Dorothy Cook v. Edward H. Withers, M.D.

Affirmed and Memorandum Opinion filed April 13, 2004 Affirmed and Memorandum Opinion filed April 13, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00816-CV ____________ DOROTHY COOK, Appellant V. EDWARD H. WITHERS, M.D., Appellee On Appeal from the 215th Judicial District Harris County, Texas Trial Court Cause No. 03-24730 M E M O R A N D U M   O P I N I O N Dorothy Cook appeals the trial court=s grant of summary judgment in favor of Edward H. Withers, M.D. on her claims of medical negligence and breach of contract. By two points of error, Cook contends the trial court erroneously granted summary judgment because (1) her breach of contract claim does not fall within the constraints of the Medical Liability and Insurance Improvement Act and (2) the statute of limitations does not bar her claims. We affirm. Factual and Procedural Background In the fall of 2000, Cook consulted Withers regarding surgery to remove and replace a ruptured breast implant as well as perform a full abdominoplasty. Withers performed the surgery on October 25, 2000, and thereafter complications arose requiring Cook to undergo another surgery. Cook claims the second surgery was a corrective procedure to cure defects from the first surgery, which were caused by Withers=s negligence. Additionally, Cook claims Withers did not replace the ruptured implant or perform a complete abdominoplasty. Cook initially filed a lawsuit on January 6, 2003 against Withers, individually, and his professional practice, alleging only a medical malpractice claim. Cook filed a voluntary nonsuit on May 6, 2003 after the trial court ordered Cook to post a $7500 bond for each defendant. On May 8, 2003, Cook filed this lawsuit against only Withers, individually, alleging medical malpractice. Withers filed a motion for summary judgment, claiming limitations expired on January 8, 2003. Cook filed an amended petition contemporaneously with her response to Withers=s summary judgment adding an additional cause of action for breach of contract. In her response, Cook also claimed the statute of limitations had not expired before the filing of her second lawsuit because the statute of limitations was tolled during the pendency of the initial lawsuit. Withers filed a reply to Cook=s response to summary judgment arguing the additional breach of contract claim was nothing more than an attempt to disguise her medical malpractice claim to avoid application of the stringent statute of limitations for medical liability claims. The trial court agreed, and dismissed all of Cook=s claims. By this appeal, Cook contends the trial court erred in dismissing all of her claims because the statute of limitations had not expired at the time of filing the second lawsuit and her breach of contract claim is separate and distinct from the medical malpractice claim. I. Standard of Review The movant for summary judgment has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). When a defendant moves for summary judgment on an affirmative defense, the defendant, as movant, bears the burden of proving each essential element of that defense as a matter of law. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). We take all evidence favorable to the nonmovant as true, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in its favor. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). Thus, a party moving for summary judgment on the basis of limitations must conclusively establish the bar of limitations. Id. If the nonmovant raises a fact issue suspending limitations, the movant must conclusively negate these facts to show its entitlement to summary judgment. Id. To determine whether the statute of limitations is applicable, we examine the substance of the pleadings rather than a mere allegation of a cause of action. Shannon v. Lay-Yone, 950 S.W.2d 429, 434 (Tex. App.CFort Worth 1997, writ denied). II. Nature of the Claims Asserted By her first point of error, Cook claims the trial court erred in granting summary judgment on her breach of contract claim because (1) Withers=s motion for summary judgment did not address the breach of contract claim and (2) the breach of contract claim was a separate and distinct cause of action from the medical malpractice claim. Cook=s first allegation fails because Whithers, in his reply to Cook=s response, directly addressed Cook=s addition of the breach of contract cause of action by arguing the breach of contract claim was, in actuality, a health care liability claim. Thus, the trial court could consider whether the claims asserted by Cook were, in actuality, a health care liability claim, and therefore subject to the statute of limitations. Tex. R. Civ. P. 166a(c). Whithers contends Cook=s breach of contract claim is nothing more than a recharacterization of her previously pleaded medical negligence claim, and thereby subject to the Medical Liability and Insurance Improvement Act (AMLIIA@). However, in order to determine whether the breach of contract cause of action falls within the MLIIA, the cause of action must meet the MLIIA=s definition of a Ahealth care liability claim@: >Health care liability claim= means a cause of action against a health care provider or physician for treatment, 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, whether the patient=s claim or cause of action sounds in tort or contract. Act of May 30, 1977, 65th Leg., R.S., ch. 817, sec. 1.03, 1977 Tex. Gen. Laws 2039, 2041 (repealed and recodified 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. ' 74.001 (Vernon Supp. 2004)) (emphasis added). Our inquiry is not focused on the pleadings; rather we must look to the underlying nature of the claim asserted to determine whether that claim is in fact a health care liability claim. MacGregor Med. Ass=n v. Campbell, 985 S.W.2d 38, 40 (Tex. 1998) (per curiam). Thus, we look to the specific factual allegations in the petition to determine whether Cook=s breach of contract claim is based upon a claimed departure from the accepted standards of medical care. See Gormley v. Stover, 907 S.W.2d 448, 450 (Tex. 1995); Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex. 1994). AIf the cause of action is based on the physician=s breach of the accepted standard of medical care, the cause of action is nothing more than a health care liability claim, no matter how the plaintiff labels it.