Full Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-25-00825-CV Donna PEARSON and Dale Pearson, Appellants v. Jordan LAO, M.D., John Stoll, M.D., and Jennifer Theoharis, M.D., Appellees From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2023CI05746 Honorable Nadine Melissa Nieto, Judge Presiding Opinion by: Rebeca C. Martinez, Chief Justice Sitting: Rebeca C. Martinez, Chief Justice Lori I. Valenzuela, Justice Lori Massey Brissette, Justice Delivered and Filed: September 30, 2026 REVERSED AND REMANDED Appellants Donna Pearson and Dale Pearson (collectively the “Pearsons”) asserted healthcare liability claims against appellees, Jordan Lao, M.D., John Stoll, M.D., and Jennifer Theoharis, M.D. (collectively the “radiologists”), for allegedly failing to interpret post-operative x-rays and report that a sponge had been left in Donna following open-heart surgery. The Pearsons sued the radiologists thirty-six days after limitations had run, and they perfected service of citation on Dr. Stoll sixty-nine days after suit was filed. The trial court granted the radiologists a summary 04-25-00825-CV judgment on limitations grounds. In what we construe as two issues, the Pearsons contend that the trial court erred in holding that they failed to exercise due diligence in: (1) investigating, preparing to and filing suit under the open courts provision in the Texas Constitution and, therefore, failed to file suit within a reasonable time; and (2) perfecting service on Dr. Stoll. We reverse and remand. I. BACKGROUND On January 12, 2021, John Paul Kupferschmid, M.D., performed an open-heart surgery on Donna to correct a congenital condition at Methodist Hospital. Later that day and while Donna was admitted at Methodist Hospital, Dr. Stoll reviewed and interpreted the post-operative chest x- rays; however he allegedly did not note the presence of a surgical sponge. The next day, Dr. Lao reviewed and interpreted post-operative chest x-rays, and he too allegedly did not note the presence of a surgical sponge. On January 14, 2021, Joel Dunlap, M.D., a non-party radiologist, interpreted the post-operative chest x-rays. Dr. Dunlap noted “the existence of a foreign object and verbally advised the nursing staff accordingly.” No action was taken on Dr. Dunlap’s report. On January 15, 2021, Dr. Theoharis reviewed and interpreted the post-operative chest x-rays, and she allegedly did not note the presence of a surgical sponge. Donna was released from Methodist Hospital on January 15, 2021. On December 6, 2022, almost twenty-three months after Donna was released from Methodist Hospital, Donna underwent an MRI as part of a breast cancer diagnosis. The MRI revealed a foreign object near Donna’s heart. Ten days later, on December 16, 2022, Donna went to Dr. Kupferschmid’s office to request her medical records. Dr. Kupferschmid’s staff advised Donna that they would get back to her in five-to-seven days. On December 20, 2022, Donna attempted to access her medical records on the Methodist Hospital’s online patient portal. Donna -2- 04-25-00825-CV made “multiple attempts until the end of December on [Methodist Hospital’s] website but could never find” her medical records. Never having heard back from Dr. Kupferschmid’s office, Donna called the office on January 3, 2023. She was again told that they would get back with her in five- to-seven days. On January 9, 2023, Donna visited Dr. Kupferschmid’s office in person, and she again filled out forms to request her medical records. On February 7, 2023, Donna underwent a surgery to remove the sponge. In January 2023, the Pearsons retained counsel. On January 7 and 11, 2023, the Pearsons’ counsel sent Dr. Kupferschmid and Methodist Hospital, respectively, the statutorily required pre- suit notice and authorization for release of protected health information. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(a). 