Court Rules Claim For Wrongful Death During Pending Malpractice Case Timely: In her original petition filed on March 5, 2013, Juana Laguna alleged that appellees negligently treated a fracture in Regino Gonzalez, Jr.’s left femur, which he suffered spontaneously while he was engaged in routine movement on December 23, 2010. Specifically, she argued appellees treated the fracture by surgically inserting an intermedullary rod but failed to diagnose the injury as a pathological fracture caused by osteosarcoma, an aggressive malignant bone tumor. Laguna further contended that the insertion of the rod resulted in the cancer spreading throughout Regino’s leg and, ultimately, amputation of the limb in May of 2011.
On September 24, 2013, Laguna filed an amended petition stating that Regino “reached the age of majority” and naming him as an additional plaintiff.
Regino died on March 25, 2017. On November 26, 2018, Joanna Gonzalez Acevedo filed a “Suggestion of Death” stating that Acevedo had been appointed administrator of Regino’s estate and requesting that Regino’s lawsuit proceed in Acevedo’s name in her capacity as administrator. On December 14, 2018, appellants filed a second amended petition explaining that the cancer in Regino’s leg had metastasized to his lungs and caused his death. The second amended petition added Acevedo as a plaintiff solely in her capacity as administrator of Regino’s estate and also alleged a survival action on behalf of the estate as well as a wrongful death claim on behalf of Laguna.
The defendants filed motions for summary judgment, arguing that the second amended petition asserted “two entirely new claims”—i.e., the survival action and the wrongful death claim—which were barred by limitations. The trial court granted the defendants’ motions for summary judgment, and the plaintiffs appealed.
The Court of Appeals Thirteenth District of Texas Corpus Christi – Edinburg (“Texas Appellate Court”) stated in its Memorandum Opinion dated July 21, 2022: “We agree with appellants that, for limitations purposes, the claims made in the second amended petition related back to the claims made in the original petition. At the trial court, it was undisputed that Laguna’s original personal injury claim was “not subject to a plea of limitation” when it was filed, because it was “commenced” within two years and seventy-five days 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.” See id. §§ 74.051(c), 74.251(a). Appellants’ second amended petition omitted the personal injury claim and, in lieu thereof, asserted wrongful death and survival claims (the new claims). However, the new claims are obviously not “wholly based on a new, distinct, or different transaction or occurrence.” See id. § 16.068. Instead, the new claims are based on exactly the same allegedly negligent behavior—insertion of the intermedullary rod and failure to diagnose cancer—as the original claims. The second amended petition may have “change[d] the facts or grounds of liability” to reflect the circumstance of Regino’s death, but it did not alter the “transaction or occurrence” upon which the suit was based. See id. Accordingly, the relation-back doctrine applies.”
Source Laguna v. Fulp, Number 13-20-00484-CV.
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