Texas PJC Malpractice 2022

PJC 50.8

M EDICAL M ALPRACTICE —D EFINITIONS , I NSTRUCTIONS & Q UESTIONS

893 (Tex. 1995). Accordingly, PJC 50.8 should not be submitted in connection with any statutory cause of action. Actual discovery within limitations period. The bracketed language in the questions above should be used only when the actual discovery of the wrong within the limitations period is raised by the evidence but is disputed by the plaintiff. Caveat. A number of Texas cases have held that the Open Courts provision was or was not implicated as a matter of law because the summary judgment evidence con clusively demonstrated that (1) the plaintiff either actually discovered or had a reason able cause to suspect, investigate, and discover the fact of the injury and its cause before the limitations period expired ( see, e.g., Tenet Hospitals, Ltd. v. Rivera , 445 S.W.3d 698, 704 (Tex. 2014), and Jennings v. Burgess , 917 S.W.2d 790, 794 (Tex. 1996)); or (2) the plaintiff did not and could not reasonably have discovered the injury before the limitations period passed ( see, e.g., Stone v. Coronado , No. 03-11-00243 CV, 2012 WL 2076831, at *3–4 (Tex. App.—Austin June 6, 2012, no pet.), and DeRuy v. Garza , 995 S.W.2d 748, 752 (Tex. App.—San Antonio 1999, no pet.)). Other cases have made it clear, though, that when the evidence is disputed about whether the plaintiff actually discovered or reasonably should have discovered the injury and its cause before limitations expired, a fact issue is presented. For example, in Shah v. Moss , the Texas Supreme Court held that it was the plaintiff’s “burden to raise a fact issue demonstrating that he did not have a reasonable opportunity to dis cover the alleged wrong before the limitations period expired.” Shah v. Moss , 67 S.W.3d 836, 846–47 (Tex. 2001). Accord Walters v. Cleveland Regional Medical Cen ter , 307 S.W.3d 292, 295–96 (Tex. 2010); Yancy v. United Surgical Partners Interna tional, Inc. , 236 S.W.3d 778, 784–85 (Tex. 2007); Morrison v. Chan , 699 S.W.2d 205, 207 (Tex. 1985); Gagnier v. Wichelhaus , 17 S.W.3d 739, 744 (Tex. App.—Houston [1st Dist.] 2000, pet. denied); Boyd v. Kallam , 152 S.W.3d 670, 676–78 (Tex. App.— Fort Worth 2004), pet. denied , 232 S.W.3d 774 (Tex. 2007); and DeRuy , 995 S.W.2d at 752–53. The courts have also held that when there is a fact issue about whether a plaintiff actually discovered or reasonably should have discovered the injury and its cause before the limitations period expired, the jury can consider whether during that period of time the plaintiff received conflicting medical advice or relied on statements from health care providers that the continuing problem had some cause other than the negli gence of the prior health care provider. Walters , 307 S.W.3d at 296; Gagnier , 17 S.W.3d at 744-45; Boyd , 152 S.W.3d at 684–85; Melendez v. Beal , 683 S.W.2d 869, 872 (Tex. App.—Houston [1st Dist.] 1984, no writ). If it is determined, either as a matter of law or as found by the jury, that the plaintiff did not discover and reasonably should not have discovered the injury and its cause within the limitations period, a plaintiff still has only a “reasonable time . . . to investi gate, prepare, and file suit after discovering her injury.” Moroles v. Doctor’s Hospital at Renaissance, Ltd. , No. 13-09-00425-CV, 2010 WL 596855, at *6 (Tex. App.—Cor-

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