Stone, Joanna and William v. Janice Byrne, M.D., Isabelle Wilkins, M.D., and Baylor College of Medicine

Opinion issued December 19, 2002 In The Court of Appeals For The First District of Texas NO. 01-01-00959-CV ____________ JOANNA AND WILLIAM STONE, Appellants V. JANICE BYRNE, M.D., ISABELLE WILKINS, M.D., AND BAYLOR COLLEGE OF MEDICINE, Appellees * * * JANICE BYRNE, M.D., ISABELLE WILKINS, M.D., AND BAYLOR COLLEGE OF MEDICINE, Appellants V. JOANNA AND WILLIAM STONE, Appellees On Appeal from the 164th District Court Harris County, Texas Trial Court Cause No. 99-15945 O P I N I O N In this medical malpractice action, Joanna and William Stone argue the trial court erred when it granted Janice Byrne, M.D., Isabelle Wilkins, M.D., and Baylor College of Medicine’s (the Defendants) motion for summary judgment because (1) the continuing course of treatment tolled the statute of limitations and (2) a material fact issue existed as to Dr. Byrne. In the event the summary judgment is reversed, the Defendants appeal the trial court’s denial of their motion to dismiss with prejudice based on the Stones’ failure to provide an adequate expert affidavit. We affirm. Background While living in Florida, Joanna Stone became pregnant with twins. In September 1996, at 18 weeks gestation, Stone underwent an ultrasound examination. She was informed that the ultrasound revealed abnormalities in the female twin consistent with osteogenesis imperfecta (OI), more commonly known as “brittle bone disease.” The Stones moved to Texas, and, on October 4, 1996, Stone had her first obstetrical appointment with Dr. Janice Byrne at Baylor College of Medicine in Houston. After reviewing Stone’s medical records from her Florida physician and learning of the possibility that the female twin might have OI, Byrne referred Stone to Dr. Isabelle Wilkins, also at Baylor College of Medicine. Stone underwent numerous ultrasounds while under Byrne’s and Wilkins’s care, and she was told OI was an “unlikely diagnosis.” She was told by Dr. Byrne that there were “many unanswered questions” about the female twin’s condition, “most of which would probably not be answered until after the babies were born.” Wilkins’s medical records indicate Stone “refused an amniocentesis.” Joanna Stone gave birth to twins on January 18, 1997, and the female twin was later diagnosed with OI. On March 30, 1999, the Stones filed their original petition in which they alleged the Defendants were negligent due to the following: a.their continuous failure to properly interpret the ultrasounds performed up to the date of delivery; b.their continuous failure to properly inform the parents of the risk of the female twin’s conditions so that the parents could make an informed decision about continuing the pregnancy up to the date of delivery; and c.their continuous failure to recommend further testing which would have identified a severe and irreversible abnormality up to the date of delivery. The Defendants filed a motion for summary judgment on the sole ground that the petition was untimely filed. Limitations In their first point of error, the Stones argue the trial court should not have granted the Defendants’ motion for summary judgment based upon limitations because the Defendants were involved in a course of treatment during Joanna Stone’s pregnancy, whereby the statute of limitations was tolled until that course of treatment was concluded. Standard of Review The standard for reviewing a summary judgment under Texas Rule of Civil Procedure 166a(c) is whether the moving party carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). A defendant moving for summary judgment on a statute of limitations affirmative defense must prove conclusively that defense’s elements. Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997). In reviewing a trial court’s summary judgment, we resolve all doubts against the movant, and we view the evidence in the light most favorable to the nonmovants. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). Additionally, in determining whether a disputed material fact issue exists, we take as true evidence favorable to the nonmovant. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). Limitations for Medical Negligence Claims Section 10.01 provides that, “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.” Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01 (Vernon Supp. 2002). However, the statute of limitations is only tolled where the notice letter is given within the limitations period. Rubalcaba v. Kaestner, 981 S.W.2d 369, 373 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). Consequently, because the Stones did not provide notice until January 14, 1999, any claim on which the limitations period began to run before January 14, 1997 is barred. See King v. Sullivan, 961 S.W.2d 287, 292 (Tex. App.—Houston [1st Dist.] 1997, pet. denied). Article 4590i section 10.01 measures the limitations period for medical negligence claims from one of three dates: (1) the occurrence of the breach or tort, (2) the last date of the relevant course of treatment, or (3) the last date of the relevant hospitalization. