      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00243-CV



   Appellants, Tara Stone and Eric Stone// Cross-Appellants, Elizabeth Coronado, M.D.
                           and Community Medical Associates

                                                 v.

     Appellees, Elizabeth Coronado, M.D. and Community Medical Associates// Cross-
                           Appellees, Tara Stone and Eric Stone


  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
        NO. B-09-1533-C, HONORABLE BEN WOODWARD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               These cross-appeals arise from a “sponge case”—a health care liability claim about

a surgical procedure in which a sponge was left inside a patient and not discovered until some years

later. The district court granted summary judgment for defendant providers on limitations grounds.

The principal issue presented is whether the plaintiff’s summary-judgment evidence raised a fact

issue as to the applicability of the exception to limitations compelled by the Texas Constitution’s

Open Courts provision. Concluding that it did, we will reverse and remand.

               On March 23, 2007, Dr. Elizabeth Coronado, appellee, performed a caesarian section

and hysterectomy on appellant Tara Stone. During this procedure, a surgical sponge was left inside

Tara’s abdomen.1 The sponge was finally discovered in late September or early October 2009, and


       1
        When necessary to distinguish between appellants, a married couple who share a common
surname, we will use their first names for clarity.
was surgically removed on October 23. On December 28, 2009, Tara, along with her husband, Eric,

filed suit against Coronado and Coronado’s employer, Community Medical Associates (collectively,

appellees), seeking damages allegedly attributable to Coronado’s professional negligence in leaving

the sponge in Tara’s body.2 Appellees pleaded the affirmative defense of limitations and later sought

summary judgment on that ground, relying on the two-year period established by section 74.251(a)

of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a)

(West 2011) (generally requiring that “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”).3 Appellees attached to their summary-

judgment motion copies of each side’s live pleadings and a March 23, 2007 “Operative Note”

prepared by Coronado that described Tara’s surgery earlier that day.

               As the Stones acknowledge, appellees’ motion and attachments met their summary-

judgment burden of establishing that the suit was filed after the expiration of section 74.251(a)’s

two-year limitations period—limitations had expired on March 23, 2009, and the Stones did not

file suit until December 28 of that year. See id. As the ground for denying summary judgment

against their claims, the Stones sought to raise a genuine issue of material fact issue as to the

applicability of the exception to this limitations period compelled by the Open Courts provision of

the Texas Constitution—whether they lacked a “reasonable opportunity to discover the alleged

       2
          The Stones also sued the hospital where the 2007 surgery was performed, San Angelo
Community Medical Center, L.L.C., as well as a radiologist and the professional association that
employed him. The Stones later non-suited their claims against the radiologist and his employer,
and their claims against San Angelo Community Medical Center were later severed.
       3
          In the absence of material intervening substantive changes, we cite to the current version
of the code for convenience.

                                                  2
wrong and bring suit before the limitations period expired.” Walters v. Cleveland Reg’l Med. Ctr.,

307 S.W.3d 292, 295 (Tex. 2010); see Tex. Const. art. I, § 13. To meet this burden, the Stones

presented essentially three categories of summary-judgment proof: (1) ten sets of medical records

from various providers concerning Tara’s surgery in 2007 and medical care she received in 2009,

including care leading up to the ultimate discovery and removal of the sponge; (2) a document

purporting to be a personal calendar that Tara had maintained around the time the sponge was

discovered; and (3) copies of condensed versions (4 pages to 1) of the oral depositions of Tara and

Coronado that did not include the witnesses’ signatures or a reporter’s certification.

               Appellees objected to and moved to strike the entirety of the Stones’ summary-

judgment evidence on several evidentiary and procedural grounds. The district court excluded the

medical records as hearsay, holding that the affidavit on which the Stones had relied to prove up

hearsay exceptions, which had been prepared by one of their attorneys, failed to present facts

establishing the foundation for any such exceptions. The court similarly excluded the calendar for

lack of foundation. On the other hand, the district court rejected complaints by appellees that the

Stones’ failure to include witness signatures or reporter’s certifications with the depositions was

fatal, and admitted and considered that evidence in opposition to appellees’ motion. However,

concluding that the deposition testimony did not raise a genuine issue of material fact as to the

applicability of the Open Courts exception to limitations, the district court granted a final summary

judgment that the Stones take nothing on their claims against appellees.4




       4
        It was in this same order that the district court severed out the Stones’ claims against
San Angelo Community Medical Center, making the summary-judgment order final.

