                             Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION

                                       No. 04-19-00696-CV

                     L. Prasad M. VEMULAPALLI, M.D., and Cardiovascular
                                  Associates of San Antonio, P.A.,
                                             Appellants

                                                v.

                      Charles MOORE, Individually and as Representative of
                             The Estate of Cameron Moore, Deceased
                                            Appellee

                    From the 408th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2018-CI-18998
                           Honorable Norma Gonzales, Judge Presiding

Opinion by:      Liza A. Rodriguez, Justice

Sitting:         Rebeca C. Martinez, Justice
                 Patricia O. Alvarez, Justice
                 Liza A. Rodriguez, Justice

Delivered and Filed: August 19, 2020

REVERSED and RENDERED

           L. Prasad M. Vemulapalli, M.D., and Cardiovascular Associates of San Antonio, P.A.

(“CASA”) appeal the trial court’s order denying their summary judgment motion and assert the

healthcare liability claims brought by Charles Moore, Individually and as Representative of the

Estate of Cameron Moore (“Moore”), are barred by the statute of limitations. Because we conclude

the limitations period began to run on the date of the last doctor visit, Moore’s claims are barred
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by limitations. Therefore, we reverse the trial court’s order denying summary judgment and render

a take nothing judgment in favor of appellants.

                                          BACKGROUND

       The following facts are undisputed. Cameron Moore was a 24 year old professional

basketball player. On May 28, 2015, Cameron suffered a sudden cardiac arrest and collapsed but

was resuscitated after sustained efforts. Cameron was hospitalized from May 28, 2015 to June 13,

2015 when he was discharged. During his hospitalization, Dr. Vemulapalli was Cameron’s

consulting general cardiologist. The hospital records show that a transthoracic echocardiogram

and EEG were conducted for diagnostic purposes, a cardiac catheterization procedure was

performed on the left ventricle of Cameron’s heart, and medications were started, with a follow-

up EEG to be conducted in three months. Upon his discharge from the hospital, Cameron was

advised not to return to playing professional basketball due to his heart condition.

       Cameron sought a subsequent opinion and treatment from Dr. Vemulapalli. Cameron had

appointments with Dr. Vemulapalli in his office at CASA on June 22, 2015, September 21, 2015,

December 3, 2015, June 2, 2016, and for the last time on July 18, 2016 when Dr. Vemulapalli

cleared Cameron to play basketball. Dr. Vemulapalli’s progress notes, submitted as summary

judgment evidence, reflect that at the June 22, 2015 appointment he diagnosed Cameron’s primary

condition as “congestive heart failure” and continued treating Cameron with prescription

medications with orders for a follow-up appointment in three months for another echocardiogram

test. The progress notes for September 21, 2015 show Cameron was continued on the medications

and instructed to obtain a new echocardiogram, which he did the next day. The December 3, 2015

notes state that Cameron’s last echocardiogram showed normal left ventricular function; his

treatment through medications was continued, with a six-month follow up appointment ordered.

Dr. Vemulapalli’s notes from the six-month follow-up appointment on June 2, 2016 show he


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continued Cameron’s treatment for congestive heart failure with medication refills and ordered

Cameron to return in three months for a follow-up appointment and a new echocardiogram.

Instead, Cameron returned the next month on July 18, 2016 for the echocardiogram.                Dr.

Vemulapalli’s notes from July 18, 2016 state Cameron’s echocardiogram results showed normal

left ventricular function and further state, “Patient is cleared to play professional basketball from

Cardiac point of view.” A clearance form signed by Dr. Vemulapalli is also in the records. The

progress notes also reflect that Cameron was given refills and ordered to continue taking the

medications and monitoring his blood pressure, and to return for a six-month follow-up

appointment. The next day, July 19, 2016, Dr. Vemulapalli prepared and signed his report on the

results of Cameron’s most recent echocardiogram.

       Cameron subsequently joined a new professional basketball team in Macedonia. During

his first practice with the team on October 4, 2016, Cameron collapsed on the court and died from

a sudden cardiac arrest.

       On October 2, 2018, Charles Moore, Cameron’s father, filed a healthcare liability suit

against Dr. Vemulapalli and CASA asserting claims for negligence and gross negligence based on

Dr. Vemulapalli’s care and treatment of Cameron’s heart condition. Moore alleged that Dr.

