                                   NO. 07-05-0094-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL E

                                    MARCH 16, 2006

                          ______________________________


                         SHAWNA LYNN BORTH, APPELLANT

                                            v.

                      CONSTANTINE SAADEH, M.D., APPELLEE


                        _________________________________

            FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

                 NO. 55248C; HON. PATRICK A. PIRTLE, PRESIDING

                         _______________________________

Before QUINN, C.J., HANCOCK, J., and BOYD, S.J.1

                               MEMORANDUM OPINION

       Appellant Shawna Lynn Borth (Borth), acting pro se, appeals from a take-nothing

summary judgment entered in favor of appellee Constantine Saadeh, M.D. (Saadeh) with

respect to her health care liability claim. Summary judgment was sought and granted on

the basis that Borth’s claims were barred by the statute of limitations. On appeal, Borth

contends the two-year statute of limitations is not applicable to her claims because she

      1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon 2005).
discovered Saadeh’s negligence and/or fraudulent concealment within ten years.2 We

affirm the judgment of the trial court.

       Borth filed her lawsuit on November 10, 2004, alleging various acts of negligence

on the part of Saadeh, a rheumatologist, in failing to diagnose her conditions of Ehler’s

Danlos Syndrome, migraines, low blood sugar, hormone imbalance, ortho-static

hypotension, and depression, in failing to recognize chronic sinusitis as a serious and

debilitating medical condition, in allowing her iatrogenic illnesses to continue, and in

violating the Hippocratic oath. It is undisputed that Saadeh treated Borth from November

11, 1997, to October 5, 1999.3 Saadeh contends that Borth was required to file her lawsuit

within two years of October 5, 1999.

       The standard by which we review a traditional motion for summary judgment is set

forth in Kimber v. Sideris, 8 S.W.3d 672, 674-75 (Tex. App.--Amarillo 1999, no pet.). We

refer the parties to that case for a description of the standard.

       Health care liability claims must be brought within two years from the occurrence of

the tort or from the date the medical treatment that is the subject of the claim is completed.

Tex. Civ. Prac. & Rem. Code Ann. §74.251(a) (Vernon 2005). The limitations period is

measured by one of three dates: 1) the occurrence of the tort, 2) the last date of the



       2
        Borth raises other issues related to Saadeh’s negligence, whether a witness lied
in his affidavit, and whether she has a valid lawsuit against Dr. John Kelleher. These
issues are not material to whether the statute of limitations bars her claims against Saadeh
except to the extent that Borth must prove an underlying tort to prove fraudulent
concealment.
       3
       Borth avers that she called Saadeh’s office on November 4, 2004, and again on
November 8, 2004, speaking to Michael Gaylor both times. However, she was informed
by Gaylor that Saadeh would not treat her as a patient.

                                              2
relevant course of treatment, or 3) the last date of the relevant hospitalization. Shah v.

Moss, 67 S.W.3d 836, 841 (Tex. 2001).4 If the date of the alleged tort is ascertainable, the

limitations period begins on that date, not on whichever of the three dates happens to be

most favorable to the plaintiff. Id. As a result of the statute, the discovery rule is no longer

applicable in medical care liability claims.5 Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex.

1997). Therefore, at the latest, the statute of limitations would have started to run on the

date of last treatment, which was October 5, 1999.

       Borth relies on section 74.251(b) of the Civil Practice and Remedies Code as

authority that she actually had ten years to bring her claim. That subsection provides:

       A claimant must bring a health care liability claim not later than 10 years after
       the date of the act or omission that gives rise to the claim. This subsection
       is intended as a statute of repose so that all claims must be brought within
       10 years or they are time barred.

