holding that because a physician lías a duty to “disclose a negligent act or fact that an injury has occurred,” and physician failed to do so, cause of action was deferred until victim learned of the right of action
How later courts described this case
- holding that because a physician lías a duty to “disclose a negligent act or fact that an injury has occurred,” and physician failed to do so, cause of action was deferred until victim learned of the right of action
- stating estoppel effect of fraudulent concealment ends when party learns of facts, conditions, or circumstances which would cause a reasonably prudent person to make inquiry, which, if pursued, would lead to discovery of concealed cause of action
- holding that knowledge of “facts, conditions, or circumstances which would cause a reasonably prudent person to make inquiry . . . is in law equivalent to knowledge of the cause of action”
- holding that knowledge of Afacts, conditions, or circumstances which would cause a reasonably prudent person to make inquiry . . . is in law equivalent to knowledge of the cause of action@
Written by the judges who cited it.
The opinion
BARROW, Justice,
dissenting.
I respectfully dissent. I would hold that section 10.01 of article 4590i 1 abolishes fraudulent concealment as an exception to the statute of limitations defense. This holding is compelled by the clear and express language of section 10.01. This section states in part 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 .... (emphasis added.)
The legislature left no room for question when it selected this language to abolish all court-made exceptions to limitations and impose an absolute two-year statute. Where language in a statute is unambiguous, courts must apply the intent of the legislature as found in the plain and common meaning of the words and terms used. Railroad Commission of Texas v. Miller, 434 S.W.2d 670, 672 (Tex.1968). Because courts are not “law-making” bodies, they must take statutes as they find them. Id. at 672 .
The legislative history also documents the intent of the legislature to impose an absolute two-year statute of limitations. The Texas Medical Professional Liability Study Commission was formed by an act of the legislature to make specific recommendations concerning the medical malpractice crisis. 2 The proposal sent to the legislature by the Study Commission made the following recommendation:
*910 [T]he statute of limitations be altered so that a claimant must bring a suit within one year from the date the claimant discovered or should have discovered the injury but in no event can the suit be brought more than three years after the injury occurred. 3
The legislature, however, rejected this recommendation and substituted a compromise provision. The limitations statute passed by the legislature adopted an absolute two year period which begins to run when the treatment upon which the claim is based is completed. This provision delays the start of the limitations period from the date of the injury to the date treatment is completed and the patient is no longer relying on the health care provider. This indicates that the clear intent of the legislature in enacting section 10.01 was to eliminate all prior court developed exceptions to limitations in all medical malpractice cases including the fraudulent concealment of the malpractice. See Witherspoon, Constitutionality of the Texas Statute Limiting Liability for Medical Malpractice, 10 Tex.Tech L.Rev. 419, 425 (1979).
The majority circumvents the legislature’s intent by holding that fraudulent concealment is an exception to the statute of limitations. The fraud asserted here is based solely on the physician-patient relationship. According to the majority, the existence of the physician-patient relationship creates a duty to disclose the negligent act or injury. The failure to disclose such information constitutes fraudulent concealment which estops the physician from raising limitations as a defense. The majority’s reasoning implicitly recognizes the legislature’s intent to abolish all the court-made exceptions to the defense of limitations in medical malpractice actions by arbitrarily carving a new category for fraudulent concealment. This reasoning, however, would make the limitations period meaningless since every claim against the physician or health care provider involves a physician-patient relationship. The majority’s interpretation ignores the rule of statutory construction that the legislature is never presumed to do a useless or meaningless act. Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 551 (Tex.1981); see Bomar v. Trinity National Life and Accident Insurance Co., 579 S.W.2d 464, 465 (Tex.1979).
In any event, the fraudulent concealment exception would not warrant the reversal of the judgments of the courts below under the facts in this case. The basis for the majority’s application of fraudulent concealment rests on the confidential physician-patient relationship. Once this confidential relationship terminated, the duty to disclose and the fraudulent concealment also ceased to exist. McClung v. Johnson, 620 S.W.2d 644, 647 (Tex.Civ.App.—Dallas 1981, writ ref’d n.r.e.).
Dr. Peck’s treatment of Borderlon was completed on February 21, 1979; therefore, the confidential relationship relied upon by the majority ended at that time. Dr. Peck’s “fraudulent concealment” of the cause of action also ended and the two-year limitation began to run. Since Borderlon did not file her action until February 27, 1981, her action was barred even if fraudulent concealment was not abolished by section 10.01.
Furthermore, the record establishes that Borderlon was informed of the facts underlying this action on February 25,1979 when an x-ray revealed that a small, foreign, linear object remained in her abdomen after the surgery. The estoppel effect of fraudulent concealment ends when a party learns of facts, conditions, or circumstances which would cause a reasonably prudent person to make inquiry which, if pursued, would lead to discovery of the concealed cause of action. Knowledge of such facts is equivalent to knowledge of the cause of action. See *911 Nichols v. Smith, 507 S.W.2d 518, 519 (Tex.1974); Ruebeck v. Hunt, 142 Tex. 167 , 176 S.W.2d 738, 739 (1943); Glenn v. Steele, 141 Tex. 565 , 61 S.W.2d 810 (1933).
It is undisputed that on February 25, 1979 Borderlon was informed of the presence of the foreign object in her abdominal region, the same area Dr. Peck had operated on just eight days earlier. This knowledge alone would, as a matter of law, put Borderlon on inquiry and ended any alleged fraudulent concealment. Her knowledge would have triggered the running of the statute, and the filing of suit on February 27, 1981 would still be outside the two year limitations period.
For all of the foregoing reasons, I would apply section 10.01 as the legislators clearly intended and affirm the judgments of the courts below.
POPE, C.J., and CAMPBELL and WALLACE, JJ., join in this dissenting opinion.
. All statutory references are to Texas Revised Civil Statutes Annotated.
. Medical Liability Ins. Underwriting Ass’n Act, ch. 331, § 2, 1975 Tex.Gen.Laws 867, 872-73 (expired 1977).
. Final Report of the Texas Medical Professional Liability Study Commission to the 65th Texas Legislature (1976).