Kimball v. Brothers

In Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987), the plaintiff was admitted into the hospital for chest pains. His surgery was postponed, however, because the defendant doctor was unable to intubate and the plaintiff suffered respiratory and cardiac failure. After this incident, the doctor performed no other procedures on the plaintiff and did not see him again though the plaintiff stayed in the hospital for six more days. Kimball, 741 S.W.2d at 372. The plaintiff sued the doctor for negligence two years after the last day he stayed in the hospital. This Court affirmed the trial court's summary judgment for the doctor on limitations grounds, concluding that the precise date of the alleged tort was ascertainable from the case's facts. That is, the alleged tort occurred on the only date the doctor had contact with the plaintiff. Accordingly, the Court held that the plaintiff could not invoke the second or third categories in section 10.01 to measure the limitations period and, therefore, the claims were time-barred. Kimball, 741 S.W.2d at 372. In sum, the plaintiff was taken to surgery on March 11, 1982, but the anesthesiologist defendant had trouble intubating him and the surgery was postponed. 741 S.W.2d at 371. The defendant had no further contact with the plaintiff, who was discharged from the hospital on March 17, 1982. Id. Although it was undisputed that the alleged breach or tort causing the injury occurred on March 11th, plaintiff argued that limitations did not begin to run until the last day of his hospitalization. Id. at 372. The Court rejected Kimball's argument because the statute expressly limited that option to claims based upon the hospitalization itself, rather than discrete, identifiable, negligent acts. Id. But we also noted that the statutory provision allowing limitations to run from the completion of medical or health care treatment contemplates a situation like the present one, in which "the patient's injury occurs during a course of treatment for a particular condition and the only readily ascertainable date is the last day of treatment." Id.