
No. 04-98-00759-CV
Patricia NEAL-MORENO and Arthur Moreno, individually
and a/n/f Gabriel Moreno and Sarah Moreno,
Appellants
v.
Dave W. KITTRELL M.D.,
Appellee
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 97-CI-11311
Honorable Andy Mireles, Judge Presiding
Opinion on Appellants' Motion for Rehearing En Banc
Opinion by: Tom Rickhoff, Justice
Sitting:	Phil Hardberger, Chief Justice 
		Tom Rickhoff, Justice 
		Alma L. López, Justice
		Catherine Stone, Justice
		Paul W. Green, Justice
		Sarah B. Duncan, Justice
		Karen Angelini, Justice
Delivered and Filed:  April 25, 2001
APPELLANTS' MOTION FOR REHEARING GRANTED;  REVERSED AND REMANDED
	In an opinion and judgment dated May 28, 1999, we affirmed the trial court's judgment in
favor of Dr. Dave W. Kittrell, the defendant below and appellee here.  Patricia Neal-Moreno, the
plaintiff below and appellant here, filed a motion for rehearing en banc.  We grant the motion,
withdraw our opinion and judgment of May 28, 1999, and issue this opinion and judgment in its
place.  We hold that Neal-Moreno's claims against Kittrell were not time-barred.
Factual and Procedural Background
	In March 1995, Neal-Moreno saw Kittrell regarding her irregular menses.  A May 1, 1995
pap smear revealed "atypical cells of undetermined significance."  Neal-Moreno was pregnant when
the pap smear was taken, and on December 14, 1995, she gave birth to her baby.  In July 1996, Neal-Moreno returned to Kittrell, complaining about bleeding since her child's birth.  On July 30, 1996,
Kittrell performed an emergency endometrial biopsy, revealing squamous cell carcinoma (cervical
cancer).  
	On August 5, 1997, Neal-Moreno sued Kittrell, contending Kittrell was negligent in his care
and treatment of her.  Kittrell moved for summary judgment on the grounds that the statute of
limitations barred Neal-Moreno's suit.  The trial court rendered summary judgment in favor of
Kittrell, without stating its grounds.  This appeal by Neal-Moreno ensued.
Standard of Review
	We review a summary judgment de novo.  Sasser v. Dantex Oil & Gas, Inc., 906 S.W.2d 599,
602 (Tex. App.-San Antonio 1995, writ denied).  We will uphold a summary judgment only if the
record establishes that there is no genuine issue of material fact, and that the movant is entitled to
judgment as a matter of law on a ground set forth in the motion.  Tex. R. Civ. P. 166a(c);  Cathey
v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).  When, as here, a trial court's order granting summary
judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be
affirmed on appeal if any of the theories advanced are meritorious.  Rogers v. Ricane Enters., Inc.,
772 S.W.2d 76, 79 (Tex. 1989).
	A defendant who conclusively establishes all of the elements of an affirmative defense is
entitled to summary judgment.   Cathey, 900 S.W.2d at 341.   Once a movant establishes its right to
summary judgment on the basis of an affirmative defense, the nonmovant must respond with reasons
for avoiding summary judgment and must support those reasons with proof sufficient to raise a fact
issue.  Cummings v. HCA Health Servs., 799 S.W.2d 403, 405 (Tex. App.-Houston [14th Dist.]
1990, no writ).  If the nonmovant responds with proof of a basis for avoiding the movant's affirmative
defense, the movant then has the burden to negate the nonmovant's ground for avoidance as a matter
of law.  Id.
Accrual of Neal-Moreno's Cause of Action
As the summary judgment movant, it was Kittrell's burden to establish that Neal-Moreno's
cause of action accrued before August 5, 1995.  Rowntree v. Hunsucker, 833 S.W.2d 103, 106 (Tex.
1992).  In a case such as this, a cause of action accrues on one of three dates: (1) the occurrence of
the breach or tort;  (2) the date the 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.  Id. at 104;  Tex. Rev.
Civ. Stat. Ann. art. 4590i, § 10.01 (Vernon Supp. 2000).  If the date of the breach or tort is
ascertainable, the two-year period of limitations begins to run from that date.  Kimball v. Brothers,
741 S.W.2d 370, 372 (Tex. 1987).  If the record establishes that a physician had a duty to follow up
on a patient's complaint each time he saw her, the statute of limitations does not begin to run until
the last visit in which the physician fails to diagnose the condition to which the complaint relates.
Chambers v. Conaway, 883 S.W.2d 156, 158-59 (Tex. 1993).  When a claim accrues is a question
of law and not fact.  Id. at 159.
	In his motion for summary judgment, Kittrell contended the date of the negligence alleged by
Neal-Moreno is ascertainable-May 1, 1995, when he performed the first pap smear; therefore, he
argued, the statute of limitations began to run on that date.  We disagree.  Neal-Moreno's cause of
action accrued on the date of her last examination by Kittrell immediately following the December
14, 1995 birth of her child-December 16, 1995.  See Chambers, 883 S.W.2d at 158.
	In Chambers, as in this case, the plaintiff sued her doctor for failing to diagnose her cancer,
and the doctor moved for summary judgment on the ground the plaintiff's claim was barred by
limitations.  Id. at 157.  The Supreme Court concluded the plaintiff's claim was not barred.  Id. at
158.  The Court reasoned that the summary judgment evidence established the doctor breached a
continuing duty to care for, monitor, and treat the condition of which he had notice, i.e., the lump in
plaintiff's breast, and this negligence continued "up to the last appointment between them on January
19, 1988, a date less than two years before [the plaintiff] commenced her claim," id., even though the
January 19, 1988 appointment was for a complaint unrelated to the lump.  Id. at 157.  So it is here.
For so long as Kittrell continued to treat Neal-Moreno, he owed her a continuing duty to care for and
monitor the condition of which he had notice, i.e., the abnormal pap smear.  Indeed, the only material
distinction between Chambers and this case is that Conaway, unlike Neal-Moreno, responded to the
motion for summary judgment with a doctor's affidavit establishing the defendant-doctor breached
a continuing duty to perform follow-up tests, care for, monitor, and treat those conditions of which
the doctor had notice.  Under those circumstances, the Court stated:
If Dr. Spoll's opinions and conclusions are to be accepted, they tend to establish that
Dr. Chambers was negligent in his care of Mrs. Conaway up to the last appointment
between them on January 19, 1988, a date less than two years before Mrs. Conaway
commenced her claim.
Id. at 158.  Here, Neal-Moreno did not tender an expert affidavit establishing Kittrell breached a
continuing duty to perform follow-up diagnostic tests, care for, monitor, or treat the cancer suggested
by the abnormal pap smear.  However, that duty and breach are established by other summary
judgment evidence.  For instance, Kittrell's records contain the May 3, 1995 pap smear results, which
recommended an "endocervical curettage, if clinically indicated," and which bore the handwritten
notation "Repeat Pap after childbirth."  Similarly, an August 2, 1996 facsimile bearing Kittrell's
signature states that Neal-Moreno "had a history of an abnormal pap smear 5-1-95 and had been
informed that further evaluation would need to be done after the birth of her baby."  Finally, the breach
is established by Neal-Moreno's affidavit, which states she was not informed of or treated for the
condition first indicated by the abnormal pap smear until July 30, 1996.
CONCLUSION
	Because Dr. Kittrell did not establish as a matter of law that the statute of limitations barred
the suit against him, he is not entitled to summary judgment.  We therefore sustain Neal-Moreno's sole
point of error, and reverse the trial court's judgment and remand for further proceedings.	
 
							Tom Rickhoff, Justice
PUBLISH

