                  UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT



                           No. 97-10731



                          MARK ROTELLA,

                                               Plaintiff-Appellant,


                              VERSUS


    WILLIAM M. PEDERSON, M.D., WILLIAM M. PEDERSON, M.D.P.A.,
      LESLIE H. SECREST, M.D., LESLIE H. SECREST, M.D.P.A.,
      JOHN M. ZIMBUREAN, M.D., JOHN M. ZIMBUREAN M.D.P.A.,
         LARRY W. ARNOLD, M.D., LARRY W. ARNOLD, M.D.P.A.,
        BRADFORD M. GOFF, M.D., BRADFORD M. GOFF M.D.P.A.,
          FRED L. GRIFFIN, M.D., FRED L. GRIFFIN, M.D.P.A.
            ANGELA M. WOOD, M.D., ANGELA M. WOOD M.D.P.A.,
           GARY LEE ETTER, M.D., GARY LEE ETTER, M.D.P.A.,
             GROVER LAWLIS, M.D., GROVER LAWLIS, M.D.P.A.
             DALLAS PSYCHIATRIC ASSOCIATES, A Partnership

                                              Defendants-Appellees.1



           Appeal from the United States District Court
                For the Northern District of Texas
                          July 14, 1998
Before REAVLEY, DeMOSS and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge.

     Plaintiff-Appellant, Mark Rotella (“Rotella”), appeals from



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        Rotella’s appeal from the district court order as to
Defendants-Appellees   Ronald   Fleischmann,   M.D.   and   Ronald
Fleischmann, M.D.P.A. were dismissed with prejudice post-argument.

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the district court’s order granting summary judgment for defendants

based   on    its    finding     that   Rotella’s   claims   were    barred    by

limitations.        We affirm.



                              FACTS AND PROCEEDINGS

     On February 19, 1985, Rotella, then age sixteen, was admitted

to Brookhaven Psychiatric Pavilion (“Brookhaven”).                  Defendants-

appellees are physicians and professional associations which had

treating privileges at Brookhaven during Rotella’s hospital stay.

Although     Rotella    was    initially     admitted   involuntarily   on    the

request of his mother and his prior therapist after a suicide

threat, he signed for a voluntary admission rather than face an

involuntary commitment proceeding.               He was discharged sixteen

months later, on June 16, 1986, shortly after his eighteenth

birthday.     Rotella made several requests for release pursuant to

Texas law.          Each time he withdrew his request prior to the

expiration of the 96 hour waiting period, except one occasion when

he was advised that his application was not properly submitted and

he would have to make another application.               He characterizes the

withdrawals of his requests for release as coerced.

     In April of 1994, Wendy Edelman, another former patient at

Brookhaven, contacted Rotella and urged him to file a lawsuit

against the doctors who had treated them at Brookhaven because the

doctors had based their decisions to keep patients hospitalized on



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economic rather than medical criteria.

     In   June    1994,      Brookhaven’s      parent      company,       Psychiatric

Institutes of America (“PIA”), and PIA’s Texas Regional Director,

Peter Alexis pleaded guilty to charges of fraud and conspiracy.

The underlying fraud related to doctors extending the length of

stay for patients in psychiatric hospitals beyond medical necessity

in order to maximize health insurance benefit payments.

     In July 1994, Defendants-Appellees filed suit in Texas state

court against Rotella and his attorney alleging that Rotella

slandered them by telling third parties that they “received a

$10,000 bonus for each bed filled over the Christmas holidays.”

Rotella filed a counterclaim asserting civil rights violations and

state   law   causes    of   action    arising     out     of    his    treatment     at

Brookhaven in 1985-86.         He alleged that in-patient treatment was

generally     inappropriate      for   his    condition         and    that    specific

treatments, such as the use of restraints and limitations on his

movements and privacy, were inappropriate and abusive.

     The state court granted summary judgment for defendants on

Rotella’s     state    claims,    finding      that      they     were     barred     by

limitations and denied defendants’ motions for summary judgment on

the civil rights claims.         Rotella’s counterclaim was then severed

and, on March 3, 1997, was removed to federal court.

     On June 30, 1997 the district court denied Rotella’s motion to

reconsider    summary     judgment     on    the   state    law       claims   and,   on

reconsideration, granted summary judgment for defendants on the

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civil rights claims, finding that they were barred by limitations

as well.    Final judgment was entered for defendants and Rotella

appealed.

