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Defendant's Attorney: Rikki Hirshman
David M. Walsh, IV
Peter H. Anderson
Description:
Fort Worth, Texas – Medical Malpractice lawyer represented Appellant with a health care liability claim.
In three issues, Appellants Jose Pignano and his wife, Cora Pignano, challenge
a summary judgment granted in favor of Appellee Robert L. Cash, M.D. on their
health care liability claim. Dr. Cash’s motion for summary judgment asserted that
Mr. Pignano’s1 claim was time barred by the two-year statute of limitations contained
in Texas Civil Practice and Remedies Code Section 74.251(a) that applies to health
care liability claims.
Mr. Pignano alleged that Dr. Cash had failed to timely diagnose a mass in his
lungs as cancerous and that the delay in the diagnosis caused the cancer to
metastasize, which in turn required a more debilitating treatment and lessened his life
expectancy. Dr. Cash predicated his summary-judgment motion on the opinion of
Mr. Pignano’s expert that Dr. Cash departed from the standard of care on an
ascertainable date outside the limitations period. In addition to Mr. Pignano’s first
issue generally challenging the summary judgment, his second and third issues
contend that to grant summary judgment on this basis was error because Dr. Cash
provided a course of treatment that extended to a date that saved his claim from being
time barred or because the last ascertainable departure from the standard of care
occurred on a date that was within the limitations period.
1
As Mr. Pignano was Dr. Cash’s patient, we will refer to Mr. Pignano
individually throughout the opinion even when referring collectively to both
Appellants.
3
Mr. Pignano’s second issue faces a hurdle: if the date that a departure from the
standard of care can be ascertained, that date triggers the commencement of the
limitations time period. Should there be an ascertainable date, a plaintiff may not rely
on the period of the course of treatment as a means of extending the date of the
commencement of the statute of limitations. Applying the ascertainable date on
which Dr. Cash allegedly departed from the standard of care results in Mr. Pignano’s
claim being barred by limitations. His third issue fails because we conclude that his
expert did not render the opinion that departures from the standard of care occurred
within the limitations period. Accordingly, we affirm the trial court’s summary
judgment.
II. Factual and procedural background
A. The chronology of relevant events that applies to the question of
whether Mr. Pignano’s claims are barred by limitations
Mr. Pignano was referred by his primary-care physician to Dr. Cash, a
pulmonologist, for evaluation when a CT scan revealed a mass in Mr. Pignano’s lung
that was described as “suspicious for malignancy.” That referral set in motion a
chronology of events that are pivotal to the question of whether Mr. Pignano’s claim
against Dr. Cash is time barred:
May 19, 2014: Mr. Pignano has his initial visit with Dr. Cash after
Mr. Pignano was “referred for evaluation of [a] right apical lung mass.”
A “patient visit note” contains Dr. Cash’s assessment and provides for
4
“watchful waiting” and for another CT scan of Mr. Pignano’s chest in
August 2014 as follows:
Pulmonary infiltrate; he has no constitutional symptoms to speak
of. No productive cough is currently reported. He [has] not had
weight loss or further adenopathy. At this point[,] the best
approach will be watchful waiting with a repeat CT scan of his
chest in August. This will be three months from his previous
film. He has an insignificant and distant smoking history. If he
has further problems[,] including hemoptysis, chest pain, dyspnea,
weight loss, fever, night sweats, or adenopathy, he should give us
an immediate call. If the CT scan shows [that] the problem has
resolved[,] [then] he will not need further follow-up. If the
problem gets worse[,] th[e]n we can decide appropriate measures,
including biopsies.
September 9, 2014: Dr. Cash examines Mr. Pignano and postpones the CT
scan, which was supposed to be completed in August per the notes from the
first visit, with the following note: “Pulmonary infiltrate; as noted before he
has no constitutional symptoms. This most likely means a benign process[,]
but a CT scan in November will give us a full six months of follow-up. If he
has problems, he’s to give us a call immediately.”
November 11, 2014: A second CT is performed on Mr. Pignano’s chest. The
CT scan reveals that the mass in Mr. Pignano’s chest “is not significantly
increased in size.” Though Dr. Cash did not physically examine Mr. Pignano
after the second scan, the scan results were sent to Dr. Cash. After review of
the scan, Dr. Cash replied that Mr. Pignano is “stable at present[;] repeat CT 12
months unless he has symptoms.”
5
December 15, 2015: Dr. Cash orders another CT scan of Mr. Pignano’s chest.
February 18, 2016: A third CT scan of Mr. Pignano’s chest reveals that the
mass identified in the prior CT scans is slightly increased in size.
February 22, 2016: Dr. Cash sees Mr. Pignano. The “patient visit note” states
that a needle biopsy should be performed:
Lung mass; this mass has gotten slightly larger. We will need to
arrange for a percutaneous needle biopsy wherever his insurance
will allow. He does not need to be off work long. If the mass is
benign[,] we will not do anything further. If the mass is
cancerous[,] then we may try for either resection or radiation.
