Opinion issued August 6, 2020




                                 In The

                           Court of Appeals
                                For The

                       First District of Texas
                         ————————————
                           NO. 01-18-00775-CV
                         ———————————
                     AVAGENE HARRIS, Appellant
                                   V.
  VICTOR KAREH, M.D. AND NORTH CYPRESS MEDICAL CENTER
  OPERATING COMPANY, LTD. D/B/A NORTH CYPRESS MEDICAL
                      CENTER, Appellees


                 On Appeal from the 125th District Court
                          Harris County, Texas
                    Trial Court Case No. 2017-23927


                       MEMORANDUM OPINION
      Appellant, Avagene Harris, challenges the trial court’s dismissal of her health

care liability claims1 against Victor Kareh, M.D. and North Cypress Medical Center

Operating Company, Ltd., doing business as North Cypress Medical Center (“North

Cypress Medical”).2 In four issues, Harris contends that the trial court erred in

dismissing her claims against Dr. Kareh and North Cypress Medical and in denying

her motion for new trial.

      We affirm.

                                     Background

      This is the second appeal we have heard involving appellant.3 Previously, in

2015, appellant brought health care liability claims against certain health care

providers arising from injuries she sustained in an August 2009 car accident.4 In

that case, the trial court granted summary judgment in favor of two doctors on

limitations grounds, which appellant did not appeal.5 The trial court also granted the



1
      See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13).
2
      Harris sued “North Cypress Hospital.” In its answer, North Cypress Medical
      identified itself as “North Cypress Medical Center Operating Company, Ltd., d/b/a
      as North Cypress Medical Center,” as did the trial court in its order dismissing
      Harris’s health care liability claim against North Cypress Medical. Our style of the
      case is in accord with the trial court’s order. See Owens v. Handyside, 478 S.W.3d
      172, 175 n.1 (Tex. App.—Houston [1st Dist.] 2015, pet. denied).
3
      See Harris v. Hous. Methodist Hosp., No. 01-17-00544-CV, 2018 WL 3233329
      (Tex. App.—Houston [1st Dist.] July 3, 2018, pet. denied) (mem. op.).
4
      See id. at *1.
5
      See id. at *1–2.
motion to dismiss filed by a hospital based on appellant’s failure to serve a sufficient

expert report.6 Prior to appealing the trial court’s granting of the hospital’s motion

to dismiss, appellant initiated the current case, asserting health care liability claims

against different health care providers related to the same injuries she sustained in

the August 2009 car accident.

      In her petition filed in this case, Harris alleged that on August 21, 2009, she

was injured in a car accident. Harris was taken to Houston Methodist Willowbrook

Hospital where a computerized tomography (“CT”) scan was performed. Although

Harris was first told that the results of her CT scan were negative, later that day, she

was informed that she had a “small amount of blood on the right parietal brain.”

Harris later was transported to Houston Methodist Downtown (“Methodist

Downtown”) so that she could have surgery.

      Upon arriving at Methodist Downtown, a doctor diagnosed Harris with a

cerebral contusion, but did not recommend surgery or refer Harris to a specialist.

Harris was then discharged. Some time later, Harris saw the same doctor at an

“outpatient visit,” and he performed an electroencephalogram (“EEG”) and

magnetic resonance imaging (“MRI”) that “revealed . . . blood on [the] brain.” The

doctor still did not recommend surgery or refer Harris to a specialist.




6
      See id. at *1–4.
      On or about September 3, 2009, Harris was examined by another doctor, who

did not “know what that was on her brain” and did not refer her to a specialist for

surgery.

      On September 26, 2010, Harris suffered a stroke; “she had numbness in half

of her body and could not talk.” Harris was taken to North Cypress Medical where

Dr. Kareh and another doctor treated her. The doctors performed an MRI, which

revealed blood on Harris’s brain. Dr. Kareh and the other North Cypress Medical

doctor7 diagnosed Harris with a cavernous angioma,8 and Dr. Kareh planned to

perform “radiosurgery or neurosurgery.” Harris was “placed on medication[s] that

[produced] severe side effects,” and she remained at the hospital for two weeks.

Later, she was discharged, but instructed to keep taking the medications prescribed

by the other North Cypress Medical doctor.




7
      We express no opinion on whether this other doctor was an employee of North
      Cypress Medical. He is only referred to as the “other North Cypress Medical
      doctor” for clarity purposes.
8
      Harris alleges that a cavernous angioma:
            is a type of blood vessel malformation or hemangioma, where a
            collection of dilated blood vessels form[s] a tumor. Because of th[e]
            malformation, [the] blood flow through the cavities, or caverns, is
            slow. Additionally, the cells that form the vessels do not form the
            necessary junctions with surrounding cells and the structural support
            from the smooth muscle is hindered causing leakage into the
            surrounding tissues. It is the leakage of blood, known as a hemorrhage
            from these vessels[] that causes a variety of symptoms known to be
            associated with th[e] vascular abnormality.
      Because Harris could no longer take care of herself, she stayed with her

parents. The medications that she had been prescribed caused Harris to become sick

and “almost die[].” According to Harris, she developed red spots all over her body,

severe weakness which made it impossible for her to walk, depression, anxiety,

weight loss, loss of hair, and mental disorders. She also fell and tore ligaments in

her knee. During this time, Harris went “back and forth” to North Cypress Medical,

but she did not have “radiosurgery or open surgery.”9

      On November 2, 2010, Harris returned to North Cypress Medical with severe

chest pains, and testing revealed that she had an enlarged heart because of the

medications she had been taking. But the other North Cypress Medical doctor who

had prescribed Harris the medications “refused to take her off [of] them,” and

Harris’s condition continued to deteriorate.

      On January 24, 2011, Harris saw Dr. Kareh, but he did not recommend surgery

or refer her to a specialist. Instead, Dr. Kareh told Harris to continue participating

in physical therapy and to schedule another appointment with him in six weeks.

According to Harris, she then got worse. She was “really psychotic” and saw several

neuropsychologists who diagnosed her with schizophrenia and bipolar disorder.




9
      Harris alleges that “Dr. Behar” was to perform “radiosurgery or open surgery” eight
      weeks after her admission to North Cypress Medical on September 26, 2010. It is
      unclear from the record who “Dr. Behar” is.
      On May 18, 2011, another doctor performed surgery on Harris to remove her

cavernous angioma. But despite having surgery, Harris continued to “suffer brain

damage[] and other debilitating physical maladies directly related to the cavernous

angioma and its adverse effect[s] on [her] brain which existed from August 21[,]

2009 until its removal [on] May 18[,] 2011.” The doctor who performed Harris’s

surgery referred her to other neuropsychologists, who diagnosed her with a “[s]evere

mental disorder.” According to Harris, she cannot function without her prescribed

psychotic medications.

      On October 6, 2015, Harris had right knee surgery to correct her torn meniscus

which had occurred after she tore ligaments in her left knee in 2010. Harris alleged

that she still needs surgery on her left knee but doctors have told her “to try not to

have another surgery because she might not wake up because the left side of her

brain is going slow.” Harris has also been diagnosed with “a left bundle block in

her heart,” and she suffered a second stroke in November 2016.

      Harris further alleged that because the cavernous angioma was not surgically

removed until May 18, 2011, she suffered brain damage and adverse effects.

Although a cavernous angioma “[c]an bleed and the blood can dissolve,” in her case,

the cavernous angioma bled again. And doctors should have seen the additional

bleeding and treated it immediately or referred her to a specialist. Because Harris

did not receive surgery immediately and the treatments provided by doctors were
completely unnecessary and dangerous, Harris suffered irreparable harm, underwent

expensive, unnecessary, and harmful treatment, and was permanently damaged.

      Harris brought health care liability claims against Dr. Kareh for negligence,

and North Cypress Medical, based on a theory of vicarious liability, alleging that Dr.

