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Click here for the full text of this decision FACTS:On May 3, 2000, Carletha Yates underwent a lithrotripsy � a surgical procedure to remove kidney stones � at Valley View Surgical Center. During the procedure, Yates suffered a cardiac arrest allegedly caused by the medical personnel’s failure to monitor her oxygen while she was under general anesthesia. At the time that the Texas Supreme Court issued its opinion, she was comatose. On Dec. 10, 2001, Eula Yancy, Yates’ mother and guardian of her estate and person, sued Dr. Manuel Ramirez and Dallas Pain & Anesthesia Associates for negligence. Almost two years later, on Sept. 2, 2003, Yancy added United Surgical Partners International, Inc., Valley View Surgical Center and nurse Judith Smith (collectively, Valley View) as defendants. United Surgical and Valley View asserted that limitations barred Yates’ claims. They moved for summary judgment on that basis. In response, Yancy conceded that she filed Yates’ claims outside of the two-year statute of limitations but contended that because Yates has “been continuously in a vegetative, comatose state since May 3, 2000 . . . limitations . . . has been tolled and any statutory attempt to void the tolling violates the Texas Open Courts provisions.” Yancy attached two affidavits to the summary-judgment response. Anaise “Sis” Theuerkauf, a “certified rehabilitation registered nurse, certified case manager, and life care planner,” testified that she visited and assessed Yates at her home and reviewed her medical records. Theuerkauf concluded: “It is my opinion . . . that Carletha Yates is in a comatose, vegetative state, and, based on my review of her medical records, she has been in such a condition consistently and uninterrupted since her anoxic brain injury suffered on May 3, 2000, while a patient at Valley View Surgery [sic] Center. She has been totally disabled continuously since May 3, 2000.” Yancy also filed an affidavit and accompanying report from Cindy Sacker, a registered nurse. Sacker’s report noted that the monitor record from Yates’ surgery reflected a 10-minute period during which Yates did not breathe, leading Sacker to conclude that Valley View’s nursing staff breached its duty of care and “[a]s a result . . . Yates, has suffered a catastrophic, irreversible, brain injury, rendering her comatose and totally unresponsive, requiring her family to assume responsibility for her care.” Yancy also attached the 137-page deposition transcript of Manuel Ramirez, the anesthesiologist who attended Yates during the lithrotripsy. Based on his review of the records, Ramirez testified that near the end of the procedure, Yates’ blood-oxygen levels dropped, and she developed “brady [and] asystole.” Ultimately, Yates suffered a cardiac arrest, requiring cardiopulmonary resuscitation. Ramirez intubated Yates and administered epinephrin. Yates’ vital signs returned and, accompanied by Ramirez, the hospital transferred her to Medical City Dallas. Ramirez recalled speaking with Yancy that day and explaining that Yates had suffered a cardiac arrest, had been resuscitated and had demonstrated good vital signs on transfer, but remained unconscious. While Ramirez had not seen Yates since the transfer, he had no reason to believe her condition had changed. On the day of the summary judgment hearing, Valley View challenged Theuerkauf and Sacker’s expert testimony. The trial court granted the motions, holding that both affidavits were conclusory and that neither Theuerkauf nor Sacker were qualified to testify to Yates’ medical condition.. Yancy settled with and dismissed Ramirez and the Dallas Pain & Anesthesia Associates from the suit, making the summary judgments final. Yancy appealed, and the 5th Court of Appeals affirmed. The 5th Court examined the summary judgment evidence and objections and concluded that, because the objections raised matters of substance, not form, “the failure to obtain a ruling did not waive the objections,” because “[o]bjections to the substance of an affidavit may be raised for the first time on appeal.” The 5th Court affirmed the trial court, holding that Yancy failed to present competent evidence of Yates’ alleged continuous mental incapacity and, therefore, failed to raise a fact issue about the constitutionality of the statute of limitations for health care liability claims as applied to her. The Texas Supreme Court granted Yancy’s petition for review. HOLDING:Affirmed. Yancy, the court stated, had the burden to present evidence of Yates’ continuous mental incapacity. Theuerkauf, the court noted, after visiting Yates in her home and reviewing medical records, opined that Carletha Yates had been in a comatose, vegetative state since May 3, 2000. The court found that even if Theurkauf was not qualified as an expert, she was still free to offer testimony of her personal observations. Theuerkauf’s affidavit supported an inference that Yates was mentally incapacitated, the court stated. Valley View’s medical records of Yates’ lithrotripsy procedure were included in the summary judgment evidence, the court stated. The court also noted Sacker’s affidavit that described a 10-minute period during which Yates did not breathe. The court found that the affidavits, taken in conjunction with the medical records and Ramirez’s testimony, raised a fact issue as to whether Yates had been continuously mentally incapacitated since the surgery. The 5th Court erred in concluding otherwise, the court stated. The court noted that the Texas Constitution’s open courts guarantee, found at Texas Constitution Art. I, �13, provided that “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” This provision, the court stated, assures that a person bringing a well-established common-law cause of action will not suffer unreasonable or arbitrary denial of access to the courts. Proof of an open courts violation, the court stated, requires two elements: 1. a cognizable, common-law claim that is statutorily restricted; and 2. the restriction is unreasonable or arbitrary when balanced against the statute’s purpose and basis. Yancy, the court stated, contended that the Medical Liability Insurance Improvement Act’s (MLIIA) limitations provision violated the open courts guarantee as applied to Yates. Yancy’s open courts claim, the court stated, is premised on the notion that “the Legislature has no power to make a remedy by due course of law contingent on an impossible condition.” But the court stated that a plaintiff may not obtain relief under the open courts provision if he does not use due diligence and sue within a reasonable time after learning about the alleged wrong. Yancy, the court stated, offered no explanation for failing to name Valley View and United Surgical for almost 22 months after filing the original petition. Requiring Yates to comply with the limitations period at issue, the court stated, did not “require an impossible thing.” Yates had a guardian, retained a lawyer and filed suit, all within the applicable period. That Yancy chose to sue some defendants but not others does not raise due process concerns, the court stated. Because the limitations were constitutional as applied to Yates, the court stated that there was no need to strike the law down because it might operate unconstitutionally in another case. OPINION:Jefferson, C.J., delivered the opinion of the court.

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