April 14, 2016: Dr. Cash orders a “Chest CT-Guided Needle Biopsy.”
April 26, 2016: The results of the needle biopsy show that the mass is
cancerous. Dr. Cash notifies Mr. Pignano that the mass should be removed.
Summer 2016: Mr. Pignano undergoes treatment, including surgical removal
of the mass, chemotherapy, and radiation.
September 6, 2016: Counsel for Mr. Pignano provides notice to Dr. Cash in
accordance with Section 74.051 et seq. of the Texas Civil Practice and
Remedies Code. The notice states, “In particular, my client’s complaint with
you concerns your failure to timely and appropriately diagnose his lung cancer.
The failure to provide Mr. Pignano with medical treatment [that] met the
standard of care resulted in treatment[,] which has increased his medical
expenses and lowered his life expectancy.”
6
April 9, 2018: Mr. Pignano sues Dr. Cash for negligence. Mr. Pignano’s
original and amended petition in the section titled “Actions of Defendant”
focused on the failure of Dr. Cash to initially diagnose that Mr. Pignano was
suffering from cancer:
Despite possessing and having within his knowledge and control
evidence of [Mr. Pignano’s] cancerous tumor, [Dr. Cash] collected
blood samples from [Mr.] Pignano and had such samples
inspected for a myriad of indications, such finding being
indicative of serious, worsening, and possibly a lethal existing
disease if left untreated. [Dr. Cash] failed to correctly interpret
the CT Scan he reviewed and then ordered, and failed to
communicate to [Mr.] Pignano the serious and worrisome
findings highlighted by a radiologist, failed to refer [Mr.] Pignano
to undergo a needle biopsy and further evaluation and treatment,
and instead did nothing for over one year despite indications that
[Mr.] Pignano was likely suffering from a pulmonary malignancy.
If [Dr. Cash] had correctly recognized the significance of an apical
pulmonary mass in a sixty-four[-]year[-]old man, informed him of
the finding and the significance of such finding, acted upon and
thereafter properly referred him for biopsy, further evaluation,
and treatment for likely lung cancer, diagnosis, treatment, and
therapy could have been instituted and initiated in months prior
to April[] 2016. Instead, due to [Dr. Cash’s] failure to recognize
or appreciate the significance of the CT Scan finding, and his
resulting failures to communicate to [Mr.] Pignano the need for
immediate follow-up by biopsy, there was a delay of
approximately sixteen months until [Mr.] Pignano followed-up
with a biopsy. after which [Mr.] Pignano underwent surgery,
followed by radiation and chemotherapy.
2
2
Mr. Pignano’s petitions generally alleged the consequences of the disease
process’s continuing after Dr. Cash’s failure to diagnose but did not allege these as
departures from the standard of care:
7
Both petitions allege the following omissions by Dr. Cash:
1. In failing to correctly interpret multiple CT Scans of
[Mr. Pignano’s] chest;
2. In failing to recognize the significance of the continuing
presence of an apical pulmonary mass;
3. In failing to immediately refer [Mr.] Pignano to undergo
a biopsy; [and]
4. In failing to advise or inform [Mr.] Pignano of the
continued presence of an apical pulmonary mass as reported to
him.
B. The limitations ground of Dr. Cash’s traditional motion for
summary judgment, the evidence Dr. Cash offered to support that
ground, and Mr. Pignano’s counter evidence
Dr. Cash filed both a traditional and a no-evidence motion for summary
judgment. Dr. Cash moved for traditional summary judgment on the ground that Mr.
Pignano’s claim was time barred:
Under the traditional summary[-]judgment standard, the evidence proves
that the alleged negligence occurred—according to the Pignanos and
their own expert—in November 2014. The Pignanos did not file suit
until April 2018, well over three years after the alleged negligence. With
a strict two-year limitations period governing their claims, the Pignanos’
However, if Defendant Dr. Cash had recommended and referred
[Mr. Pignano] for the needle biopsy in December[] 2014, or at some time
during the year 2015, or earlier in 2016, in reasonable medical probability
and likelihood, the then[-]existing tumor would not have extended past
its margins, nor would it have metastasized to lymph nodes; if the tumor
had been so detected earlier, [Mr. Pignano] would have had a diagnosis
of a much lesser stage of tumor, thereby greatly increasing his life
expectancy, his survival outlook, and eliminating the medical necessity of
the intensive, debilitating, and hazardous chemotherapy he had to
undergo.
8
claims are barred by the statute of limitations. Dr. Cash is entitled to
summary judgment because the statute of limitations expired before the
Pignanos filed suit.
Mr. Pignano’s retained expert that the quote references was Dr. Avi Markowitz,
an oncologist. Excerpts from Dr. Markowitz’s deposition are relied on by both
parties.
