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Click here for the full text of this decision FACTS:In her 1996 and 1998 visits to her gynecologist, Dr. Byron Kallam, who was also her primary care physician, Sharon Boyd complained of rectal bleeding. Kallam performed a rectal exam and took a fecal occult stool sample, but they did not show evidence of blood. She was told the bleeding was due to hemorrhoids. Boyd, a nurse, began seeing Dr. Gerald Thompson as her primary care doctor in 1999 because of an insurance change, though she still continued to see Kallam and his partner, Dr. Mary Angeline Finke, for gynecological services. Boyd again complained in 1999 to Kallam of rectal bleeding, but another fecal occult sample performed by a nurse in Kallam’s office revealed nothing. She was again told the bleeding was from hemorrhoids, as she was told again in 2001. In an April 2002 office visit with Thompson, Boyd demanded a colonoscopy. The results from the April 11 test revealed stage IV colorectal cancer. In August 2002, Boyd sued Kallam, Finke and Thompson. She alleged the doctors were negligent in failing to order colorectal cancer tests after she turned 50, which was prior to 1996. She alleged the doctors were negligent in failing to diagnose her cancer, and in failing to order tests that would have revealed the cancer. Boyd added an open-courts plea to prevent the operation of the medical malpractice statute’s limitations period. She argued that she did not have a reasonable opportunity to learn of the doctors’ alleged wrongs or her alleged injury before the expiration of the limitations period. The doctors filed a motion for partial summary judgment based on limitations, arguing that Boyd’s injury occurred more than two years before she filed suit. The trial court granted this motion and severed the claims affected by the ruling from the others. Boyd appeals, again raising the application of the open-courts provision. HOLDING:Affirmed in part; reversed and remanded in part. Noting that Boyd’s invocation of the open-courts provision is a confession that she otherwise knows her claim may be outside the limitations period, the court states that Boyd has the burden of pleading and proof on the as-applied unconstitutionality of the statute. In the med-mal statute context, this means Boyd would have to raise a fact issue showing she had no reasonable opportunity to discover the alleged wrong and to bring suit before the limitations period expired. To establish that a statute violates the open courts provision and thereby denies him due process, Boyd must satisfy a two-part test: 1. that she has a well recognized common-law cause of action that is being statutorily restricted; and 2. that the restriction is unreasonable or arbitrary when balanced against the legislature’s actual purpose in enacting the statute. The med-mal statute easily meets the first prong. As to the second prong, the court notes that the purpose of the statute was to limit the length of time that medical professionals will be exposed to potential liability and thereby reduce medical malpractice insurance rates. When this purpose is balanced against Boyd’s medical negligence suit, the court determines that allowing Boyd to avoid the limitations purpose would be appropriate only if disallowing it would require her to do the impossible: to sue before having a reason to know she should sue. The court rejects Boyd’s suggestion that the Texas Supreme Court has relaxed the “impossible” standard to one that shows it would be either impossible or “exceedingly difficult” to discover the injury. The court thus examines the summary judgment evidence to determine whether the doctors conclusively established the affirmative defense of limitations, which the court finds they did, and whether Boyd raised a genuine issue of material fact that she had no reasonable opportunity to discover their alleged wrongs and her alleged injury prior to the expiration of the two-year med-mal limitations period. On the issue of negligent failure to screen based on Boyd’s age, the court finds no fact issue. Boyd herself knew that she was over 50 and that colorectal cancer screening had not been ordered. Boyd did not produce summary judgment evidence on whether she had a reasonable opportunity to learn of the doctors’ failure to order age-based screening before August 2000 (which is two years prior to when she filed suit). The court, however, finds that fact issues do exist on: 1. the failure-to-diagnose claim; 2. the misdiagnosis claims; and 3. the negligent-failure-to-order -diagnostic-testing claims. Boyd repeatedly reported rectal bleeding and occasional constipation and, according to her testimony, was repeatedly told that she was suffering only from hemorrhoids. Boyd’s hemorrhoids diagnosis made it impossible for her to learn of the doctors’ alleged wrongs or her colon cancer. The court also notes that in one instance, when Thompson gave Boyd a take-home fecal occult sample kit, he eventually instructed Boyd not to use it because bleeding from hemorrhoids could taint the results. The court rejects the doctors’ argument that Boyd should have known of her cancer because she is a nurse and because her family had a history of colon cancer. The court notes, first, that Boyd is a psychiatric nurse, and even if she wasn’t, the court says it is unwilling to impose a duty on nurses to have the same level of knowledge as than of a doctor caring for a patient. OPINION:Walker, J.; Gardner, Walker and McCoy, JJ.

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