noting limitations could not be avoided indefinitely where attorney could file suit and invoke power of court to avail himself of various remedies to obtain medical records and legislature must determine nature of penalties to impose when records are withheld preventing plaintiff from meeting expert report deadline
How later courts described this case
- noting limitations could not be avoided indefinitely where attorney could file suit and invoke power of court to avail himself of various remedies to obtain medical records and legislature must determine nature of penalties to impose when records are withheld preventing plaintiff from meeting expert report deadline
- holding all claims, including informed consent claim, accrued on date of surgery
- “Treatment following surgery does not extend the statute of limitations when the complaint concerns the initial surgical procedure.”
Written by the judges who cited it.
The opinion
COHEN, Justice,
concurring.
I believe that appellant had the burden of production on the issue of fraudulent eonceal *378 ment and because he did not meet it, he cannot prevail.
■When, as here, defendants conclusively establish the defense of limitations, a plaintiff, in order to avoid summary judgment, must produce evidence of fraudulent concealment. Nichols v. Smith, 507 S.W.2d 518, 521 (Tex.1974). Fraudulent concealment is a form of equitable estoppel. Borderlon v. Peck, 661 S.W.2d 907, 909 (Tex.1983). To benefit from the doctrine, a plaintiff must show that the concealment harmed him, that is, it kept him from suing within the period of limitations. Id. Appellant has not shown that.
Appellant received 900 pages of records from St. Luke’s in October 1991, twenty months before limitations expired. He was represented by counsel then, as he was long before surgery and at all times after surgery. 1 He complains that 300 more pages of St. Luke’s records were not furnished until shortly before and after limitations expired. However, appellant has not shown that the late records support his claim. He has not identified one page of any late supplied record and stated that if he had it sooner, he would have sued sooner. Appellant has not shown that the late supplied records even related to the conduct he complains of, the doctors’ alleged negligence on June 3, 1991.
Appellant claims he needed “all” records of his treatment, including those for five months afterward, to know of his injury. When, as here, all damages flow from negligence on June 3, 1991, that claim cannot be correct. If, as the eases say, the plaintiff must produce evidence of fraudulent concealment, what must he produce? The answer, I think, is evidence that the concealment kept him from suing earlier. Thus, appellant needed to show that the concealed evidence supported his claim that defendants were negligent on June 3 and the concealed evidence differed from the revealed evidence. If the concealed evidence did not pertain to June 3, 1991, its concealment was irrelevant. If the concealed evidence did not support appellant’s claim, its concealment was not fraudulent. If the concealed evidence did not differ from the existing evidence, its concealment was harmless. 2
Appellant’s medical expert on malpractice was James Sturm, M.D. He stated:
... A proper pre-operative evaluation would have included a consultation by a specialist in internal medicine or cardiology to properly, and in an orderly fashion, evaluate plaintiffs cardiovascular condition and risk of undergoing general anesthesia
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... Evidence of the old myocardial infarction dictated that plaintiffs cardiovascular function be appropriately evaluated prior to his undergoing general anesthesia. Had Mr. Rubalcaba been so evaluated pri- or to the first surgery, he would not have suffered the vascular complications which occurred during and following the first surgery.
Based upon a medical certainty, it would be impossible to determine whether or not medical malpractice occurred in the care of Mr. Rubalcaba without having Mr. Rubal-caba’s St. Luke’s records available for review. This is because the records from the defendant doctors’ offices do not contain the complete records of Mr. Rubalcaba’s hospitalizations at St. Luke’s. Without an opportunity to review the facts of the case as they are memorialized in the hospital record, it would not be possible to discern if there had been a deviation from the standard of care. It would be necessary to review the hospital records including, but not limited to, the history and physical reports of operations, doctors’ progress notes, nurses’ notes, anesthesiology rec *379 ords, consultation notes, and respiratory therapy notes.
(Emphasis supplied).
Appellant does not contend that the records listed by Dr. Sturm were supplied late. He does not contend the records listed by Dr. Sturm were not among the 900 pages St. Luke’s furnished in October 1991. He does not contend the late supplied records showed the defendants were negligent on June 3, 1991. He does not contend the same facts were not shown by earlier supplied records. Without such proof, appellant has not met his burden to produce evidence of a material fact issue.
The dissenting opinion labels the late supplied “discharge summary for the June 1991 operation” as “the most important of the records for determining the possibility of malpractice.” Dr. Sturm, who listed eight specific categories of “necessary” records, did not mention that record. Appellant now has it, but he does not claim it contains anything that would have influenced him to sue earlier.
The dissenting opinion asserts “... the defendants fraudulently concealed the evidence that would prove their negligence, which would indicate to the plaintiff that he should file a medical malpractice suit ...” Dissenting op. at 381 (emphasis in original). I think that is precisely what appellant has not shown, i.e., that records concealed showed negligence not shown by records timely revealed.
. At least two attorneys represented appellant long before limitations ran, Benito Pena and Patrick Gailey, and both spoke with Cigna about suing for medical malpractice. Cigna’s records also show that Mr. Pena "will refer claimant to attorney Jim Purdue who specializes more in these types of cases.”
. At trial, such evidence might add weight to similar evidence of negligence or might increase punitive damages for unethical or illegal conduct. By "harmless” in this context of limitations, I mean that it would not tell the plaintiff something new that would encourage him to sue earlier.