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Click here for the full text of this decision FACTS:In this medical malpractice case, the trial court granted summary judgment in favor of United Surgical Partners International Inc., Valley View Surgical Center Inc. and Judith Smith, R.N., on the ground that the claims against them had been filed outside the limitations period. Eula Yancy, as the guardian of the person and the estate of Carletha Yates, appeals the trial court’s judgment contending the statute of limitations governing Yates’s claims is unconstitutional as applied to her. Specifically, Yancy argues the statute of limitations violates the “open courts” provision of the Texas Constitution because Yates has been mentally incapacitated continuously since the incident from which her claims arose. HOLDING:Affirmed. To defeat the motions for summary judgment filed by United, Valley View and Smith, Yancy was required to produce specific, competent summary judgment evidence sufficient to raise a fact issue regarding her mental capacity to pursue litigation from May 3, 2000 to Aug. 2, 2003. The only summary judgment evidence of mental incapacity Yancy provided in response to the defendants’ motion for summary judgment was the affidavits of nurses Anaise Theuerkauf and Cindy Sacker. Theuerkauf’s statement that Yates has been in a “comatose, vegetative state” consistently since the date of her surgery is a medical diagnosis that Theurkauf did not show herself qualified to render. Theurkauf did not establish that she had any specialized expertise as a nurse to provide legally competent testimony about Yates’s mental condition. Furthermore, there is no evidence to indicate the extent to which Theuerkauf’s opinion is based on her personal observations and to what extent she is simply relying on the opinions of others. “We do not foreclose the possibility, however, that a nurse or even a lay person could, without expressing a medical diagnosis, provide competent summary judgment proof that a plaintiff has been continually and completely mentally incapacitated from the time of the injury until the time suit was filed.” Theuerkauf stated in her affidavit that she personally visited and assessed Yates. But she set forth no facts or observations from that assessment to support her opinion that Yates has been “totally disabled” since the date of her surgery. The court states that, by merely setting forth her certifications as a registered nurse, Sacker did not show herself qualified to render the diagnosis that “Yates is suffering a permanent anoxic brain injury.” In addition, not only does Sacker’s affidavit fail to include any facts sufficient to show that Yates was continually mentally incapacitated from the date of her surgery until the date suit was filed, but Sacker also states that her opinion regarding Yates’s condition is based entirely on her review of Yates’s medical records from Valley View and the deposition transcripts of those involved with her care at Valley View. Yates was not treated at Valley View after May 3, 2000. Therefore, Sacker could not have formed an opinion about Yates’s condition after that date, according to the court. Because Yancy failed to provide competent summary judgment evidence regarding Yates’s mental capacity, she failed to raise a fact issue about the constitutionality of the statute of limitations for health care liability claims as applied to Yates, the court concludes. OPINION:Joseph B. Morris, J.; Morris, Francis and Lang-Miers, JJ.

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