In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-25-00674-CV
SANDRA LARSON, Appellant
V.
MEDICAL CITY HOSPITAL FORT WORTH, Appellee
On Appeal from County Court at Law No. 3
Tarrant County, Texas
Trial Court No. 2024-004599-3
Before Sudderth, C.J.; Womack and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
In this health care liability case arising from medical care provided to her
husband, Appellant Sandra Larson appeals the trial court’s order granting Appellee
Medical City Fort Worth’s1 traditional motion for summary judgment based on the
statute of limitations. Larson’s sole appellate issue contends that fraudulent
concealment barred Medical City’s motion. Because Larson never raised the
fraudulent concealment defense before the trial court and because the statute of
limitations bars her claims, we will affirm.
II. BACKGROUND
A. Larson sues Medical City and a doctor for her husband’s improper wound care treatment.
Larson, proceeding pro se, filed her lawsuit on June 21, 2024, against Medical
City and Antonio Castaneda M.D.2 As pleaded by Larson, “[o]n or around April 16,
2022,” her husband was in Medical City “due to complications from hernia surgery
Appellee’s answer and motion for summary judgment both state that its
1
correct name is “Columbia Plaza Medical Center of Fort Worth Subsidiary, L.P. d/b/a Medical City Fort Worth.”
2
Castaneda answered and moved to dismiss the claims against him for failure to file a Chapter 74 expert report. See Tex. Civ. Prac. & Rem. Code § 74.351(a) (requiring a health care liability claimant to serve expert reports “for each physician or health care provider against whom a liability claim is asserted”). The trial court dismissed the claims against Castaneda on December 10, 2024. The doctor is not a party to this appeal.
2
which le[]d to a massive infection.” Larson alleged that, although her husband was
being treated with a wound vac, the medical staff was not trained on its use and the
“procedure was done wrong which created more infection and [caused] the wound to
increase in size.” She complained that the “hospital and the doctor Castaneda did not
see to it that trained staff on the wound vac were available or on call” and that
Castaneda failed to contact her after the “wound vac situation.” Larson sought a
“money award” and judgment against Medical City and Castaneda.
B. Medical City moves for summary judgment based on the statute of
limitations.
Medical City answered, asserting a general denial and affirmative defenses,
including the statute of limitations “as contained in [Section] 74.251 of the Texas Civil
Practice and Remedies Code.” After discovery, Medical City moved for summary
judgment based on limitations, stating that all claims were barred because Larson
“waited two months after the statute of limitations to file suit.”3 As summary
judgment evidence, Medical City attached medical records for Larson’s husband,
Plaintiff’s Original Petition, Medical City’s First Amended Answer, and Larson’s
3
Medical City’s motion asserted that there was no seventy-five day tolling of the statutory two-year limitations period because “[p]re-suit notice of the claim and a medical authorization were never given in this matter.” See Tex. Civ. Prac. & Rem. Code § 74.051(c) (stating that “[n]otice given as provided in this chapter shall toll the applicable statute of limitations to and including a period of 75 days following the giving of the notice”).
3
deposition.4 Medical City contended that the “absolute latest day that the tort could
have occurred would have been the date of discharge from Medical City.” As
reflected in the medical records, the discharge date was April 22, 2022.
C. Larson responds to the motion for summary judgment, arguing only that a “continuous course of treatment” extended limitations.
After the trial court set a hearing date on the motion for summary judgment,
Larson filed an “opposition” to the motion, arguing that her husband had undergone
a “continuous course of treatment” that lasted “at least until June 21, 2022.” Medical
City filed objections and a reply to the response.
At the hearing, the trial court granted Medical City’s motion for summary
judgment and signed an order dismissing all claims brought against it with prejudice.
Larson appealed from that order.
III. DISCUSSION
In her sole issue, Larson asks “[w]hether summary judgment was improper
where concealment and withheld records prevented discovery of negligence.”
Medical City responds that this issue was “never raised or argued at the trial court”
and was therefore waived. Even if it was not waived, Medical City asserts that the
appellate record “does not allow an argument of fraudulent concealment” and that the
4
While Medical City referenced portions of Larson’s deposition in its summary judgment motion, the pages attached to the motion that supposedly contained her deposition are blank. However, those pages are not necessary to our disposition of this appeal. See Tex. R. App. P. 47.1.
4
trial court properly granted summary judgment because Larson’s claims were not filed
within the applicable two-year statute of limitations. We agree with Medical City.
A. Standard of Review
We review a summary judgment de novo. Weekley Homes, LLC v. Paniagua,
691 S.W.3d 911, 915 (Tex. 2024); Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862
(Tex. 2010). With respect to a traditional motion for summary judgment, the movant
has the burden to demonstrate that no genuine issue of material fact exists and that it
is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);5 Nixon v. Mr. Prop.
Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). For a traditional motion for summary
judgment, the movant satisfies its burden by conclusively negating at least one
element of the nonmovant’s cause of action or proving all elements of the movant’s
cause of action or affirmative defense. See Tex. R. Civ. P. 166a(a), (c); Stanfield v.
Neubaum, 494 S.W.3d 90, 96 (Tex. 2016).
When a summary judgment movant has met its burden, the burden then shifts
to the nonmovant to raise a fact issue to defeat summary judgment. Stanfield,
494 S.W.3d at 97. This burden requires the nonmovant to specifically identify the
supporting proof it seeks to have considered by the trial court and explain why it
5
The Texas Supreme Court amended Rule 166a, effective March 1, 2026. See Sup. Ct. of Tex., Final Approval of Amendments to Rule 166a of the Texas Rules of Civil Procedure, Misc. Docket No. 26-9012 (Feb. 27, 2026). But the “amendments apply only to a motion for summary judgment filed on or after March 1, 2026,” id., so they are inapplicable here. All references to Rule 166a in this opinion are to the rule in effect prior to March 1, 2026.
5
demonstrates a fact issue exists. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d
671, 678 (Tex. 1979); see Lufkin Mall Realty Holding LLC v. Lufkin Inv. Partners LLC,
721 S.W.3d 629, 634 (Tex. App.—Tyler 2025, no pet.).
When reviewing a traditional motion for summary judgment, we consider the
evidence presented in the light most favorable to the nonmovant. Mann Frankfort
Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge
every reasonable inference and resolve any doubts in the nonmovant’s favor.
20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant is entitled to
summary judgment on a statute-of-limitations affirmative defense if it conclusively
establishes the defense as a matter of law and conclusively negates any properly raised
tolling doctrine. Jordan v. Heitkamp, No. 02-25-00190-CV, 2025 WL 3181154, at *3
(Tex. App.—Fort Worth Nov. 13, 2025, no pet.) (mem. op.); see First Sabrepoint Cap.
Mgmt., L.P. v. Farmland Partners Inc., 712 S.W.3d 75, 84 (Tex. 2025) (“To establish
entitlement to summary judgment based on an affirmative defense . . . the defendant
must conclusively establish each element of its affirmative defense.”); Frost Nat’l Bank
v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010); see also Tex. R. Civ. P. 166a(b), (c).
B. Analysis
1. Documents Attached to Larson’s Brief
At the outset, we note that Larson has attached documents to her brief that do
not appear in the appellate record. The appellate record consists of the clerk’s record
and, if necessary to the appeal, the reporter’s record. Tex. R. App. P. 34.1; see In re
6
G.K., No. 02-25-00420-CV, 2025 WL 3558969, at *4 (Tex. App.—Fort Worth
Dec. 11, 2025, no pet.) (mem. op.). “An appellate court is required to consider a case
solely on the appellate record (citing of the clerk’s record and the reporter’s record),
and it cannot consider documents attached to briefs as exhibits or appendices.” Petrov
v. Will-Brooks Inv, LLC, No. 11-24-00112-CV, 2026 WL 1593650, at *3 (Tex. App.—
Eastland June 4, 2026, no pet. h.) (mem. op.); see Warriner v. Warriner, 394 S.W.3d 240,
254 (Tex. App.—El Paso 2012, no pet.) (stating that documents attached to a brief as
an exhibit or an appendix, but not appearing in the record, could not be considered
on appellate review); see also Quorum Int’l v. Tarrant Appraisal Dist., 114 S.W.3d 568, 572
(Tex. App.—Fort Worth 2003, pet. denied) (“We cannot look outside the record in an
effort to discover relevant facts omitted by the parties; rather, we are bound to
determine this case on the record as filed.”).
Attaching documents to briefs as exhibits does not make them part of the
appellate record. Petrov, 2026 WL 1593650, at *3. Accordingly, we do not consider
the documents attached to Larson’s brief that are not part of the appellate record. See
Leal v. Lopez, No. 11-24-00015-CV, 2025 WL 1335315, at *5 (Tex. App.—Eastland
May 8, 2025, pet. denied) (mem. op.) (“[B]ecause the appendix and its inclusions
attached to [Appellant’s] appellate brief are not part of the appellate record, we cannot
and do not consider them.”); Bell v. State for S.E.G., 659 S.W.3d 21, 24 (Tex. App.—El
Paso 2021, pet. denied) (stating that because the attachment of documents as exhibits
7
or appendices to briefs is not a formal inclusion in the record on appeal, the
documents attached to appellant’s brief could not be considered).
2. The Statute of Limitations
We first address when Larson’s health care liability claims accrued. Such claims
in Texas are governed by the Texas Medical Liability Act (TMLA). See Tex. Civ. Prac.
& Rem. