September 10, 2019

The Court of Appeals Fifth District of Texas at Dallas (“Texas Appellate Court”) held in its Memorandum Opinion filed on August 22, 1019 in a Texas medical malpractice case in which the plaintiff alleged that a cotton ball was left behind in her brain at the conclusion of the brain surgery she had for a benign tumor in July 2006: “there is more than a scintilla of evidence to show that [the plaintiff] prosecuted her claim and suit with that degree of diligence that an ordinary prudent person would have exercised under the same or similar circumstances,” even though she had not filed her Texas medical malpractice lawsuit until seven years after the surgery, well beyond the two-year statute of limitations for medical malpractice cases in Texas.

After hearing the evidence, the jury found that the defendant neurosurgeon’s negligence in leaving a cotton ball in the plaintiff’s brain proximately caused her injury. The jury also found that the defendant’s negligence in leaving a nonradiopaque cotton ball in her brain caused her injury. The Texas medical malpractice jury awarded the plaintiff $275,000 for her loss of earning capacity in the past and $1.54 million for her loss of earning capacity in the future, but awarded no damages for past or future physical pain and mental anguish, past or future disfigurement, or past or future physical impairment. The jury also found that, after discovering her injury, that the plaintiff had diligently prosecuted her claim.

The defendant neurosurgeon moved for JNOV (judgment notwithstanding the verdict), challenging the jury’s findings with regard to the due diligence and the damage questions. The trial court denied the defendant’s motion for JNOV and rendered judgment in accordance with the jury’s verdict. The defendant then appealed.

Texas Appellate Court Opinion

Open Courts Defense

The Texas Constitution guarantees that persons bringing common-law claims will not unreasonably or arbitrarily be denied access to the courts. TEX. CONST. art. 1 § 13. (“All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”). The Texas Appellate Court stated that this provision grants foreign-object claimants, such as the plaintiff, a reasonable opportunity to discover their injuries and file suit if the two-year limitations period has run. The provision, however, does not toll limitations: unlike the discovery rule, which defers the accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to the claim, the open courts provision merely gives litigants a reasonable time to discover their injuries and file suit.

The Texas Appellate Court pointed to the following testimony by the plaintiff: the plaintiff relied upon more than just her inability to find an expert for the delay in filing suit; the plaintiff testified that after the second surgery, it took her eight months to find a doctor willing to treat her because the doctors feared they were going to be dragged into litigation; the plaintiff testified there were periods between the 2011 surgery (the second surgery during which the cotton ball was discovered) and the filing of suit where she simply was not well enough to meet with her lawyer (“the jury could have reasonably inferred that [the plaintiff] was hampered in her ability to assist her lawyer throughout the twenty-five months”); and, the plaintiff testified that it took her “multiple years” to find an expert to testify on her behalf (“While [the defendant] is technically correct that [the plaintiff] did not have to have an expert before she filed her lawsuit, she did need to have an expert report within 120 days of filing suit”).

The Texas Appellate Court held: “in this case, [the plaintiff] provided multiple reasons to explain her delay in this suit, all of which we have detailed above. [The plaintiff] only needed to show more than a scintilla of evidence to defeat [the defendant’s] motion for JNOV. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions … Considering the evidence in the light most favorable to the verdict and indulging every reasonable inference that would support it, we conclude there is more than a scintilla of evidence to show that [the plaintiff] prosecuted her claim and suit with that degree of diligence that an ordinary prudent person would have exercised under the same or similar circumstances.”

Source Chang v. Denny, No. 05-17-01457-CV.

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