                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-06-341-CV


SHARON JORDAN, AS NEXT FRIEND                                APPELLANTS
OF MICHAEL MASHBURN, AND
MICHAEL MASHBURN, INDIVIDUALLY

                                       V.

JOSEPH DANIELS, D.O.,                                          APPELLEES
JOSEPH DANIELS, D.O., P.A. AND
AMERICAN ORTHOPEDIC NEUROLOGICAL
REHABILITATION CENTER
                              ------------

          FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

     Appellants Sharon Jordan, as Next friend of Michael Mashburn (Jordan),

and Michael Mashburn, individually (Mashburn) (sometimes collectively,

Mashburn), appeal from a summary judgment rendered for appellees Joseph



     1
         … Tex. R. App. P. 47.4.
Daniels, D.O., Joseph Daniels, D.O., P.A., and American Orthopedic

Neurological Rehabilitation Center (collectively, Dr. Daniels) on Mashburn’s

medical malpractice claims. In three issues, Mashburn complains that the trial

court improperly (1) granted Dr. Daniels’s motion for summary judgment, (2)

denied Mashburn’s motion for new trial, and (3) sustained various objections

to Mashburn’s summary judgment evidence. We affirm in part and reverse and

remand in part.

                                  Background

      Mashburn suffers from spina bifida, a condition that, among other health

problems, prevents him from having any sensation below the waist.          On

September 13, 2001, Mashburn went to the emergency room at Osteopathic

Medical Center of Texas (OMCT) complaining of swollen testicles and possible

deep vein thrombosis. He was seen by the emergency room physician, Dr. Glen

Calabrese, and subsequently admitted to OMCT for a traumatic urethral

hemorrhage. Radiological studies at OMCT revealed that Mashburn had also

sustained a fracture of his left femur.

      Mashburn’s attending physician contacted Dr. Daniels, a board-certified

orthopedic surgeon, regarding Mashburn’s fracture. Upon initial consultation,

Dr. Daniels ordered an x-ray to confirm the fracture and contemplated surgery.

When Dr. Daniels received the x-ray findings, he diagnosed Mashburn with a

                                          2
displaced left proximal femur fracture.       Surgery was scheduled and on

September 19, 2001, Dr. Daniels performed a “closed reduction and internal

fixation with an Ace 4 mm flexible rod.”

      After surgery, Dr. Daniels provided immediate post-operative follow-up

care. He also saw Mashburn on October 23, 2001, for an initial follow-up visit

and on January 8, 2002, for a second follow-up visit. At the January 8, 2002

visit, Mashburn was without complaints and Dr. Daniels decided that Mashburn

would be released and seen only on a “prn [as needed] basis.”          Mashburn

continued under the care of primary care physician, Margaret Basiliadis, D.O.

      In March 2002, Mashburn’s left foot began swelling to the point he

developed cellulitis.2   Jordan was concerned because the swelling never

subsided, so on April 4, 2002, she contacted Dr. Daniels’s office. She was

advised by staff to elevate Mashburn’s foot above heart level, and referred to

Dr. Basiliadis.

      On June 14, 2002, Dr. Basiliadis ordered x-rays of Mashburn’s leg that

indicated Mashburn’s femur was dislocated and the rod that Dr. Daniels

implanted was extending beyond the lower extremity of the femur into soft




      2
       … Cellulitis is an acute spreading bacterial infection below the surface of
the skin characterized by redness, warmth, swelling, and pain. Cellulitis can
also cause fever, chills, and enlarged lymph nodes.

                                        3
tissue.   After viewing the x-ray reports, Dr. Basiliadis recommended that

Mashburn “return to Ortho.” On June 19, 2002, Jordan was notified of Dr.

Basiliadis’s recommendation and the x-ray reports were faxed to Dr. Daniels’s

office.   According to Dr. Basiliadis’s medical records, Jordan reported that

Mashburn had a June 27, 2002 appointment with Dr. Daniels. But sometime

between June 19 and June 24, Dr. Daniels, apparently after reviewing the x-ray

reports, suggested to Jordan that Mashburn be taken to the emergency room.

      On June 25, Mashburn went to the emergency room at Harris Methodist

Hospital where x-rays were again taken. The emergency room doctor reported

that the new x-rays showed there was slight tissue swelling and inflamation in

the area around the rod, but that everything else was “okay”; the femur was

not dislocated and the rod was not dislodged. According to Dr. Daniels’s notes,

Mashburn was a “NO SHOW” for the scheduled June 27 appointment.

      In August 2003, Mashburn sued OMCT and Dr. Calabrese, alleging

professional negligence in diagnosing and treating Mashburn immediately before

the September 2001 surgery.      In the meantime, Mashburn’s condition had

continued to worsen—he developed gangrene in his feet, was bedridden, and

had severe breathing problems. At some point in the ensuing months, Dr.

Basiliadis told Mashburn that he was “probably going to die” and recommended

hospice services. In the summer of 2004, Jordan sought a second opinion

                                      4
concerning Mashburn’s condition, and by that fall she decided to replace Dr.

