NUMBER 13-12-00019-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

OLGA A. LIMON, Appellant,

v.

YUSUKE M. YAHAGI, M.D., Appellee.

On appeal from the 377th District Court

of Victoria County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Vela

Memorandum Opinion by Chief Justice Valdez

By one issue, appellant, Olga L. Limon, appeals the trial court’s summary 

judgment in favor of appellee, Yusuke M. Yahagi, M.D. We affirm.

I. BACKGROUND

This case involves a healthcare liability claim brought under Chapter 74 of the 

Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN.

§74.000-.507(West 2011). At issue in this case is a surgical procedure (specifically, a 
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stent placement), which was performed on May 7, 2008 and which, according to 

appellant, should not have been performed. 

Appellee performed the procedure after a CT scan showed a small aneurysm 

(i.e., dilation) of appellant’s aorta and a “crescentric thrombus” (i.e., clot) or obstruction 

of the aorta. The thrombus caused the aorta to be severely narrowed or occluded (up 

to 70%). Appellee concluded that the obstruction was causing appellant to experience 

intermittent claudication (i.e., pain when walking caused by inadequate blood supply). 

Appellee advised appellant that the safest treatment for the obstruction was to place a 

stent endovascularly (i.e., inside the aorta) through the obstructed area to open it and 

prevent clots from traveling downstream to small arteries, particularly the bilateral lower 

extremities, which would prevent reduced blood flow or ischemia. 

The stent placement was successful in relieving the obstruction in appellant’s 

aorta and in opening the aorta. Appellant experienced no complications from the 

procedure. On November 4, 2009, appellant had a follow-up appointment with her 

cardiologist, Harish Chandna, M.D., who told her that appellee had performed the stent 

placement unnecessarily because the aneurysm was not wide enough to require 

surgery. 

On May 3, 2010, appellant sent a notice letter to appellee, advising him of her 

potential healthcare liability claim. On July 22, 2010, appellant filed suit against

appellee, alleging that no procedure was indicated because her abdominal aortic 

aneurysm was uncomplicated and measured only 2.2 centimeters in diameter. 

Appellant alleged that, according to accepted medical literature and the stent’s product 

insert, no surgery should have been performed unless the aneurysm measured at least 

4.5 to 5.0 centimeters in diameter. Appellant further alleged that the standard of care 
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for an aneurysm measuring 2.2 centimeters is to monitor the patient every 6-12 months 

to determine whether the aneurysm is getting bigger.

Appellee moved for summary judgment on the basis that appellant filed suit one 

day outside the relevant limitations period. Appellant asserted fraudulent concealment 

to avoid appellee’s limitations defense and attached evidence in support thereof to her 

response to appellee’s motion for summary judgment. The trial court granted appellee’s 

motion for summary judgment, and this appeal ensued. 

II. ANALYSIS

A. Applicable Law

Healthcare liability claims have a two-year limitations period. TEX. CIV. PRAC. &

REM. CODE § 74.251(a) (West 2011). The limitations period for a healthcare liability 

claim begins on one of three dates: (1) the occurrence of the breach or tort; (2) the last 

date of the relevant course of treatment; or (3) the last date of the relevant 

hospitalization. See Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001). If the date the 

alleged tort occurred is ascertainable, limitations must begin on that date. Id. And if the 

date is ascertainable, further inquiry into the second and third categories is 

unnecessary. Id.

Notice given as provided in chapter 74 tolls the applicable statute of limitations to 

and including a period of 75 days following the giving of the notice, and the tolling 

applies to all parties and potential parties. TEX. CIV. PRAC. & REM. CODE § 74.051(c)

(West 2011).

Fraudulent concealment estops a defendant from relying on the statute of 

limitations as an affirmative defense to the plaintiff’s claim. Malone v. Sewell, 168 

S.W.3d 243, 251 (Tex. App.—Fort Worth 2005, pet. denied). Fraudulent concealment 
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tolls limitations until the plaintiff discovers the fraud or could have discovered the fraud 

with reasonable diligence. Shah, 67 S.W.3d at 841. Fraudulent concealment consists 

of four elements: (1) the existence of the underlying tort; (2) the defendant’s knowledge 

of the tort; (3) the defendant’s use of deception to conceal the tort; and (4) the plaintiff’s 

reasonable reliance on the deception. Malone, 168 S.W.3d at 252.

B. Standard of Review

In a summary judgment case, the issue on appeal is whether the movant met his 

summary judgment burden by establishing that no genuine issue of material fact exists 

and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); 

S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. 

Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The burden of proof is on 

the movant, and all doubts about the existence of a genuine issue of material fact are 

resolved against the movant. S.W. Elec. Power Co., 73 S.W.3d at 215; Sci. Spectrum, 

Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Great Am. Reserve Ins. Co. v. San 

Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). Therefore, we must view 

the evidence and its reasonable inferences in the light most favorable to the nonmovant. 

Great Am., 391 S.W.2d at 47.

In deciding whether there is a material fact issue precluding summary judgment, 

all conflicts in the evidence are disregarded and the evidence favorable to the 

nonmovant is accepted as true. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 

170, 173 (Tex. 1995). Evidence that favors the movant’s position will not be considered 

unless it is uncontroverted. Great Am., 391 S.W.2d at 47.

A defendant is entitled to summary judgment on an affirmative defense if the 

defendant conclusively proves all the elements of the affirmative defense. Rhone-
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Poulenc, Inc. v. Ramirez, 997 S.W.2d 217, 223 (Tex. 1999). To accomplish this, the 

defendant-movant must present summary judgment evidence that establishes each 

element of the affirmative defense as a matter of law. Ryland Group, Inc. v. Hood, 924 

S.W.2d 120, 121 (Tex. 1996).

Once the defense of limitations is conclusively established, and the plaintiff 

resists summary judgment by asserting fraudulent concealment, the burden is on the 

plaintiff to raise a fact issue on each element of fraudulent concealment. Shah, 67 

S.W.3d at 841 (citing Am. Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994)). 

C. Discussion

Appellant pled several causes of action against appellee; however, there is no 

dispute that each of the causes of action is a healthcare liability claim subject to the twoyear limitations period in section 74.251(a). See TEX. CIV. PRAC. & REM. CODE § 

74.251(a). Appellant argues that the trial court erred in granting summary judgment in 

favor of appellee because she produced evidence that raised a genuine issue of 

material fact as to each element of fraudulent concealment. 

We agree with appellee that, unless the statute of limitations was tolled by 

fraudulent concealment, the limitations period commenced on May 7, 2008, the date of 

the surgery. See Morrison v. Chan, 699 S.W.2d 205, 208 (Tex. 1985) (“We hold that 

the Legislature’s intent in passing Art. 4590i, § 10.01, was to abolish the discovery rule 

in cases governed by the Medical Liability Act.”); see also Earle v. Ratliff, 998 S.W.2d 

882, 887 (Tex. 1999) (holding that limitations began on surgery date because the 

plaintiff did not allege post-surgical negligence); Gormley v. Stover, 907 S.W.2d 448, 

449-50 (Tex. 1995) (same). Appellant’s notice letter tolled the limitations period for 75 

days, extending it to July 21, 2010. Thus, unless appellant produced evidence raising a 
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genuine issue of material fact on each element of fraudulent concealment, her lawsuit, 

filed July 22, 2010, was barred by limitations.

The basis of appellant’s lawsuit is that appellee deceived her into undergoing an 

unnecessary surgical procedure. To establish fraudulent concealment, appellant was 

required to prove the following: (1) the existence of a tort based on appellee performing 

an unnecessary surgical procedure; (2) appellee’s knowledge of the tort; (3) appellee’s 

use of deception to conceal the tort; and (4) appellant’s reasonable reliance on the 

deception. See Malone, 168 S.W.3d at 252.

1. An Underlying Tort

Appellant’s summary judgment evidence included an affidavit from her expert, 

Devinder S. Bhatia, M.D., a general surgeon who has performed abdominal aortic 

aneurysm (“AAA”) stent procedures and is knowledgeable about the standard of care:

In treating AAA, it is the standard of care that intervention, i.e., surgery, is 

not recommended for asymptomatic infrarenal or juxtarenal AAAs if they 

measure less than 5.0–5.5 cm in diameter in men or less than 4.5–5.0 cm 

in diameter in women, absent certain circumstances that do not exist in 

this case. If an AAA is measured at less than these diameters, the 

practice protocol requires one to monitor the progression in size of the 

AAA every 6–12 months.

