                                  NO. 12-12-00351-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

KEVIN O'CONNOR AND SAUNDRA                       §       APPEAL FROM THE 145TH
O'CONNOR,
APPELLANTS

V.                                               §       JUDICIAL DISTRICT COURT

C. WINSTON BOLLINGER, M.D.;
DAWN BARNES, FNP; AND TENET
HEALTHCARE CORPORATION,
APPELLEES                                        §       NACOGDOCHES COUNTY, TEXAS


                                  MEMORANDUM OPINION
       Kevin and Saundra O’Connor appeal from summary judgments in favor of C. Winston
Bollinger, M.D.; Dawn Barnes, FNP; and Tenet Healthcare Corporation in this medical
malpractice lawsuit.    In their sole issue, the O’Connors contend they raised a fact issue
concerning the applicability of a limitations bar to their cause of action. We affirm.


                                          BACKGROUND
       Kevin O’Connor sought treatment for chest pain on May 25, 2008, at Nacogdoches
Medical Center emergency room. He was examined by Dawn Barnes, a nurse, under the
direction of Dr. C. Winston Bollinger. He was quickly diagnosed with a bronchial infection and
discharged, but continued to experience shortness of breath and lack of energy over the next
several months. In mid-2010, he underwent testing, and in late 2010, he experienced cardiac
related symptoms. Further testing showed he had suffered a severe heart attack at some point in
the past. In 2011, his cardiologist surmised that the heart attack occurred on May 25, 2008. The
O’Connors sued Barnes, Bollinger, and Tenet Healthcare Corporation, which they asserted was
the operator of Nacogdoches Medical Center.          All three defendants moved for summary
judgment based on limitations. The trial court granted the motions and rendered an order
dismissing, with prejudice, the O’Connors’ claims against Barnes and Bollinger, and an order
that the O’Connors take nothing against Tenet Healthcare. This appeal ensued.


                                     SUMMARY JUDGMENT
       In their sole issue, the O’Connors assert that application of the two year medical
malpractice limitations period to their suit violates the open courts provision of the Texas
Constitution. They argue that they presented evidence raising a material fact issue regarding
whether they had a reasonable opportunity to discover the cause of action within two years from
Kevin’s emergency room visit. They assert that a ten month time period elapsed between
discovery of the wrong and filing of suit and contend that is not an unreasonable time.
Standard of Review
       We review the trial court’s decision to grant summary judgment de novo. Tex. Mun.
Power Agency v. Pub. Util. Comm’n, 253 S.W.3d 184, 192 (Tex. 2007). A defendant who
moves for traditional summary judgment has the burden of showing that there is no genuine
issue of material fact concerning one or more essential elements of the plaintiff’s claims or plead
and conclusively establish each essential element of any affirmative defense, establishing that it
is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d
339, 341 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).
       A defendant moving for summary judgment on the affirmative defense of limitations has
the burden to conclusively establish that defense. KPMG Peat Marwick v. Harrison Cnty.
Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). If the movant establishes 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. Id. Then, the movant must conclusively
negate the tolling provision’s application to show his entitlement to summary judgment.
Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996). Review of a summary judgment
requires that the evidence presented by both the motion and the response be viewed in the light
most favorable to the party against whom the judgment was rendered, crediting evidence
favorable to that party if reasonable jurors could and disregarding all contrary evidence and
inferences unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v.
Fielding, 289 S.W.3d 844, 848 (Tex. 2009).



