Opinion issued February 11, 2016




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-14-00984-CV
                           ———————————
                        TIFFANY THOMAS, Appellant
                                        V.
 T. JAYAKUMAR, FIRST STREET HOSPITAL, AND FIRST SURGICAL
                  PARTNERS, LLC, Appellees



                   On Appeal from the 334th District Court
                            Harris County, Texas
                      Trial Court Case No. 2014-22071



                       MEMORANDUM OPINION

      In this medical malpractice case, Tiffany Thomas appeals from the trial

court’s order granting summary judgment in favor of Dr. T. Jayakumar, First Street

Hospital, and First Surgical Partners, LLC. In her sole issue, Thomas contends that
the trial court erred in granting appellees’ motions for summary judgment because

it denied Thomas her rights under the open courts provision of the Texas

Constitution. We affirm.

                                    Background

      In 2001, Thomas underwent lap band surgery which was performed by

non-parties to this suit.   During that surgery, silastic tubing was left in her

abdomen.1

      On November 14, 2011, Thomas was admitted to First Street Hospital for

gastric bypass surgery. Dr. Jayakumar performed the surgery and Thomas was

released from the hospital the next day.

      Following her surgery, Thomas returned for a follow-up visit in December

2011. When Thomas told Dr. Jayakumar that she was experiencing abdominal

pain, Dr. Jayakumar told her that it was normal and did not perform any additional

examination. Although Thomas continued to feel abdominal pain intermittently

throughout 2012, she believed that it was a normal lasting effect of gastric surgery

and did not seek any additional treatment.

      On December 6, 2012, Thomas began to experience more severe abdominal

pain. She went to the emergency room at Houston Northwest Medical Center

where a CT scan revealed a foreign object in Thomas’s peritoneal cavity. The

1
      Thomas does not allege any negligence on the part of appellees arising out of the
      2001 surgery during which the tube was placed in her abdominal cavity.

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doctors recommended that Thomas see a surgeon to have the object removed.

Thomas did not have the object removed at that time, giving as her reason that she

had no medical insurance and was financially unable to afford the cost of surgery.

Later that same month, Thomas retained attorneys.

      In January 2013, after obtaining medical insurance, Thomas saw Dr.

Moparty, a gastroenterologist, at Spring Gastroenterology.         Dr. Moparty told

Thomas that he thought her abdominal pain was caused by her gallbladder and

referred Thomas to Dr. Wadiwala, a bariatric surgeon, for evaluation. In March

and July 2013, Thomas saw Dr. Wadiwala who recommended that she return to

Dr. Jayakumar for the removal surgery.2 In July 2013, Thomas lost her job and her

medical insurance.

      In November 2013, after obtaining financial assistance, Thomas saw Dr.

Daniel Albo who informed her that he believed there was a foreign object in her

peritoneal cavity.3 On February 20, 2014, Thomas’s attorney sent a Notice of

Claim letter to appellees pursuant to Texas Civil Practice and Remedies Code

section 74.051.4 On February 24, 2014, Dr. Albo performed the removal surgery



2
      Dr. Moparty and Dr. Wadiwala are not parties to this suit.
3
      In 2001, Thomas underwent a lap band surgery which required the insertion of
      catheter tubing in her abdomen.
4
      TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(a) (West 2011).

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during which he determined that the foreign object was a piece of silastic-type

tubing that had been left in Thomas’s abdomen during her 2001 lap band surgery.

       On April 21, 2014, Thomas filed this medical malpractice suit against

appellees alleging that they were negligent by (1) leaving a portion of a foreign

object in her abdomen and (2) failing to recognize the presence of the foreign

object in her abdomen during her follow-up visit in December 2011. Appellees

timely filed their answers in which they asserted, among other things, that

Thomas’s claims were barred by the applicable statute of limitations. Appellees

subsequently filed motions for summary judgment.

       On October 29, 2014, the trial court granted appellees’ motions. In its order,

the trial court stated:

       Thomas knew (or should/could have known) that the tubing was
       placed in her abdomen in 2001 and, by December 2012 at the latest,
       she knew Dr. Jayakumar had not removed it and that it might be
       causing her medical complaints. The ensuing 11-12 months afforded
       Thomas a reasonable opportunity to file suit, and requiring her to have
       done so under these circumstances does not “impose an impossible
       condition” of the type and nature that warrants the protection of the
       Open Courts guarantee.