Dr. Cash’s summary-judgment excerpts from Dr. Markowitz’s deposition—as
did the allegations in Mr. Pignano’s petitions—served to localize the date of
Dr. Cash’s departure from the standard of care to a particular instance by emphasizing
Dr. Markowitz’s opinion that Dr. Cash’s departure from the standard of care occurred
in November 2014. The framework of Dr. Markowitz’s criticisms of Dr. Cash is set
out in the following exchange with Dr. Cash’s counsel:
[Dr. Cash’s counsel]: Dr. Markowitz, you think [a biopsy] definitely
should have been done in March of 2014, but certainly no later than
November of 2013 [(sic)]?
[Dr. Markowitz]: Right. We would have done it in March, but
giving a few months follow-up and then doing it at that point, I would
not have gone after that. I would give him that much leeway.
[Dr. Cash’s counsel]: But the criticism is not of the 2016 care, the
two times in 2014 where he didn’t do the biopsy?
[Dr. Markowitz]: Correct. Once he realized this was cancer[,] he
went ahead and got the biopsy done. That’s what you do. And we
would have done it, like I said, a little differently, but that’s [the] art of
medicine. That I don’t go after people for.
9
With respect to Dr. Markowitz’s assessment of Dr. Cash’s treatment before
November 2014, Dr. Markowitz also stated that Dr. Cash’s decision to delay the CT
scan for three months was not one he liked, but he could live with it.
In later questioning, Dr. Markowitz amplified on why a departure from the
standard of care occurred in November 2014 because Dr. Cash failed to do what was
needed to obtain a diagnosis:
[Dr. Cash’s counsel]: Can I -- just based on what you just said and this
answer and the previous answer. I want to make sure. So in the May of
2014 timeframe, while in [your] institution you would have biopsied and
investigated it further, it was not necessarily negligent for Dr. Cash not
to do something further. It is really in November when he didn’t do
something further that he [fell] below the standard of care.
[Dr. Markowitz]: Correct.
[Dr. Cash’s counsel]: And then when [Dr. Cash] deals with [Mr.
Pignano] again, he met the standard of care, so all we are really talking
about is when he breached the standard of care was November of 2014.
[Dr. Markowitz]: Yes. At that point I say, now it is not
something you can monitor . . . anymore. Now you need to get a
diagnosis.
In his summary-judgment response, Mr. Pignano cites other portions of
Dr. Markowitz’s deposition to rebut Dr. Cash’s portrayal that the only departure from
the standard of care occurred in November 2014. In essence, these opinions are that
a proper diagnosis indicated that Mr. Pignano was already suffering from lung cancer
in the May 2014 to November 2014 time period. But even in the excerpt quoted by
10
Mr. Pignano, Dr. Markowitz reiterated that he gave Dr. Cash leeway by noting that he
“would have given him three months to do a follow-up.”
The response then shifts to the 2016 time frame to argue that Dr. Markowitz
opined that there were departures from the standard of care once Dr. Cash had the
results of the third CT scan showing that the mass had grown and that a needle
biopsy should be performed. The response quotes Dr. Markowitz’s testimony and
offers Mr. Pignano’s interpretations of what conclusions should have been drawn
from that testimony:
Although Dr. Markowitz agreed that [Dr. Cash’s] referral of
[Mr. Pignano] for a biopsy was appropriate in the February 22, 2016
visit, he further testified that his treatment would have been different in
that:
A. It fits, although I will tell you we would do that
differently. We would have gotten a PET/CT as the next
step because one of the critical issues is are the hilar
mediastinal lymph nodes involved[,] and if it lit up on CT,
we would have recommended a bronchoscopy with biopsy
to sample the nodes at that time rather than doing a
percutaneous biopsy likely. But that is small. I mean, I
would have done that differently[;] he did get a biopsy and
that was appropriate.
[Dr. Cash’s counsel]: When you said lights up on
CT you meant what?
[Dr. Markowitz’s]: Oh, it’s a [lymphatic], excuse me.
If the nodes light up on PET[,] that is much more
significant because now you are probably looking at least a
stage three disease.
In other words, a PET/CT would have provided earlier indication
of lymph node involvement, and hence, stage three disease.
11
Although the referral for a biopsy, finally, was appropriate,
Dr. Markowitz further commented on the continuing violation of the
standard of care after the third CT scan when he testified:
A. Like I said, my biggest concern right here is what
happened between February 22nd and April 26th, that is a
two-month gap. We would do that[,] and I don’t recall
what the issue was for getting the biopsy, why it took two
months.
Of particular importance to the events and timeline of this case[]
is Dr. Markowitz’s testimony regarding what injury or damage
Mr. Pignano suffered during the two-month delay between the ordering
of the biopsy and the results. He testified as follows:
[Dr. Cash’s counsel]: To follow back up on that, she
phrased it as damage, what damage occurred, but what
harm actually occurred to Mr. Pignano by the two-month
delay?
[Dr. Markowitz’s]: You don’t know. I mean, the
likelihood that it changed and [that] suddenly he had
metastasis, it is a low likelihood, but I have much more of a
sense of urgency once you know, okay, this is going to be
cancer, we need to find out exactly what kind it is and we
need to complete a staging because if he is still candidate
for curative intense surgery[,] we need to get there.
[Record references omitted.]
