——————————— Gail MacFarlane, Appellant v. Robert L. Burke, M.D., Appellee

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Court of Appeals of Texas, Houston (1st Dist.).

——————————— Gail MacFarlane, Appellant v. Robert L. Burke, M.D., Appellee

NO. 01–10–00409–CV

    Decided: June 23, 2011

Panel consists of Justices Keyes, Higley, and Hinde.4


Appellant, Gail MacFarlane, appeals the trial court's grant of appellee's—Robert L. Burke—motion for summary judgment based on the affirmative defense of the expiration of the limitations period.   In one issue, MacFarlane argues that the trial court erred in granting summary judgment because (1) she filed her suit within the limitations period and, alternatively, (2) she tolled the limitations period by providing proper notice of her claim.

We affirm in part and reverse and remand in part.


In September 2007, Burke performed knee replacement surgery on MacFarlane's left knee.   On December 10, 2007, Burke performed knee replacement surgery on her right knee.   MacFarlane experienced a high level of pain following surgery on her right knee that she had not experienced following surgery on her left knee.   Burke told her he would continue to see her to determine why her right knee was having problems.

After multiple visits with Burke for post-operative treatment—continuing at least until April 9, 2008—MacFarlane met with Dr. Leland Winston.   Winston took an x-ray of her right knee and discovered that she was suffering from a dislocation of the patella.   He concluded that the dislocation was the cause of MacFarlane's pain and limited ability to extend her knee.

MacFarlane provided notice to Burke of her claim against him on December 4, 2009.   The notice did not include, however, the statutorily-required release for Burke to obtain her relevant medical information from other medical providers.   MacFarlane filed suit on February 12, 2010.

Standard of Review

The summary-judgment movant must conclusively establish its right to judgment as a matter of law.   See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986).   Because summary judgment is a question of law, we review a trial court's summary judgment decision de novo.   See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005).

To prevail on a traditional summary-judgment motion, asserted under Rule 166a(c), a movant must prove that there is no genuine issue regarding any material fact and that it is entitled to judgment as a matter of law.   See Tex.R. Civ. P. 166a(c);  Little v. Tex. Dep't of Criminal Justice, 148 S.W.3d 374, 381 (Tex.2004).   A defendant moving for traditional summary judgment must either (1) disprove at least one element of the plaintiff's cause of action or (2) plead and conclusively establish each essential element of an affirmative defense to rebut the plaintiff's cause.   See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004).   It is an affirmative defense to assert that a claim is barred by the statute of limitations.  Tex.R. Civ. P. 94.   Accordingly, Burke carried the burden of establishing as a matter of law that the limitations period had expired on all of MacFarlane's claims.   See Rowntree v. Hunsucker, 833 S.W.2d 103, 104 (Tex.1992).   This includes establishing when the causes of action accrued.   See id. at 106.

A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence.   See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005).   In our review, we take the nonmovant's competent evidence as true, indulge every reasonable inference in favor of the nonmovant, and resolve all doubts in favor of the nonmovant.  Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.2005).

Statute of Limitations on Health Care Liabilities Claims

There is a two-year statute of limitations on health care liability claims.   Tex. Civ. Prac. & Rem.Code Ann. § 74.251(a) (Vernon 2011).   The two years begins from (1) the date of the breach or tort;  (2) the last date of the relevant course of treatment;  or (3) the last date of the relevant hospitalization.  Id.;  Shah v. Moss, 67 S.W.3d 836, 841 (Tex.2001).   If the date of the alleged tort is ascertainable, limitations begins on that date and inquiry into the second and third categories is unnecessary even if there was a course of treatment.  Shah, 67 S.W.3d at 841.

A plaintiff is required to provide notice of her claim against the medical provider at least 60 days before the filing of a suit.  Tex. Civ. Prac. & Rem.Code Ann. § 74.051(a) (Vernon 2011).   In order to comply with the notice requirements, the plaintiff must give written notice of her claim along with a specific authorization form for release of protected health information.   Id. If the plaintiff complies with the notice requirement, the statute of limitations is tolled for 75 days following the giving of the notice.   Id. § 74.051(c).