Tex. Civ. Prac. & Rem. Code Ann. §74.251(b) (Vernon 2005). A statute of limitations bars

enforcement of a right while a statute of repose takes the right away altogether. Johnson

v. City of Fort Worth, 774 S.W.2d 653, 654 n.1 (Tex. 1989); Aguilar v. Trujillo, 162 S.W.3d

839, 853 (Tex. App.--El Paso 2005, pet. denied); Cadle Co. v Wilson, 136 S.W.3d 345, 350

(Tex. App.--Austin 2004, no pet.). The period set out in a statute of repose is independent

of the claim’s accrual or discovery and may cut off a right even before it accrues. Holubec



       4
        The three dates discussed in Shah were based on article 4590i §10.01of the
Revised Civil Statutes, which is in relevant part the same as the current version of the
statute at section 74.251 of the Civil Practice and Remedies Code.
       5
        Borth claims she “discovered” Saadeh’s negligence on December 10, 2002, when
she was finally diagnosed with Ehler’s-Danlos Syndrome. She does not specifically
address when she “discovered” the other medical problems which she claims Saadeh failed
to diagnose or treat.

                                               3
v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003). It sets an outer limit beyond which no

action can be maintained. Id. Thus, if the discovery rule applied (as it does not here) or

there is a legal basis for tolling the period of limitations, the ten-year statute of repose

would serve as an outer limit after which no cause of action could be brought.

       Borth contends that the fraudulent concealment of Saadeh should toll the statute of

limitations.   When the plaintiff resists summary judgment by asserting fraudulent

concealment, the burden is on the plaintiff to raise a fact issue on each element of

fraudulent concealment. American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex.

1994); Malone v. Sewell, 168 S.W.3d 243, 252 (Tex. App.--Fort Worth 2005, pet. denied).

The elements of fraudulent concealment are 1) existence of an underlying tort, 2) the

defendant’s knowledge of the tort, 3) the defendant’s use of deception to conceal the tort,

and 4) the plaintiff’s reasonable reliance on the deception. Malone v. Sewell, 168 S.W.3d

at 252. Borth’s evidence in support of her response to the motion for summary judgment

is her own affidavit.6 She does not attempt therein to address each element of fraudulent

concealment and the allegations in her response do not constitute proof of the same. See

Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (holding that

pleadings are not competent summary judgment evidence even if sworn or verified);

American Petrofina, Inc. v. Allen, 887 S.W.2d at 830 (holding that a mere pleading or

response to a summary judgment motion does not satisfy the burden of coming forward




       6
        While Borth refers to testimony from a hearing, we do not have a reporter’s record
of that hearing. Borth sought to obtain a free reporter’s record on the basis she was
indigent and that request was denied.

                                             4
with sufficient evidence to prevent summary judgment).            Consequently, fraudulent

concealment does not suspend the limitations period based on the record before us.

       Finally, Borth raised an issue that the statute of limitations violates the open courts

provision of the Texas Constitution.7 To establish the same, she is required to show 1) that

she has a cognizable common-law cause of action, and 2) that restriction of the claim is

unreasonable or arbitrary when balanced against the statute’s purpose. Shah v. Moss, 67

S.W.3d at 842; Diaz v. Westphal, 941 S.W.2d at 100. Borth also has the burden of raising

a fact issue demonstrating she did not have a reasonable opportunity to discover any

alleged wrongs before the limitations period expired. Shah v. Moss, 67 S.W.3d at 846-47.

Borth’s affidavit in support of her response to the motion for summary judgment does not

raise a fact issue that she did not have a reasonable opportunity to discover Saadeh’s

alleged negligence. Further, she waited one year and eleven months after allegedly

discovering Saadeh’s negligence with respect to one of her medical problems before

bringing suit. A plaintiff may not obtain relief under the open courts provision if she does

not use due diligence and sue within a reasonable time after learning of the alleged wrong.

Shah v. Moss, 67 S.W.3d at 847. We find that she waited an unreasonable time to file suit

after discovering her injury. See id. (holding that, as a matter of law, 17 months was an

unreasonable time to wait to bring suit).




       7
        The 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. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001).

                                              5
      Because the two-year statute of limitations is applicable to Borth’s causes of action,

the trial court did not err in granting summary judgment to Saadeh. Accordingly, the

summary judgment is affirmed.



                                                John T. Boyd
                                                Senior Justice




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