Vemulapalli breached the applicable standard of care by: (1) failing to properly assess Cameron’s

symptoms; (2) failing to properly treat Cameron’s conditions; (3) failing to properly and

adequately recognize the extent of Cameron’s cardiovascular irregularity; (4) failing to advise

Cameron that continuing physical activity would be detrimental to his well-being and instead

advising him to the contrary without the proper medical evidence to support such advice; (5)

clearing Cameron to return to play professional basketball despite medical evidence indicating

such activity would likely result in Cameron’s death or serious injury; and (6) failing to protect

Cameron from preventable injury and death. Moore later filed an amended petition adding


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negligence allegations based on Dr. Vemulapalli’s failure to recognize the echocardiogram results

were an inadequate basis for clearance, the need for additional testing prior to clearance, the need

to refer Cameron to a specialist who could perform additional testing, the need for Cameron to

have access to a defibrillator if he were to resume playing basketball, and the need to retract

clearance for Cameron to return to basketball.

       With respect to CASA, Moore alleged that Dr. Vemulapalli was acting within the course

and scope of his employment with CASA during his care and treatment of Cameron and that CASA

breached its duty to hire, supervise, train, and retain competent agents and employees. Moore

alleged that CASA was both vicariously liable and directly liable for Dr. Vemulapalli’s negligence

because he is a vice principal of the professional association.

       Dr. Vemulapalli and CASA filed a motion for traditional summary judgment asserting

Moore’s healthcare liability claims are barred by the two year statute of limitations because the

claims accrued on July 18, 2016, the date of Cameron’s last office visit with Dr. Vemulapalli. See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a). Moore countered that the date of accrual for the

claims was the date of Cameron’s death, October 4, 2016, and therefore his lawsuit filed on

October 2, 2018 was timely. The summary judgment evidence in support of the limitations defense

consisted of Dr. Vemulapalli’s affidavit stating the last date he treated Cameron was July 18, 2016

and including a copy of his progress notes for that day. Moore’s summary judgment evidence in

opposition consisted of Cameron’s medical records from his hospitalization and all the progress

notes from his treatment by Dr. Vemulapalli, and an affidavit from Dr. Shane Bailey, a board

certified cardiac electrophysiologist. Dr. Bailey stated Cameron did not have congestive heart

failure but instead suffered from a high-risk cardiac arrhythmia, which is an electrophysiological

problem with the heart that can cause a dangerously fast heart rhythm, i.e., ventricular fibrillation,

and result in cardiac arrest; the condition is known as “sudden cardiac death” (“SCD”). There is


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no cure, but the standard of care consists of treatment protocols to significantly mitigate the risk

of death. Primarily, Cameron required an implantable cardioverter defibrillator (“ICD”) which

continuously monitors the heart’s rhythm and “when necessary” issues a jolt of electricity to

restore the heart’s normal rhythm and prevent sudden cardiac death.

       After a hearing, the trial court denied summary judgment, ruling that Moore’s lawsuit was

timely filed because the accrual date was Cameron’s October 4, 2016 date of death under a

continuing course of treatment analysis. Dr. Vemulapalli and CASA moved for a permissive

interlocutory appeal. After a short hearing, the trial court authorized the permissive appeal, finding

that its denial of summary judgment involved a controlling question of law on which there are

substantial grounds for difference of opinion, to wit: whether the accrual date of Moore’s health

care liability claims is July 18, 2016 based on the date of Cameron’s last office visit and clearance

by Dr. Vemulapalli, or October 4, 2016 based on the date of Cameron’s death under a continuing

course of treatment analysis. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d). This court

subsequently granted the petition for permissive interlocutory appeal filed by Dr. Vemulapalli and

CASA. See id. § 51.014(f).

                                            DISCUSSION

       The sole issue before us is whether Moore’s health care liability claims accrued on the date

of Cameron’s last office visit with Dr. Vemulapalli or on the date of Cameron’s death. Section

74.251(a) provides that a plaintiff’s health care liability claim must be 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). Thus, the statute of limitations will begin to run from

one of three possible dates: (1) the occurrence of the breach or tort; (2) the date the health care

treatment on which the claim is based was completed; or (3) the date the hospitalization on which


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the claim is based was completed. Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987). The

date of a claim’s accrual is a question of law which we review de novo. Chambers v. Conaway,

883 S.W.2d 156, 159 (Tex. 1993) (determining when a plaintiff’s cause of action accrues under

any of the three categories is a question of law, not fact). A plaintiff may not simply choose the

most favorable date that falls within the statute’s three categories. Shah v. Moss, 67 S.W.3d 836,

841 (Tex. 2001). Rather, if the date the alleged breach or tort occurred is ascertainable, then

limitations begins to run from that date and further inquiry into the second and third categories is

unnecessary. Id. The statute recognizes there may be situations where the exact date of the breach

or tort cannot be ascertained and “[t]he second category . . . contemplates such a situation ‘wherein

the patient’s injury occurs during a course of treatment for a particular condition and the only

readily ascertainable date is the last day of treatment.’” Id. (quoting Kimball v. Brothers, 741

S.W.2d 370, 372 (Tex. 1987)). “But before the last treatment date becomes relevant to determining

when limitations begins, the plaintiff must establish a course of treatment for the alleged injury.”