Burke filed a traditional motion for summary judgment, arguing that MacFarlane's claims were barred as a matter of law by the statute of limitations.   Burke's summary-judgment evidence consisted of (1) MacFarlane's original petition;  (2) Burke's verified denial;  and (3) MacFarlane's notice of her claim against Burke.

The only issue for which Burke does not rely on MacFarlane's petition is the issue of whether the statute of limitations was tolled by MacFarlane's notice of her claim against Burke.   In order to comply with the notice requirements, the plaintiff must give written notice of her claim along with a specific authorization form for release of protected health information.  Tex. Civ. Prac. & Rem.Code Ann. § 74.051(a).   MacFarlane gave Burke notice of her claim on December 4, 2009.   She did not, however, provide an authorization form for release of her medical information.   Providing the authorization form is a condition precedent for application of the tolling provision.  Jose Carreras, M.D., P.A. v. Marroquin, No. 09–0857, 2011 WL 1206377, at *4 (Tex. April 1, 2011).   Tolling occurs only when the plaintiff provides both the notice and the authorization form.  Id.

MacFarlane asserts that she was informed by Burke's office that she did not need to provide an authorization form and that this representation should excuse her failure to provide the form.   We disagree with MacFarlane's characterization of the evidence.

The relevant evidence regarding the authorization form came from MacFarlane's affidavit included in her response to the motion for summary judgment.   In it, she asserts that she had expressed dissatisfaction with Burke to his office.   In one of these conversations, she told one of the office staff that she needed a copy of her file for another doctor to review.   This staff person responded that MacFarlane would need to provide an authorization to release her medical records.   She subsequently sent an email, included in the record, requesting copies from her medical file for her insurance company.   One of Burke's staff members responded to the email stating an authorization form would be needed.   MacFarlane later spoke on the telephone to someone at Burke's office who told her that the email “was sufficient to constitute the authorization they needed to release [her] records for [her] to get them for someone else to review.”

All of these communications concern whether MacFarlane needed to sign a release before she could retrieve her medical records from Burke in order to show them to someone else.   In contrast, the authorization form required for tolling to apply provides Burke authorization to retrieve MacFarlane's medical records from other medical providers in order for Burke to evaluate the strength of MacFarlane's claim with the legislative goal of encouraging settlement.   See id.   Any representations about whether MacFarlane needed to provide an authorization form in order to receive documents from Burke are unrelated to the issue of the requirement for MacFarlane to provide Burke with an authorization form for him to receive documents from other medical providers.   We hold that MacFarlane failed to satisfy all of the conditions precedent for tolling to apply to the limitations period on her claims against Burke.

The remainder of Burke's summary-judgment arguments—claiming that MacFarlane's claims are barred by the statute of limitations—rely exclusively on MacFarlane's petition for support.   Generally, a party's pleadings do not constitute summary-judgment evidence, even if sworn or verified.  Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.1995).   A party may plead herself out of court, however, when she pleads facts which affirmatively negate her cause of action.  Tex. Dep't of Corr. v. Herring, 513 S.W.2d 6, 9 (Tex.1974).   In that circumstance, pleadings may be used as summary judgment evidence when they contain statements rising to the level of judicially admitting a fact or conclusion which is directly adverse to that party's theory or defense of recovery.  Judwin Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 504 (Tex.App.—Houston [1st Dist.] 1995, no writ);  Commercial Structures & Interiors, Inc. v. Liberty Educ. Ministries, Inc., 192 S.W.3d 827, 835 (Tex.App.—Fort Worth 2006, no pet.);  Highlands Ins. Co. v. Currey, 773 S.W.2d 750, 755 (Tex.App.—Houston [14th Dist.] 1989, writ denied).

“A judicial admission results when a party makes a statement of fact which conclusively disproves a right of recovery or defense he currently asserts.”   Seminole Pipeline Co. v. Broad Leaf Partners, Inc., 979 S.W.2d 730, 740 (Tex.App.—Houston [14th Dist.] 1998, no pet.).   The elements for establishing that a statement is a judicial admission are (1) the statement must be made in the course of a judicial proceeding;  (2) it must be contrary to an essential fact or defense asserted by the party;  (3) it must be deliberate, clear, and unequivocal;  (4) it cannot be destructive of the opposing party's theory of recovery or defense;  and (5) enforcing the statement as a judicial admission would be consistent with public policy.  Kaplan v. Kaplan, 129 S.W.3d 666, 669 (Tex.App.—Fort Worth 2004, pet. denied).   The public policy concerning judicial admissions is that it would be unjust to permit a party to recover after she has sworn herself out of court by a clear, unequivocal statement.   Id.

