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Keywords

tortstatuteappealmalpracticestatute of limitations
tortliabilitystatuteappealsummary judgmentmalpractice

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Jennings v. Burgess, 917 S.W.2d 790, 39 Tex. Sup. Ct. J. 369

Facts

Mary Burgess was diagnosed with a basal cell carcinoma by Dr. Jennings on March 3, 1989, who then referred her to Dr. Manning, a general practitioner, instead of a specialist as she requested. Manning treated her for over two years before referring her to a specialist, Dr. Ward, who discovered that the cancer had invaded her nose. The Burgesses intended to pursue a claim against Jennings and notified him of their claim on March 3, 1993, and filed suit on May 13, 1993.

On March 3, 1989, Jennings diagnosed a nasal lesion on Mary Burgess as a basal cell carcinoma. After the initial diagnosis, Jennings did not examine or treat the lesion. Instead, he referred Mary to Manning, a general practitioner.

Issue

Did the two-year statute of limitations bar the Burgesses' claim against Dr. Jennings for negligent referral, and did the open courts provision of the Texas Constitution apply?

The Burgesses' only claim against Jennings on appeal is that the open courts provision prevents the two-year statute from applying because she did not discover the cancer had invaded her nose until she saw Ward in May 1991.

Rule

The two-year statute of limitations for medical malpractice claims begins to run on the date of the alleged tort, and the open courts provision does not apply if the injured party had a reasonable opportunity to discover the alleged wrong and bring suit.

Article 4590i, section 10.01 governs medical malpractice claims. This section provides that notwithstanding any other law, a person may not bring a health care liability claim unless the person files the action within two years from the occurrence of the tort.

Analysis

The court found that the statute of limitations began to run on March 3, 1989, the date of the referral to Manning. The Burgesses had the entire two-year period to bring suit, as they were aware of the referral to a general practitioner instead of a specialist. The court concluded that the Burgesses did not file suit until May 13, 1993, which was beyond the limitations period, and thus their claim was barred.

The undisputed summary judgment evidence shows that Jennings diagnosed a nasal lesion on Mary as a basal cell carcinoma on March 3, 1989. On that same day, he referred Mary to Manning for treatment.

Conclusion

The Supreme Court reversed the court of appeals' judgment and rendered judgment that the Burgesses take nothing from Dr. Jennings, affirming that the statute of limitations applied.

We reverse the court of appeals' judgment and render judgment that the Burgesses take nothing from Dr. Jennings.

Who won?

Dr. Jerry D. Jennings prevailed in the case because the Supreme Court held that the statute of limitations barred the Burgesses' claim due to their failure to file within the required time frame.

The two-year statute bars the Burgesses' claim against Jennings. Because the open courts provision does not apply, the court of appeals erred in holding otherwise.

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