Dr. Bhatia reviewed appellant’s care records from appellee and her hospital 

chart. In addition, his affidavit included and discussed medical literature on the topic of 

the standard of care for the treatment of AAA and the product insert for the AAA stent 

that appellee used on appellant. Based on the foregoing, Dr. Bhatia opined that 

appellant was not only negligent, but also grossly negligent:

Based upon my review of these records and my experience as a 

Cardiovascular and Thoracic Surgeon who has undergone the training 

reflected in my CV attached as Exhibit A, it is my opinion that [appellee] 

failed to follow the standard of care for the treatment of [appellant’s] AAA 

as reflected in the medical records attached to this affidavit as Exhibits B-
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F. In this case, objective studies showed that [appellant’s] aortic 

aneurysm was measured at 2.2 cm. This study performed by radiologist, 

Dr. Steven C. Schnicker, M.D., was the only one available to [appellant] 

before he made the decision to place the aortic stent graft into [appellant]. 

The standard of care for an aortic aneurysm of this size does not require 

emergent intervention as [appellant] was lead to believe by [appellee]. In 

fact, no intervention of any kind is called for with an aneurysm of this size. 

The standard of care only calls for management of these aneurysms by 

performing serial examinations with either ultrasound of the abdomen or 

CT scan of the abdomen every six months to a year.

. . .

Despite this clear contraindication to any surgical intervention, [appellee] 

proceeded with AAA stent graft placement. This action was inappropriate 

and violated the standard of care for treatment of a 2.2 cm aortic 

aneurism. No intervention should have been performed as recommended 

by the guidelines of the American College of Cardiology, American Heart 

Association and other reputable Society guidelines mentioned below.

. . . 

If negligence is defined as [not] exercising the care that a Cardiovascular 

and Thoracic Surgeon of ordinary prudence would have done under the 

same or similar circumstances, it is my opinion that [appellee] was 

certainly negligent in his care and treatment of [appellant]. If “gross 

negligence” means more that momentary thoughtlessness, inadvertence 

or error in judgment such that there is such an entire want of care as to 

establish that the act or omission complained of was the result of actual 

conscious indifference to the rights, safety, and welfare of [appellant], then 

it is my opinion that [appellee] was also grossly negligent. In other words, 

by performing surgery under these circumstances, [appellee] departed 

from the ordinary standard of care to such an extent that it created an 

extreme risk of harming [appellant], especially considering the probability 

and magnitude of the costs of surgery and the complete lack of indication 

for same with respect to [appellant].

Dr. Bhatia also addressed the standard of care with regard to the condition of 

“crescentric thrombus,” which, according to appellee, was an additional reason for the 

surgery:

[Appellee] has suggested that the crescentric thrombus noted in Dr. 

Schnicker’s report called for intervention even if the size of the aneurysm 

did not. He’s also suggested that [appellant’s] bilateral lower extremity 

pain complaints justify surgery. I disagree with both of these suggestions. 
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With respect to the crescentric thrombus, and as reflected in Dr. 

Schnicker’s report, this was a small “uncomplicated” infrarenal abdominal 

aortic aneurysm. No surgical intervention should have been performed 

based upon the presence of thrombus. As to the presence of pain, 

[appellee] failed to exclude a neurological basis for [appellant’s] bilateral

lower extremity pain. He ordered no test, such as an MRI, to determine 

the genesis of her pain complaints. As such, if pain was the reason he 

performed surgery, he didn’t do his job to determine the cause of her pain 

before surgery and should not have performed it on that basis.

Elsewhere in his affidavit, Dr. Bhatia elaborated further on his opinion regarding 

the crescentric thrombus, which was based on an article attached as Exhibit K to his 

affidavit:

This study shows that thrombus in the aorta actually may reduce wall 

stress in an aortic aneurysm and thereby reduce the threat of rupture, 

which is why surgical interventions in the aorta are performed. Thus, the 

presence of thrombus noted by [appellee] to have served as a basis for 

intervention argues against surgical intervention in uncomplicated 

aneurysms as [appellant] had.

Appellant’s summary judgment evidence also tended to prove that, as a result of 

the unnecessary surgical procedure, appellant suffered economic damages in the 

amount of $2,528.17 for a surgical fee charged by appellee and $80,246.10 in hospital 

charges payable to a hospital with which appellee had an exclusive relationship. 

For purposes of fraudulent concealment, we conclude that appellant’s summary 

judgment evidence was sufficient to raise a fact issue on the element of an underlying 

tort based on appellee’s performance of an unnecessary surgery. See id.

2. Appellee’s Knowledge of the Underlying Tort

To successfully assert fraudulent concealment, appellant was also required to 

create a fact issue on appellee’s “actual knowledge of the fact that a wrong ha[d]

occurred.” See Earle, 998 S.W.2d at 888. In other words, proof of fraudulent 

concealment requires more than evidence that the physician failed to use ordinary care; 
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it also requires evidence that the defendant actually knew the plaintiff was in fact 

wronged. Id. 