The court further noted that Thomas’s reasons for the delay in having removal

surgery and filing suit, i.e., her financial and work/insurance-related difficulties,

were legitimate concerns, but it concluded that “the cases applying the guarantee

do not appear to permit such real-world concerns to trump the objective inquiry




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into whether a plaintiff was afforded a reasonable time to sue.” This timely appeal

followed.

                                Standard of Review

      We review a trial court’s decision to grant a motion for summary judgment

de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A

defendant who moves for traditional summary judgment has the burden of (1)

showing that there is no genuine issue of material fact concerning one or more

essential elements of the plaintiff's claims or (2) pleading and conclusively

establishing 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).

      A defendant moving for summary judgment on the affirmative defense of

limitations has the burden of conclusively establishing 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.; 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 Open Courts exception to the statute of limitations to raise

a fact issue demonstrating that she did not have a reasonable opportunity to



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discover the alleged wrong and bring suit before the limitations period expired.”).

In determining whether there are disputed issues of material fact, we take as true

all evidence favorable to the nonmovant and indulge every reasonable inference in

the nonmovant’s favor. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding ,

289 S.W.3d 844, 848 (Tex. 2009).

                                  Applicable Law

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

      Notwithstanding any other law . . . , no health care liability claim may
      be commenced unless the action is filed within two years from the
      occurrence of the breach or tort or from the date the medical or health
      care treatment that is the subject of the claim or the hospitalization for
      which the claim is made is completed . . . .

TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a) (West 2011). This statute adopted

an absolute two-year limitations period and abolished the “discovery rule” in

health care liability claims. Walters, 307 S.W.3d at 298 n.28 (noting that “the

Legislature abrogated the court-fashioned discovery rule” in 1975) (citation

omitted); see Chilkewitz v. Hyson, 22 S.W.3d 825, 829 (Tex. 1999) (holding that

“absent a violation of the open courts provision of the Texas Constitution,” the

legislature abolished discovery rule in cases governed by Medical Liability Act).

      The Texas Constitution’s open courts guarantee provides that “[a]ll 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.” TEX. CONST. art. I, § 13.



                                          6
This provision assures that a person bringing a well-established common law cause

of action will not suffer unreasonable or arbitrary denial of access to the courts.

Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 783 (Tex. 2007). 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 v. Moss, 67 S.W.3d 836, 842 (Tex. 2001).

                                      Analysis

      Thomas does not dispute that she filed her lawsuit against appellees outside

the two-year statute of limitations period.5 Rather, she argues that application of

section 74.251 to bar her claims violates the open courts guarantee of the Texas

Constitution.

      The Texas Supreme Court has held that Chapter 74’s two-year limitations

period is not unconstitutional under the open courts provision of the Texas

Constitution “if the plaintiff had a reasonable opportunity to discover the alleged

wrong and bring suit before the limitations period expired.” Shah, 67 S.W.3d at

842 (analyzing whether plaintiff’s medical malpractice claims were barred under


5
      In her petition, Thomas alleged that appellees were negligent (1) during her
      November 14, 2011 gastric bypass surgery when they failed to remove the tubing
      left in her abdomen during her 2001 lap band surgery and (2) during her December
      2011 follow-up visit with Dr. Jayakumar when they failed to recognize the
      presence of the tubing in her abdomen. Under these facts, the latest possible date
      Thomas’s cause of action could have accrued was December 31, 2013. Thomas
      did not file her suit until nearly four months later.

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two-year statute of limitations of statutory predecessor to section 74.251). Courts

analyzing whether the open courts doctrine invalidates a statute of limitations in a

particular case have focused on whether the nature of the 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 (analyzing plaintiff’s claim

that she could not have discovered surgical sponge left inside her abdomen within

limitations period and holding that claims were protected by open courts

guarantee); Nelson v. Krusen, 678 S.W.2d 918, 920–24 (Tex. 1984) (holding, in

claim for wrongful birth, that parents could not reasonably have discovered their

claim within two-year limitations period because child was not diagnosed with

genetic disease until he was more than three years old, and thus that limitations

period would operate to bar parents’ suit before they knew it existed).

