Unreported / Non-Citable
Background
Donna Pearson underwent open-heart surgery in January 2021. She alleged that radiologists Jordan Lao, John Stoll, and Jennifer Theoharis failed to identify and report a surgical sponge visible on postoperative chest x-rays. An MRI revealed the foreign object in December 2022, and the sponge was surgically removed in February 2023.
After repeatedly attempting to obtain Donna’s medical records, the Pearsons received 693 pages from Methodist Hospital on April 26, 2023—after the limitations periods applicable to the radiologists had expired. Their counsel reviewed the records and added the radiologists as defendants one week later. Counsel delayed requesting citations for 43 days while a consultant reviewed the x-rays, and Dr. Stoll was served on July 11, 2023. The trial court granted the radiologists traditional summary judgment on limitations grounds.
The Court’s Holding
The Fourth Court of Appeals reversed, holding that the Pearsons produced evidence raising a genuine issue of material fact as to whether they exercised due diligence and filed suit within a reasonable time under the Texas Constitution’s open courts provision. The court emphasized their repeated efforts to obtain the records, Methodist Hospital’s delayed statutory compliance, counsel’s prompt review of the 693-page production, and the consultant’s review of the x-rays before service was requested.
The court also held that the evidence raised a fact issue concerning diligence in serving Dr. Stoll. Although service occurred 105 days after limitations expired, the preceding delays were supported by evidence and could not be deemed unreasonable as a matter of law. The court did not decide that the Pearsons were diligent; it held that diligence must be resolved by the factfinder on this record and remanded for further proceedings.
Key Takeaways
- A medical-malpractice plaintiff invoking Texas’s open courts provision must raise a fact issue showing that the plaintiff lacked a reasonable opportunity to discover the wrong and bring suit before limitations expired.
- Reliance on a healthcare provider’s statutory obligation to produce medical records, coupled with documented efforts to obtain them, may support a fact issue on diligence.
- A delay undertaken to obtain a consultant’s review before serving defendants was not unreasonable as a matter of law under the circumstances presented.
Why It Matters
The decision confirms that diligence ordinarily remains a fact question when a claimant offers evidence accounting for the time spent discovering potential defendants, obtaining and reviewing medical records, evaluating the merits, and completing service. Courts should assess the entire chronology rather than isolate the number of days between limitations, filing, and service.
The ruling permits the Pearsons’ claims to proceed but does not resolve whether the radiologists were negligent or whether the Pearsons ultimately exercised the required diligence.