                                                 3
                 The Stones and appellees each filed notices of appeal. In the first of two issues on

appeal, the Stones urge that the district court erred in granting summary judgment for appellees

because, they assert, the evidence raised a genuine issue of material fact as to whether the

Open Courts exception to limitations applies. In their second issue, the Stones argue that the

district court abused its discretion in excluding the medical records and calendar from evidence,

which, in their view, raises further fact issues regarding the Open Courts exception. In their cross-

appeal (or, alternatively, as a cross-point), appellees complain that the district court abused its

discretion in failing to exclude the two depositions. Because we conclude that Tara’s deposition

testimony is ultimately dispositive, we will begin our analysis with appellees’ complaint challenging

its admission.

                 Whether to admit or exclude evidence lies within the sound discretion of the

trial court. Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). We review

a trial court’s decision to admit or exclude evidence under an abuse-of-discretion standard. National

Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527-28 (Tex. 2000). The test for abuse of discretion

is not whether, in our opinion, the facts present an appropriate case for the trial court’s actions.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Rather, it is a

question of whether the trial court acted without reference to any guiding rules and principles. Id.

In other words, we must determine whether the court’s rulings were arbitrary or unreasonable. Id.

at 242. The mere fact that a trial court may decide a matter within its discretionary authority in a

different manner than an appellate judge in a similar circumstance does not demonstrate that an

abuse of discretion has occurred. Id. Nor does a mere error of judgment amount to an abuse of

discretion. Loftin v. Martin, 776 S.W.2d 145, 146 (Tex. 1989).

                                                  4
                Although appellees acknowledge on appeal that the copies of the two depositions

need not be authenticated, see McConathy v. McConathy, 869 S.W.2d 341, 342 (Tex. 1994)

(per curiam), they assert that the copies are nonetheless inadmissible because they are “unsworn

and unsigned,” citing Texas Rule of Evidence 603 (requiring that witnesses testify under oath

or affirmation) and several cases where testimony was excluded on that basis. See Hines v. Texas

Dep’t of Family & Protective Servs., No. 01-08-00045-CV, 2009 Tex. App. LEXIS 9759, at *10

(Tex. App.—Houston [1st Dist.] Dec. 3, 2009, no pet.) (mem. op.) (holding that grandmother’s

informal statements in court were not testimony when “she spoke informally with the trial court

before the parties began presenting evidence, and neither party called her as a witness”); Carr

v. Hertz Corp., 737 S.W.2d 12, 13 (Tex. App.—Corpus Christi 1987, no writ) (holding that

deposition excerpts were not summary-judgment evidence because “these portions of deposition

testimony do not reflect whether [deponents] were under oath upon giving their testimony”);

First State Bank of San Diego v. Duval Cnty., 567 S.W.2d 271, 272 (Tex. Civ. App.—Waco 1978,

writ ref’d n.r.e.) (deposition affirmatively reflected that it was neither sworn to nor signed); Graves

v. George Dullnig & Co., 548 S.W.2d 502, 504 (Tex. Civ. App.—Eastland 1977, no writ) (where

summary-judgment motion referred to depositions “on file” that were neither actually filed with the

court nor attached to the motion, an unsigned copy that was received, not filed, by the trial court after

the motion was decided could not constitute summary-judgment evidence); Cauble v. Key, 256 S.W.

654, 655 (Tex. Civ. App.—Austin 1923, no writ) (holding that there was no statement of facts

because “[t]he bills of exception undisputedly show that on the trial the plaintiff was the only

witness, and that he was not sworn”). The central feature in these cases, as they relate to the use of

depositions as summary-judgment evidence, is that the deposition either affirmatively showed that

                                                   5
the witness had not been sworn, e.g., First State Bank, 567 S.W.2d at 272, or deposition excerpts

were submitted that did not show whether or not the witness had been sworn, Carr, 737 S.W.2d

at 13. The present case is distinguishable. In contrast to the cases on which appellees rely, the

Stones attached the entirety of the two depositions, and each reflects that the witness was sworn

prior to testifying. Because each deposition on its face reflects that the witness was sworn prior to

testifying, the district court did not abuse its discretion in admitting the depositions as summary-

judgment evidence.5 We overrule appellees’ issue.