Kareh, who Harris alleged was an employee of North Cypress Medical, had:

         • failed to choose an appropriate procedure to treat Harris’s condition;

         • failed to “not consent [to] another specialist or refer [Harris to] one”;

         • failed to properly diagnose Harris’s condition;

         • failed to treat Harris’s condition; and

         • failed to obtain Harris’s consent for treatment after informing her of the
           risks associated with that treatment.

And as a result of those acts or omissions by Dr. Kareh, Harris was injured.

      Dr. Kareh and North Cypress Medical both answered, generally denying

Harris’s allegations and asserting various defenses, including the affirmative defense

of statute of limitations. The trial court then signed an Order of Referral for

Mediation.

      On November 2, 2017, Harris filed and served on Dr. Kareh and North

Cypress Medical a medical expert report dated September 6, 2017 and authored by

Beatrice C. Engstrand, M.D., F.A.A.N., F.A.C.G.S. (the “September 6 report”).
       On November 22, 2017, North Cypress Medical objected to the September 6

report, asserting that the report was “entirely silent on the subject of standard of care,

breach, and causation as it relates to the conduct of North Cypress

Medical . . . and/or its employees and representatives.” For instance, the report did

not “identify any particular nurse (or any other [North Cypress Medical] employee)

whose conduct [was] called into question,” “[i]dentify or describe any specific shift

or period of time during [Harris’s] admission when the conduct of any [North

Cypress Medical] employee or representative allegedly provided negligent care,”

“[i]dentify [the] applicable standards of care for [North Cypress Medical]

employees/representatives,” “[i]dentify any conduct (action or inaction) [that Harris]

believe[d] constitute[d] negligence,” or “[i]dentify how any negligence, about which

the report [was] silent, proximately caused any injury to” Harris. North Cypress

Medical requested that the trial court dismiss with prejudice Harris’s health care

liability claim against it.

       In response to North Cypress Medical’s objection, Harris asserted that,

although North Cypress Medical argued that the September 6 report was “silent on

the subject of . . . standard of care, breach[,] and causation . . . relate[d] to the

conduct of” North Cypress Medical and its employees and representatives, she

“specifically named North Cypress [Medical] in her original petition” and the

hospital was vicariously liable for the negligence of Dr. Kareh because Harris
believed that Dr. Kareh was either employed by North Cypress Medical or the

hospital “exerted sufficient control over [his] work.” Thus, Harris requested that

North Cypress Medical’s objection be overruled and its motion to dismiss be denied.

      After a hearing, the trial court sustained North Cypress Medical’s objection to

the September 6 report and dismissed with prejudice Harris’s health care liability

claim against it.10

      Later, Dr. Kareh moved for summary judgment on Harris’s health care

liability claim against him, arguing that he was entitled to judgment as a matter of

law because her claim was barred by the applicable statute of limitations.11 Dr.

Kareh asserted that Harris’s claim against him was governed by a two-year statute

of limitations and the limitations period began to run on the date the alleged breach

occurred, if that date was ascertainable, or on the date on which the medical or health

care that was the subject of the claim was completed. Here, Dr. Kareh last saw or

treated Harris on January 24, 2011, and Harris did not file suit against Dr. Kareh

until April 7, 2017. Dr. Kareh attached many exhibits to his summary-judgment

motion, including his declaration in which he stated: “The first time I saw [Harris]




10
      Dr. Kareh also filed an objection to the September 6 report, on which the trial court
      never ruled.
11
      See TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a).
was [on] September 28, 2010 as a neurosurgery consult. The last time I provided

any care or treatment to . . . Harris was on January 24, 2011.”

      In response to the summary-judgment motion, Harris argued that the two-year

statute of limitations did not bar her health care liability claim against Dr. Kareh,

even though she had filed her suit “beyond the expiration of the limitations period,”

because she was “continuously incapacitated, for purposes of her claim against Dr.

Kareh, from 2011 to the present, and certainly during the time-period from 2011

until the time suit was filed[] on April 7, 2017.” And when a plaintiff continuously

remains in an incapacitated state, either physically or mentally, applying the statute

of limitations to bar her claim violates the open courts provision of the Texas

Constitution.12 Harris attached exhibits to her response.

      In reply to Harris’s response, Dr. Kareh objected to the summary-judgment

evidence that Harris attached to her response and asserted that health care liability

claims are subject to a two-year statute of limitations, the statute of limitations

applied to “all persons regardless of minority or other legal disability,” and the

statute of limitations was not tolled “due to unsound mind or mental incompetence.”

(Emphasis omitted.) And Harris presented no evidence to controvert Dr. Kareh’s

declaration that he last saw or treated her on January 24, 2011, almost six years

before she filed suit.

12
      See TEX. CONST. art. I § 13.
      The trial court granted Dr. Kareh summary judgment and dismissed Harris’s

health care liability claim against him based on the statute of limitations.

      Harris then moved for a new trial, arguing that the trial court “should grant a

new trial in order to prevent or correct injustice” because she now had an

authenticated copy of the Social Security Administration documents that she had

attached to her response to Dr. Kareh’s summary-judgment motion and the trial court

should not have “relied on” Dr. Kareh’s objections to her summary-judgment

evidence because her evidence constituted competent summary-judgment evidence.

Harris also reasserted her argument that the two-year statute of limitations did not

bar her health care liability claim against Dr. Kareh.

      The trial court denied Harris’s motion.

                                Summary Judgment

      In her third issue, Harris argues that the trial court erred in granting Dr. Kareh

summary judgment on limitations grounds because Harris’s “last date of

hospitalization was November 2016,” the open courts exception to the statute of

limitations applied to Harris, Texas Civil Practice and Remedies Code section

74.251(a) was unconstitutional as applied to Harris, the statute of repose excepted

Harris from the applicable statute of limitations, and the trial court erroneously

excluded Harris’s summary-judgment evidence.
      We review a trial court’s summary-judgment decision de novo. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a

summary-judgment motion, a movant has the burden of proving that he is entitled to

judgment as a matter of law and there is no genuine issue of material fact. TEX. R.

CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). When a

defendant moves for summary judgment on an affirmative defense, he must plead

and conclusively establish each essential element of his defense and defeat the

plaintiff’s cause of action. Cathey, 900 S.W.2d at 341; Yazdchi v. Bank One, Tex.,

N.A., 177 S.W.3d 399, 404 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

Once the movant meets his burden, the burden shifts to the non-movant to raise a

genuine issue of material fact precluding summary judgment. Centeq Realty, Inc. v.

Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Transcon. Ins. Co. v. Briggs Equip. Trust,

321 S.W.3d 685, 691 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The

evidence raises a genuine issue of fact if reasonable and fair-minded fact finders

could differ in their conclusions because of the summary-judgment evidence.

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). When

deciding whether there is a disputed, material fact issue precluding summary

judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr.

Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). Every reasonable inference
must be indulged in favor of the non-movant and any doubts must be resolved in her

favor. Id. at 549.

      It is an affirmative defense that a statute of limitations bars a claim. TEX. R.

CIV. P. 94. Thus, Dr. Kareh bore the burden of establishing as a matter of law that

Harris’s health care liability claim against him was time-barred. See KPMG Peat

Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). That

said, if Dr. Kareh established that the statute of limitations barred Harris’s claim,

Harris was then required to adduce summary-judgment proof raising a fact issue in

avoidance of the statute of limitations. Id.; see also Walters v. Cleveland Reg’l Med.

Ctr., 307 S.W.3d 292, 295 (Tex. 2010) (“In the summary judgment context, the

burden is on the plaintiff asserting an [o]pen [c]ourts exception to the statute of

limitations to raise a fact issue demonstrating that she did not have a reasonable

opportunity to discover the alleged wrong and bring suit before the limitations period

expired.”).