      In her summary judgment response and on appeal, Thomas alleges that she

did not have a reasonable opportunity to learn of the facts that comprised her claim

within two years from the date of her 2011 gastric bypass surgery. 6 Specifically,

she argues that she did not know, and could not have known until after her

procedure on February 24, 2014, that tubing left in her abdomen during her 2001

lap band surgery was the cause of her injury and that Dr. Jayakumar should have



6
      In her summary judgment response, Thomas refers to her November 14, 2011
      surgery as the event from which the statute of limitations began to run.

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removed it during her gastric bypass surgery. Therefore, she contends the open

courts provision should preclude application of section 74.251 to her suit.

      As the nonmovant, Thomas bore the burden of showing 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). The discovery of a “fact of injury” is the triggering event for limitations.

See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 357 (Tex. 1990); O’Reilly v.

Wiseman, 107 S.W.3d 699, 707 (Tex. App.—Austin 2003, pet. denied); see also

Borderlon v. Peck, 661 S.W.2d 907, 909 (Tex. 1983) (holding that knowledge of

“facts, conditions, or circumstances which would cause a reasonably prudent

person to make inquiry . . . is in law equivalent to knowledge of the cause of

action”).

      Thomas alleges that Dr. Jayakumar committed malpractice when he failed to

remove the previously implanted tubing during her gastric bypass surgery on

November 14, 2011.        On December 6, 2012, Thomas experienced severe

abdominal pain and went to the emergency room at Houston Northwest Medical

Center. In her affidavit, Thomas states that “[a]t the hospital, the doctors found

that there was a foreign object in my abdominal cavity. I was informed by the

doctors that I should seek a surgeon to remove the foreign object.” It is at this



                                          9
point that Thomas had knowledge of her injury. She had more than eleven months

to file suit before the statute ran as to appellees. See Wiseman, 107 S.W.3d at 708

(concluding that date on which plaintiff was diagnosed with breast cancer is date

on which she was deemed to have knowledge of fact of injury); see also Adkins v.

Tafel, 871 S.W.2d 289, 294 (Tex. App.—Fort Worth 1994, no writ) (stating

plaintiffs could not avoid summary judgment merely by alleging they did not know

they had claim against defendant until their lawyer’s expert informed them

defendant had committed malpractice).

      In further support of her open courts challenge, Thomas also argues that she

did not have a reasonable opportunity to learn of her injury and file suit within the

limitations period because she did not have medical insurance and otherwise

lacked the financial resources for further testing or treatment. As the trial court

noted, “[t]hese are legitimate—and undisputed—concerns,” with which this Court

sympathizes.    However, as of December 6, 2012, more than eleven months

remained to sue appellees within two years of the date of Thomas’s gastric bypass

surgery on November 14, 2011. The Texas Supreme Court has held that the open

courts provision allows a patient to avoid the absolute two-year limitations only if

it would be impossible or exceedingly difficult to discover the injury and sue

within that period. See Nelson, 678 S.W.2d 921–22. Because Thomas had more

than eleven months after discovering her injury in which to file her claim, we



                                         10
cannot say that conditions made it impossible for her to do so. See Wiseman, 107

S.W.3d at 708–09 (“It is quite understandable that [the plaintiff] would concentrate

on fighting her disease before pursuing her medical negligence claims, but because

she had four months after discovering her injury in which to file such a claim

against [the defendant], we cannot say that conditions made it impossible for her to

do so.”); Adkins, 871 S.W.2d at 295 (concluding mere fact that plaintiffs could not

find lawyer to file their suit until after it was time-barred did not affect

constitutionality of statute).

      Thomas failed to raise a fact issue establishing that she did not have a

reasonable opportunity to discover the alleged wrong and bring suit within the

limitations period. Therefore, the open courts provision does not apply to save her

time-barred negligence claim.

      The trial court did not err in granting appellees’ motions for summary

judgment. We overrule Thomas’s issue.

                                    Conclusion

      We affirm the trial court’s judgment.




                                              Russell Lloyd
                                              Justice

Panel consists of Justices Keyes, Massengale, and Lloyd.

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