     After this case was briefed, the Texas Court of Appeals at

Fort Worth handed down two opinions addressing limitations issues

in the context of former psychiatric patients suing PIA and related

doctors and entities.     See Savage v. Psychiatric Institute of

Bedford, Inc., 965 S.W.2d 745 (Tex.App.-Fort Worth 1998, writ

requested); see also Slater v. National Medical Enterprises, Inc.,

962 S.W.2d 228 (Tex.App.-Fort Worth 1998, writ requested).      While

neither opinion directly disposes of every issue before this court,

both support the district court’s determination that Rotella’s

claims are time barred.

                              ANALYSIS

                        Statute of limitations

     We review the district court’s grant of summary judgment on

the basis of limitations de novo.      Wallace v. Texas Tech Univ., 80

F.3d 1042, 1046 (5th Cir. 1996).

     Rotella does not dispute that his suit was filed more than

four years after he was discharged from Brookhaven, but posits

several theories for tolling the statutes of limitations.     Rotella

bears the burden of proof on each of his tolling theories.        See

Weaver v. Witt, 561 S.W.2d 792, 794, n.2 (Tex. 1977).

a. Are Rotella’s Claims Health Care Liability Claims?


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       All health care liability claims must be brought within two

years of “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.”

TEX.REV.CIV.STAT.ANN. art.     4590i,    §   10.01   (Vernon   Supp.   1997).

Rotella contends that his case is fundamentally one of fraud which

is governed by a four year statute of limitations.

       In Shannon v. Law-Yone, 950 S.W.2d 429 (Tex. App.-Fort Worth

1997, writ denied), the Fort Worth Court of Appeals considered this

limitations question in a context that was nearly identical to this

case.       Shannon was a voluntary inpatient at Brookhaven for six

weeks during 1989.        Shannon brought suit in 1993 alleging that

Brookhaven doctors and other employees fraudulently induced him to

lengthen his stay and coerced him into waiving a release that he

requested resulting in emotional strain, trauma and anguish.              The

court held that Shannon’s common law fraud claim is not a “health

care liability claim” as defined by art. 4590i and it is therefore

governed by the four-year fraud statute of limitations.                Id. at

438.       Making an “Erie guess”2 as to how Texas courts would resolve

this issue based on the intermediate Texas appellate court opinion

in Shannon, we hold that the four-year statute of limitations

applies to Rotella’s fraud claims.

b. Counterclaims - § 16.069, Texas Civil Practice and Remedies Code


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        See Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).

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     Rotella’s claims were originally filed as counterclaims to a

petition brought by defendants against him, his attorney and

another former patient in state court.         The original suit alleged

that Rotella slandered defendants in 1994 by stating that the

defendants “received a $10,000 bonus for each bed filled over the

Christmas holiday.”       Under Texas law, an individual who has a

counterclaim     which   is   otherwise    time-barred     may    file   that

counterclaim within thirty days of the date his answer is due, if

the counterclaim “arises out of the same transaction or occurrence

that is the basis of [the] action.”        § 16.069(a) TEX.CIV.PRAC.& REM.

CODE ANN. (Vernon 1986).      Rotella claims that there is a “critical

link” between the alleged 1994 statement and his 1984-86 stay at

Brookhaven because the slander suit alleged that Rotella had

harbored   ill   will    toward   his    doctors   since    his   Brookhaven

treatment.    He also argues that the counter claims “arose out of”

the same occurrence because Rotella’s lawyer was also named as a

defendant in the slander suit and a reasonable juror could conclude

that the slander suit was a preemptive strike to intimidate Rotella

and his attorney and prevent them from filing suit against the

defendants.

      The district court rejected this argument, holding that

Rotella’s counterclaim did not arise from the same transaction and

therefore could not be revived under § 16.069.             Relying on Hobbs

Trailers v. J.T. Arnett Grain Co., Inc., 560 S.W.2d 85, 88-89 (Tex.


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1977)(addressing art. 5539c, the predecessor statute of § 16.069),

the district court reasoned, “This conclusion is consistent with

the purposes of the statute.      ‘The statute was intended to prevent

a plaintiff from waiting until an adversary’s valid claim arising

from the same transaction was barred by limitation before asserting

his own claim.’”