A.    Statute of Limitations

      Health care liability claims are subject to a two-year statute of limitations

period, beginning from either (1) the occurrence of the breach or tort, (2) the last

date of the relevant course of treatment, or (3) the last date of the relevant

hospitalization. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a); Mitchell v.

Methodist Hosp., 376 S.W.3d 833, 835 (Tex. App.—Houston [1st Dist.] 2012, pet.
denied). The two-year statute of limitations is absolute, and the “discovery rule”

does not apply to health care liability claims. Walters, 307 S.W.3d at 298 n.28;

Thomas v. Jayakumar, No. 01-14-00984-CV, 2016 WL 640629, at *3 (Tex. App.—

Houston [1st Dist.] Feb. 11, 2016, no pet.) (mem. op.). If the date the alleged breach

or tort occurred is ascertainable, limitations must begin on that date, and further

inquiry into the second and third categories of dates is unnecessary. Shah v. Moss,

67 S.W.3d 836, 841 (Tex. 2001); Husain v. Khatib, 964 S.W.2d 918, 919 (Tex.

1998); Weathers v. Lopez, No. 01-11-00827-CV, 2013 WL 123679, at *2 (Tex.

App.—Houston [1st.Dist.] Jan. 10, 2013, pet. denied) (mem. op.). A plaintiff cannot

choose the date most favorable to her case. Shah, 67 S.W.3d at 841; Weathers, 2013

WL 123679, at *2.

      In her petition, Harris alleged that on August 21, 2009, she was injured in a

car accident. Later, on September 26, 2010, she suffered a stroke and was taken to

North Cypress Medical where Dr. Kareh and another doctor treated her. The doctors

performed an MRI, which revealed blood on Harris’s brain. Dr. Kareh and the other

North Cypress Medical doctor diagnosed Harris with a cavernous angioma, and Dr.

Kareh planned to perform “radiosurgery or neurosurgery.” Harris was then “placed

on medication[] that [produced] her severe side effects,” and she remained at the

hospital for two weeks. Later, she was discharged and instructed to keep taking the

medications prescribed by the other North Cypress Medical doctor. On January 24,
2011, Harris saw Dr. Kareh, but he did not recommend surgery or refer her to a

specialist. Instead, Dr. Kareh told Harris to continue participating in physical

therapy and to schedule another appointment with him in six weeks. According to

Harris, she then got worse. Thus, Harris alleged that Dr. Kareh negligently failed to

choose an appropriate procedure to treat Harris’s condition, failed to refer Harris to

a specialist, failed to properly diagnose Harris’s condition, failed to treat Harris’s

condition, and failed to obtain Harris’s consent for treatment after informing her of

the risks associated with that treatment.

      Dr. Kareh, in his declaration, which he attached to his summary-judgment

motion, stated that he first saw Harris on September 28, 2010 for a neurosurgery

consult and the last time that he provided her with “any care or treatment” was on

January 24, 2011.

      Here, the date the alleged breach or tort occurred is ascertainable. See Shah,

67 S.W.3d at 841; Husain, 964 S.W.2d at 919. Dr. Kareh’s alleged negligence in

failing to properly diagnose, treat, advise, and inform Harris about her condition and

treatment could have only occurred on the days that Dr. Kareh saw or examined

Harris, with the last time being on January 24, 2011. See Shah, 67 S.W.3d at 844–

45 (health care provider’s failure to provide follow-up treatment could have occurred

only on check-up visits when provider had opportunity to order follow-up treatment

and did not); Husain, 964 S.W.2d at 919–20 (health care provider’s failure to take
action to diagnose and treat cancer could have occurred only during office visits with

patient); Bala v. Maxwell, 909 S.W.2d 889, 892 (Tex. 1995) (health care provider

could have only breached duty to perform tests on patient on dates when he

examined patient); Rowntree v. Hunsucker, 833 S.W.2d 103, 108 (Tex. 1992) (health

care provider could have only failed to properly diagnose patient on those occasions

when he had chance to conduct examinations); Estate of Klovenski v. Kapoor, No.

14-13-00850-CV, 2015 WL 732651, at *5 (Tex. App.—Houston [14th Dist.] Feb.

19, 2015, no pet.) (mem. op.) (concluding dates of health care provider’s breaches

ascertainable because alleged negligence for failure to diagnose, treat, and advise

patient about her condition could have only occurred on dates where provider

examined patient). Harris has not disputed that January 24, 2011 is the last time that

she saw or was examined by Dr. Kareh; and, in fact, portions of the evidence that

she attached to her summary-judgment response also reflect that Dr. Kareh only saw

Harris on September 28, 2010 and January 24, 2011. See Boyd v. Kallam, 152

S.W.3d 670, 676 (Tex. App.—Fort Worth 2004), pet. denied, improvidently granted,

232 S.W.3d 774 (Tex. 2007) (“If a movant does establish that the statute of

limitations bars the action, the nonmovant must then adduce summary judgment

proof raising a fact issue in avoidance of the statute of limitations.”).

      Because the January 24, 2011 date is ascertainable, the statute of limitations

period for Harris’s health care liability claim began to run on that date. See Shah,
67 S.W.3d at 841; Husain, 964 S.W.2d at 919; see also Weathers, 2013 WL 123679,

at *2 (“If the date the health care provider’s alleged negligence took place can be

ascertained, then there are no doubts to resolve, and we must measure limitations

from that date.”). Thus, Harris had to file suit against Dr. Kareh by January 24,

2013. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a). Instead, Harris filed

suit against Dr. Kareh on April 7, 2017, more than four years after the statute of

limitations period had expired.13

      Harris argues for the first time on appeal14 that the statute of limitations period

should run from her November 2016 hospitalization following her second stroke

because the second stroke was caused by Dr. Kareh’s decision not to surgically

remove the cavernous angioma.            See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.251(a); Mitchell, 376 S.W.3d at 835 (health care liability claims subject to

two-year statute of limitations period, beginning from either (1) occurrence of breach

or tort, (2) last date of relevant course of treatment, or (3) last date of relevant

hospitalization). But because the date on which the alleged breach or tort occurred

is ascertainable in this case, we need not consider the last date of any purportedly


13
      Harris has not asserted that the statute of limitations was tolled at any point by Texas
      Civil Practice and Remedies Code section 74.051. See TEX. CIV. PRAC. & REM.
      CODE ANN. § 74.051(c); Durham v. Children’s Med. Ctr. of Dall., 488 S.W.3d 485,
      490 (Tex. App.—Dallas 2016, pet. denied) (“[A]ccording to [section] 74.051(c), the
      [section] 74.251(a) limitations period is tolled for 75 days if the claimant gives
      notice of his or her claim as Chapter 74 requires.”).
14
      See TEX. R. APP. P. 33.1(a).
relevant hospitalization. See Shah, 67 S.W.3d at 841; Husain, 964 S.W.2d at 919;

Weathers, 2013 WL 123679, at *2. As noted, a plaintiff cannot choose the date that

is the most favorable to her case. Shah, 67 S.W.3d at 841; Weathers, 2013 WL

123679, at *2.

B.    Open Courts Provision

      Harris argues that open courts exception applies here to prevent the two-year

statute of limitations from barring her claim against Dr. Kareh because she “only

learned that . . . Dr. Kareh had treated her upon obtaining medical records in 2017.”

      The Texas Constitution guarantees that persons bringing common-law claims

will not unreasonably or arbitrarily be denied access to the courts. TEX. CONST. art.

I § 13 (“All courts shall be open, and every person for an injury done him, in his

lands, goods, person or reputation, shall have remedy by due course of law.”); see

also Thomas, 2016 WL 640629, at *3. The open courts provision, however, does

not toll limitations. See Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 703 (Tex.

