X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Appellants Donald Hogue and Elta Hogue sued ProPath Laboratory Inc. and ProPath Services LLC after a pathologist employed by ProPath Services allegedly failed to detect the presence of melanoma in a lesion removed from Donald Hogue’s skin and submitted to ProPath Services for analysis. The trial court granted partial summary judgment in favor of the ProPath entities on the Hogues’ claims for negligence, negligent misrepresentation and deceptive trade practices. The Hogues’ breach-of-implied-warranty claim proceeded to trial, but at the close of the Hogues’ evidence, the trial court directed a verdict in favor of the ProPath entities. The trial court later denied the Hogues’ motion for new trial. The Hogues now appeal from the summary judgment, the directed verdict, and the denial of their motion for new trial. HOLDING:Affirmed. The Hogues argue that the ProPath entities do not fit within the definition of health-care provider. The ProPath entities offered as summary judgment evidence the uncontroverted affidavit of Dr. E.P. Jenevein, who stated that ProPath Services is a group medical practice formed under Texas law as a limited liability partnership. Because the supreme court has held that former Article 4590i extended to health-care claims made against associations of physicians, and ProPath Services offered uncontroverted proof that it is an association of physicians, the court holds that the Hogues’ claims against ProPath Services are subject to former Article 4590i’s absolute two-year statute of limitations. The Hogues did not sue ProPath Services until more than two years after the alleged misdiagnosis in 1998. Therefore, their claims against ProPath Services were barred by limitations. The court considers whether application of 4590i’s limitations period to the Hogues’ claims against ProPath Services violates the open courts provision of the Texas constitution. The Hogues admit that Mr. Hogue learned of the alleged misdiagnosis in April 2000. ProPath Services filed as summary judgment evidence a June 26, 2000 claim notice letter from the Hogues’ attorney to ProPath Services. Thus, the Hogues discovered the alleged wrong at least three months before the two-year statute of limitations expired and retained counsel to pursue their claims at least a month before limitations expired. Under these circumstances, applying former Article 4590i’s absolute two-year statute of limitations does not violate the open courts provision of the Texas Constitution. In support of its summary judgment motion, ProPath Laboratory offered the affidavit of its executive director, Krista Crews. Crews stated that ProPath Laboratory provides technical services such as slide preparation and transcription to the physicians of ProPath Services. The trial court did not specify any particular ground when it granted partial summary judgment in favor of ProPath Laboratory. The Hogues have not assigned error to ProPath Laboratory’s alternative summary judgment ground. The court affirms the partial summary judgment on that basis. The court holds that under the evidence of this case, viewed in the light most favorable to the Hogues, the ProPath entities provided a professional service. Because Texas does not recognize a cause of action for breach of implied warranty in the professional-services context, the trial court did not err by directing a verdict in favor of the ProPath entities. OPINION:Gardner, J.; Livingston, Holman and Gardner, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.