     Appellees urge us to affirm the district court, arguing that

Rotella’s claims arose from his hospital stay, while the slander

claim arose out of a statement made eight years later in a related

but separate incident.      Therefore, Appellees argue, § 16.069 does

not control, because the counterclaims did not arise out of the

same incident.       In Leasure v. Peat, Marwick, Mitchell & Co., 722

S.W.2d 37 (Tex.App.-Houston[1st Dist.] 1986, no writ), a Texas

court held that Leasure’s counterclaims based on an audit that Peat

Marwick had performed in 1976-77 did not arise from the same

transaction or occurrence as Peat Marwick’s original claim for

malicious prosecution which was based on Leasure’s 1980 lawsuit.

Id. at 38-39.        The court emphasized that Peat Marwick’s claim,

while it had some relationship to the 1976-77 audit that was the

subject   of   the   counterclaim,   was   based   on   Leasure’s   alleged

wrongful conduct which occurred some three years later.

     Rotella cites two cases to rebut the holding in Leasure,

neither of which convince us that the district court’s reliance on

Leasure was misplaced.      Fluor Engineers and Constructors, Inc. v.


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Southern Pacific Transp. Co., 753 F.2d 444, 449 (5th Cir. 1985),

summarily states, without analysis, that the claims in question

arose out of the same transaction.     Barraza v. Koliba, 933 S.W.2d

164, 168 (Tex.App.-San Antonio 1996, writ denied), held that a suit

seeking to construe a title conveyance document and a counterclaim

alleging that one party misrepresented what was being conveyed by

that document arose from the same transaction.    We agree with the

district courts’ conclusion that Rotella’s claims and the state

court slander claims arose from two separate incidents.

     Finally, the preemptive strike argument is meritless.   Either

the claims were already time-barred and there was nothing left to

preemptively strike or they are not time-barred and they do not

need § 16.069 for revival.

     We therefore hold that § 16.069 does not operate to revive

Rotella’s time-barred counterclaims.

c. The Discovery Rule

     Art. 4590i indicates that its limitations provisions apply

regardless of any other law or legal disability. The Texas Supreme

Court nonetheless held the statute unconstitutional to the extent

that it cuts off a party’s ability to bring suit before having a

chance to discover the injury.   Consequently, a party must have a

reasonable opportunity to discover an injury and bring suit within

a reasonable time after the party knows, or reasonably should have

known of an injury.   See Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex.


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1985).

     Rotella contends that he did not discover his injury until

April of 1994 when he spoke to Wendy Edelman, and that it was not

reasonably possible for him to have discovered it prior to that

date.    He reasons that the emotional disorders that resulted from

the defendants’ wrongful acts were impossible for him to detect on

his own and affected his ability to understand and pursue his

remedies.

     A party is deemed to be aware of an injury and its cause when

a reasonable person, under the same circumstances, exercising

reasonable diligence, would be aware of it.     See Cathedral of Joy

Baptist Church v. Village of Hazelcrest, 22 F.3d 713, 717 (7th Cir.

1994).    Section 16.001, TEX. CIV. PRAC. & REM. CODE, provides that a

person of unsound mind is under a legal disability and that “[i]f

a person entitled to bring an action is under a legal disability

when the cause of action accrues, the time of the disability is not

included in the limitations period.” The district court found that

there was no summary judgment evidence in the record to support a

finding that Rotella lacked the requisite mental capacity when he

was discharged in June of 1986.        Rotella does not specifically

assert that he qualifies for unsound mind tolling pursuant to §

16.001. Rather, he contends that he has created a fact question on

whether he knew or should have known of his injury earlier.

     Rotella knew what happened during his hospitalization, who was


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involved in his treatment and how it impacted him at time of his

release.   Therefore, he was on notice of his injury on the date of

his release, at the latest.             See Slater v. National Medical

Enterprises, Inc., 962 S.W.2d 228, 233 (Tex.App.-Fort Worth 1998,

writ requested).     Rotella’s argument relies on his mental illness

to excuse his late filing, while not specifically evoking or

establishing the elements of tolling based on an unsound mind

theory.    Without resort to a mental incapacity argument under §

16.001, his discovery argument fails.

d. Fraudulent concealment

     Under Texas fraudulent concealment law, a defendant must be

charged with a legal duty through a special relationship to reveal

the concealed facts to the plaintiff before he can claim tolling

under this theory.        See Dougherty v. Gifford, 826 S.W.2d 668

(Tex.App.-Texarkana 1992, no writ).           The duty to disclose in

medical contexts ends when the physician-patient relationship ends.