2014). Rather, unlike a tolling provision, which defers the accrual of a cause of

action until the plaintiff knew or, exercising reasonable diligence, should have

known of the facts giving rise to her claim, the open courts provision merely gives a

litigant a reasonable time to discover her injuries and file suit. Rivera, 445 S.W.3d

at 703, Walters, 307 S.W.3d at 295.
      To pursue an open courts challenge in a health care liability case, the plaintiff

must present a common-law claim that is restricted by the statute and show that the

restriction is unreasonable or arbitrary when balanced against the statute’s purpose

and basis. See Yancy v. United Surgical Partners Int’l, Inc., 236 SW.3d 778, 783

(Tex. 2007); Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996); O’Reilly v.

Wiseman, 107 S.W.3d 699, 707 (Tex. App.—Austin 2003, pet. denied). The central

question is whether it was impossible or exceedingly difficult for the plaintiff to

discover the alleged wrong and sue within the two-year statute of limitations period.

See Shah, 67 S.W.3d at 846–47; O’Reilly, 107 S.W.3d at 702. It is the plaintiff’s

burden to show that the nature of her claim made it impossible or exceedingly

difficult to discover the alleged wrong and bring suit within the two-year period. See

Walters, 307 S.W.3d at 296–97; Gale v. Lucio, 445 S.W.3d 849, 855 (Tex. App.—

Houston [1st Dist.] 2014, pet. denied). There can be no violation of the open courts

provision if the plaintiff had a reasonable chance to discover the alleged wrong and

bring suit before the limitations period expired. Shah, 67 S.W.3d at 841–42, 846–

47; Thomas, 2016 WL 640629, at *3; O’Reilly, 107 S.W.3d at 707; see also

Borderlon v. Peck, 661 S.W.2d 907, 909 (Tex. 1983) (holding 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”). Still

yet, even if a plaintiff establishes the above, she must show that she used due
diligence and sued within a reasonable time after learning about the alleged wrong.

See Shah, 67 S.W.3d at 847; O’Reilly, 107 S.W.3d at 707–08.             Courts must

determine what constitutes a reasonable time for a plaintiff to discover the alleged

wrong and file suit. See Yancy, 236 SW.3d at 784.

      In her summary-judgment response, Harris asserted that she was

“continuously incapacitated, for purposes of her claim against Dr. Kareh, from 2011

to the present, and certainly during the time-period from 2011 until the time suit was

filed[] on April 7, 2017.” And that she personally had no memory of Dr. Kareh

consulting with her. Thus, she asserted that the open courts provision of the Texas

Constitution should preclude applying the two-year statute of limitations to her claim

against Dr. Kareh. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a).

      To support her claim of incapacitation, Harris stated that the Social Security

Administration had declared her disabled, she had received “mental health services

treatment at the Kinghaven Counseling Group,” and her family had evidence of her

“continuing incapacity.”     Harris attached to her summary-judgment response

documents from the Social Security Administration finding that Harris had been

disabled since August 24, 2009 for the purpose of supplemental security income

payments; records from Kinghaven Counseling Group, where Harris had been

actively participating in counseling for several years before filing suit against Dr.
Kareh; a report prepared by Dr. Engstrand dated April 12, 2017; and a declaration

by her adult daughter.15

      First, we note that while there may be evidence of a diminished capacity16 in

the record, Harris has not offered specific evidence of a lack of mental capacity to

pursue litigation, participate in litigation, or control or understand the litigation

process for any discernible period. See Yancy, 236 S.W.3d at 782–83 (plaintiff had

burden to present evidence of continuous mental incapacity; in Yancy, patient, with

guardian, in comatose condition considered incapacitated); see also Huston v. United

Parcel Serv., Inc., 434 S.W.3d 630, 636 (Tex. App.—Houston [1st Dist.] 2014, pet.

denied) (appellant bears burden to bring forward on appeal sufficient record to show

error committed by trial court). Nor is there evidence in the record that Harris has a

guardian or that appellant has been adjudicated incapacitated. See Yancy, 236


15
      Although Dr. Kareh objected to the summary-judgment evidence that Harris
      attached to her response, the record does not indicate that the trial court ever ruled
      on Dr. Kareh’s objections. See Marshall v. Sackett, 907 S.W.2d 925, 931 n.6 (Tex.
      App.—Houston [1st Dist.] 1995, no writ) (considering on appeal exhibits attached
      to summary-judgment motion because party did not obtain ruling from trial court
      on objection to exhibits); see also Pegasus Transp. Grp., Inc. v. CSX Transp., Inc.,
      No. 05-12-00465-CV, 2013 WL 4130899, at *2 n.2 (Tex. App.—Dallas Aug. 14,
      2013, no pet.) (mem. op.). Indeed, a trial court can grant summary judgment,
      without considering objections, if it finds that the evidence did not generate a
      genuine issue of material fact. Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166
      (Tex. 2018). Here, we need not address the propriety of Dr. Kareh’s objections
      because the trial court did not need to sustain the objections in order to grant
      summary judgment in favor of Dr. Kareh. See id.; see also infra.
16
      In her appellant’s brief in this Court, Harris describes herself as having a
      “diminished” capacity rather than a complete lack of capacity.
S.W.3d at 780, 782–83; see generally TEX. EST. CODE ANN. §§ 1002.012 (defining

“[g]uardian” (internal quotations omitted)), 1002.015 (defining “guardianship

proceeding” (internal quotations omitted)), 1002.017 (defining “[i]ncapacitated

person”    (internal   quotations    omitted)),   1101.001–1106.006        (creation    of

guardianship).

      Instead, the record reflects that Harris had previously filed suit against

different health care providers stemming from the injuries that she received in the

August 2009 car accident.17          See Harris v. Hous. Methodist Hosp., No.

01-17-00544-CV, 2018 WL 3233329, at *1 (Tex. App.—Houston [1st Dist.] July 3,

2018, pet. denied) (mem. op.). In that suit, Harris sued the other North Cypress

Medical doctor who had diagnosed Harris, along with Dr. Kareh, with cavernous

angioma, alleging that the other doctor failed to choose an appropriate procedure to

treat Harris’s condition, failed to consult a specialist, failed to properly diagnose

Harris’s condition, failed to treat Harris’s condition, and failed to obtain Harris’s

consent for treatment after informing her of the risks associated with that treatment.

See id. at *1–2. In her petition in that suit, Harris alleged that she had learned, after

her surgery in 2011, that she would still suffer irreparable harm because of the



17
      An appellate court may take judicial notice of its own records in the same or related
      proceedings involving the same or nearly the same parties. See Douglas v. Am. Title
      Co., 196 S.W.3d 876, 878 n.1 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We
      take judicial notice of the records filed in Harris.
cavernous angioma because “the treatment she [had] endured [prior to surgery] had

been completely unnecessary and dangerous.”         In response to the other North

Cypress Medical doctor’s motion for summary judgment based on limitations,

Harris did not assert that she was incapacitated in any way that would preclude the

two-year statute of limitations from applying to her health care liability claim. See

id. at *1–3 (noting summary-judgment granted in favor of other North Cypress

Medical doctor on limitations grounds). And after that suit, Harris began this suit

pro se in April 2017, without even the aid of an attorney. Thus, we conclude that

Harris has failed to raise a genuine issue of material fact related to her incapacity.

And Harris has not met her burden to show that the nature of her claim made it

impossible or exceedingly difficult for her to discover the alleged wrong and bring

suit within the two-year statute of limitations period. See Walters, 307 S.W.3d at

296–97; Gale, 445 S.W.3d at 855; cf. Tinkle v. Henderson, 730 S.W.2d 163, 164–

67 (Tex. App.—Tyler 1987, writ ref’d) (disputed fact issues existed over whether

plaintiff was mentally incapacitated, thus summary judgment improper based on

limitation provision in Texas Insurance Code).

