                                     NO. 07-03-0398-CV

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL E

                                     FEBRUARY 1, 2005

                            ______________________________


          DAVID CHILDERS AND WIFE, JEANETTE CHILDERS, APPELLANTS

                                              V.

                  DR. GEORGE R. WALTERS, M.D., ET AL., APPELLEES


                          _________________________________

               FROM THE 72nd DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2002-518,673; HONORABLE J. BLAIR CHERRY, JR., JUDGE

                           _______________________________


Before QUINN and REAVIS, JJ. and BOYD, S.J.1


                                 MEMORANDUM OPINION


      David Childers and wife Jeanette Childers appeal the trial court’s order granting the

motion for summary judgment filed by appellees George R. Walters, M.D., et al., in



      1
          John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
response to their health care liability claim. By a sole issue, the Childers contend the trial

court erred in granting Walters, et al.’s motion for summary judgment.2 We affirm.


       In the summer of 1997, David Childers became aware of LASIK surgery and

scheduled an appointment with Dr. Walters at the Lubbock Regional Eye Center. Childers

did not see Dr. Walters during this visit and was instead examined by a staff member and

informed he was not a good candidate for LASIK surgery because of the poor condition of

his eyes. According to his deposition, he could not recall the name of the person who

examined him or whether that person was a doctor. In 1999, after attending a seminar

given by Dr. Walters on LASIK technology, Childers scheduled an appointment for

September 29 for an examination and evaluation. Childers was examined by technician

Jim Hudak and did not see Dr. Walters during that visit.


       Doctor Walters performed LASIK surgery on Childers on Friday, October 8, 1999.

According to Childers, while he was in a recovery room, Dr. Walters told him his surgery

“went okay,” but added there was a possibility he was allergic to the anesthetic drops which

would delay the healing process. The following Monday and Tuesday, Childers was seen

by Hudak for his post-surgery exams and complained his vision was still blurred. He was

told his vision had not improved because the cells had not grown back due to the allergic

reaction to the drops. Nevertheless, he was instructed to continue using the drops and told




       2
           See Malooly Bros., Inc. v. Napier, 419 S.W.2d 119, 121 (Tex. 1970).

                                              2
he would be contacted from someone in the Amarillo office. Childers and his wife drove

to Amarillo where he was examined by Dr. Tom Baker and then returned to Lubbock.


       Childers did not see Dr. Walters again until approximately two weeks after the

surgery and was again told his recovery was slow due to the allergic reaction. During the

months following the surgery, Dr. Walters became concerned and suspected Childers was

suffering from dry eye syndrome. According to Dr. Walters’s affidavit, on April 18, 2000,

Childers came to his office to schedule an appointment and expressed a loss in confidence

and requested a second opinion.


       A friend and colleague of Childers’s recommended he see Dr. John B. Bowen, O.D.,

for a second opinion. On May 4, 2000, he was examined by Dr. Bowen, who, without

criticizing Dr. Walters, stated he had never seen results like Childers’s from laser surgery.

Concerned with Childers’s dissatisfaction, Dr. Walters recommended he see Dr. Henry

Gelender, a cornea expert, for debridement–manual removal of epithelial cells. On June

1, 2000, Dr. Gelender diagnosed Childers with basement membrane corneal dystrophy and

also performed debridement in Childers’s left eye followed by a repeat treatment on July

24, 2000. Childers was treated by Dr. Gelender until November 2000, and the summary

judgment evidence shows his visual acuity improved while under Dr. Gelender’s care.

Doctor Gelender recommended that Childers return to Dr. Walters for follow-up treatment.

He also concluded that most of Childers’s problems were related to the dystrophy and not

the allergic reaction to the anesthetic drops.


                                             3
       In July 2001, Dr. Walters referred Childers to Dr. Rhea L. Siatkowski in Oklahoma

City. After only one visit, she determined Childers could be treated in Lubbock by Dr. David

McCartney. Doctor McCartney concluded that Childers had not been a good candidate for

LASIK surgery. Childers became a regular patient of Dr. McCartney’s and his last

appointment with Dr. Walters was July 13, 2001.


       Pursuant to section 4.01 of the Texas Medical Liability and Insurance Improvement

Act,3 on March 1, 2002, Dr. Walters was notified in writing that Childers was asserting a

health care liability claim against him. Suit was filed on July 18, 2002, and Dr. Walters filed

his answer alleging, among other matters, the two year statute of limitations as an

affirmative defense. See Art. 4590i, § 10.01. Upon completion of discovery, Dr. Walters

filed a motion for summary judgment on the sole ground of limitations, which the trial court

granted.


                                    Standard of Review


       In reviewing a summary judgment, this Court must apply the standards established

in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985):


       1. The movant for summary judgment has the burden of showing that there
       is no genuine issue of material fact and that it is entitled to judgment as a
       matter of law.


       3
       See former Tex. Rev. Civ. Stat. Ann. art. 4590i, now codified at Tex. Civ. Prac. &
Rem. Code Ann. §§ 74.001 - 74.507 (Vernon Pamph. Supp. 2004-05). See also Act of
June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 864, 866.