Basiliadis as Mashburn’s primary care physician.         On October 14, 2004,

Mashburn filed an amended petition naming Dr. Basiliadis as a defendant.

      On October 27, 2004, Mashburn met with Dr. Daniels. According to

Jordan, Dr. Daniels examined Mashburn that day, made notes on Mashburn’s

chart, agreed that Mashburn should find a replacement for Dr. Basiliadis,

prescribed blood work and MRI and CT studies, and said Mashburn’s leg needed

to be amputated (Mashburn later chose to have surgery to remove his leg).3

      About two weeks later, on November 11, 2004, Mashburn served a

notice of claim letter on Dr. Daniels.4 Then on November 23, 2004, Mashburn

sued Dr. Daniels, adding him to the on-going litigation against OMCT, Dr.



      3
      … Dr. Daniels disputes that he examined Mashburn on October 27,
2004, but because we accept Mashburn’s account as true for purposes of
reviewing the summary judgment, we assume that Dr. Daniels examined
Mashburn during this office visit. See Nixon v. Mr. Prop. Mgmt. Co., 690
S.W.2d 546, 548–49 (Tex. 1985).
      4
        … Because this case was filed before September 1, 2003, article 4590i
of the Texas Revised Civil Statutes governs this case. See Act of May 30,
1977, 65th Leg., R.S., ch. 817, §§ 1.01–12.01, 1977 Tex. Gen. Laws 2039,
2053 (as amended), repealed by Act of June 2, 2001, 78th Leg., R.S., ch. 204
§ 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at Tex. Civ. Prac. &
Rem. Code Ann. §§ 74.001–.507 (Vernon 2005 & Supp. 2008)). A notice of
claim letter serves to toll limitations for an additional seventy-five days beyond
the two-year limitation period set forth in the statutes. Tex. Rev. Civ. Stat.
Ann. art. 4590(i), § 4.01(c) (citations are to the former civil statutes applicable
in this case).

                                        5
Calabrese, and Dr. Basiliadis. On February 3, 2005, Dr. Daniels filed a motion

for summary judgment on the ground that Mashburn’s claims against Dr.

Daniels were time-barred. Mashburn’s response included affidavits from Jordan

and expert witness Dr. Timothy Sitter, a board-certified orthopedic surgeon. Dr.

Daniels objected to the affidavits on various grounds.

      On March 22, 2005, the trial court signed an order granting Dr. Daniels’s

motion for summary judgment. Later, on May 2, 2006, the trial court, noting

that it had previously ruled on Dr. Daniels’s motion for summary judgment but

had neglected to rule on his objections to Mashburn’s summary judgment

evidence, sent written notice to the parties sustaining some of the objections.

      Mashburn filed a motion for new trial attaching “newly discovered

evidence.” Mashburn also moved for reconsideration of his summary judgment

evidence. The trial court denied both of these motions. This appeal followed.

                                    Issues

      Mashburn raises three issues on appeal. First, he complains that the trial

court improperly granted summary judgment for Dr. Daniels on limitations

grounds based on a finding that Dr. Daniels’s duty to treat Mashburn terminated

on January 8, 2002, because, under the ascertainable date of the breach or tort

analysis, the evidence shows that Dr. Daniels provided negligent follow-up

treatment on three ascertainable dates within the statute of limitations.

                                       6
Mashburn further contends that the trial court abused its discretion in denying

Mashburn’s motion for new trial, and in granting Dr. Daniels’s objections to Dr.

Sitter’s and Jordan’s affidavits.

                                    Analysis

A.    Applicable Law

      1.      Standard of Review for Summary Judgment

      In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of

law. 5 The burden of proof is on the movant, and all doubts about the existence

of a genuine issue of material fact are resolved against the movant.6

      When reviewing a summary judgment, we take as true all evidence

favorable to the nonmovant, and we indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor.7 The summary judgment will be

affirmed only if the record establishes that the movant conclusively proved all




      5
      … Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d
211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d
671, 678 (Tex. 1979).
      6
          … Sw. Elec. Power Co., 73 S.W.3d at 215.
      7
          … Nixon, 690 S.W.2d at 548–49.

                                       7
essential elements of the movant’s cause of action or defense as a matter of

law. 8

         A defendant is entitled to summary judgment on an affirmative defense

if the defendant conclusively proves all the elements of the affirmative

defense.9 To accomplish this, the defendant-movant must present summary

judgment evidence that establishes each element of the affirmative defense as

a matter of law.10

         With regard to the affirmative defense of limitations, the movant must

conclusively prove when the cause of action accrued. 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. 11




         8
             … Clear Creek Basin, 589 S.W.2d at 678.
         9
      … Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); see
Tex. R. Civ. P. 166a(b), (c).
         10
              … Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996).
         11
      … KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988
S.W.2d 746, 748 (Tex. 1999).

