EMAIL TO A FRIEND COMMENT

 

Limitations Not Tolled-Misidentified Defendants; No Notice of Malpractice Suit


A woman underwent a surgical procedure at her surgeon’s surgical practice group’s facility. Complications arose in the middle of the surgery preventing the surgeon from completing the surgery and requiring the woman to be transferred to a hospital and admitted to the intensive care unit (ICU). The woman remained in the ICU for three days. She continued having difficulties following discharge and had further surgery at a different hospital five days later.

 

Three days short of two years after the initial surgery, the woman sent a letter of intent to file suit to the surgeon and hospital. Two days later she filed suit against the surgeon and hospital. About nine months later she amended her petition to name the surgical practice group as a defendant. Ten days later the surgical practice group’s general partner and umbrella organization were added as defendants.

 

The surgical practice group, its general partner, and umbrella organization moved for summary judgment because the suit was filed outside the limitations period. They argued that the statute of limitations period began to run on the date the surgeon performed the surgery and would have expired two years later except the woman gave timely notice of her intent to sue, which tolled the limitations period by 75 days. The amended petitions adding them as defendants were filed six months after the two years and 75 days had passed.

 

The woman argued that the limitations period was tolled because they misidentified the defendants. In support, she included affidavits of the woman’s son and her counsel stating the woman thought the facility where the surgery was performed was a hospital facility and the facility displayed the hospital’s trademark, the hospital had stated that no additional parties existed in response to the woman’s request for disclosure. They attached as an exhibit a “Transfer Agreement” between the surgical practice group and the hospital. This document memorialized an agreement with respect to the transfer of patients, if necessary, from the surgical practice group to the hospital. The woman asserted this evidence raised a fact issue as to whether a business relationship existed between the surgical practice group and the hospital such that the surgical practice group knew they were the intended defendants and were not prejudiced by the late naming of them as defendants.

 

The County Court at Law No. 5, Dallas County, Texas, granted summary judgment and, subsequently severed the woman’s claims against the surgical practice group, its general partner, and umbrella organization from the claims against the hospital and surgeon.

 

The Court of Appeals of Texas, Dallas, affirmed. The court held that the woman failed to raise a fact issue as to misidentification because she failed to raise a fact issue showing the surgical practice group, its general partner, and umbrella organization had actual notice of the suit.

 

The woman failed to raise a fact issue as to misidentification because she failed to raise a fact issue showing the surgical practice group, its general partner, and umbrella organization had actual notice of the suit. Misidentification tolls limitations when the plaintiff sues an entity with a name similar to the correct entity, the two entities use a similar trade name, and the correct entity had notice of the suit and was not misled or disadvantaged by the mistake. The critical inquiry in misidentification cases is whether the correct defendant received actual notice of the lawsuit within the limitations period. That a business relationship may have existed between the surgical practice group and the hospital did not, without more, establish the surgical practice group, its general partner, and umbrella organization had notice of the suit. The court noted that the hospital and the surgical practice group, its general partner, and umbrella organization were represented by different counsel. The woman offered no summary judgment evidence indicating the parties’ respective counsel communicated with one another prior to the filing of the amended petitions. The woman’s notice of intent to sue and original petition did not mention the surgery occurred at the surgical practice group’s facility. Rather, the notice and petition stated that the surgery was “attempted and aborted” by the surgeon “in the course and scope of his employment with [the hospital].” The court concluded that the record failed to raise a fact issue that the surgical practice group, its general partner, and umbrella organization had notice of the suit.

 

The Court of Appeals of Texas, Dallas, affirmed the trial court’s dismissal of the action against the surgical practice groups on limitations grounds.

 

See: Gaona v. Garland Surgicare Partners, Ltd., 2016 WL 4189343 (Tex.App.-Dallas, August 8, 2016) (not designated for publication). 

 

 

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