After this portrayal of the departures from the standards of care by Dr. Cash,
the response crystalizes its view of how Dr. Cash’s errors harmed Mr. Pignano:
Essentially, the question in this lawsuit is whether Dr. Cash’s delay in
making an appropriate diagnosis caused the cancer in Mr. Pignano’s lung
to metastasize into the lymph nodes so as to make necessary in addition
to surgery, which would have been necessary in any case, the further
treatments of chemotherapy and radiation, and due to a higher stage,
cause him to suffer a higher chance of cancer recurrence and a lowered
life expectancy.
12
The remainder of the response catalogs Dr. Markowitz’s testimony regarding
how the cancer mutated during the post-2014 delay in treatment and moved to a
higher stage of severity. This pathology caused the cancer not to be localized but to
spread into other regions of Mr. Pignano’s body, such as his lymph nodes. The
response concedes that Dr. Markowitz could not pinpoint when this occurred but
could only opine that it was between November 2014 and February 2016.
With this mix of evidence before it, the trial court granted summary judgment
and ordered that Mr. Pignano take nothing. Mr. Pignano appealed.
III. Analysis
A. Standard of review
In a summary-judgment case, the issue on appeal is whether the movant met
the summary-judgment burden by establishing that no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P.
166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.
2009). We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d
860, 862 (Tex. 2010).
With a traditional motion for summary judgment, “[a] court must grant a
‘traditional’ motion for summary judgment ‘forthwith if [the summary-judgment
evidence] show[s] that . . . there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law on the issues expressly set
13
out.’” Draughon v. Johnson, 631 S.W.3d 81, 87 (Tex. 2021) (citing Tex. R. Civ. P.
166a(c)).
We take as true all evidence favorable to the nonmovant, and we indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc. v.
Parker, 249 S.W.3d 392, 399 (Tex. 2008); Provident Life & Accident Ins. v. Knott, 128
S.W.3d 211, 215 (Tex. 2003). We also consider the evidence presented in the light
most favorable to the nonmovant, crediting evidence favorable to the nonmovant if
reasonable jurors could and disregarding evidence contrary to the nonmovant unless
reasonable jurors could not. Mann Frankfort, 289 S.W.3d at 848. We must consider
whether reasonable and fair-minded jurors could differ in their conclusions in light of
all the evidence presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.
2006); City of Keller v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005).
A defendant is entitled to summary judgment on an affirmative defense if the
defendant conclusively proves all the elements of that defense. Chau v. Riddle, 254 S.W.3d
453, 455 (Tex. 2008); see Tex. R. Civ. P. 166a(b), (c). To accomplish this, the defendant
must present summary-judgment evidence establishing each element of the affirmative
defense as a matter of law. Chau, 254 S.W.3d at 455; Ryland Grp., Inc. v. Hood, 924 S.W.2d
120, 121 (Tex. 1996).
14
B. The statutory provision establishing the statute of limitations on
health care liability claims; the precedents interpreting the
provision to hold that if there is an ascertainable date when the
departures from a standard of care occurred, limitations run from
that date; and the precedents applying the ascertainable-date
principle to a failure to diagnose cancer
Section 74.251 of the Texas Civil Practice and Remedies Code establishes the
statute of limitations for health care liability claims as follows:
Notwithstanding any other law and subject to Subsection (b), no health
care liability claim may be commenced unless the action is filed within
two years from the occurrence of the breach or tort or from the date the
medical or health care treatment that is the subject of the claim or the
hospitalization for which the claim is made is completed[.]
Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a).3 Though Section 74.251(a) provides
three alternative dates for the commencement of the statute of limitations, the Texas
Supreme Court has made the following principles clear:
• “A plaintiff may not choose the most favorable date that falls within [the]
three categories.” Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001)
(emphasis added).
3
A “health care liability claim” is defined as
a cause of action against a health care provider or physician for
treatment, lack of treatment, or other claimed departure from accepted
standards of medical care, or health care, or safety or professional or
administrative services directly related to health care, which proximately
results in injury to or death of a claimant, whether the claimant’s claim or
cause of action sounds in tort or contract.
Tex. Civ. Prac. & Rem. Code Ann. § 74.001(13).
15
• “[I]f the date the alleged tort occurred is ascertainable, limitations must
begin on that date.” Id.
• “And if the date is ascertainable, further inquiry into the second and
third categories is unnecessary. Id.4
Section 74.251(a) contains no discovery rule: the statute of limitations begins to run
from the dates of the events specified in the statute, irrespective of the claimant’s
delayed knowledge that a departure from the standard of care has occurred.5
See
Walters, 307 S.W.3d at 298 n.28.
4
Shah analyzed a prior statute establishing the statute of limitations for health
care liability claims. 67 S.W.3d at 841 (analyzing former Tex. Rev. Civ. Stat. Ann.
art. 4590i, § 10.01). That statute provided the same alternatives for accrual that
Section 74.251(a) provides, specifically that
no health care liability claim may be commenced unless the action is filed
within two years from the occurrence of the breach or tort or from the
date the medical or health care treatment that is the subject of the claim
or the hospitalization for which the claim is made is completed[.]
