Betty Deluna and Richard Deluna, Appellants v. Atef I. Rizkallah, M. D. and Atef I. Rizkallah, M. D., P. A., Appellees, 754 S.W.2d 366

Summary

Appellants, patient and patient's husband, filed a medical malpractice suit against appellee physician based on appellee's erroneous interpretation of two echocardiograms. The trial court granted summary judgment for appellee based on a finding that appellants' cause of action was barred as a matter of law by the applicable statute of limitations. Appellants challenged. The court found that the evidence submitted by appellants in opposition to appellee's motion for summary judgment conclusively showed that they could not have discovered the wrong within two years of appellant patient's last treatment from appellee. Thus, based upon the decisions of other cases, the court held that the absolute two-year statute of limitation of Tex. Rev. Civ. Stat. Ann. art. 4590i, §10.01 (1987) was unconstitutional as applied to appellants' cause of action because it violated the open courts provision of Tex. Const. art. I, §13. Accordingly, the summary judgment was reversed and the cause remanded.