Tejada v. Gernale

Ronnie and Rose Tejada appeal the trial court's summary judgment favoring Virgilio Gernale, M.D., contending that the trial court erred in holding their case barred by the statute of limitations, res judicata, and lack of a fact issue that Gernale's negligence proximately caused their injuries. While incarcerated, Ronnie Tejada began to complain of symptoms indicating diabetes, but the doctor supervising his care did not order a blood test despite knowing that his patient was a diabetic. Ronnie Tejada's legs were later amputated below the knee. Under the Texas Civil Practices and Remedies Code § 74.251, the statute of limitations in a medical malpractice issue runs for two years from the date of malpractice or the last day of a course of treatment, with an additional 75 days granted upon notice to the physician. Here, the lawsuit was not barred by the statute of limitations because an examination is not required to constitute the last day of a course of treatment — a chart review can suffice when the medical chart reveals a history of diabetes and current diabetic symptoms. Furthermore, res judicata failed as an affirmative defense because there was no privity between Gernale and the supervising agency, as Gernale did not show that he would be bound by the federal court's judgment or that the agency understood itself to be representing him. Finally, based on the testimony of an expert witness that a reasonably prudent doctor would have tested the inmate's blood sugar level on reviewing the chart, some evidence exists that precludes summary judgment. The trial court's judgment is reversed and remanded for further proceedings. Tejada v. Gernale, Houston's 1st Court of Appeals, No. 01-10-00569-CV, 08-11-2011

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OPINION

In this medical-malpractice case, Ronnie and Rose Tejada appeal the trial court’s summary judgment favoring appellee, Virgilio Gernale, M.D. The Tejadas contend that trial court erred by granting summary judgment because they timely filed their claims within the applicable limitations period, a res judicata defense with respect to an earlier filed federal suit is without merit, and they raised a fact issue that Gernale’s negligence proximately caused their injuries. We conclude that (1) Gernale has not conclusively proved that limitations bars his alleged acts of negligence; (2) Gernale was not a party or in privity with a party to the earlier federal case, precluding a judgment based on res judicata; and (3) a fact issue exists as to whether Gernale’s negligence caused Tejada’s injuries. We therefore reverse and remand for further proceedings.

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