We must review MacFarlane's live petition, then, to determine whether it contains judicial admissions establishing as a matter of law that all of her claims were caused by the surgery performed on December 10, 2007.   Burke attached MacFarlane's original petition to his motion for summary judgment.   Three days before the summary-judgment hearing, however, MacFarlane filed her first amended petition.   Any amended petition filed within seven days of the hearing is not considered to be the live petition unless the party has received permission from the court.  Mensa–Wilmot v. Smith Int'l, Inc., 312 S.W.3d 771, 778 (Tex.App.—Houston [1st Dist.] 2009, no pet.) (citing Tex.R. Civ. P. 63, 166a(c)).  An appellate court presumes, however, that permission was granted when the order says all pleadings were considered, nothing in the record indicates the amended petition was not considered, and the opposing party does not show surprise.  Id. The summary judgment order states that all pleadings were considered.   Nothing in the record indicates that the amended petition was not considered.   And Burke has not shown surprise.   Accordingly, MacFarlane's amended petition is her live petition for purposes of this appeal.

Nevertheless, Burke contends that summary judgment was appropriate even when we treat the amended petition as the live petition.   Burke argues that a “[c]areful reading of [MacFarlane's amended petition] shows that all injuries complained of stem from the December 10, 2007 surgery ․ [and that MacFarlane] did not allege any further injury was incurred during post-operative treatment or that her injury worsened.” 1  Burke insists that all of MacFarlane's claims against him are actually claims “arising out of the care and treatment rendered to appellant during her right knee surgery on December 10, 2007.”

We agree that MacFarlane's original petition includes a claim for medical malpractice in performing surgery.   We disagree, however, that her amended petition contained such a claim.   The only mention of the date of surgery made in her amended petition is the statement “On that day, Defendant was in a hurry planning and getting ready for his African safari trip.”   In the portion of the petition where she lists the duties of care that she asserts Burke violated, there is no mention of the day of surgery or the act of surgery.   Because MacFarlane's amended petition is her live petition, any other allegations in her original petition are irrelevant to our analysis.   See J.M. Huber Corp. v. Santa Fe Energy Res., 871 S.W.2d 842, 844 (Tex.App.—Houston [14th Dist.] 1994, writ denied) (holding amended petition supersedes all prior petitions).

In addition to her claims for breach of post-operative duties, MacFarlane asserts in her petition that Burke failed to advise her “of the potential complications and obtain an informed consent for the proper right knee replacement procedure.”   The date of accrual for an informed consent claim relating to surgery is the date of the surgery.  Mills v. Pate, 225 S.W.3d 277, 285 (Tex.App.—El Paso 2006, no pet.);   see also Rubalcaba v. Kaestner, 981 S.W.2d 369, 372 (Tex.App.—Houston [1st Dist.] 1998, pet. denied) (holding all claims, including informed consent claim, accrued on date of surgery).

The surgery was performed on December 10, 2007.   MacFarlane filed suit on February 12, 2010.   This was outside the statute of limitations for any claims accruing on the date of surgery.   See Tex. Civ. Prac. & Rem.Code Ann. § 74.251(a).   We hold the trial court did not err in granting summary judgment on the claim related to obtaining informed consent.

We turn now to MacFarlane's post-surgery claims.   As an initial matter, we note that Texas case law has established it is possible to assert claims both for breach of duties during surgery as well as breach of duty during post-operative care.   For example, in Shah, the plaintiff sued the doctor claiming injury due to negligence during surgery as well as during the follow-up care he received.  67 S.W.3d at 839.   The Texas Supreme Court first determined that the statute of limitations for the claim concerning surgery was two years after the date of surgery and that the plaintiff had not brought suit in that time.  Id. at 842–43.   The court went on to analyze the date for the accrual of the plaintiff's claim concerning post-operative care, determined the accrual date of that claim to be later than the surgery date, but concluded that the plaintiff still had not brought suit within the required time under the later date.  Id. at 844.

