George H. CHAMBERS, D.O., Petitioner, v. Christine CONAWAY, et vir, Raymond Conaway, Respondents, 883 S.W.2d 156

OPINION GAMMAGE, Justice. This suit involves construction of the statute of limitations in medical malpractice actions. Christine Conaway and her husband, Raymond Conaway, sued Dr. George H. Chambers, alleging that Dr. Chambers negligently failed to diagnose Mrs. Conaway’s breast cancer. The trial court granted Dr. Chambers’ motion for

summary judgment on the basis that the two-year statute of limitations set forth in the Medical Liability and Insurance Improvement Act, Tex.Rev.Civ. StatANN. art. 4590i, § 10.01 (Vernon Supp. 1993), barred Mrs. Conaway’s claim. The court of appeals reversed and remanded the case, holding that a fact issue exists whether the treatment of Mrs. Conaway’s breast condition had ended. 823 S.W.2d 331, 335. We agree with the court of appeals’ disposition but not its reasoning. We affirm its judgment remanding the case. Although the

summary judgment evidence and pleadings reveal that the parties dispute whether Dr. Chambers rendered certain medical treatment to Mrs. Conaway and whether certain statements were exchanged between them, the standard of appellate review of

summary judgment requires us to take as true the evidence and reasonable inferences therefrom favorable to Mrs. Cona-way, the non-movant. See Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985). Using this standard, we set forth the following chronology of evidence relevant to determining the applicable limitations. October 1983: After Mrs. Conaway mentioned to Dr. Chambers, her family physician, that she had discovered a lump in her left breast, Dr. Chambers referred her to a local hospital for a mammogram.

November 1, 1983: A radiologist at the hospital performed a bilateral mammogram and subsequently forwarded to Dr. Chambers a report listing the results. The report indicated that the lump in Mrs. Conaway’s breast was not malignant and recommended that Mrs. Cona-way be “recheck[ed] with mammogram in about one year....” November 2, 1983 — April 16, 1986: Mrs. Conaway visited Dr. Chambers on approximately thirty occasions for ailments unrelated to the lump in her breast. May 13, 1986: Of her own accord, Mrs. Conaway had the radiologist perform a second mammogram.

The results indicated the need for a sonogram, which was performed, and the results again did not indicate that the lump in Mrs. Cona-way’s breast was malignant. The radiologist subsequently forwarded to Dr. Chambers the results of the mammogram and sonogram. June 16, 1986: Having received the radiological results, Dr. Chambers stated to Mrs. Conaway, “I saw the report, that everything is fine. Your breast is still fine.” This is Dr. Chambers’ last communication to Mrs. Conaway about her breast. February 26, 1987 — October 14, 1987: Mrs. Conaway visited Dr.

Chambers at least six times for ailments unrelated to the lump in her breast. During this period, Mrs. Conaway experienced symptoms of breast cancer but did not advise Dr. Chambers. January 19,1988: Mrs. Conaway last visit- ■ ed Dr. Chambers for an ailment unrelated to the lump in her breast. March 16,1988: Mrs. Conaway sought the • care of another physician, who diagnosed her breast cancer. January 30, 1989: Mrs. Conaway and her husband filed suit against Dr. Chambers for negligent failure to diagnose her breast cancer. In granting Dr. Chambers’ motion for

summary judgment, the trial court concluded that the two-year limitations period commenced on June 16, 1986, and that, because Mrs. Conaway filed her claim on January 30, 1989, more than two years later, her claim was untimely. The court of appeals reversed and remanded the case, holding that a “material fact issue exists as to whether Chambers or Christene Conaway by words or conduct terminated the treatment of her breast condition.” 823 S.W.2d at 835. Based on these facts, we must determine whether Dr. Chambers, in moving for

summary judgment upon the affirmative defense of limitations, established as a matter of law that the statute of limitations barred the lawsuit against him. Rowntree v. Hunsucker, 833 S.W.2d 103, 104 (Tex.1992) (citing Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983)).

The applicable statute of limitations is found in Tex.Rev.Civ.Stat.Ann. art. 4590i, § 10.01 (Vernon Supp.1993), which provides: Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed.... The period of limitations as set forth in this statute runs from any one of three events: (

i) the date the breach or tort occurred; (ii) the date the treatment that is the subject of the claim is completed; or (iii) the date the hospitalization for which the claim is made is completed. Id (citing Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987)). The controlling issue in this case is whether the

summary judgment evidence reveals that any of these events occurred after January 30, 1987, the date two years before Mrs. Conaway commenced her action. If the evidence shows such an event occurred, then Dr. Chambers is not entitled to

summary judgment. During the physician-patient relationship, the physician has a duty to act as would a physician of reasonable and ordinary prudence under the same or similar circumstances. See Hood v. Phillips, 554 S.W.2d 160, 165 (Tex.1977); Snow v. Bond, 438 S.W.2d 549, 550-51 (Tex.1969). Accordingly, a physician’s failure to so act constitutes a breach of that duty.