        5
           Appellees also cite several cases that address instances where there is a missing or
defective jurat on an affidavit. See Ford Motor Co. v. Leggat, 904 S.W.2d 643, 645 (Tex. 1995);
Perkins v. Crittenden, 462 S.W.2d 565, 567-68 (Tex. 1970) (holding that because purported affidavit
contained only acknowledgment, it was not an affidavit at all); Residential Dynamics, LLC
v. Loveless, 186 S.W.3d 192,197 (Tex. App.—Fort Worth 2006, no pet.) (noting that Perkins may
not be current Texas law and holding that affidavit was sufficient because, even without a jurat,
it noted that affidavit had been sworn); Medford v. Medford, 68 S.W.3d 242, 247 (Tex. App.—Fort
Worth 2002, no pet.) (holding that statement that was not notarized was not affidavit); Laman v. Big
Spring State Hosp., 970 S.W.2d 670, 672 (Tex. App.—Eastland 1998, pet. denied) (stating that
affidavits attached to motions were fatally defective because they did not contain proper jurats);
Clendennen v. Williams, 896 S.W.2d 257 (Tex. App.—Texarkana 1995, no writ) (stating that
absence of jurat is a substantive defect rather than a defect of form, and it renders statement
incompetent as summary-judgment evidence). These cases either support the Stones’ position or
have recently been overruled. In Ford Motor Co., the supreme court rejected the argument that an
affidavit was invalid due to a defective jurat because the affidavit met the Texas statutory
requirements for affidavits. 904 S.W.2d at 645. The supreme court noted that the affidavit was
valid, even without the jurat, because it contained an acknowledgment and recited that the affiant
“was ‘first duly sworn,’ and ‘on his oath’ stated what followed.” Id.; accord Residential Dynamics,
LLC, 186 S.W.3d at 197. Recently, in Mansions in the Forest, L.P. v. Montgomery County, the
supreme court held that neither the government code nor Rule of Civil Procedure 166a require
a summary-judgment affidavit to contain a jurat. No. 10-0969, 2012 Tex. LEXIS 338, at *1
(Tex. Apr. 20, 2012) (per curiam). The supreme court explained that “the record must contain
some evidence that the purported affidavit was sworn to by [the affiant] before an authorized
officer.” Id. at *7. The court further overruled Laman, Clendennen, Medford, and other such
opinions to the extent that they were inconsistent with the court’s holding that, outside the context
of affidavits offered to verify copies of documents, the absence of a jurat is not a defect of substance.
Id. at *9-10.

                                                   6
                Having concluded that the district court did not abuse its discretion in admitting the

two depositions into the summary-judgment record, we now turn to whether either raised a genuine

issue of material fact as to whether the Stones lacked a “reasonable opportunity to discover the

alleged wrong and bring suit before the limitations period expired.” Walters, 307 S.W.3d at 295.6

“[C]ourts must determine what constitutes a reasonable time for a claimant to discover her injuries

and file suit.” Id. (quoting Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 784

(Tex. 2007)). However, the underlying facts that bear upon that inquiry are ascertained by review

of the summary-judgment evidence in the light most favorable to the Stones, indulging reasonable

inferences and resolving doubts in their favor. Id. at 296.

                In her deposition, Tara testified that she first learned that a surgical sponge had

been left inside her body “within a day or two” after a September 29, 2009 doctor visit (i.e., on or

about October 1, 2009), when she received the results of a CT scan that had been performed

during her September 29 visit. Tara underwent surgery to remove the sponge a few weeks later, on

October 23. Tara acknowledged that she had experienced lower abdominal pain and tenderness as

early as “around two, three or four weeks” before a September 16, 2009 doctor visit in which she

sought treatment concerning a fungal infection. She reported her abdominal symptoms to the doctor

treating her for the fungal condition, leading in turn to the September 29 visit with a different doctor,




        6
           Appellees assert that we should not consider the Stones’ first issue because the Stones have
not provided record cites in compliance with Texas Rule of Appellate Procedure 38.1. While the
Stones perhaps could have been more thorough in citing record support for their factual assertions,
the cites they have provided support their facts and arguments, and this Court was able to ascertain
from their brief the pertinent facts, legal authority, and substantive analysis. Cf. Valadez v. Avitia,
238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.) (finding waiver where two-and-a-half page
brief lacked any citations to authority and did not contain a statement of the issues for review).

                                                   7
who ordered the CT scan. Tara testified that she had initially attributed her pain and discomfort to

the likely presence of scar tissue from three prior caesarian sections (the one performed by Coronado

was her third) and a tummy tuck, an idea or assumption that, according to Tara, came from

Coronado, who “said I don’t scar well and that—that I can expect some scar tissue.” Tara denied

having been treated by anyone for abdominal pain or a fungal infection prior to September 16, 2009.

               During Tara’s deposition, appellees’ counsel, purporting to cite or quote various

medical records that counsel ultimately succeeded in having excluded from evidence, vigorously

cross-examined Tara regarding what were portrayed as admissions by Tara to her health care

providers that she had experienced abdominal pain as early as September 2008 and had already

discovered an abdominal mass as early as three to four months prior to her September 16, 2009

doctor visit. In response to these questions, Tara either denied having reported such facts to the

provider or claimed that she could not remember precisely what she told the provider.