1 The Pearsons counsel expected, under the statutory framework, to receive Donna’s medical records from Methodist Hospital by February 27, 2023. See id. § 74.051(d) (“All parties shall be entitled to obtain complete and unaltered copies of the patient’s medical records from any other party within 45 days from the date of receipt of a written request for such records . . . .”). On March 22, 2023, the Pearsons filed their original petition, naming Dr. Kupferschmid and Methodist Hospital as defendants. On the same day, the Pearsons’ counsel sent a follow up letter to the CEO of Methodist Hospital alleging that Methodist Hospital had breached its obligation under Section 74.051(d) to timely tender Donna’s medical records. Limitations against each of the radiologists expired on March 28, 29, and 31, 2023, respectively. See id. § 74.051(c) (“Notice given as provided in this chapter shall toll the applicable statute of limitations 1 Section 74.051(a) of the Texas Civil Practice and Remedies Code provides: Any person or his authorized agent asserting a health care liability claim shall give written notice of such claim by certified mail, return receipt requested, to each physician or health care provider against whom such claim is being made at least 60 days before the filing of a suit in any court of this state based upon a health care liability claim. The notice must be accompanied by the authorization form for release of protected health information as required under Section 74.052. TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(a). -3- 04-25-00825-CV to and including a period of 75 days following the giving of the notice, and this tolling shall apply to all parties and potential parties.”). On April 26, 2023, the Pearsons’ counsel received Donna’s medical records from Methodist Hospital. The Pearsons’ counsel reviewed each of the 693 pages of Donna’s medical records. Upon his review, the Pearsons’ counsel learned the identities of the radiologists. Before his review, the Pearsons’ counsel “had no idea who they were . . . .” On May 3, 2023, a week after receiving Donna’s medical records, the Pearsons amended their petition to assert claims against the radiologists. The Pearsons’ counsel, however, did not immediately request service of citation, explaining that: Medical malpractice litigation is very perilous for plaintiffs. Under circumstances, the court can assess defendants’ attorney[s’] fees and court costs on a plaintiff. As part of zealous representation, it is incumbent upon an attorney to protect a client from financial harm. So, before serving these defendants, I made the professional decision to have the x-ray films reviewed by a consultant to ensure that the case was valid. Once done, I requested the citations. On June 15, 2023, the Pearsons’ counsel requested that the district clerk prepare citations for the radiologists. The district clerk issued the citations on June 26, 2023. A private process server served Dr. Stoll with citation on July 11, 2023. The radiologists, represented by the same counsel, each filed his or her own answer on July 19, 2023. The Pearsons eventually settled with Dr. Kupferschmid and Methodist Hospital. Meanwhile, the radiologists moved for a traditional summary judgment on the grounds that the Pearsons’ claims were barred by the two-year statute of limitations, see TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a), and the Pearsons failed to diligently perfect service. The Pearsons responded that the statute of limitations was unconstitutional as applied because it violated their rights under the open courts provision in the Texas Constitution. See TEX. CONST. art. I, § 13. The Pearsons further responded that they used due diligence in investigating, preparing to and filing -4- 04-25-00825-CV suit, and perfecting service; as such, they filed suit in a reasonable amount of time. The trial court granted a summary judgment in the radiologists’ favor. The Pearsons timely appeal. II. DISCUSSION A. Applicable Law & Standard of Review In an as-applied constitutional challenge, the claimant asserts that a statute, while generally constitutional, operates unconstitutionally as to the claimant because of her particular circumstances. Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 702 (Tex. 2014). The open courts provision of the Texas Constitution provides: “All 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.” TEX. CONST. art. I, § 13. This requirement “guarantees that a common law remedy will not be unreasonably abridged.” Tenet Hosps., 445 S.W.3d at 703 (quoting Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 521 (Tex. 1995)). “[T]he open courts provision merely gives litigants a reasonable time to discover their injuries and file suit,” and courts must determine what constitutes a reasonable time frame. Id. (quoting Yancy v. United Surgical Partners Int’l., Inc., 236 S.W.3d 778, 785 (Tex. 2007)). In short, an open courts challenge is a due process complaint and requires the party to use due diligence. Id. In the summary judgment context, the burden is on the plaintiff asserting an open courts exception to the statute of limitations to raise a fact issue demonstrating that she did not have a reasonable opportunity to discover the alleged wrong and bring suit before the limitations period expired. Walters v. Cleveland Reg’l Med. Ctr., 307 S.W.3d 292, 295 (Tex. 2010). Whether a plaintiff has used the degree of diligence required is ordinarily a question of fact; however, it may be determined as a matter of law when the evidence, construed most favorably for the claimant, -5- 04-25-00825-CV admits no other conclusion. Erickson v. Heim-Hall, 172 S.W.3d 664, 665 (Tex. App.