Act of April 19, 1977, 65th Leg., R.S., ch. 817, § 10.01, 1977 Tex. Gen. Laws 2039,
2052 (Medical Liability and Insurance Improvement Act of Texas, since amended),
repealed by Act of May 16, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws
847, 884.
5
As the Texas Supreme Court explained,
It is undeniable that the statute of limitations contains no discovery rule.
We fashioned such a rule in a 1967 sponge case to suspend an earlier
limitations provision. Gaddis v. Smith, 417 S.W.2d 577, 580 (Tex. 1967).
The [l]egislature in 1975 abrogated the court-fashioned discovery rule.
See Sax v. Votteler, 648 S.W.2d 661, 663 n.1 (Tex. 1983) (discussing the
Professional Liability Insurance for Physicians, Podiatrists, and Hospitals
Act of 1975, 64th Leg., R.S., ch. 330, § 1, 1975 Tex. Gen. Laws 864, 865,
16
The supreme court in Shah recognized that if a patient is subject to a course of
treatment, there may not be an exact date of accrual, but that is the exception rather
than the rule:
However, there may be instances when the exact date the alleged tort
occurred cannot be ascertained. The second category in [S]ection 10.01
contemplates such a situation “wherein 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.” But before the last treatment
date becomes relevant to determining when limitations begins, the plaintiff must
establish a course of treatment for the alleged injury. Moreover, if the defendant
committed the alleged tort on an ascertainable date, whether the plaintiff established a
course of treatment is immaterial because limitations begins to run on the ascertainable
date.
67 S.W.3d at 841 (emphasis added) (citations omitted).
The Fourteenth Court of Appeals applied the principles from Shah to facts
analogous to the ones before us. See Estate of Klovenski v. Kapoor, No. 14-13-00850-CV,
2015 WL 732651, at *5 (Tex. App.—Houston [14th Dist.] Feb. 19, 2015, no pet.)
(mem. op. on reh’g). Kapoor involved a patient who had five office visits with a
physician. Id. at *4. During the first four visits, the physician failed to diagnose a
which removed the “accrual” language that had led the Court to find a
discovery rule embedded within the statute). Accordingly, in a 1985
case, this Court acknowledged that the [l]egislature had abrogated the
discovery rule. Morrison v. Chan, 699 S.W.2d 205, 208 [(Tex. 1985)] (“[In
Gaddis, we] held that a cause of action does not accrue until the plaintiff
knows, or has reason to know, of his injury. In contrast, [A]rticle 5.82,
[S]ection 4 contains no accrual language and thus imposes an absolute
two-year statute of limitations regardless of when the injury was
discovered.” . . . (emphasis omitted) (quoting Nelson v. Krusen, 678
S.W.2d 918, 920 (Tex. 1984))[)].
Walters v. Cleveland Reg’l Med. Ctr., 307 S.W.3d 292, 298 n.28 (Tex. 2010).
17
lump in the patient’s leg as cancerous. Id. On the fifth visit, the physician properly
diagnosed the lump as cancerous. Id. The date of the last visit was pivotal to the
viability of the patient’s claim because the claim was time barred if limitations was not
measured from the date of the fifth visit. Id.
Kapoor held that the breach of the standard of care by the physician was
ascertainable, and thus, limitations was measured from the date of the last occurrence
of a departure from the standard of care. Id. at *5–6. The court summarized its
conclusion and cataloged the cases supporting that conclusion as follows:
We determine that the dates of [the physician’s] alleged breaches are
ascertainable; therefore, we measure limitations from the occurrences of
the alleged breaches. See Shah, 67 S.W.3d at 841. The failure to diagnose
or treat a medical condition does not establish a course of treatment. See
Bala v. Maxwell, 909 S.W.2d 889, 892 (Tex. 1995); Rowntree v. Hunsucker,
833 S.W.2d 103, 105–06 (Tex. 1992) . . . (“While the failure to treat a
condition may well be negligent, we cannot accept the self-contradictory
proposition that the failure to establish a course of treatment is a course
of treatment.”). [The physician’s] alleged negligence for failure to
diagnose, treat, and advise [the patient] of her cancer could have
occurred only on the days [the physician] examined [the patient]; those
days are readily ascertainable. See Shah, 67 S.W.3d at 844 (doctor’s failure
to provide follow-up treatment could have occurred only on check-up
visits when doctor had an opportunity to order follow-up treatment);
Husain v. Khatib, 964 S.W.2d 918, 919–20 (Tex. 1998) (doctor’s failure to
take action to diagnose and treat cancer could have occurred only during
office visits); Bala, 909 S.W.2d at 892 (same).
Id. at *5.
With its premise in place—that the dates of the acts of malpractice were
ascertainable—Kapoor held that limitations began to run on each visit at which the
physician failed to properly diagnose the lump as cancerous. Id. Because limitations
18
could not be measured from the date when the physician properly diagnosed the
presence of cancer, the patient could not use the date of her fifth visit as an
occurrence triggering the commencement of limitations to save her claims from being
barred by limitations. Id. Specifically, the court held, “Therefore, [the physician] was
not negligent under appellants’ alleged standard of care for failure to diagnose, treat,
and advise [the patient] of her cancer on [the date of the fifth visit]. We do not
measure limitations from this date.” Id.
Our court has also discussed how the failure to diagnose cancer is a tort that
occurs on an ascertainable date—the date that the failure to diagnose occurred—and
does not involve a course of treatment that extends limitations until the cancer is
properly diagnosed. See Gilbert v. Bartel, 144 S.W.3d 136, 143 (Tex. App.—Fort Worth
2004, pet. denied). We detailed why a failure to diagnose does not create a course of
treatment as follows:
Because, as we hold above, the date the alleged tort or breach took place
is ascertainable, a course[-]of[-]treatment analysis is immaterial to
determining when limitations began to run. It is also unimportant to our
inquiry whether the tort is characterized as a failure to diagnose cancer
or as an improper course of treatment based on a misdiagnosis. The
[appellants’] complaint is that [the physician] was negligent in not taking
actions—testing, referrals to specialists, proper examinations—that
would have led to earlier discovery of [the patient’s] cancer. Those
events, or nonevents, occurred on specific ascertainable dates. The
Texas Supreme Court has held that when a physician fails to diagnose a
condition, the continuing nature of the diagnosis does not extend the
tort for limitations purposes. “‘While the failure to treat a condition may
well be negligent, we cannot accept the self-contradictory proposition
that the failure to establish a course of treatment is a course of
treatment.’” Furthermore, neither the mere continuing relation between
19
physician and patient nor the continuing nature of a diagnosis is
sufficient to create a course of treatment.
Id. (footnotes omitted).
Thus, a failure to diagnose cancer is episodic for the purpose of limitations: the
visit at which the failure to diagnose occurs is the ascertainable date when the
departure from the standard of care occurs. The fact that later examinations produce
a proper diagnosis does not create a course of treatment that triggers the
commencement of limitations at the cancer’s eventual discovery.
6
C. Why we conclude that Dr. Cash’s alleged departures from the
standard of care occurred on an ascertainable date and that the
application of that date establishes that Mr. Pignano’s claim is
barred by limitations
The question before us is how many discrete, ascertainable departures from the
standard of care occurred. Whether there was a datable ascertainable breach or
departure impacts Mr. Pignano’s argument in his second issue that limitations was
triggered only at the end of his course of treatment. Should we reject his course-oftreatment argument, Mr. Pignano’s fallback in his third issue is that Dr. Markowitz
opined that there was a breach of the standard of care that occurred in 2016 and that
measuring limitations from that date makes his claim timely. We reject both
arguments.
6
Because Mr. Pignano gave notice of his claim, the statute of limitations was
tolled for seventy-five days. See Tex. Civ. Prac. & Rem. Code Ann. § 74.051(c).
Because we hold that the ascertainable date that limitations commenced was in
November 2014, the seventy-five-day tolling provision has no effect on the outcome
of this appeal.
20
There is no question that Dr. Markowitz opined that Dr. Cash had failed to
properly diagnose and treat Mr. Pignano in November 2014. But Mr. Pignano tries to
shift the analysis from an ascertainable date to a course of treatment by arguing that
Dr. Cash’s description of his approach as “watchful waiting” establishes that there
was a course of treatment that flows into the eventual diagnosis of his cancer and not
a specific episode of malpractice. But semantics does not alter the reality that the
term watchful waiting means that Dr. Cash decided to wait from an ascertainable date
to take the action that Dr. Markowitz opines that he should have taken—biopsying
the mass to obtain what Dr. Markowitz said was required (i.e., the “need to get a
diagnosis”). The case law is clear that when such an ascertainable date exists, a
plaintiff cannot rely on the theory that there was a course of treatment.
Mr. Pignano also emphasizes that his disease was apparently metastasizing and
becoming more severe in the time period between the 2014 failure to diagnose and
Dr. Cash’s ordering a needle biopsy in February 2016. This argument cannot wire
around the supreme court’s statement that “if the defendant committed the alleged
tort on an ascertainable date, whether the plaintiff established a course of treatment is
immaterial because limitations begins to run on the ascertainable date.” See Shah, 67
S.W.3d at 841. The argument also cannot evade the principle that “[w]hile the failure
to treat a condition may well be negligent, we cannot accept the self-contradictory
proposition that the failure to establish a course of treatment is a course of
treatment.” Rowntree, 833 S.W.2d at 105–06. It is also contrary to the holdings of the
21
Fourteenth Court of Appeals and of our court that we have detailed above. See
Kapoor, 2015 WL 732651, at *5 (“We determine that the dates of [the physician’s]
alleged breaches are ascertainable; therefore, we measure limitations from the
occurrences of the alleged breaches.”); Gilbert, 144 S.W.3d at 143 (“The [appellants’]
complaint is that [the physician] was negligent in not taking actions—testing, referrals
to specialists, proper examinations—that would have led to earlier discovery of [the
patient’s] cancer. Those events, or nonevents, occurred on specific ascertainable
dates.”). Simply, the failure to diagnose the illness on an ascertainable date permitted
the disease process to continue; that is not the result of a course of treatment but
rather the result of the datable act of the failure to diagnose.