As set forth above, appellant’s summary judgment evidence was sufficient to

raise a fact issue on appellee failing to use ordinary care insofar as he performed a 

surgical procedure that was unnecessary. Appellant’s summary judgment evidence 

also showed that appellee either knew or reasonably should have known that the 

surgical procedure was unnecessary. Specifically, the affidavit of Dr. Bhatia provided 

circumstantial evidence tending to establish appellee’s actual knowledge of the wrong:

The product insert, which [appellee] should’ve seen prior to the 

implantation of the . . . Stent Graft into [appellant], establishes [appellee] 

knew that even the manufacturer of this graft could not establish an 

indication for implantation of this device into [appellant].[

1

] This is 

significant because manufacturers spend millions of dollars to test 

products for use to determine the safety and efficacy of medical devices. 

Despite these significant expenditures and the studies performed during 

clinical trials, the manufacturer could not establish that this device was 

safe and effective for [appellant’s] condition. This certainly supports my 

opinions about [appellee’s] grossly negligent conduct. It also establishes 

that [appellee] should have told [appellant] that any representation he had 

previously made about needing surgery was mistakenly made if that was 

the case. His failure to do so makes me believe that he intentionally 

wanted to alarm [appellant] into having surgery.

For purposes of fraudulent concealment, we conclude that appellant’s summary 

judgment evidence was sufficient to raise a fact issue on the element of appellee’s 

actual knowledge of the underlying tort or wrong involving appellee’s performance of an 

unnecessary surgery. See Malone, 168 S.W.3d at 252.

 

1

 The product insert for the stent in question stated the manufacturer’s criteria to establish an 

indication for implantation as any one of the following: (1) an aneurysm with a diameter greater than 5 

centimeters; (2) an aneurysm with a diameter of 4-5 centimeters, which has increased in size by 0.5 

centimeters or more in the last six months; or (3) an aneurysm with a diameter twice the size of an normal 

infrarenal aorta. 
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3. Appellee’s Use of Deception to Conceal the Tort

The third element for fraudulent concealment requires proof that appellee used 

deception to conceal his wrongdoing. Here, we conclude appellant’s summary 

judgment evidence was insufficient to raise a fact issue. 

There is a distinction between an underlying tort, such as fraud, and the doctrine 

of fraudulent concealment, which “may toll the statute of limitations after the cause of 

action accrues.” BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 67 (Tex. 2011) 

(emphasis added). A cause of action for a tort, including a tort involving deception, 

such as what appellant has alleged in this case, is said to accrue at the time of the 

occurrence of the breach or tort. See Shah, 67 S.W.3d at 841. As the party asserting 

fraudulent concealment, appellant was required to establish not only the underlying 

wrong (i.e., the tort involving an unnecessary surgery), but also that “the defendant 

actually knew the plaintiff was in fact wronged, and concealed that fact to deceive the 

plaintiff.” See Earle, 998 S.W.2d at 888. 

In this case, this standard required appellant to establish that appellee concealed 

the fact that he had wronged her by performing an unnecessary surgery. See S.V. v. 

R.V., 933 S.W.2d 1, 6 (Tex. 1996) (explaining that the fraudulent concealment doctrine 

defers accrual because “a person cannot be permitted to avoid liability for his actions by 

deceitfully concealing wrongdoing until limitations has run”). Appellant did not meet this 

burden. She failed to produce any evidence that appellee committed any deceptive 

conduct after he had committed the underlying tort involving the unnecessary surgery. 

See Malone, 168 S.W.3d at 252. We also note that appellant failed to produce 

evidence on the fourth element for fraudulent concealment: her reasonable reliance on 

the deception. See id. There was no evidence offered by appellant that tended to 
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prove that any deceptive conduct was committed by appellee after the surgery or that 

appellant reasonably relied on any such conduct. See id.

Accordingly, the trial court did not err in concluding that appellant’s claims 

brought under Chapter 74 of the Texas Civil Practice and Remedies Code were barred 

by the two-year statute of limitations and its granting of summary judgment in favor of 

appellee was not error. See TEX. CIV. PRAC. & REM. CODE § 74.251(a).

Appellant’s issue is overruled.

III. CONCLUSION

The judgment of the trial court is affirmed.

____________________

ROGELIO VALDEZ

Chief Justice

Delivered and filed the 

2nd day of August, 2012.