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01; Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998). A plaintiff may not choose the most favorable date that falls within section 10.01's three categories. Husain, 964 S.W.2d at 919. Rather, if the date the alleged tort occurred is ascertainable, limitations must begin on that date. Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001). And if the date is ascertainable, further inquiry into the second and third categories is unnecessary. Husain, 964 S.W.2d at 919. However, there may be instances when the exact date the alleged tort occurred cannot be ascertained. The second category in section 10.01 contemplates such a situation “wherein the patient’s injury occurs during a course of treatment for a particular condition and the only readily ascertainable date is the last day of treatment.” Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987). But, before the last treatment date becomes relevant to determining when limitations begins, the plaintiff must establish a course of treatment for the alleged injury. Rowntree v. Hunsucker, 833 S.W.2d 103, 105 (Tex. 1992). Moreover, if the defendant committed the alleged tort on an ascertainable date, whether the plaintiff established a course of treatment is immaterial because limitations begins to run on the ascertainable date. Husain, 964 S.W.2d at 919-20. Negligent Interpretation of Ultrasounds The first act of negligence alleged in the Stones’ petition is the Defendants’ “continuous failure to properly interpret the ultrasounds performed up to the date of delivery.” Dr. Byrne’s affidavit attached to her motion for summary judgment indicates she performed ultrasounds on Joanna Stone on November 5, 1996 and December 17, 1996 and Dr. Wilkins performed ultrasounds on October 4, 1996 and January 10, 1997. When the date of the alleged tort or breach is ascertainable, limitations begins to run from that date. Husain, 964 S.W.2d at 919. This rule applies even if the exact date on which the injury occurred is unknown. Id. If the date the doctor’s alleged negligence took place can be ascertained, then there are no doubts to resolve and we must measure limitations from that date. Id. Accordingly, we conclude that the last date on which Dr. Wilkins could have failed to interpret the ultrasounds was on January 10, 1997, the day she interpreted the ultrasound, and the last date on which Dr. Byrne could have failed to interpret the ultrasounds was on December 17, 1996. Because the Stones filed notice on January 14, 1999, more than two years after Drs. Wilkins and Byrne allegedly failed to accurately interpret the ultrasounds, limitations bars this claim. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01; Shah, 67 S.W.3d at 845. Failure to Properly Inform of Risks and Recommend Testing The second act of negligence alleged in the Stones’ petition is the Defendants’ “continuous failure to properly inform the parents of the risk of the female twin’s conditions so that the parents could make an informed decision about continuing the pregnancy up to the date of delivery.” The third act of negligence is the Defendants’ “continuous failure to recommend further testing which would have identified a severe and irreversible abnormality up to the date of delivery.” These two theories of negligence are dependent upon and relate back to the Stones’ claim that the Defendants “fail[ed] to properly interpret the ultrasounds.” As such, they, too, have a readily ascertainable starting date. Accordingly, we conclude that the last date on which Dr. Wilkins could have breached her alleged “duty to inform” and “duty to recommend further testing” to the Stones was on January 10, 1997, the last day she performed an ultrasound on Joanna Stone. Because the Stones filed notice on January 14, 1999, more than two years after Dr. Wilkins allegedly neglected to provide the proper information, limitations bars this claim. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01; Shah, 67 S.W.3d at 845. Additionally, we conclude that the last date on which Dr. Byrne could have breached her alleged “duty to inform” and “duty to recommend further testing” was on December 17, 1996, the last day she performed an ultrasound on Stone. Because the Stones filed notice on January 14, 1999, more than two years after Dr. Byrne allegedly neglected to provide the proper information, limitations bars this claim. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01; Shah, 67 S.W.3d at 845. We overrule the Stones’ first point of error. Fact Issue In their second point of error, the Stones argue the trial court should not have granted Dr. Byrne’s motion for summary judgment because a fact issue existed as to whether Dr. Byrne was negligent within the statutory period. Having already determined the Stones’ causes of action fell on a readily ascertainable date, we overrule the Stones’ second point of error. Conclusion Because we have held the summary judgment was proper, we need not address the defendants’ cross-point alleging that the Stones’ expert report was inadequate. We affirm the judgment. Frank C. Price Justice Panel consists of Justices Taft, Alcala, and Price. Do not publish. Tex. R. App. P. 47.