                                              4
       2. In deciding whether there is a disputed material fact issue precluding
       summary judgment, evidence favorable to the non-movant will be taken as
       true.

       3. Every reasonable inference must be indulged in favor of the non-movant
       and any doubts resolved in its favor.


For a party to prevail on a motion for summary judgment, he must conclusively establish

the absence of any genuine question of material fact and that he is entitled to judgment as

a matter of law. Tex. R. Civ. P. 166a(c). A movant must either prove all essential elements

of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least one

essential element of the non-movant's cause of action. Randall's Food Markets, Inc. v.

Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has established a right to

summary judgment, the non-movant has the burden to respond to the motion for summary

judgment and present to the trial court any issues that would preclude summary judgment.

City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979); Barbouti

v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st Dist.] 1996, writ denied).

Issues which the non-movant contends preclude the granting of a summary judgment must

be expressly presented to the trial court by written answer or other written response to the

motion and not by mere reference to summary judgment evidence.                McConnell v.

Southside School Dist., 858 S.W.2d 337, 341 (Tex. 1993). Issues not expressly presented

to the trial court in writing shall not be considered on appeal as grounds for reversal. Tex.

R. Civ. P. 166a(c).




                                             5
       Childers contends the trial court erred when it granted Dr. Walters’s motion for

summary judgment. Specifically, he contends (1) all claims asserted by him were viable

and not time barred by article 4590i, section 10.01, and (2) his claims were viable at the

time they were brought due to fraudulent concealment. We disagree.


       Health care liability claims filed prior to September 1, 2003, are governed by article

4590i of the Texas Medical Liability and Insurance Improvement Act.4 The Act provides

that suit be brought within two years of the occurrence of the breach or tort or 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. Art. 4590i, § 10.01. When the precise date of the

negligence can be ascertained, limitations begins to run on that date and subsequent

treatment is immaterial. Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998). Childers

does not contend that follow-up care caused any injuries and he did not present any

summary judgment evidence that Dr. Walters was negligent in his follow-up care. See

Chambers v. Conaway, 883 S.W.2d 156, 158 (Tex. 1993). Thus, the ascertainable date

of the surgery, i.e., October 8, 1999, began the limitations period. Childers was required

to file suit by October 8, 2001, unless he could establish the limitations period had been

tolled. See Art. 4590i, § 4.01(c) (providing that limitations is tolled for 75 days following the

giving of notice as provided in the Act). See also Borderlon v. Peck, 661 S.W.2d 907, 909

(Tex. 1983).


       4
           Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 864,
899.

                                               6
       By his response to Walters’s motion for summary judgment, Childers alleged

fraudulent concealment. During his deposition he testified he believed Dr. Gelender and

Dr. Siatkowski were in “cahoots” with Dr. Walters. Although Dr. Walters owed a duty to

discover a negligent act or that an injury had occurred and a failure to disclose constitutes

fraudulent concealment, the estoppel effect ended when Childers learned of facts,

conditions, or circumstances that would have caused a reasonably prudent person to make

inquiry, which, if pursued, would lead to the discovery of the concealed cause of action.

See Clements v. Conard, 21 S.W.3d 514, 521 (Tex.App.--Amarillo 2000, pet. denied);

Thames v. Dennison, 821 S.W.2d 380, 384 (Tex.App.--Austin 1991, writ denied).


       According to the evidence, in April 1990, when Childers lost confidence in Dr.

Walters, he sought a second opinion from Dr. Bowen on May 4, 2000, on advice from a

colleague and without Dr. Walters’s recommendation. Dr. Walters also provided for other

opinions and made arrangements for Childers to see Dr. Gelender and Dr. Siatkowski.

Although Childers contended the doctors acted in concert, he did not produce any evidence

to support his suspicion. To the contrary, Childers testified that Dr. Bowen was not critical

of Dr. Walters’s performance of the surgery, but only surprised at the result. Childers

cannot rely on the tolling doctrine of fraudulent concealment after he admitted a loss in

confidence and sought a second opinion on his own initiative in April 2000. See Velsicol

Chemical Corp. v. Winograd, 956 S.W.2d 529, 531 (Tex. 1997).




                                             7
       Although Childers gave notice of his claim on March 1, 2002, as required by section

4.01(a) of the Act, which would have tolled the limitations period for 75 days per sub-

paragraph (c), we conclude the tolling provision did not apply because suit was not filed

until July 18, 2002, well beyond the limitations period. See De Checa v. Diagnostic Center

Hosp., Inc., 852 S.W.2d 935, 937 (Tex. 1993); Simmons v. Healthcare Centers of Texas,

Inc., 55 S.W.3d 674, 677, (Tex-App.--Texarkana 2001, no pet.). The Childers’ sole issue

is overruled.


       Accordingly, the judgment of the trial court is affirmed.


                                          Don H. Reavis
                                            Justice




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