Thus, to save his suit from the bar of limitations by expanding on the
allegations in his petitions, Mr. Pignano turns to his third issue that Dr. Markowitz
testified that a later ascertainable departure occurred—one that would make his suit
timely. To support this theory, he argues that Dr. Markowitz opined that Dr. Cash
departed from the standard of care in 2016 by his delays in ordering a needle biopsy
of the mass once Dr. Cash determined that the procedure should be performed. We
have quoted Mr. Pignano’s summary-judgment response at length to show the basis
for this argument. The testimony referenced by Mr. Pignano does not support his
argument.
Again, Dr. Cash’s counsel set the parameters of Dr. Markowitz’s opinions by
having him agree that his criticisms did not relate to what had occurred in 2016:
22
[Dr. Cash’s counsel]: But the criticism is not of the 2016 care, the two
times in 2014 where he didn’t do the biopsy?
[Dr. Markowitz]: Correct. Once he realized this was cancer[,] he
went ahead and got the biopsy done. That’s what you do. And we
would have done it, like I said, a little differently, but that’s [the] art of
medicine. That I don’t go after people for.
Indeed, Dr. Markowitz conceded that he did not “have any issues or criticisms of
Dr. Cash specifically at the February 22nd 2016 visit as far as his care and treatment
go.” He also conceded that his opinion was “that what [Dr. Cash] did in February
2016 was appropriate . . . [but] definitely should have been done sooner.”
The one snippet of testimony that Mr. Pignano offers to argue that
Dr. Markowitz opined that Dr. Cash’s February treatment was substandard fails to
carry the day. Mr. Pignano notes that Dr. Markowitz might have ordered additional
testing. But in the next breath Dr. Markowitz stated, “But that is small. I mean, I
would have done that differently[;] he did get a biopsy[,] and that was appropriate.”7
7
In his opening brief and in his reply brief, Mr. Pignano argues that
Dr. Markowitz testified that “Dr. Cash’s care in its entirety was below the standard of
care.” We do not read the testimony cited in support of this statement to bear it out:
Q. Okay. So as we sit here today, as of now, it is not your opinion that
Dr Cash’s care in its entirety was below the standard of care, correct?
A. I don’t think I can answer that question other than to say I
believe without question that it was below the standard of care and the
evaluation of a likely lung cancer.
And to the extent that his testimony could be read to criticize the entirety of
Dr. Cash’s care, the other testimony of Dr. Markowitz that we cited demonstrates that
he tied his opinions about the failure to meet the standard of care to particular events.
23
Pivotally, Dr. Markowitz’s deposition testimony does not contain an opinion
that Dr. Cash breached the standard of care because of the gap in time between
Dr. Cash’s ordering the needle biopsy in February 2016 and the time it was conducted
in April 2016. Though Dr. Markowitz testified that this was his “biggest” concern, he
could not attribute the gap to anyone’s action or inaction and did not opine that it was
a violation of the standard of care. Dr. Markowitz’s deposition testimony was as
follows: “Like I said, my biggest concern right here is what happened between
February 22nd and April 26th, that is a two-month gap. We would do that[,] and I
don’t recall what the issue was for getting the biopsy, why it took two months.”
Nor does the additional testimony that Mr. Pignano cites on the issue of the
two-month delay reference a departure from the standard of care:
[Dr. Cash’s counsel]: To follow back up on that, she phrased it as
damage, what damage occurred, but what harm actually occurred to Mr.
Pignano by the two-month delay?
[Dr. Markowitz]: You don’t know. I mean, the likelihood that it
changed and . . . suddenly he had metastasis, it is a low likelihood, but I
have much more of a sense of urgency once you know, okay, this is
going to be cancer, we need to find out exactly what kind it is [,]and we
need to complete a staging because if he is still candidate for curative
intense surgery[,] we need to get there.
Also, the next question and answer—not referenced by Mr. Pignano—
reinforces that Dr. Markowitz is not claiming that the delay is a breach of the standard
of care or something that harmed Mr. Pignano:
[Dr. Cash’s counsel]: [W]hat I heard you say[—]and I don’t want to put
words in your mouth[—]is that you are not aware of any harm befalling
24
the patient because of that two months, you’d certainly like to see things,
but you can’t say he had no involvement because of the two-month
delay or metastasis because of the two-month delay?
[Dr. Markowitz]: You are correct. Yes, I am not inferring that
everything was cool[,] and then two months later[,] it went to hell. That
is not a fair statement.
