The Underlying Facts
Plaintiff Tom Ray Lemen (“Lemen”) alleged in his Texas medical malpractice case that Defendant Siegfried Pueblitz, M.D. (“Pueblitz”) misinterpreted the results of a kidney biopsy for Lemen on January 25, 2017. On January 22, 2019, Lemen was diagnosed with cancer by a different physician. Lemen had the cancerous kidney surgically removed on February 22, 2019.
Lemen filed a Texas medical malpractice suit against Pueblitz on March 11, 2021, claiming Pueblitz negligently interpreted the biopsy. Pueblitz filed a motion for summary judgment arguing that Lemen’s claim was barred by limitations (TEX. CIV. PRAC. & REM. CODE. ANN. § 74.251(a), which establishes a two-year limitations period for health care liability claims). Lemen invoked the Texas Constitution’s open-courts doctrine, which gives litigants a reasonable time to discover their injuries and file suit. TEX. CONST. art. I, § 13. Lemen submitted affidavits from himself, his wife, and his counsel, which stated “that [he] attempted to retain counsel to bring suit for this late-discovered injury, but that health issues, then the COVID-19 pandemic, prevented him from retaining counsel,” and that between July 2019 and June 2020, he spoke to at least fifteen separate attorneys to represent him on the case before he was finally able to find a Texas medical malpractice lawyer to represent him.
The trial court denied Pueblitz’s motion for summary judgment but did not state the grounds on which it relied. The trial court did make the necessary findings to support a permissive appeal and granted Pueblitz’s permission to file a permissive appeal. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d). Pueblitz subsequently filed his petition for permissive appeal.
Texas Appellate Court Opinion
The Texas Appellate Court stated that to be entitled to a permissive appeal from an interlocutory order that is not otherwise appealable, the requesting party must establish to the trial court that (1) the order involves a controlling question of law as to which there is a substantial ground for difference of opinion and (2) allowing immediate appeal may materially advance the ultimate termination of the litigation.
The open courts provision of the Texas Constitution provides litigants a reasonable time to discover their injuries and file suit without being time-barred by applicable limitations periods. The doctrine is commonly applied to health care liability claims where the malpractice cannot be readily discovered, such as errant-sponge cases. Under the open courts provision, a claimant must use due diligence and sue within a reasonable time after learning about the alleged wrong to overcome a limitations defense. Whether a period of time is reasonable under the open courts doctrine is ordinarily a question of fact.
The Texas Appellate Court held in the case it was deciding: “Having reviewed Pueblitz’s amended petition and the documents attached thereto, this Court is of the opinion that Pueblitz has not shown that he is entitled to a permissive appeal. A permissive appeal to a denial of summary judgment on that issue would be inappropriate because whether Lemen used due diligence and brought his suit within reasonable time is a fact question.”
Source Pueblitz v. Lemen, Number 13-21-00395-CV.
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