      Still, even were we to presume that Harris had established a lack of capacity,

our open-courts analysis does not end because an individual acting on behalf of a

legally incompetent person, such as a next friend,18 a guardian, or an attorney, must

18
      See TEX. R. CIV. P. 44.
show that there was not a reasonable chance to discover the alleged wrong within

the limitations period and that the individual used due diligence to sue within a

reasonable time; otherwise, the incapacitated person’s open courts challenge is

barred. See Rivera, 445 S.W.3d at 704–06.

      The summary-judgment evidence reveals that on August 21, 2009, Harris was

injured in a car accident. On September 26, 2010, Harris suffered a stroke and was

taken to North Cypress Medical where Dr. Kareh and another doctor treated her. Dr.

Kareh first examined Harris on September 28, 2010. Testing performed at North

Cypress Medical revealed a hematoma on the brain, and Harris stayed in the hospital

for two weeks. Harris was diagnosed with a cavernous angioma, and Dr. Kareh

planned to do either “radiosurgery or open surgery.”       Harris was placed on

medication by the other North Cypress Medical doctor and was told that surgery

would be performed in eight weeks. But after eight weeks, surgery was not

performed. Harris continued to go back and forth to North Cypress Medical because

of problems with her medication and its adverse effects.

      In November 2010, Harris returned to North Cypress Medical with chest pain,

and a chest examination revealed an enlarged heart with some “mild pulmonary

vascular congestion.” Harris was discharged from the hospital “with the same plan

to do radiosurgery and to continue on the medic[ations]” that she had been

prescribed. Harris’s condition continued to deteriorate. On December 28, 2010, a
magnetic resonance angiogram was performed and revealed “major segments [were]

present.” On January 24, 2011, Harris saw Dr. Kareh, who recommended that she

keep participating in physical therapy and return in six weeks. Surgery was not

performed by Dr. Kareh. This was the last time that Harris saw Dr. Kareh.

      Later, “[a]round the end of January 2011, [Harris’s] family got a call late one

night from a Dr. Weir,” who stated that “what they were doing at North Cypress

[Medical] was wrong.” Weir told the family that “they need[ed] to take . . . Harris

off [her] med[ications]” and he referred Harris to Dr. Peter Shedden, a neurosurgeon.

Dr. Weir stated that “the right treatment [for Harris’s condition] was surgery and she

should have had it long ago.” Harris’s family took Harris off her medications and

many of the adverse effects went away.

      In March 2011, Harris saw Dr. Shedden, who performed an MRI. Dr.

Shedden “saw blood” and informed Harris that “surgery was the only option.” On

May 18, 2011, Harris “underwent a craniotomy for excision of cavernous angioma.”

Even so, right after surgery, Dr. Shedden “s[aw] some mental disorder,” and Harris

was “still having psychotic episodes right after surgery.” Thus, following surgery,

Harris saw additional doctors who diagnosed her with “mental disorders” and

psychosis. She began attending a counseling group in 2012, where she saw a

psychiatrist and a counselor to treat her mental disorders.       Records from the

Kinghaven Counseling Group include Harris’s “mental status examination”
completed in June 2012. In December 2012, Harris was “approved for mental

illness . . . by [a] disability judge.”

       Here, despite being informed, in early 2011, that the treatment—the

non-surgical treatment and medications that Harris had been receiving from

September 2010 to January 2011—was “wrong,” that Harris needed to be taken off

her medications, that surgery was the “right treatment” for Harris’s condition, and

that Harris “should have had it long ago,” and despite having surgery on May 18,

2011 to treat her cavernous angioma—all of which occurred more than a year and a

half before the statute of limitations period ran on Harris’s health care liability claim

against Dr. Kareh—Harris did not sue Dr. Kareh until April 7, 2017, almost six years

after her surgery. Also, the allegedly negligent acts committed by Dr. Kareh—the

failure to choose an appropriate procedure to treat Harris’s condition, the failure to

refer Harris to a specialist, the failure to properly diagnose Harris’s condition, the

failure to treat Harris’s condition, and the failure to properly inform Harris of the

risks associated with the treatment provided by Dr. Kareh—occurred between

September 2010 and January 2011 and were thus known to Harris and her family in

2011. Moreover, the ultimate realization that the surgery performed by Dr. Shedden

did not resolve the adverse effects of Harris’s brain injury occurred in 2011 as well,

right after Dr. Shedden performed surgery. And the statute of limitations for Harris’s
health care liability claim against Dr. Kareh did not run until January 24, 2013—

over a year and a half later.

      As noted above, there can be no open courts violation if a plaintiff had a

reasonable chance to discover the alleged wrong and bring suit before the limitations

period expired. See Shah, 67 S.W.3d at 841–42, 846–47; Thomas, 2016 WL 640629,

at *3; O’Reilly, 107 S.W.3d at 707. And Harris has cited no authority, nor have we

found any, to support a conclusion that when a party discovers or has a reasonable

chance to discover the alleged wrongful act within the limitations period, that party

may bring a health care liability claim outside the limitations period by relying on

the open courts provision of the Texas Constitution. See Santos v. Holzman, No.

13-13-00273-CV, 2015 WL 3485418, at *5 (Tex. App.—Corpus Christi–Edinburg

May 28, 2015, pet. denied) (mem. op.); cf. Ericson v. Roberts, 910 S.W.2d 608, 613

(Tex. App.—Tyler 1995, no writ) (“To have a valid argument that [section 74.251]

was unconstitutional, the [plaintiffs] would have had to allege that they were not able

to discover [the] injuries within two years from the date of the operation. Thus, the

[plaintiffs’] challenge to the constitutionality of the statute is without merit.”).

      Although Harris asserts that the “record evidence [shows] that Harris

immediately filed suit against . . . Dr. Kareh when she discovered medical records

evidencing her visits [with him],” this assertion does not focus on when Harris or
her family learned of the alleged wrong.19 See Shah, 67 S.W.3d at 841–42, 846–47;

Thomas, 2016 WL 640629, at *3; O’Reilly, 107 S.W.3d at 707. Harris’s own

summary-judgment evidence reveals that “[a]round the end of January 2011,

[Harris’s] family got a call late one night from a Dr. Weir,” who stated that “what

they were doing at North Cypress [Medical] was wrong.” Dr. Weir also told the

family that “they need[ed] to take . . . Harris off [her] med[ications],” and he referred

Harris to Dr. Shedden, a neurosurgeon. Dr. Weir stated that “the right treatment [for

Harris’s condition] was surgery and she should have had it long ago.” Harris’s

family then took Harris off her medications and many of the adverse effects went

away. Later, in March 2011, Harris was informed by Dr. Shedden that “surgery was

the only option.” On May 18, 2011, Harris “underwent a craniotomy for excision of

cavernous angioma.” Thus, contrary to Harris’s assertion, the evidence shows that

in 2011, Harris and her family discovered or had a reasonable chance to discover the

alleged wrongful acts committed by Dr. Kareh and could have filed suit within the

limitations period. See Borderlon, 661 S.W.2d at 909 (holding 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”).



19
      We note that the declaration from Harris’s adult daughter does not state when she
      “became aware that [Harris] saw Dr. . . . Kareh,” it only states that she learned that
      Harris “had seen Dr. . . . Kareh at North Cypress [Medical] when hospital
      records . . . were obtained.”
      Additionally, as explained, a plaintiff may not obtain relief under the open

courts provision if she (or an individual acting on her behalf) did not use due

diligence and sue within a reasonable time after learning about the alleged wrong.

Shah, 67 S.W.3d at 847. Here, Harris waited to bring suit until around six years after

she and her family learned about the purported negligence by Dr. Kareh. Delays of

four months, seventeen months, and twenty-two months have been held to constitute

a lack of due diligence, as a matter of law, so that an open courts challenge must fail

on summary judgment. See Rivera, 445 S.W.3d at 704–06 (no due diligence when

plaintiff waited over six and half years to file suit); Turner v. Christus St. Michael

Health Sys., No. 06-15-00068-CV, 2016 WL 1719261, at *4 (Tex. App.—Texarkana

Apr. 28, 2016, no pet.) (mem. op.) (delay of five months after discovering of problem

with treatment by hospital precluded open courts challenge as matter of law); see

also Yancy, 236 SW.3d at 784 (courts must determine what constitutes reasonable

time for plaintiff to discover alleged wrong and file suit).

      Because Harris has failed to show that she did not have a reasonable chance

to discover the alleged wrong and sue before the limitations period expired or that

she used due diligence and sued within a reasonable time after learning about the

alleged wrong, we hold that the Harris’s open courts challenge necessarily fails.
C.    Constitutionality of Statute of Limitations

      Harris further argues that Texas Civil Practice and Remedies Code section

74.251(a) is unconstitutional as applied to her because she is an “incompetent

plaintiff.” See TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a) (health care liability

claims subject to two-year statute of limitations).

      To preserve a complaint for appellate review, the record must show that the

complaint was made to the trial court by a timely request, objection, or motion and

the trial court either ruled on the party’s request, objection, or motion, or refused to

rule, and the party objected to that refusal. TEX. R. APP. P. 33.1(a). If a party fails

to do this, error is not preserved and the complaint is waived. Bushell v. Dean, 803

S.W.2d 711, 712 (Tex. 1991); see also Humble Surgical Hosp., LLC v. Davis, 542

S.W.3d 12, 21 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (“Rule 33.1

requires the appealing party to adequately raise issues before the trial court to give

the trial court notice of [the party’s] complaint.”). This is the case even for

constitutional challenges. See Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993);

Taylor v. Corr. Med. Servs., Inc., No. 01-11-00836-CV, 2013 WL 2246052, at *3

(Tex. App.—Houston [1st Dist.] May 21, 2013, no pet.) (mem. op.) (plaintiff did not

preserve complaint that Texas Civil Practice and Remedies Code section 74.351 was

unconstitutional, where he did not “present to the trial court any arguments based on

the constitutionality of” statute).
      Harris did not raise her constitutional complaint in the trial court. See TEX. R.

APP. P. 33.1(a). We thus hold that she has not preserved for appeal her argument

that Texas Civil Practice and Remedies Code section 74.251(a) is unconstitutional

as applied to her. See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex.

2002); Tex. Dep’t of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861

(Tex. 2001) (“[A]s a rule, a claim, including a constitutional claim, must have been

asserted in the trial court in order to be raised on appeal.” (internal quotations

omitted)).

D.    Statute of Repose

      Harris also asserts that the statute of repose in Texas Civil Practice and

Remedies Code section 74.251(b) excepts her from the applicable statute of

limitations and that she brought her health care liability claim against Dr. Kareh

within the “ten-year repose period.” See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.251(b)

      Texas Civil Practice and Remedies Code section 74.251(b) is a statute of

repose which provides that a health care liability claim must be brought “not later

than [ten] years after the date of the act or omission that gives rise to the claim.” Id.;

see also Edwards v. Phillips, No. 04-13-00725-CV, 2015 WL 1938873, at *7 (Tex.

App.—San Antonio Apr. 29, 2015, no pet.) (mem. op.). The statute of repose fixes

an outer limit beyond which no health care liability claim can be maintained. See
Methodist Healthcare Sys. of San Antonio, Ltd., L.L.P. v. Rankin, 307 S.W.3d 283,

286–87 (Tex. 2010). A statute of repose does not extend an applicable statute of

limitations period. See Styers v. Harris Cty., 838 S.W.2d 955, 956 (Tex. App.—

Houston [14th Dist.] 1992, writ ref’d).

      Here, Harris did not present her statute-of-repose argument to the trial court.

See TEX. R. APP. P. 33.1(a); see also Davis, 542 S.W.3d at 21 (“Rule 33.1 requires

the appealing party to adequately raise issues before the trial court to give the trial

court notice of [the party’s] complaint.”). We thus hold that she has not preserved

for appeal her argument that the statute of repose in Texas Civil Practice and

Remedies Code section 74.251(b) excepts her from the applicable statute of

limitations. See Bushell, 803 S.W.2d at 712.

      We also note that section 74.251(b)’s “ten-year repose period has no purpose

unless” an exception to the two-year statute of limitations period applies. Walters,

307 S.W.3d at 298. And we have already concluded that the open courts exception

to the two-year statute of limitations period does not apply here. Nor has Harris

raised any other purported “exception” to the statute of limitations. See id.; see also

Molinet v. Kimbrell, 356 S.W.3d 407, 416 (Tex. 2011) (noting Texas Supreme Court

has recognized fraudulent concealment and open courts exceptions to two-year

statute of limitations). Thus, even if Harris had preserved her statute-of-repose
argument, the statute of repose in Texas Civil Practice and Remedies Code section

74.251(b) would not apply to this case. See Walters, 307 S.W.3d at 298.

E.     Harris’s Summary-Judgment Evidence

       Harris further asserts that “[i]t is not clear” whether the trial court granted Dr.

Kareh’s objections to her summary-judgment evidence, but if the trial court failed

to consider her evidence when ruling on Dr. Kareh’s summary-judgment motion, the

trial court erred.

       We review a trial court’s ruling on the admission or exclusion of

summary-judgment evidence for an abuse of discretion. Holland v. Mem’l Hermann

Health Sys., 570 S.W.3d 887, 893–94 (Tex. App.—Houston [1st Dist.] 2018, no

pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable

manner without reference to any guiding rules or principles. Bowie Mem’l Hos. v.

Wright, 79 S.W.3d 48, 52 (Tex. 2002). When reviewing matters committed to the

trial court’s discretion, a court of appeals may not substitute its own judgment for

that of the trial court. Id.

       In the trial court, Harris attached to her summary-judgment response

documents from the Social Security Administration, records from Kinghaven

Counseling Group, a report prepared by Dr. Engstrand dated April 12, 2017, and a

declaration    by    her   adult   daughter.    Dr.   Kareh     objected    to   Harris’s

summary-judgment evidence on many grounds. For instance, Dr. Kareh asserted
that the documents from the Social Security Administration were unauthenticated,

“not sworn or certified,” contained conclusory statements unsupported by the

referenced documents and exhibits, contained hearsay, and did not “address the

qualifications, if any, of the author [of the Social Security Administration

documents] . . . or the alleged experts that the author cite[d].” Dr. Kareh further

asserted that the records from the Kinghaven Counseling Group contained hearsay

and the report prepared by Dr. Engstrand “fail[ed] to meet Chapter 74’s threshold

expert requirements” and contained conclusory and contradictory opinions

unsupported by facts in the record. Moreover, Dr. Kareh asserted that the declaration

by Harris’s adult daughter contained hearsay and the daughter had “no qualifications

to opine [as to] whether or not [Harris] ha[d] suffered from mental incapacity since

2009.”

      The record does not contain any ruling by the trial court on Dr. Kareh’s

objections, and there is no support in the record for Harris’s assertion that the trial

court failed to consider her summary-judgment evidence when it rendered summary

judgment in favor of Dr. Kareh. See TEX. R. CIV. P. 166a(c) (summary judgment

will be rendered on evidence on file at time of hearing); Seim v. Allstate Tex. Lloyds,

551 S.W.3d 161, 166 (Tex. 2018) (trial court can grant summary judgment, without

considering objections, if it finds that evidence did not generate genuine issue of

material fact); Wuxi Taihu Tractor Co. v. York Grp., Inc., No. 01-13-00016-CV,
2014 WL 6792019, at *11 (Tex. App.—Houston [1st Dist.] Dec. 2, 2014, pet.

denied) (mem. op.) (“A trial court considers the pleadings and summary-judgment

evidence on file at the time of the hearing, or filed thereafter and before judgment

with permission of the court.” (internal quotations omitted)); see also Delfino v.

