Statute of Limitations of Suit for Failure to Diagnose Cancer
In Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998), the plaintiff, Khatib, complaining of a thickness in her left breast, visited Dr. Husain, a gynecologist, on December 5, 1989.
Husain ordered a mammogram, and on January 25, 1990, told Khatib that the mammogram showed fibrocystic disease, no cancer.
She referred Khatib to her husband, Dr. A.Husain, for a second opinion, and he agreed with the diagnosis. on September 26, 1991, Husain examined Khatib's breasts during a consultation arising from an unrelated complaint.
She did not order any tests at that time.
On August 25, 1992, Husain again examined Khatib's breasts and ordered a mammogram.
Included in the summary judgment evidence were records from the radiology firm that performed the mammogram.
Those records indicated that the lab notified Husain on September 3, 1992, that the results suggested cancer.
Khatib testified that on September 8, 1992, Husain told her that her pap smear would have to be redone and that she needed to meet with Dr. A.Husain to get her mammogram results.
Approximately six months later, on May 26, 1993, Khatib's attorney gave written notice of her claim to Husain.
On November 15, 1993, suit was filed on Khatib's behalf against Husain, her husband A.Husain, the radiologist who interpreted the January 1990 mammogram, and the radiologist's employer.
Based upon limitations, the trial court granted summary judgment in favor of the defendants.
Upon appeal, the court of appeals reversed as to Husain, but affirmed as to the other defendants. the supreme court reversed the court of appeals as to Husain, and rendered a take-nothing judgment in favor of all defendants.
En route to its decision, the supreme court noted that the dates of the alleged negligence were easily ascertainable in that any negligence, at the latest, could only have occurred at the time of the September 26, 1991 exam.
The court noted the statute of limitations period is measured from one of three dates:
(1) the date of the tort;
(2) the last date of relevant treatment;
(3) the last date of relevant hospitalization, and it pointed out that the statute does not permit a plaintiff to simply pick out the most favorable date. Husain, 964 S.W.2d at 919.
The purpose of the provisions for measuring limitations from the last date of treatment or hospitalization, it observed, is to aid a plaintiff who was injured during a period of hospitalization or a course of medical treatment but has difficulty in ascertaining the precise date of injury. Id.
It is only in that type of situation that the statute resolves doubts about the time of accrual in the plaintiff's favor by using the last date of treatment or hospitalization as a proxy for the actual date of the tort.
However, if the date of the negligence can be ascertained, then there are no doubts to resolve and limitations must be measured from the date of the tort. Husain, 964 S.W.2d at 919.
Accordingly, the high court concluded that because the date was ascertainable and the suit was filed after the running of the limitation period, the trial court had been correct in rendering its summary judgment. Id. at 920.