See Thames v. Dennison, 821 S.W.2d 380, 384 (Tex.App.-Austin 1991,

writ denied).    Rotella does not dispute that his relationship with

defendants ended on June 16, 1986 when he was discharged from

Brookhaven.     Under Thames, his fraudulent concealment theory does

not save his causes of action from the limitations bar.

     However, Rotella argues that Thames, an intermediate Texas

appeals court decision, cannot serve as the basis of this court’s

decision   because   it   relies   on    language   from   the   dissent   in


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Borderlon v. Peck, 661 S.W.2d 907 (Tex. 1983), and is inconsistent

with the Texas Supreme Court’s majority opinion in that case.                              We

disagree with         Rotella’s    reading     of    Borderlon.         In    fact,       the

Borderlon majority opinion holds only that art. 4590i did not

abolish fraudulent concealment as a defense to limitations in

medical malpractice actions.              Id. at 908.         It recognizes that a

claim of    fraudulent         concealment     must      be   based    solely      on     the

physician-patient           relationship.      Id.        The    Borderlon        majority

states, “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.”

Id. at 908.      Rather than focusing on the end of the patient-doctor

relationship,         the    majority     focused        on   the     fact    that        the

patient/plaintiff had information that put her on inquiry just four

days after the end of that relationship and still outside the

limitations period.            We do not read the Borderlon majority as

inconsistent with the Borderlon dissent regarding the effect of the

termination      of    the    doctor/patient        relationship.            Neither      is

Borderlon’s holding inconsistent with Thames on this issue.

     Finally, Rotella’s reliance on Gatling v. Perna, 788 S.W.2d 44

(Tex.App.-Dallas 1990, writ denied), is misplaced.                         That opinion

states    that    it    could     not,    as   a     matter      of    law,       fault     a

psychologically        disturbed    patient        for    relying     on     an    opinion

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expressed by a psychiatrist, under whose regular care she had been

for four years, to the exclusion of a physician she had consulted

on only one occasion.              788 S.W.2d at 47.                 However, Gatling

continued under her long-term psychiatrist’s care through the time

she rejected the other doctor’s warning. Therefore, the holding in

Gatling   does    not     inform    the    question      of    the     effect   of    the

termination of the doctor/patient relationship.

     After the duty to disclose ended at Rotella’s discharge, the

limitations      period    began    to    run    as    soon    as     the   injury    was

discovered or when it might have been discovered by the exercise of

reasonable diligence.        See Slater v. National Medical Enterprises,

Inc.,   962   S.W.2d      228,     233    (Tex.App.-Fort        Worth,      1998,    writ

requested).       Because    the     discovery        rule    does    not   extend    the

limitations period beyond the end of Rotella’s hospital stay, the

argument for fraudulent concealment tolling fails as well.

3.   Rotella’s claims under 42 U.S.C. § 1983.

     There is no federal statute of limitations for civil rights

actions   brought       pursuant     to    §    1983.         Consequently,     courts

construing § 1983 “borrow” the forum state’s general personal

injury limitations period.           See Owens v. Okure, 488 U.S. 235, 249-

50 (1989). Because the Texas statute of limitations is borrowed in

§ 1983 cases, Texas’ equitable tolling principles also control. See

Board of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S.

478, 485 (1980).        Therefore our conclusions relative to Rotella’s


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state tolling claims control this question as well.

     Rotella argues that Texas fraudulent concealment doctrine is

inconsistent   with     the   federal    fraudulent    concealment      doctrine

because the federal doctrine does not hold that the duty to

disclose in a medical context ends when the physician/patient

relationship ends.      First, no authority supports this contention.

At most, federal law is silent on this point.                    Second, such

inconsistency is irrelevant. Although a state’s tolling provisions

cannot be inconsistent with the policies underlying § 1983, there

is no authority for the proposition that it must be consistent with

the federal tolling provisions.              See Rubin v. O’Koren, 644 F.2d

1023, 1025 (5th Cir. 1981).       Rotella makes no argument, and we see

no basis for holding, that the Texas tolling laws are inconsistent

with policies underlying § 1983.             Therefore, we conclude that the

district court correctly dismissed the federal claims because they

are likewise barred by limitations.

                                 CONCLUSION

     Based   on   the   foregoing,      we    affirm   the   district   court’s

dismissal because Rotella’s claims are barred by the applicable

statutes of limitations.

     AFFIRMED.




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