                                          8
      2.       Limitations for Medical Negligence Claims

      Section 10.01 establishes an absolute two-year statute of limitations for

health care liability claims.12 The limitations period begins to run on one of

three dates: (1) the date of the occurrence of the breach or tort; (2) the date

the medical or health care treatment that is the subject of the claim is

completed; or (3) the date the hospitalization for which the claim is made is

completed.13 A plaintiff may not simply choose the most favorable date that

falls within this provision, but rather, if the specific date of the alleged breach

or tort is ascertainable, the limitations period commences upon that date.14 The

“ascertainable date” for a negligent follow-up treatment claim is the last date

on which the physician provided follow-up treatment as required by the relevant

standard of care.15

B.    Summary Judgment

      Dr. Daniels moved for summary judgment on the sole ground that his

follow-up treatment of Mashburn after the September 2001 surgery ended


      12
           … Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01.
      13
       … Id.; see also Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001);
Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987).
      14
           … Shah, 67 S.W.3d at 841; Earle v. Ratliff, 998 S.W.2d 882, 886 (Tex.
1999).
      15
           … Shah, 67 S.W.3d at 843–45; Earle, 998 S.W.2d at 887.

                                         9
when he released Mashburn on January 8, 2002. Dr. Daniels’s affidavit in

support of his summary judgment motion avers that January 8, 2002 “was the

last visit at which [he] performed a medical examination upon Mr. Mashburn or

provided him and his family with any medical advice as his physician.” Dr.

Daniels’s affidavit further states that “it was decided [during this visit] that

[Mashburn] would be released and seen only on a prn (as needed) basis.”

      Mashburn argues, however, that Dr. Daniels owed a duty to provide

follow-up care to Mashburn after January 8, 2002, and that the summary

judgment evidence establishes that Dr. Daniels breached that duty three times

within the limitations period: November 12, 2002; March, summer, and fall

2003; and October 27, 2004. Mashburn further asserts that, although his

pleadings and affidavits identify specific treatment dates, we should apply a

course of treatment analysis to determine when his claims accrued. Relying on

Dr. Sitter’s affidavit, Mashburn contends that under such an analysis his claims

did not accrue until October 27, 2004, the last date Dr. Daniels treated

Mashburn.     This argument, however, ignores the established rule for

determining when a claim accrues for limitations purposes in negligence

cases—if the date the alleged tort or breach took place is ascertainable, a




                                      10
course of treatment analysis is inapplicable to determining when limitations

begins to run.16

      Mashburn alleges that Dr. Daniels treated him on the following dates:

      •        September 19, 2001;

      •        October 23, 2001;

      •        January 8, 2002;

      •        April 4, 2002;

      •        June 24–27, 2002;

      •        November 12, 2002;

      •        March, summer, and fall 2003; and

      •        October 27, 2004.

Because these dates are ascertainable, limitations began to run from each date

Mashburn alleges Dr. Daniels treated him.17 Accordingly, all of Mashburn’s

alleged claims that accrued more than two years before the date Mashburn

served his statutory notice of claim letter on Dr. Daniels, November 11, 2004,




      16
         … Shah, 67 S.W.3d at 841 (“[I]f the defendant committed the alleged
tort on an ascertainable date, whether the plaintiff established a course of
treatment is immaterial because limitations begins to run on the ascertainable
date.”).
      17
           … Id. at 844.

                                      11
are time-barred.18 Therefore, the trial court properly granted summary judgment

on limitations grounds as to the alleged claims that accrued on September 19,

2001; October 23, 2001; January 8, 2002; April 4, 2002; and June 24–27,

2002.19

      With regard to the remaining three ascertainable dates on which

Mashburn alleges Dr. Daniels treated him, however, the alleged claims accruing

on those dates are not barred by limitations because they accrued less than two

years from the date Mashburn served his notice of claim letter on Dr. Daniels.20

Since these claims accrued during the limitations period, and because limitations

was Dr. Daniels’s only basis for summary judgment, the trial court erred in

granting summary judgment as to these claims.21        Accordingly, we sustain

Mashburn’s first issue in part.22

                                    Conclusion




      18
           … Id. at 844–45.
      19
           … Id.
      20
           … Id.
      21
       … Johnson v. Brewer & Pritchard, P.C., 73 S.W .3d 193, 204 (Tex.
2002) (“A court cannot grant summary judgment on grounds that were not
presented.”).
      22
        … Because of our disposition of Mashburn’s first issue, we need not
reach the remaining two issues raised by Mashburn. See Tex. R. App. P. 47.1.

                                       12
      We reverse the summary judgment in part as to the alleged claims that

accrued on November 12, 2002, during March, summer, and fall 2003, and on

October 27, 2004, and remand to the trial court for further proceedings on

those alleged claims consistent with this opinion.23 We affirm the remainder of

the trial court’s summary judgment.




                                           JOHN CAYCE
                                           CHIEF JUSTICE

PANEL: CAYCE, C.J.; HOLMAN and MCCOY, JJ.

DELIVERED: November 13, 2008




      23
      … Because our review is limited to the ground asserted in the summary
judgment motion, we express no opinion on the merits of the remanded claims.

                                      13