The burden of proof is on the patient to establish that a breach has occurred, Hood 554 S.W.2d at 165, and, unless the mode or form of treatment is a matter of common knowledge or is within the experience of the layman, the patient must tender expert testimony to meet the burden. Id. at 165-66; see also Coan v. Winters, 646 S.W.2d 655, 657 (Tex.App.—Fort Worth 1983, writ ref'd n.r.e.); Rodriguez v. Reeves, 730 S.W.2d 19, 21 (Tex.App.—Corpus Christi 1987, no writ). In response to Dr. Chambers’ motion for

summary judgment, Mrs. Conaway filed the uncontroverted affidavit of Dr. Edward Spoil, a physician licensed to practice medicine in Pennsylvania of the same school of medicine as Dr. Chambers. Dr. Spoil’s affidavit states that, following the receipt of the 1986 mammogram report, Dr. Chambers was negligent in “failing] to perform any followup diagnostic tests_ Under the circumstances, mammograms and sonograms are not conclusive and further diagnostic tests, 1.e.[,] biopsy, should have been performed by Dr. Chambers or he should have referred Christine Conaway to other physicians for such diagnostic tests.” Dr.

Spoil’s affidavit further states that “a primary family doctor, such as Dr. George H. Chambers, was responsible for monitoring the health and medical needs of his patient, including not only addressing those specific complaints made by a patient but also caring for, monitoring and treating those conditions of which he had notice, i.e.[,] Christine Conaway’s complaints of a lump in her left breast.” If Dr. Spoil’s opinions and conclusions are to be accepted, they tend to establish that Dr. Chambers was negligent in his care of Mrs.

Conaway up to the last appointment between them on January 19, 1988, a date less than two years before Mrs. Conaway commenced her claim. Consequently, when Mrs. Conaway filed her action on January 30,1989, it was within two years of the purported “occurrence of the breach,” and her claim was not barred by limitations. Although we dispose of this appeal by relying on the first element of

section 10.01, we recognize that the lower courts looked to the second, which states that the limitations period begins to run “from the date the medical or health care treatment that is the subject of the claim” was completed. In his motion for

summary judgment, Dr. Chambers contended, and the trial court agreed, that the last day of his alleged course of treatment of Mrs. Conaway’s breast condition was more than two years before she brought suit. The court of appeals disagreed, holding that a material fact issue exists whether Dr. Chambers or Mrs. Conaway had terminated his treatment on that date. We, in turn, disagree with the court of appeals’ reasoning because determining when treatment has concluded for purposes of

section 10.01 simply amounts to deciding when a plaintiffs cause of action accrues, and the question of when a claim accrues is one of law and not fact. Gaddis v. Smith, 417 S.W.2d 577, 580-81 (Tex.1967). We most recently visited this issue in Hunsucker v. Rowntree, where a physician obtained

summary judgment based on his allegation that the suit was barred by

section 10.01. The court of appeals in that case held that the grant of

summary judgment was incorrect because a question of material fact existed, namely “whether Rowntree’s treatment of Penelope Hunsucker continued for as long as she was taking the medication which he prescribed....” 815 S.W.2d 779, 782 (Tex.App.—Texarkana 1991), rev’d, 833 S.W.2d 103 (Tex.1992). Accordingly, the court of appeals reversed and remanded the case to determine the “factual” issue of when Ms. Hunsucker’s treatment ended. We, in turn, reversed the court of appeals in Rowntree because the only question left for resolution was one of law rather than one of fact. 833 S.W.2d 103 (Tex.1992).

In the instant case, the court of appeals committed the same error: it perceived a genuine issue of material fact where none existed. Just as in Rowntree, whether treatment between Dr. • Chambers and Mrs. Conaway was terminated for purposes of

section 10.01 is a question of law appropriately decided on a motion for

summary judgment. Here, however, because our disposition of the appeal relies on the first element, we need not determine as a matter of law for purposes of

section 10.01 when Dr. Chambers terminated Mrs. Cona-way’s treatment. We conclude that, because Dr. Chambers, in moving for

summary judgment on the affirmative defense of limitations, failed to establish as a matter of law that the statute of limitations barred the suit against him, he is not entitled to

summary judgment. We therefore remand the case for a trial on the merits of Mrs. Conaway’s malpractice claim. Concurring opinion by GONZALEZ, J. Dissenting opinions by HECHT and ENOCH, JJ. . Justice Enoch’s dissenting opinion would construe Dr. Spoil’s uncontroverted affidavit strictly against the non-movant, contrary to long-established

summary judgment practice. See, e.g., Hudnall v. Tyler Bank & Trust Co., 458 S.W.2d 183, 185 (Tex.1970). . Justice Hecht’s dissenting opinion argues that limitations will never run against a primary care physician under these facts. The truth is that the cause of action never accrued until the physician failed to perform the follow-up required by the standard of care within the time prescribed by the standard of care. Limitations will still run in two years after the cause of action accrues.