David Childers and Wife, Jeanette Childers v. Dr. George R. Walters, MD George R. Walters, MD, PA D/B/A Regional Eye Center And George R. Walters, MD D/B/A Regional Eye Center

Citation: Not availableDocket: 07-03-00398-CV

Court: Court of Appeals of Texas; January 31, 2005; Texas; State Appellate Court

Original Court Document: View Document

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David and Jeanette Childers appeal the trial court's summary judgment favoring Dr. George R. Walters and others concerning a health care liability claim. The Childers argue that the court erred in granting this motion. In 1997, David Childers first inquired about LASIK surgery but was deemed a poor candidate by a staff member at the Lubbock Regional Eye Center. Following a seminar by Dr. Walters in 1999, Childers underwent LASIK surgery on October 8, 1999. Post-surgery, he experienced blurred vision and was informed it might be due to an allergic reaction to anesthetic drops. Childers sought further evaluations from various doctors, including Dr. Tom Baker and Dr. John B. Bowen, who noted unusual results from the surgery without criticizing Dr. Walters. Dr. Walters suspected dry eye syndrome and later referred Childers to corneal specialist Dr. Henry Gelender, who diagnosed basement membrane corneal dystrophy and provided treatment that improved Childers's vision. Ultimately, Dr. Gelender concluded that most of Childers's issues stemmed from the corneal dystrophy rather than the allergic reaction. In 2001, Childers was referred to Dr. David McCartney, who confirmed he was not a suitable candidate for LASIK. The summary judgment was affirmed under section 4.01 of the Texas Medical Liability and Insurance Improvement Act.

On March 1, 2002, Dr. Walters received written notice of a health care liability claim from Childers, who subsequently filed suit on July 18, 2002. Dr. Walters asserted the two-year statute of limitations as an affirmative defense in his answer. After discovery, he moved for summary judgment solely based on the limitations defense, which the trial court granted. 

The summary judgment review standard requires the movant to demonstrate no genuine issues of material fact exist and entitlement to judgment as a matter of law, applying the principles established in Nixon v. Mr. Property Management Co. The movant must conclusively establish the absence of any genuine question of material fact or negate an essential element of the non-movant's claim. Once established, the non-movant must respond with written issues that could preclude summary judgment, or those not expressly presented will not be considered on appeal.

Childers argued the trial court erred in granting the summary judgment, claiming his claims were viable and not time-barred under the relevant statute, and that they were viable due to fraudulent concealment. The court found that health care liability claims filed before September 1, 2003, are governed by Article 4590i, which mandates that suit be filed within two years of the occurrence of the alleged negligence. The court determined that the limitations period began on the date of the surgery, October 8, 1999, requiring Childers to file by October 8, 2001, unless the limitations period was tolled. Childers claimed fraudulent concealment but did not present evidence of negligence in Dr. Walters's follow-up care, leading the court to uphold the summary judgment.

Dr. Walters had a duty to identify any negligent acts and any resulting injuries, with his failure to disclose potentially constituting fraudulent concealment. However, the estoppel effect ceased once Childers became aware of facts that should have prompted a reasonable person to investigate further, which could have led to uncovering the concealed cause of action. In April 1990, after losing confidence in Dr. Walters, Childers sought a second opinion from Dr. Bowen on May 4, 2000, based on a colleague's recommendation and independently of Dr. Walters. Despite Childers’ claims of collusion among the doctors, he provided no evidence to substantiate this. Additionally, Childers acknowledged that Dr. Bowen did not criticize Dr. Walters' surgical performance but expressed surprise at the outcome. Consequently, Childers could not invoke the fraudulent concealment tolling doctrine after admitting his loss of confidence and initiating a second opinion in April 2000. Although Childers notified of his claim on March 1, 2002, which could have tolled the limitations period, the tolling provision did not apply since the lawsuit was not filed until July 18, 2002, exceeding the limitations period. The trial court's judgment is affirmed, and Childers' sole issue is overruled.