Barney Gilliam as Independent of the Estate of Mei-Ju Castle and John Wu as Wrongful Death Beneficiary of Mei-Ju Castle v. Mary Helen Wilson, M.D. NC-SCHI, Inc. D/B/A Abilene Regional Medical Center Quorum Health Group, Inc. D/B/A Abilene Regional Medical Center Triad Hospitals, Inc. D/B/A Abilene Regional Medical Center And DCF D/B/A Abilene Physicians Group

11th Court of Appeals Eastland, Texas Memorandum Opinion Barney Gilliam as Independent Executor of the Estate of Mei-Ju Castle and John Wu as Wrongful Death Beneficiary of Mei-Ju Castle, Deceased Appellants Vs. No. 11-02-00178-CV -- Appeal from Taylor County Mary Helen Wilson, M.D.; NC-SCHI, Inc. d/b/a Abilene Regional Medical Center; Quorum Health Group, Inc. d/b/a Abilene Regional Medical Center; Triad Hospitals, Inc. d/b/a Abilene Regional Medical Center; and DCF d/b/a Abilene Physicians Group Appellees This is an appeal from a summary judgment in a wrongful death suit under the Medical Liability and Insurance Improvement Act, TEX. REV. CIV. STAT. ANN. art. 4590i (Vernon Supp. 2003). The trial court granted summary judgment in favor of appellees. Because we find that the trial court=s ruling was proper, we affirm. In April 1998, Mei-Ju Castle was hospitalized at Abilene Regional Medical Center (ARMC). She was complaining of severe stomach pain. Dr. John Hancock, her treating physician, discovered an ulcer. He ordered certain testing. He also took a biopsy of the ulcer so that it could be determined whether it was cancerous. On April 6, 1998, Dr. Mary Helen Wilson, a pathologist for ARMC examined a sample taken in the biopsy and reported that Ms. Castle suffered from a benign gastric ulcer. Dr. Hancock treated Ms. Castle in accordance with the diagnosis and report from Dr. Wilson. Ms. Castle continued to have stomach pain; and, on October 31, 2000, she was admitted to Hendrick Medical Center. After performing a series of diagnostic tests, the doctors at Hendrick Medical Center diagnosed Ms. Castle with bone cancer which had originated in her stomach. Thereafter, on November 27, 2000, Dr. Wilson amended her original diagnosis and agreed that Ms. Castle had stomach cancer in April 1998. On December 4, 2000, Ms. Castle died. On July 24, 2001, a wrongful death and survival action was brought by Ms. Castle=s estate and her son, the sole wrongful death beneficiary. Appellees all moved for summary judgment on the basis that the suit was barred by the statute of limitations in Article 4590i, section 10.01. Additionally, NC-SCHI, Inc., Quorum Health Group, Inc., and Triad Hospitals, Inc. all d/b/a Abilene Regional Medical Center (ARMC) moved for summary judgment on the grounds that: ARMC is immune from liability based under the Texas Occupation Code[1]; ARMC is not vicariously liable for the actions of Dr. Wilson; Dr. Wilson was not a borrowed servant of ARMC; neither Quorum Health Group nor Triad Hospitals had done business as ARMC; ARMC was not negligent in credentialing Dr. Wilson; there was no evidence that the negligence of ARMC was the proximate cause of the death of Ms. Castle. ARMC also alleged that there was no evidence that Dr. Wilson was acting as an ostensible agent of ARMC. The trial court granted summary judgment on the basis that the suit was barred by the two-year statute of limitations set forth in Article 4590i, section 10.01. Appellants assert that the trial court erred in granting summary judgment because the open courts provision of TEX. CONST. art. I, ' 13 prevents the application of the limitations provision of Article 4590i in this particular instance and that here the limitations provision is unconstitutional. Appellants further allege that the legislature did not intend to bar claims before any injury was discovered. In its cross-points, ARMC asserts that summary judgment is also proper because ARMC is not vicariously liable for Dr. Wilson=s conduct and because Quorum and Triad have never done business as ARMC. Summary judgment is proper if the defendant establishes all elements of an affirmative defense to each claim raised. American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). A defendant who moves for summary judgment based on limitations must establish the defense as a matter of law. Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex.1996). Once the movant establishes a right to summary judgment, the non-movant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979). Article 4590i, section 10.01 establishes a two-year statute of limitations. See Diaz v. Westphal, 941 S.W.2d 96 (Tex.1997). Article 4590i, section 10.01 provides in relevant part: 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. A Ahealth care liability claim@ is a cause of action for Atreatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient.@ Article 4590i, section 1.03(a)(4). The Texas Constitution provides in relevant part that A[a]ll courts shall be open.@ Article I, section 13. The Texas Supreme Court has limited this doctrine to apply only to well-established common-law causes of action the restriction of which would be unreasonable and arbitrary when balanced against the statute=s purpose. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348 (Tex.1990). At common law, a personal injury claim dies with the injured party. However, the legislature has preserved such claims by enacting the wrongful death statute. TEX. CIV. PRAC. & REM. CODE ANN. ' 71.001 et seq. (Vernon 1997 & Supp. 2003); Rose v. Doctor=s Hospital, 801 S.W.2d 841 (Tex.1990). Claims for wrongful death are, therefore, not based in common law but, rather, are statutory creations. Article 4590i, section 10.01 is not unconstitutional in this instance because the cause of action is not based in the common law. This is true even though an injury may not have been discovered until the statute of limitations has expired. Diaz v. Westphal, supra. Appellants have brought a Ahealth care liability claim@ based on the mis-diagnosis of Ms. Castle=s cancer. The summary judgment evidence establishes that the alleged negligence occurred on April 6, 1998, the date when appellants allege that Dr. Wilson first mis-diagnosed Ms. Castle with a benign gastric ulcer. Thus, under Article 4590i, section 10.01, the statute-of-limitations period expired on April 6, 2000. Appellants have no common-law right to bring an action against appellees. Their sole claim against appellees is based on the wrongful death and survival statute. Article 4590i, section 10.01 is not unconstitutional as applied in this case. Therefore, the claim is barred, and summary judgment was proper. The doctrine of stare decisis compels this result. Messina v. State, 904 S.W.2d 178 (Tex.App. B Dallas 1995, no writ). Appellants= points of error are overruled. We need not address appellees= cross-points. The judgment of the trial court is affirmed. JIM R. WRIGHT JUSTICE February 27, 2003 Panel consists of: Wright, J., and McCall, J., and Dickenson, S.J.[2] [1]TEX. OCC. CODE ANN. ' 160.010 (Vernon Pamph. Supp. 2003). [2]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.