Perry Homes, 223 S.W.3d 32, 35 (Tex. App.—Houston [1st Dist.] 2006, no pet.)

(ruling on summary-judgment motion does not imply ruling on objections to

summary-judgment evidence).        Because the record does not support Harris’s

assertion that the trial court erroneously granted Dr. Kareh’s objections to her

summary-judgment evidence, we do not consider this argument as a ground for

reversal of the trial court’s summary-judgment decision. See Wakefield v. Ayers,

No. 01-14-00648-CV, 2016 WL 4536454, at *13 (Tex. App.—Houston [1st Dist.]

Aug. 30, 2016, no pet.) (mem. op.) (record contained no support for appellant’s

assertion that trial court refused to consider summary-judgment evidence when it

rendered summary judgment); see also Huston, 434 S.W.3d at 636 (appellant bears

burden to bring forward on appeal sufficient record to show error committee by trial

court); Thomas v. Univ. of Tex. Med. Branch at Galveston, Nos. 01-03-00471-CV,

01-03-00472-CV, 2004 WL 1516456, at *3 (Tex. App.—Houston [1st Dist.] July 8,

2004, no pet.) (mem. op.) (overruling challenge where record did not support

appellant’s factual assertions).
      In sum, Dr. Kareh met his burden of establishing, as a matter of law, that

Harris’s health care liability claim against him was barred by the statute of

limitations. And Harris failed to raise a fact issue in avoidance of the statute of

limitations. We thus hold that the trial court did not err in granting Dr. Kareh

summary judgment on limitations grounds.

      We overrule Harris’s third issue.

                    New Trial Following Summary Judgment

      In her fourth issue, Harris argues that the trial court erred in denying her

motion for new trial because her summary-judgment evidence constituted “proper

summary[-]judgment evidence,” she attached “authenticated [Social Security

Administration] documents evidencing her disability” to her motion, and the

purported violation of the open courts provision in the Texas Constitution justified

a new trial for Harris.

      We review the trial court’s denial of a motion for new trial for an abuse of

discretion. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009).

In other words, the court’s ruling on the motion will not be disturbed on appeal

absent a showing of an abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d 37,

38 (Tex. 1984). A trial court abuses its discretion if its decision is arbitrary,

unreasonable, and without reference to guiding rules and principles. See Goode v.

Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997).
      In her motion for new trial, Harris mainly argued that the trial court should

grant her a new trial because Dr. Kareh’s objections to her summary-judgment

evidence—the documents from the Social Security Administration, records from

Kinghaven Counseling Group, the report prepared by Dr. Engstrand dated April 12,

2017, and the declaration by Harris’s adult daughter—were misplaced, her evidence

constituted competent summary-judgment evidence, and the trial court should have

considered her evidence in making its summary-judgment decision. Harris attached

to her motion an “authenticated copy” of the Social Security Administration

documents.20

      As noted, the record does not contain any ruling by the trial court on Dr.

Kareh’s objections to Harris’s summary-judgment evidence, and nothing in the

record indicates that the trial court failed to consider Harris’s summary-judgment

evidence, including the unauthenticated version of the documents from the Social

Security Administration, when it rendered summary judgment for Dr. Kareh. See

TEX. R. CIV. P. 166a(c) (summary judgment will be rendered on evidence on file at

time of hearing); Seim, 551 S.W.3d at 166 (trial court can grant summary judgment,

without considering objections, if it finds that evidence did not generate a genuine

issue of material fact); Wuxi Taihu Tractor Co., 2014 WL 6792019, at *11; see also


20
      Harris had previously attached an unauthenticated copy of the same documents from
      the Social Security Administration to her response to Dr. Kareh’s motion for
      summary judgment.
Delfino, 223 S.W.3d at 35 (ruling on summary-judgment motion does not imply

ruling on objections to summary-judgment evidence). Because the record does not

show that the trial court did anything besides consider Harris’s summary-judgment

evidence, despite any objection by Dr. Kareh, in reaching its summary-judgment

decision, we hold that the trial court did not err in denying Harris’s motion for new

trial on such a basis. See Huston, 434 S.W.3d at 636 (appellant bears burden to bring

forward on appeal sufficient record to show error committee by trial court).

      Harris also asserted in her motion for new trial that the open courts provision

in the Texas Constitution prevented the two-year statute of limitations from barring

her claim against Dr. Kareh because she was incapacitated and “had no memory of

[him] . . . treating her until . . . years later.” Here, we have already concluded that

the open courts exception to the two-year statute of limitations does not apply. Thus,

we also hold that the trial court did not err in denying Harris’s motion for new trial

on such a basis.

      We overrule Harris’s fourth issue.

                                  Harmless Error

      In her second issue, Harris argues that the trial court erred in dismissing her

health care liability claim against North Cypress Medical because North Cypress

Medical “objected to the wrong expert report,” the September 6 report identified the

standard of care and how it was not met, and the September 6 report offered an
opinion on causation. (Emphasis omitted.) Harris further asserts that she should be

permitted to cure any deficiencies in the September 6 report.

      Generally, we review a trial court’s decision on a motion to dismiss a health

care liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of

Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA Bayshore

L.P., 189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). But even

if we were to presume error here, the erroneous ruling by the trial court would only

require reversal if a review of the record revealed that the error was harmful. See

Sw. Energy Prod. Co. v. Berry–Helfand, 491 S.W.3d 699, 728 (Tex. 2016); Harris,

2018 WL 3233329, at *4; see also G & H Towing Co. v. Magee, 347 S.W.3d 293,

297 (Tex. 2011) (harmless error rule applies to all errors). This is because the

harmless error rule states that, before reversing a judgment because of an error of

law, the reviewing court must find that the error amounted to such a denial of the

appellant’s rights as was reasonably calculated to cause and probably did cause “the

rendition of an improper judgment,” or that the error “probably prevented the

appellant from properly presenting the case [on appeal].” Magee, 347 S.W.3d at 297

(alteration in original) (internal quotations omitted); see also TEX. R. APP. P. 44.1(a);

Harris, 2018 WL 3233329, at *4. It is the complaining party’s burden to show harm

on appeal. Harris, 2018 WL 3233329, at *4; Bowser v. Craig Ranch Emergency

Hosp. L.L.C., No. 05-16-00639-CV, 2018 WL 316880, at *2 (Tex. App.—Dallas
Jan. 8, 2018, no pet.) (mem. op.); see also Ford Motor Co. v. Castillo, 279 S.W.3d

656, 667 (Tex. 2009) (applying harm analysis to claim trial court erred in discovery

ruling and noting it is complaining party’s burden to show harm).

      In a previous appeal before this Court involving a health care liability claim

brought by Harris, Harris asserted that the trial court erred in dismissing her health

care liability claim against Methodist Downtown because she had served it with an

adequate expert report. See Harris, 2018 WL 3233329, at *1–4. In that case, as in

the instant one, Harris alleged that she was injured in a car accident in August 2009,

she was first treated by Dr. David Chiu at Methodist Downtown, and she later sought

treatment outside Methodist Downtown. Id. at *1. In 2015, Harris sued, among

others, Dr. Chiu for “failing to advise her that she needed surgery to remove the

cavernous angioma” with which she was eventually diagnosed. Id. Later, Dr. Chiu

moved for summary judgment, arguing that he was entitled to judgment as a matter

of law because the Harris’s claim against him was barred by the applicable statute

of limitations. Id. at *1–2; see also TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a).