Similarly, in Morin, the plaintiff consulted with defendant about a pain she suffered in her jaw.  Morin v. Helfrick, 930 S.W.2d 733, 735 (Tex.App.—Houston [1st Dist.] 1996, no writ), overruled on other grounds by Rizkallah v. Conner, 952 S.W.2d 580 (Tex.App.—Houston [1st Dist.] 1997, no writ).   The defendant performed surgery on her jaw, attaching certain implants.  Id. The plaintiff continued to suffer pain, and the defendant performed three subsequent surgeries in an attempt to relieve the pain.  Id. Later, the defendant consulted with another doctor the plaintiff had visited about the plaintiff's jaw problems.  Id. In these consultations, the defendant asserted the implants were not the cause of the pain and recommended not removing them.  Id. Nevertheless, the other doctor performed surgery to remove the implants and determined that the plaintiff's pain was caused by “a foreign body inflammatory response” to the implants.  Id.

This Court held that the defendant had committed a tort both in performing the surgery and in misdiagnosing the cause of the plaintiff's post-surgery pain.   Id. at 737.   For this latter tort, we held that the defendant's post-operative care for her pain continued through his consultation with the other doctor and that, accordingly, the plaintiff had filed suit within the limitations period.  Id.

Macfarlane alleged, among other things, in her live petition that Burke was negligent in his post-operative care of her by failing to conduct a proper post-operative exam;  failing to use proper and adequate diagnostic tools and techniques to make an accurate diagnosis of the condition of her knee in post-operative care;  failing to take an x-ray during follow-up care to diagnose the dislocated patella; 2  and failing to make an accurate and timely diagnosis during post-operative care.3  All of these allegations relate specifically to claims of negligence in Burke's post-operative care, not to any negligence that may have occurred during surgery.   Accordingly, they cannot constitute judicial admissions that all of MacFarlane's claims relate to the date of surgery.   See Kaplan, 129 S.W.3d at 669 (listing elements of judicial admission, including statement must be contrary to essential fact asserted by party).

We are left to determine, then, whether MacFarlane's petition judicially admits that she did not in fact receive any post-operative treatment by Burke.   See Rowntree, 833 S.W.2d at 108 (holding breach of duty to perform proper examination can only occur on occasions when doctor had opportunity to perform such examinations).   MacFarlane's petition alleged that Burke's post-operative treatment of her continued until approximately April 2008.   Additionally, MacFarlane supplied summary judgment evidence establishing that Burke met with MacFarlane for post-operative treatment as late as April 9, 2008.   Given that MacFarlane filed suit on February 12, 2010, this would put MacFarlane's claims for medical malpractice in Burke's post-operative treatment within the statute of limitations.   See Tex. Civ. Prac. & Rem.Code Ann. § 74.251(a).   We hold that Burke failed to meet his burden of proving as a matter of law that MacFarlane judicially admitted that all of her post-operative treatment medical malpractice claims accrued on the date of surgery.

We sustain MacFarlane's sole issue as it applies to her post-operative health care liability claims.   We overrule her sole issue as it applies to any earlier health care liability claims.


We affirm the trial court's rendition of summary judgment for MacFarlane's health care liability claim concerning Burke's alleged failure to obtain informed consent for MacFarlane's right knee replacement surgery.   We reverse the trial court's rendition of summary judgment in all other respects and remand for further proceedings.


1.  FN1. MacFarlane asserted in her petition and in her brief that the date of surgery was December 15, 2007.   Burke correctly points out, however, that the summary judgment evidence reflects that it took place on December 10, 2007.

2.  FN2. This claim of negligence was in Dr. Winston's report, attached to the amended petition and incorporated by reference.   See Tex.R. Civ. P. 59 (providing attachments are deemed part of pleading for all purposes).

3.  FN3. We note that MacFarlane's original petition also included claims for negligence in Burke's post-operative care.   Accordingly, the result of this analysis would be the same even if the original petition were the live petition.

4.  FN4. The Honorable Dan Hinde, judge of the 269th District Court of Harris County, participating by assignment.

Laura Carter Higley Justice

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