Id. (citing Rowntree v. Hunsucker, 833 S.W.2d 103, 105 (Tex. 1992)). Whether the plaintiff

established the existence of a course of treatment is only relevant if the date the breach or tort was

committed cannot be determined. Id. (citing Husain v. Khatib, 964 S.W.2d 918, 919-20 (Tex.

1998)).

          The legal issue of the date of accrual is presented to us within the summary judgment

context. A defendant moving for summary judgment based on an affirmative defense such as

limitations must conclusively prove all the elements of the defense and establish as a matter of law

that the statute of limitations bars the action. Shah, 67 S.W.3d at 842; Casso v. Brand, 776 S.W.2d

551, 556 (Tex. 1989). If the movant establishes a statute of limitations defense, the non-movant

must then produce summary judgment evidence in avoidance of the limitations bar. Streetman v.

Nguyen, 943 S.W.2d 168, 170 (Tex. App.—San Antonio 1997, no pet.) (citing Zale Corp. v.


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Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975)). We review a trial court’s ruling on a summary

judgment motion de novo. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In

conducting our review, we view the competent summary judgment evidence in the light most

favorable to the non-movant and resolve any doubts in the non-movant’s favor. Id. at 548-49;

Diversicare General Partners, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005).

       On appeal, Dr. Vemulapalli and CASA argue the trial court’s order denying summary

judgment must be reversed because the accrual date of the alleged torts is readily ascertainable as

the last date Dr. Vemulapalli saw Cameron and cleared him to play basketball: July 18, 2016.

Because the date the breach or tort occurred can be readily ascertained as the date of the last office

visit, the limitations analysis is complete; there is no need to perform a “continuing course of

treatment” analysis. Alternatively, Dr. Vemulapalli and CASA assert Moore failed to establish a

course of treatment because his claims are based on a failure to treat Cameron’s actual heart

condition and a failure to treat cannot establish a course of treatment. See Bala v. Maxwell, 909

S.W.2d 889, 892 (Tex. 1992).

       Moore argues that the “continuing course of treatment” analysis is controlling and leads to

the date of accrual being the date of Cameron’s death, i.e., October 4, 2016, when Dr.

Vemulapalli’s treatment necessarily ended. Moore contends the date of occurrence of the tort(s)

cannot be ascertained because Dr. Vemulapalli continuously breached his duty to properly

diagnose and treat Cameron’s actual heart condition (SCD) every day -- beginning with the first

time Dr. Vemulapalli saw Cameron, continuing on each successive office visit as well as between

office visits, and finally ending on the date of Cameron’s death. In support, Moore relies on Dr.

Bailey’s affidavit stating the applicable standard of care required Dr. Vemulapalli to continually

reevaluate his initial mistaken diagnosis of congestive heart failure, run additional tests to make a

correct diagnosis of an electrical irregularity, and refer Cameron to a specialized cardiologist


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trained in electrophysiology for the proper SCD treatment. 1 In opining that Dr. Vemulapalli’s

treatment of Cameron continued past the date of the last office visit on July 18, 2016, Dr. Bailey

points out that, although Dr. Vemulapalli cleared Cameron to play basketball at that visit, he also

instructed Cameron to continue taking the medications and to return for a follow-up appointment

in six months; nothing in the medical records states that Dr. Vemulapalli released Cameron from

his care.

         Moore’s petition does not allege that Cameron’s injury, i.e., his death, was caused by the

actual treatment regimen prescribed by Dr. Vemulapalli which consisted of medications and

monitoring of the heart’s functioning with echocardiograms. Instead, the gist of Moore’s claims

is that Dr. Vemulapalli breached the applicable standard of care by failing to properly diagnose

and treat Cameron’s actual heart condition of SCD, or at least recognize the signs of an electrical

irregularity in the heart and refer him to a cardiac electrophysiologist for proper treatment.

Ultimately, Moore contends Dr. Vemulapalli was negligent in clearing him to resume playing

basketball without properly diagnosing and treating his SCD heart condition. Certainly, the date

of Dr. Vemulapalli’s breach with respect to granting the clearance is readily ascertainable as July

18, 2016 based on the summary judgment evidence. The rest of the breaches alleged by Moore

consist of Dr. Vemulapalli’s failure to take certain actions required by the standard of care defined

by Dr. Bailey which would have led to a corrected diagnosis and proper treatment of Cameron’s

actual condition of SCD before any clearance to return to basketball.