@ Savage v. Psychiatric Inst. of Bedford, Inc., 965 S.W.2d 745, 751 (Tex. App.CFort Worth 1998, pet denied). Thus, a party may not recast a health care liability claim in an effort to avoid application of the MLIIA. Campbell, 985 S.W.2d at 40. Likewise, a cause of action that does not involve a departure from accepted standards of medical or health care is not covered by the MLIIA. Id. In her First Amended Original Petition, filed on June 12, 2003, Cook for the first time asserts a breach of contract claim against Withers. The basis of her claim is that Withers did not insert the replacement implant and did not complete the abdominoplasty as promised and agreed upon. However, by looking to the facts, as described by Cook, her claims materialized after Aserious and gross complications arose as a result of the surgeries and Withers= [sic] negligence.@ According to Cook, the Adefects brought about by Withers= [sic] acts and omissions@ caused her to sustain serious and severe injuries. Indeed, Cook=s first factual assertion is that the Adamages due and owing to Cook [result] because of injuries she sustained due to Withers= [sic] medical negligence.@ Cook=s allegations are replete with assertions that Withers=s conduct fell below the acceptable standards of medical care. Cook plainly states that the alleged improper and unprofessional treatment by Withers caused her injuries and damages. Here, the claims asserted by Cook cannot arise from anything other than Withers=s alleged negligent conduct regarding the abdominoplasty and the failure to replace the ruptured implant because the claims are an inseparable part of the rendition of medical services. See Ruiz v. Walgreen Co., 79 S.W.3d 235, 239 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Cook=s claims are based on Withers=s alleged failure to complete the operation, which requires a determination of whether Withers=s conduct fell below the accepted standard of care provided by medical professionals. Cook=s untimely allegation of breach of contract is nothing more than an attempt to recast her health care liability claim as a breach of contract claim. Because Cook=s breach of contract claim actually asserts a departure from accepted standards of medical care, her claim is a health care liability claim subject to the provisions of the MLIIA. Accordingly, Cook=s first point of error is overruled. III. Statute of Limitations In her second point of error, Cook contends the two year statute of limitations does not bar her claims because limitations were tolled during the pendency of her first lawsuit. However, Cook voluntarily nonsuited her claims against Withers after limitations had run. When a cause of action is nonsuited and later refiled, limitations are calculated to run from the time the cause of action accured until the date that claim is refiled. Yanez v. Milburn, 932 S.W.2d 725, 728 (Tex. App.CAmarillo 1996, writ denied); Guar. County Hosp. Ins. Co. v. Reyna, 700 S.W.2d 325, 327 (Tex. App.CSan Antonio 1985), writ ref=d n.r.e., 709 S.W.2d 647 (Tex. 1986) (per curiam); Irwin v. Basham, 507 S.W.2d 621, 625 (Tex. Civ. App.CDallas 1974, writ ref=d n.r.e.); see also Cunningham v. Fox, 879 S.W.2d 210, 212 (Tex. App.CHouston [14th Dist.] 1994, writ denied) (dismissal following grant of summary judgment); Delhomme v. Comm=n for Lawyer Discipline, 113 S.W.3d 616, 621 (Tex. App.CDallas 2003, no pet.) (voluntary dismissal of grievance complaint did not toll limitations); Clary Corp. v. Smith, 949 S.W.2d 452, 459 (Tex. App.CFort Worth 1997, pet. denied) (dismissal for want of jurisdiction); Milestone Props., Inc. v. Federated Metals Corp., 867 S.W.2d 113, 119 (Tex. App.CAustin 1994, no writ) (dismissal for want of prosecution). A nonsuit is equivalent to a suit never having been filed; thus, the statute of limitations is not tolled for any newly filed pleadings. Yanez, 932 S.W.2d at 728; Reyna, 700 S.W.2d at 327. When proper notice is given in accordance with the MLIIA, as in this case, limitations expire two years and seventy-five days after the claim accrues. Act of May 30, 1977, 65th Leg., R.S., ch. 817, sec. 4.01, 1977 Tex. Gen. Laws 2039, 2047B48 (repealed and recodified 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. ' 74.051 (Vernon Supp. 2004)); De Checa v. Diagnostic Ctr. Hosp., Inc., 852 S.W.2d 935, 938 (Tex. 1993). The parties do not dispute the material dates in this case. The surgery occurred on October 25, 2000, and Cook served her MLIIA notice letter on October 22, 2002, tolling the statute of limitations for an additional seventy-five days. Accordingly, the statute of limitations expired on January 8, 2003. Cook=s voluntary nonsuit is treated as though the first lawsuit had never been filed; thus, the second lawsuit, filed on May 8, 2003, is barred by limitations because it was filed four months after limitations expired.[1] Cook=s second point of error is overruled. Having overruled both of Cook=s points of error, we affirm the judgment of the trial court. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed April 13, 2004. Panel consists of Justices Yates, Anderson, and Hudson. [1] The general rule is that a voluntary dismissal does not toll the statute of limitations. Guar. County Hosp. Ins. Co. v. Reyna, 700 S.W.2d 325, 327 (Tex. App.CSan Antonio 1985), writ ref=d n.r.e., 709 S.W.2d 647 (Tex. 1986) (per curiam). Cook attempts to rely on an exception to the general rule which tolls limitations if the dismissal was actually involuntary. Irwin v. Basham, 507 S.W.2d 621, 625 (Tex. Civ. App.CDallas 1974, writ ref=d n.r.e.). Cook contends that, pursuant to the exception, limitations were tolled during the first lawsuit because she was forced to file her nonsuit to avoid dismissal for want of prosecution; thus, her nonsuit was actually involuntary. This argument fails, however, because a tactical decision to nonsuit does not amount to an involuntary dismissal. Id. Here, Cook made a tactical decision to voluntarily nonsuit Withers before her claim was dismissed for want of prosecution; therefore, limitations were not tolled.