This testimony does not reference a standard of care. Even if viewed as a
criticism of Dr. Cash, we do not know if Dr. Markowitz is offering anything other
than his personal opinion on the issue. Even if we could discern an opinion that a
departure from the standard of care occurred, Dr. Markowitz’s deposition
testimony—that the likelihood is low that the cancer suddenly metastasized in the
two-month period—disables any argument that there is a reasonable medical
probability that this breach caused harm to Mr. Pignano. See Jelinek v. Casas, 328
S.W.3d 526, 532–33 (Tex. 2010) (stating that in order to meet the legal-sufficiency
standard in medical malpractice cases, “plaintiffs are required to adduce evidence of a
‘reasonable medical probability’ or ‘reasonable probability’ that their injuries were
caused by the negligence of one or more defendants, meaning simply that it is ‘more
likely than not’ that the ultimate harm or condition resulted from such negligence”).
This is simply not sufficient to constitute a scintilla of evidence raising a fact issue that
Dr. Cash departed from the standard of care in 2016 or that the departure caused
injury to Mr. Pignano, even if he had predicated his suit on that claim.
8
8
Mr. Pignano pleaded that the open-courts provision of the Texas Constitution
saved his claim from being barred by limitations. Dr. Cash moved for a traditional
25
We have considered all the summary-judgment evidence by analyzing all the
excerpts of Dr. Markowitz’s deposition that were offered and the medical records of
Mr. Pignano’s care. The summary-judgment record establishes two things. The date
of the breach of or departure from the standard in this case is ascertainable.
According to Dr. Markowitz, it occurred in November 2014 when Dr. Cash departed
from the standard of care by not ordering a needle biopsy after the second CT scan
showed that the mass was still present. Thus, Mr. Pignano cannot rely on a course of
treatment to save his claim from the bar of limitations. Nor can Mr. Pignano rely on
summary judgment and a no-evidence summary judgment on this issue. The First
Court of Appeals recently outlined the open-courts provision and how it may prevent
the operation of the statute of limitations from barring a health care liability claim as
follows:
The Texas Constitution guarantees that persons bringing common-law
claims will not unreasonably or arbitrarily be denied access to the courts.
Tex. Const. art. I, § 13 (“All courts shall be open, and every person for
an injury done him, in his lands, goods, person[,] or reputation, shall
have remedy by due course of law.”); see also Thomas[ v. Jayakumar, No.
01-14-00984-CV], 2016 WL 640629, at *3[ (Tex. App.—Houston [1st
Dist.] Feb. 11, 2016, no pet.) (mem. op.)]. The open[-]courts provision,
however, does not toll limitations. See Tenet Hosps. Ltd. v. Rivera, 445
S.W.3d 698, 703 (Tex. 2014). Rather, unlike a tolling provision, which
defers the accrual of a cause of action until the plaintiff knew or,
exercising reasonable diligence, should have known of the facts giving
rise to her claim, the open[-]courts provision merely gives a litigant a
reasonable time to discover her injuries and file suit. Rivera, 445 S.W.3d
at 703, Walters, 307 S.W.3d at 295.
Harris v. Kareh, No. 01-18-00775-CV, 2020 WL 4516878, at *6 (Tex. App.—Houston
[1st Dist.] Aug. 6, 2020, pet. denied) (mem. op.). Mr. Pignano’s brief does not present
any issue or argument that the open-courts provision saves his claim. Thus, we will
not address that provision’s impact on Mr. Pignano’s claim.
26
Dr. Markowitz’s deposition to establish that he opined that there were departures
from the standard of care in 2016; the deposition cannot be read to support
Mr. Pignano’s argument that Dr. Markowitz opined that there was a later breach
because of the 2016 delay in conducting a third CT scan.
9
9
Mr. Pignano also attached Dr. Markowitz’s expert report to his summaryjudgment response. “[A]n expert report [required to be filed as part of a health care
liability claim]: (1) is not admissible in evidence by any party; (2) shall not be used in a
deposition, trial, or other proceeding; and (3) shall not be referred to by any party
during the course of the action for any purpose.” Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(k). We have held that it is improper to use an expert report as summaryjudgment evidence but that the use of the report is a defect of form to which an
objection must be made. See Coleman v. Woolf, 129 S.W.3d 744, 747–50 (Tex. App.—
Fort Worth 2004, no pet.). Here, Dr. Cash objected to the use of the report as
incompetent summary-judgment evidence, the trial court overruled the objection, and
Dr. Cash does not challenge that ruling on appeal. But whether the report may be
considered as summary-judgment evidence, we agree with Dr. Cash that
Dr. Markowitz clarified his opinions during his deposition, and we rely on his
deposition testimony as the statement of what departures from the standard of care
occurred.
27
I
Outcome: We overrule Mr. Pignano’s first issue that generally attacks the trial court’s
grant of summary judgment. We also overrule Mr. Pignano’s more specific second
and third issues claiming that a course of treatment by Dr. Cash made Mr. Pignano’s
suit timely and that Dr. Markowitz dated the ascertainable departure from the
standard of care in 2016 such that it made the suit timely. We affirm the summary
judgment that Mr. Pignano take nothing from Dr. Cash