The trial court granted Dr. Chiu summary judgment, and Harris did not appeal the

trial court’s summary-judgment decision following the court’s severance order. See

Harris, 2018 WL 3233329, at *1–5.

      Later, Harris added Methodist Downtown to her suit, seeking to hold the

hospital liable for the negligence of Dr. Chiu. See id. at *2. Specifically, Harris
brought a health care liability claim against Methodist Downtown, based on a theory

of vicarious liability, alleging that Dr. Chiu had failed to choose an appropriate

procedure to treat Harris’s condition, failed to consult a specialist, failed to properly

diagnose Harris’s condition, and failed to treat Harris’s condition. Id. Methodist

Downtown moved for summary judgment on Harris’s claim, arguing that it was

entitled to judgment as a matter of law because the trial court had granted Dr. Chiu

summary judgment on limitations grounds and that barred, as a matter of law,

Harris’s ability to hold the hospital vicariously liable for Dr. Chiu’s alleged

negligence. Id. Methodist Downtown also objected to Harris’s expert reports and

requested that the trial court dismiss with prejudice Harris’s health care liability

claim against it for failure to file an adequate expert report. Id. at *3. The trial court

sustained Methodist Downtown’s objection to Harris’s expert reports and dismissed

with prejudice Harris’s health care liability claim against it. Id. Harris then

appealed, asserting that the trial court erred in dismissing her claim against

Methodist Downtown because she had served an adequate expert report on the

hospital. Id. at *3–4.

      On appeal, this Court presumed that the trial court erred in sustaining

Methodist Downtown’s objection to Harris’s expert reports and in dismissing

Harris’s health care liability based on the failure to serve an adequate expert report.

Id. at *4. The Court then engaged in a harmless error analysis. Id. at *4–6. In doing
so, we explained that even if the trial court had erred, Harris could never prevail on

her vicarious liability claim against Methodist Downtown based on Dr. Chiu’s

alleged negligence because Dr. Chiu had obtained summary judgment on Harris’s

health care liability claim against him by establishing that Harris’s claim was barred

by the statute of limitations. Id. at *5. In other words, because an employer cannot

be vicariously liable in tort when the liability against its employee or agent is barred,

as a matter of law, Methodist Downtown could not be held vicariously liable for the

alleged negligence of Dr. Chiu. Id. Thus, we concluded that “[i]t would be

meaningless and without legitimate purpose to reverse the trial court’s judgment

when” Harris’s claim against Methodist Downtown could not, as a matter of law,

provide her recovery against the hospital. Id. Accordingly, we held that the trial

court’s granting of summary judgment for Dr. Chiu rendered harmless any error by

the trial court in dismissing Harris’s claim against Methodist Downtown based on

an inadequate expert report, and we affirmed the judgment of the trial court. Id. at

*5–6.

        Here, we are presented with the same situation as in Harris’s previous appeal.

In her petition, Harris alleged that on August 21, 2009, she was injured in a car

accident. Then, on September 26, 2010, she suffered a stroke and was taken to North

Cypress Medical where Dr. Kareh and another doctor treated her. Dr. Kareh and the

other North Cypress Medical doctor diagnosed Harris with a cavernous angioma,
but surgery was not performed. Instead, Harris was “placed on medication[s].” On

January 24, 2011, Harris saw Dr. Kareh, but he did not recommend surgery or refer

her to a specialist. Dr. Kareh told Harris to continue participating in physical therapy

and to schedule another appointment with him in six weeks. According to Harris,

she then got worse. Harris brought health care liability claims against Dr. Kareh for

negligence, and North Cypress Medical, based on a theory of vicarious liability,

alleging that Dr. Kareh failed to choose an appropriate procedure to treat Harris’s

condition, failed to refer Harris to a specialist, failed to properly diagnose Harris’s

condition, failed to treat Harris’s condition, and failed to obtain Harris’s consent for

treatment after informing her of the risks associated with that treatment.

      Later, Dr. Kareh moved for summary judgment, arguing that he was entitled

to judgment as a matter of law because Harris’s claim against him was barred by the

applicable statute of limitations.     See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.251(a). The trial court granted Dr. Kareh summary judgment, and we have held

on appeal that the trial court did not err in doing so. See supra. So, because Harris’s

health care liability claim against Dr. Kareh is barred as a matter of law, she can

never prevail on her claim for vicarious liability against North Cypress Medical, as

it depends on her direct health care liability claim against Dr. Kareh. See Harris,

2018 WL 3233329, at *4–6; see also Magee, 347 S.W.3d at 297–98. Under such

circumstances, reversal would be meaningless and without a legitimate purpose
when Harris’s vicarious liability claim cannot, as a matter of law, provide her

recovery against North Cypress Medical. See Harris, 2018 WL 3233329, at *5; see

also Magee, 347 S.W.3d at 297–98; Zarzosa v. Flynn, 266 S.W.3d 614, 621 (Tex.

App.—El Paso 2008, no pet.) (reversal is meaningless when recovery precluded as

matter of law). Thus, presuming without deciding that the trial court erred in

sustaining North Cypress Medical’s objection to the September 6 report and in

dismissing Harris’s health care liability against the hospital for failure to serve an

adequate expert report, we hold that the trial court’s granting of summary judgment

for Dr. Kareh based on limitations rendered harmless any error by the trial court in

dismissing Harris’s vicarious liability claim against North Cypress Medical. See

Harris, 2018 WL 3233329, at *4–6.

      We overrule Harris’s second issue.

                                  Mediation Order

      In her first issue, Harris argues that the trial court erred dismissing her health

care liability claims against Dr. Kareh and North Cypress Medical because the trial

court signed a mandatory mediation order with which Dr. Kareh and North Cypress

Medical did not comply.

      As noted above, to preserve a complaint for appellate review, the record must

show that the complaint was made to the trial court by a timely request, objection,

or motion and the trial court either ruled on the party’s request, objection, or motion,
or refused to rule, and the party objected to that refusal. TEX. R. APP. P. 33.1(a). If

a party fails to do this, error is not preserved and the complaint is waived. Bushell,

803 S.W.2d at 712; see also Davis, 542 S.W.3d at 21 (“Rule 33.1 requires the

appealing party to adequately raise issues before the trial court to give the trial court

notice of [the party’s] complaint.”).

      Harris did not argue in the trial court that the trial court would err in dismissing

her health care liability claims against Dr. Kareh and North Cypress Medical because

neither defendant had complied with the court’s Order of Referral for Mediation.21

See TEX. R. APP. P. 33.1(a). We thus hold that Harris has not preserved for appeal

her argument that the trial court erred in dismissing her health care liability claims

against Dr. Kareh and North Cypress Medical because the trial court signed a

mandatory mediation order with which they did not comply. See Wilson v. Colonial

Cty. Mut. Ins. Co., No. 05-14-00220-CV, 2015 WL 1886862, at *4 (Tex. App.—

Dallas Apr. 27, 2015, no pet.) (mem. op.) (appellant did not preserve complaint trial

court erred by not conducting court-ordered mediation); Bosch v. Dall. Gen. Life Ins.

Co., No. 14-04-00661-CV, 2005 WL 757254, at *6 (Tex. App.—Houston [14th

Dist.] Apr. 5, 2005, no pet.) (mem. op.) (appellant did not preserve complaint trial




21
      We express no opinion as to whether any of the parties complied with the trial
      court’s Order of Referral for Mediation.
court erred in considering summary-judgment motion where parties had agreed to

mediation).

                                    Conclusion

      We affirm the trial court’s order granting North Cypress Medical’s objections

and motion to dismiss Harris’s health care liability claim against it. And we affirm

the trial court’s order granting Dr. Kareh summary judgment.




                                             Julie Countiss
                                             Justice

Panel consists of Justices Keyes, Goodman, and Countiss.