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Applicable Law
       Texas law imposes a two year limitations period and abolished the discovery rule in
health care liability claims. TEX. CIV. PRAC. & REM. CODE ANN. § 74.251 (West 2011); Kimball
v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987). When a plaintiff’s cause of action accrues for
limitations purposes under Section 74.251 is a question of law. Chambers v. Conaway, 883
S.W.2d 156, 159 (Tex. 1993). If the date the alleged tort occurred is ascertainable, limitations
must begin on that date. Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001).
       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. A statute
that unreasonably or arbitrarily abridges a person’s right to obtain redress for injuries another
person’s harmful act causes is an unconstitutional due course of law violation. Shah, 67 S.W.3d
at 842. Consequently, our constitution’s open courts provision protects a person from legislative
acts that cut off a person’s right to sue before there is a reasonable opportunity to discover the
wrong and bring suit. Id. However, a plaintiff may not obtain relief under the open courts
provision if he does not use due diligence and sue within a reasonable time after learning about
the alleged wrong. Id. at 847.
Analysis
       The O’Connors allege that the defendants committed negligence on May 25, 2008. Their
original petition was filed on February 6, 2012, clearly outside the two year limitation period.
The O’Connors argue that they did not know of the prior heart attack until March 29, 2011,
almost a year after the limitations period ended. To trigger the open court’s guarantee, it was the
O’Connors’ burden to raise a fact issue demonstrating that they did not have a reasonable
opportunity to discover the alleged wrong before the limitations period expired. See Shah, 67
S.W.3d at 846-47.
       In his affidavit, Kevin stated that he experienced increasingly worsening shortness of
breath and lack of energy over the next several months after the emergency room visit. During
that time period, he saw his family doctor. He apparently continued to experience similar
problems because, in June 2010, he had a nuclear medicine stress test. The results of the test
showed a “prior myocardial insult in the inferior wall and a substantial left ventricular systolic
dysfunction.”   Further testing in November 2010 showed severe coronary artery disease,
abnormal cardiac function, and significant left ventricular dysfunction. The second cardiologist,



                                                3
seen in March 2011, confirmed that Kevin had previously had a heart attack and surmised that it
occurred on May 25, 2008. The summary judgment evidence shows that the first time anyone
told the O’Connors that Kevin likely had a heart attack on May 25, 2008, was outside the
limitations period. However, the law does not ask for the date of actual knowledge or of a good
guess. The open courts provision protects Kevin from a statute that cuts off his right to sue
before he has a reasonable opportunity to discover the wrong. Id. at 842. The evidence shows
that, in 2008, the O’Connors had a reasonable opportunity to discover that Kevin had been
misdiagnosed on May 25, 2008, since he was experiencing symptoms and seeing a doctor in the
“next several months” after the emergency room visit. Therefore, the open courts provision
cannot apply to protect the O’Connors from having filed their suit too late. See Ericson v.
Roberts, 910 S.W.2d 608, 613 (Tex. App.–Tyler 1995, no writ).
       Even if the O’Connors had established a prima facie open courts violation, summary
judgment was proper. If they established a prima facie open courts violation, the O’Connors
were then required to show that diligence was used to bring suit within a reasonable time
following the discovery of injury. Shah, 67 S.W.3d at 847. Although they argue that they did
not have a reasonable opportunity to discover the wrong until March 2011, the record shows that,
in addition to the several months of symptoms Kevin experienced in 2008, they had notice of
pertinent facts in June 2010, but did not file suit until February 2012. The O’Connors have not
explained why the information they obtained in June 2010 and November 2010 was not
sufficient to lead to discovery of the wrong. Absent a valid explanation for delay that shows the
plaintiff was exercising due diligence, at least a one year delay is likely to be considered
unreasonable as a matter of law. See id; O’Reilly v. Wiseman, 107 S.W.3d 699, 707 n.13 (Tex.
App.–Austin 2003, pet. denied). The O’Connors did not raise a fact issue establishing that they
did not have a reasonable opportunity to discover the alleged wrong and bring suit within the
limitations period or that they sued within a reasonable time after the 2010 testing. See Shah, 67
S.W.3d at 847. Thus, the open courts provision does not apply to save the O’Connors’ time-
barred negligence claim. Id.
       The trial court did not err in granting the defendants’ motions for summary judgment.
See Nixon, 690 S.W.2d at 548. We overrule the O’Connors’ sole issue.




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                                                    DISPOSITION
         Having held that Texas Civil Practice and Remedies Code Section 74.251 bars the
O’Connors’ claims, and that they did not raise a fact issue to support their contention that the
open courts provision saves their claims, we affirm the trial court’s judgment.


                                                                SAM GRIFFITH
                                                                  Justice

Opinion delivered September 4, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)


                                                           5
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         SEPTEMBER 4, 2013


                                          NO. 12-12-00351-CV


                 KEVIN O'CONNOR AND SAUNDRA O'CONNOR,
                                Appellants
                                     V.
         C. WINSTON BOLLINGER, M.D., DAWN BARNES, FNP; AND TENET
                       HEALTHCARE CORPORATION,
                                 Appellees


                                 Appeal from the 145th District Court
                      of Nacogdoches County, Texas (Tr.Ct.No. C1228022)


                    THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.

                    It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellants, KEVIN O’CONNOR and SAUNDRA O’CONNOR, for which
execution may issue, and that the decision be certified to the court below for observance.

                    Sam Griffith, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