—San Antonio 2005, no pet.). In Stockton v. Offenbach, 336 S.W.3d 610, 613, 618 (Tex. 2011), a healthcare liability claimant argued that the 120-day expert report deadline in Section 74.351(a) of the Texas Civil Practice and Remedies Code was unconstitutional as applied to her because a physician’s prolonged absence from the state made service of the report impossible. The Texas Supreme Court found that a four-month period of inactivity between a request for substitute service and the trial court’s order granting substitute service exhibited a lack of due diligence as a matter of law. Id. 618. The Texas Supreme Court made such a finding even though the claimant’s counsel’s presumed employee averred to making “repeated phone conservations” with the trial court’s clerk regarding whether the order granting substituted service had been signed. Id. at 617. The Texas Supreme Court noted that neither the motion nor the support staffer’s affidavit apprised the trial court of the impending 120-day deadline. Id. C. Due Diligence & Reasonable Time In the Pearsons’ first issue, they contend that the trial court erred in holding that they failed to exercise due diligence in investigating and preparing to and filing suit under the open courts provision of the Texas Constitution. In the Pearsons’ second issue, they contend that the trial court erred in holding that they failed to exercise due diligence in perfecting service on Dr. Stoll. The Pearsons contend that they filed suit against the radiologists and perfected service on Dr. Stoll within a reasonable time of learning of the injury to Donna. The radiologists contend the opposite. There are five periods of time relevant to our analysis. First, we begin with the period between December 6, 2022, when an MRI revealed a foreign object near Donna’s heart, and January 7, 2023, when the Pearsons’ counsel requested Donna’s -6- 04-25-00825-CV medical records from Dr. Kupferschmid’s office. Donna visited Dr. Kupferschmid’s office twice — first on December 16, 2022 and then again on January 3, 2023 — to request her medical records in person. During this period, Donna also made “multiple attempts” to access her medical records from the Methodist Hospital’s online patient portal. The only authority that the radiologists’ reference in support of their contention that these activities established that the Pearsons’ failed to exercise due diligence as a matter of law is Chang v. Denny, No. 05-17-01457-CV, 2019 WL 3955765, at *6–*8 (Tex. App.—Dallas Aug. 22, 2019, pet. denied) (mem. op.). Chang does not support the radiologists’ proposition that a delay of thirty-six days wherein two in-person and “multiple” online attempts to access Donna’s medical records constitute a lack of due diligence as a matter of law. 2 Second, the following period runs from January 7, 2023, when the Pearsons’ counsel first requested Donna’s medical records from Dr. Kupferschmid under Section 74.051(d), until April 26, 2023, when Methodist Hospital belatedly complied with Section 74.051(d). This period comprises one-hundred-and-nine days. The Pearsons contend that they should not be faulted for Methodist Hospital’s failure to comply with Section 74.051(d). The radiologists make much of the Pearsons’ waiting one-hundred-forty-eight days, from December 6, 2022 until May 3, 2022, to file suit. However, the time it took Methodist Hospital to comply with Section 74.051(d) comprises approximately seventy-four percent of the one-hundred-forty-eight days the radiologists emphasize. The radiologists point to no authority suggesting that a claimant relying on compliance with a statute is unreasonable. Cf. Union Pac. R.R. Co. v. Prado, 685 S.W.3d 848, 853 (Tex. 2024) 2 In Chang, the claimant waited to sue her neurosurgeon until June 2013, approximately twenty-five months after discovering that her neurosurgeon had left a nonradiopaque cotton ball in her skull during a May 2006 brain surgery. 