Hearings“).
The medical malpractice problem is one of staggering proportions. In 1975, at the time that information was being compiled by the Study Commission, Dr. Roger O. Egeberg of the United States Department of Health, Education and Welfare, estimat-
I recognize that a balance of society‘s needs with those of individual claimants must be struck, and “society is best served by a complete repose after a certain number of years even at the sacrifice of a few unfortunate cases.” Dunn v. St. Francis Hospital, Inc., supra, 401 A.2d 77 at 81 (Del.1979).
However, it is apparent that with an absolute two year statute of limitations, we are no longer in the realm of the “few unfortunate cases,” or the occasional meritorious claim being rendered nonassertable. Rather, such a provision serves to close our courts to the majority of a large class of claimants with no other forum for redress of their grievances. Such serves only to “place health care providers beyond public accountability.” Statement of Study Commission Member Harry Hubbard, Jr., Study Commission, supra, p. 70. Society‘s best interests are no longer served. Therefore, I would hold the “absolute” two year statute of limitations unconstitutional because it is unreasonable and “manifestly so insufficient that [it] becomes a denial of justice....” Wilson v. Iseminger, supra.
Dr. Ronald T. WILLIAMSON, Appellant, v. WAYNE STRAND PONTIAC-GMC, INC., et al., Appellees.
No. 13-82-235-cv.
Court of Appeals of Texas, Corpus Christi.
Sept. 1, 1983.
Rehearing Denied Oct. 6, 1983 (overruled).
Russell H. McMains, Edwards & Perry, Corpus Christi, for appellant.
Charles D. Thompson, Law Offices of Richard B. Stone, Corpus Christi, for appellees.
Before NYE, C.J., and YOUNG and KENNEDY, JJ.
OPINION
KENNEDY, Justice.
The facts of this case are virtually undisputed. Appellee had possession of an automobile which had been left with it by a person named Tom Lawrence for the purpose of making repairs thereon. Mr. Law-