         Where allegations of medical negligence are based on failure to diagnose a condition,

limitations begins to run from the date of the last doctor visit. Rowntree, 833 S.W.2d at 108; see


1
  Dr. Bailey’s affidavit states the applicable standard of care requires a general cardiologist like Dr. Vemulapalli to
recognize the signs of an electrical problem with the heart and then refer a patient like Cameron with SCD to a cardiac
electrophysiologist for specialized testing and treatment. He opines that Dr. Vemulapalli’s failure to do so was an
“egregious breach” of the applicable standard of care.


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Chambers, 883 S.W.2d at 158 (cause of action for negligent failure to diagnose breast cancer

accrued on date of last appointment when physician failed to perform follow-up diagnostic tests

based on patient’s complaint of a lump in her breast or refer patient to another physician for such

tests). Similarly, a physician’s negligent failure to perform follow-up procedures arises only in

connection with the last examination. Winston v. Peterek, 132 S.W.3d 204, 207 (Tex. App.—

Houston [14th Dist.] 2004, pet. denied) (citing Bala v. Maxwell, 909 S.W.2d 889, 892 (Tex. 1995)).

Here, the last opportunity that Dr. Vemulapalli had to examine Cameron and revise his diagnosis

was at Cameron’s last office visit on July 18, 2016. See Rowntree, 833 S.W.2d at 108 (holding

physician could have breached his duty to perform the proper exams to detect occluded arteries

that led to stroke only on those occasions when he had an opportunity to examine the patient;

limitations therefore ran from date of last office visit) (emphasis added). As Dr. Bailey noted in

his affidavit, Dr. Vemulapalli already had all the data necessary for him to correct his diagnosis at

the last office visit.

        Moore argues that, based on Dr. Bailey’s affidavit, Dr. Vemulapalli continually breached

the standard of care every time he failed to make a corrected diagnosis of an electrical dysfunction

and/or SCD, failed to refer Cameron to a specialist for a proper course of treatment for SCD, and

failed to withdraw the clearance -- up until Cameron’s death. However, it is well-established that

the continuing nature of a diagnosis does not extend the tort for limitations purposes. See Bala,

909 S.W.2d at 892 (rejecting the plaintiffs’ argument that, by failing to diagnose cancer and initiate

a treatment in 1987, the doctor’s negligence continued until the cancer was discovered years later);

Rowntree, 833 S.W.2d at 108; see also Streetman, 943 S.W.2d at 170 (mere existence of an

ongoing physician-patient relationship does not extend the tort for limitations purposes). Similar

to Dr. Bailey’s affidavit, the plaintiff’s expert affidavit in Chambers stated the doctor had a

continuing duty to follow up on the patient’s complaints about a breast lump at subsequent visits


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and failed to do so; the court held the doctor’s duty extended “up to the last appointment between

them” at which time the breach of duty occurred for purposes of the limitations period. Chambers,

883 S.W.2d at 158. As the court reiterated, the question of when a claim accrues is one of law,

not fact. Id. at 159.

        The flaw in Moore’s argument that the “course of treatment” analysis controls in this case

is that “the date of last treatment is relevant only if a course of treatment has been established for

the condition that is the subject of the claim.” Rowntree, 833 S.W.2d at 105 (emphasis added).

Here, Dr. Vemulapalli was treating Cameron for congestive heart failure, rather than for his actual

heart condition, SCD, which went undiagnosed and untreated. As the court has noted, “[w]hile

the failure to treat a condition may well be negligent,” it is “self-contradictory” to accept that a

failure to establish a course of treatment for a particular condition constitutes a “course of

treatment” for purposes of limitations. Id. at 105-06; Bala, 909 S.W.2d at 892. Moore does not

allege that the medications prescribed by Dr. Vemulapalli as treatment for congestive heart failure

were the cause of Cameron’s sudden cardiac arrest and death. See Rowntree, 833 S.W.2d at 108;

see also Winston, 132 S.W.3d at 208 (“[i]n order to use a course-of-treatment analysis in

connection with prescription drugs, the alleged drug treatment must be the direct cause of the

injury.”).

        We conclude that the occurrence of the breach or tort on which Moore’s claims are based

occurred on a date that can be determined under the first category of section 74.251(a). The date

of Cameron’s last appointment with Dr. Vemulapalli on July 18, 2016 is the date of accrual.




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                                         CONCLUSION

       Based on the foregoing reasons, we hold that Moore’s claims are barred by the two-year

statute of limitations. We therefore reverse the trial court’s order denying the summary judgment

motion by Dr. Vemulapalli and CASA and render a take-nothing judgment.

                                                 Liza A. Rodriguez, Justice




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