Fort Worth appellate court upholds summary judgment in health care liability case over eye surgery

By Charmaine Little | Jan 30, 2019

FORT WORTH – Thanks to a plaintiff’s own concession concerning a discovery rule, the Court of Appeals for the 2nd Appellate District of Texas at Fort Worth upheld a ruling from a lower court that granted the appellees' motion for summary judgment on Jan. 17.

Justice Lee Gabriel wrote the opinion while Justices Mark T. Pittman and Dabney Bassel concurred.

“Because [appellant Stacey Burton] conceded in the trial court that the discovery rule is inapplicable and because any alleged fraudulent concealment did not extend the applicable limitations period under the facts presented, the trial court did not err by granting appellees judgment as a matter of law,” Gabriel wrote.


Justice Lee Gabriel   Texas courts

The appellees in the case are Dr. Philips K. Labor, Eye Consultants of Texas and Lonestar Ambulatory Surgical Center.

According to the opinion, Burton had LASIK vision-correction surgery in 2001. In 2005, she noticed issues with her vision and in 2012, consulted appellee Dr. Philips K. Labor, who owned and did business as Eye Consultants of Texas. Labor found the onset of cataracts and performed the appropriate surgery in 2013.

She asked Eye Consultants to give her medical records to her physician after a 2014 follow-up procedure. 

"Burton repeatedly requested that her medical records be forwarded between Aug. 21 and Dec. 11, 2014, but Eye Consultants did not send the records to Burton’s subsequent physician until Jan. 26, 2015," Gabriel wrote.

Burton subsequently sued the defendants over allegations of health care liability in March 2016, three years after she had surgery on the eye. The defendants responded and pleaded the affirmative defense of limitations. Burton then filed a supplemental petition claiming fraudulent concealment. The defendants fired back with a no-evidence motion for summary judgment, stating the Burton’s claims were time-barred and that the discovery rule doesn’t apply to health care liability claims.

Burton responded and conceded that the discovery rule didn’t apply, but she still relied on the fraudulent concealment allegation in hopes of blocking the defendants from leaning on limitations.

The Appeals Court sided with the defendants, stating that Burton failed to show “more than a scintilla of evidence” to back her fraudulent concealment claims. She also admitted that she was given notice of her health care liability claim not too long after the surgery on her right eye. 

“This notice and the fact that a diligent inquiry could have led to the discovery of the appellees’ alleged negligence render Burton’s defense of fraudulent concealment inapplicable to estop appellees from relying on their conclusively established limitations affirmative defense,” Gabriel wrote. 

Considering this, among other things, the Appeals Court held the 153rd District Court of Tarrant County’s ruling in granting summary judgment for the defendants.

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