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Rubalcaba v. Kaestner9/17/1998
On Appeal from the 269th District Court Harris County, Texas Trial Court Cause No. 93-65052
This is an appeal from take-nothing summary judgments rendered in favor of appellees, Gottfried Kaestner, Walter R. Sassard, Brodsky, Kaestner & Sassard, P.A., Kaestner, Sassard, Scarpino & Finkel, P.A., and George Reul (the doctors), and St. Luke's Episcopal Hospital, in a medical malpractice action brought by appellants, Fernando and Pauline Rubalcaba and intervenor, Cigna Insurance Co. We affirm.
Factual & Procedural Background
Fernando Rubalcaba injured his back at work and sought medical treatment from an orthopedist, Gottfried Kaestner. After diagnostic scans revealed problems with Rubalcaba's spinal discs, Kaestner scheduled surgery. Other tests available before the operation showed Rubalcaba had a calcified aorta, no pedal pulses in his left leg, and had suffered earlier heart attacks. Kaestner allegedly did not review these tests nor order a preoperative cardiovascular workup. Kaestner also elected to make his incision through the front, rather than the back, which required him to retract the aorta. Kaestner operated with the assistance of George Reul and Walter Sassard. Rubalcaba had expected only Kaestner to operate.
The surgery itself was apparently unremarkable; hours later, however, as a result of a clot in his femoral artery, Rubalcaba lost circulation in his left leg. This condition necessitated emergency surgery. Over the next 18 months, Rubalcaba underwent nine more surgeries as his doctors attempted to restore circulation and function to the leg. After each operation, he was left increasingly debilitated. Rubalcaba was not happy with his care and began to make inquiries. The hospital and doctors did not respond to many of Rubalcaba and Cigna's initial attempts to obtain medical records. When complete records were finally obtained, it was evident they had been tampered with.
Rubalcaba sued the doctors and the hospital, and Cigna intervened. All of the defendants moved for summary judgment, based on limitations. Rubalcaba then amended his petition, claiming that (1) the defendants fraudulently concealed his medical records from him, thereby preventing him from discovering his injury and (2) the defendants did not negate the "open courts" doctrine. The trial court rendered summary judgment for all defendants. Cigna nonsuited its claims for wrongful billing and joined Rubalcaba in this appeal.
Rubalcaba contends the trial court erred in finding that the claim was barred by limitations because: (1) the fraud claims are not governed by article 4590i; (2) the defendants did not negate the "open courts" doctrine; and (3) he raised fact issues regarding fraudulent concealment. Cigna complains of the same errors and further contends the defendants did not establish the date the tort occurred, establish the last date of hospitalization, or negate the "continuous course of treatment" defense.
Standard of Review
Summary judgment is proper only when the movant shows that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Tex. R. Civ. P. 166a(c). For a defendant to prevail on a motion for summary judgment, it must either: (1) disprove at least one element of the plaintiff's cause of action; or (2) plead and conclusively establish each essential element of an affirmative defense to the plaintiff's cause of action. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984); Casey v. Methodist Hospital, 907 S.W.2d 898, 900 (Tex. App.-Houston [1st Dist.] 1995, no writ).
On
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