               Viewing this evidence in the light most favorable to the Stones, indulging reasonable

inferences and resolving doubts in their favor, Walters, 307 S.W.3d at 296, Tara did not discover

the sponge inside her until around October 1, 2009; had not experienced symptoms related to the

sponge until mid-August to early September 2009; and to the extent she had, she had attributed

the symptoms—based on Coronado’s previous advice—to the presence of scar tissue. Appellees’

arguments to the contrary would have us deviate from the limitations of our standard of review on

summary judgment, and ultimately amount to attacks on the credibility and weight of the testimony

from Tara that tends to favor her position.

               We further conclude that this evidence, viewed through the prism of our summary-

judgment review standard, raises a genuine issue of material fact as to whether the Stones lacked

                                                 8
a “reasonable opportunity” to discover the alleged wrong and bring suit before the limitations

period expired. In reaching this conclusion, we are guided by the Texas Supreme Court’s analysis

in Walters. Like the present case, Walters reviewed a summary judgment based on the claimant’s

failure to bring her “sponge case” within the two-year statute of limitations period. Id. at 294.

Indeed, Walters did not file suit until over nine-and-a-half years after the disputed surgery. Id. The

court of appeals concluded limitations applied because “(1) Walters experienced pain and

various ailments immediately after her surgery and for years thereafter, well before the sponge

was discovered; and (2) she did not see a doctor for more than two years after her surgery. . . .” Id.

at 296. The supreme court disagreed.

               While Walters experienced pain following surgery, that fact alone, in the

supreme court’s view, did not demonstrate that she should reasonably have discovered the sponge.

Id. The court pointed out evidence that a nurse had assured Walters “her abdominal pain was not

indicative of a problem with her surgery,” but instead could be attributed to other causes. Despite

Walters’ repeated complaints, her treating physician “did not diagnose a foreign object or

recommend further testing or referral to a specialist.” Id. After years of pain and varied diagnoses,

Walters’ gynecologist discovered an unusual lump, which led to the surgery that discovered the

sponge. Id. at 295. Given these facts, the supreme court was unwilling to conclude that Walters

failed to raise a fact issue as to whether she discovered the sponge and brought suit within a

reasonable time. Id. at 299.

               The Texas Supreme Court further observed that “‘[i]t is a virtual certainty that the

patient has no knowledge on the day following the surgery—nor for a long time thereafter—that a

foreign object was left in the incision.’” Id. at 296 (quoting Gaddis v. Smith, 417 S.W.2d 577, 580

                                                  9
(Tex. 1967), superseded by statute, Professional Liability Insurance for Physicians, Podiatrists, and

Hospitals Act of June 3, 1975, 64th Leg., R.S., ch. 330, § 1, 1975 Tex. Gen. Laws 864, 865, as stated

in Morrison v. Chan, 699 S.W.2d 205, 208 (Tex. 1985)). It added:


       Sponge cases stand alone in the healthcare-liability context. First, they are rare.
       Second, surgical instruments do not remain inside patients absent negligence. Third,
       errant items like sponges are exceedingly difficult to discover. In three of our sponge
       cases—Neagle, Rankin, and this case—the sponge was only discovered after a lump
       was noticed on the claimant’s body.


Id. at 297 (footnotes omitted); see Methodist Healthcare Sys. of San Antonio, Ltd. v. Rankin,

307 S.W.3d 283 (Tex. 2010); Neagle v. Nelson, 685 S.W.2d 11 (Tex. 1985).

               If anything, the summary-judgment evidence here, taken as true, would establish that

Tara had even less of an opportunity to discover her injury than the claimant in Walters. Unlike the

claimant in Walters who experienced constant pain and maladies for almost ten years, Tara testified

that she did not experience the abdominal pain that led to the sponge’s discovery until approximately

two-and-a-half years following the surgery. Tara further testified that less than two months passed

between her initial abdominal pain and the discovery of the sponge. And prior to discovery of the

sponge, Tara attributed her pain and discomfort to the presence of scar tissue based on her

discussions with Coronado. Informed by the Texas Supreme Court’s guidance in Walters, we hold

that the Stones have also raised a fact issue as to whether they lacked a “reasonable opportunity” to

discover Tara’s injury prior to the expiration of limitations.

               We likewise conclude that the Stones have raised a fact issue as to whether they

used due diligence in seeking judicial relief following the sponge’s discovery. After the sponge was

discovered, the Stones obtained counsel and filed suit within roughly two to three months. Based

                                                 10
on this evidence, we have little trouble reaching the same conclusion the supreme court reached in

Walters. Id. at 295 & n.17 (plaintiffs may not obtain relief under the open courts provision if they

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

               We sustain the Stones’ first issue and need not reach their second. See Tex. R. App.

P. 47.1. We reverse the district court’s summary judgment and remand the Stones’ claims for further

proceedings.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Reversed and Remanded

Filed: June 6, 2012




                                                11