2019 WL 3955765, *1–*3. The jury found that, after discovering her injury, the claimant had diligently prosecuted her claim. Id. at *4. Our sister court held that there was legally sufficient evidence to support the jury’s diligence finding. Id. at *8. -7- 04-25-00825-CV (“It seems reasonable to think the law should presume that drivers will stop at a stop sign, at least absent some kind of emergency situation.”). At a minimum, such a scenario, at this juncture, poses a fact question. Cf. id. Third, the Pearsons’ counsel reviewed each of the 693 pages in Donna’s medical records between April 26, 2023, and May 3, 2023, when the Pearsons amended their petition to add the radiologists as defendants. The radiologists’ motion for traditional summary judgment did not complain about this period. Fourth, the Pearsons’ counsel requested that the district clerk prepare citations for the radiologists on June 15, 2023, forty-three days after the Pearsons amended their petition to include claims against the radiologists. By unsworn declaration, the Pearsons’ counsel explained the delay: Medical malpractice litigation is very perilous for plaintiffs. Under circumstances, the court can assess defendants’ attorney[s’] fees and court costs on a plaintiff. As part of zealous representation, it is incumbent upon an attorney to protect a client from financial harm. So, before serving these defendants, I made the professional decision to have the x-ray films reviewed by a consultant to ensure that the case was valid. Once done, I requested the citations. We have held that “[a] claimant is allowed a reasonable time to investigate, prepare and file suit after discovering her injury.” DeRuy v. Garza, 995 S.W.2d 748, 752 (Tex. App.—San Antonio 1999, no pet.). The radiologists reference no authority — and we have found none — that forty- three days to allow a “consultant” to review the x-rays films so as to determine that the Pearsons’ claims are valid as to the radiologists constitutes an unreasonable time. Cf. id. (noting that claimant “was recuperating from surgery for three months after her surgery, went to see an attorney six months later, and suit was filed on her behalf three months after consulting with an attorney. The reasonableness of this delay is an issue upon which reasonable minds could differ.”). -8- 04-25-00825-CV Lastly, as it relates to service of citation, the district clerk issued citation on June 26, 2023, and a private process server served Dr. Stoll with citation fifteen days later, on July 11, 2023. The Pearsons argue that in light of “all the scrambling that had to be done” to assert their claims against the radiologists, they at the very least created a fact issue as to due diligence regarding service of citation. In Keeton v. Carrasco, 53 S.W.3d 13, 19–20 (Tex. App.—San Antonio 2001, pet. denied), we held that a fact issue existed precluding summary judgment on limitations grounds as to whether a healthcare liability claimant had exercised due diligence in serving a defendant with a second citation — assuming the first citation was invalid — sixty-eight days after limitations had run. In this case, citation was perfected on Dr. Stoll one-hundred-and-five days after limitations had run. However, the Pearsons presented summary judgment evidence presenting a question of material fact regarding the three contested periods preceding this fifth period. In light of this evidence and under Keeton, the Pearsons created a fact issue regarding diligence in effectuating service of citation. Id. The overall period from December 6, 2022 to July 11, 2023 is two-hundred-and-seventeen days or seven months and five days. This is approximately three months longer than the period in Stockton, 336 S.W.3d at 618. However, unlike in Stockton, the Pearsons have explained the steps that they took to investigate, prepare and file suit after discovering Donna’s injury. DeRuy, 995 S.W.2d at 752. On this record, the Pearsons have presented a fact issue as to whether they used due diligence to investigate, prepare and file suit after discovering Donna’s injury. They have also presented a fact issue regarding diligence in serving Dr. Stoll with citation. Accordingly, we sustain both of the Pearsons’ issues. -9- 04-25-00825-CV III. CONCLUSION We reverse the trial court’s summary judgment and remand for further proceedings consistent with this opinion. Rebeca C. Martinez, Chief Justice - 10 -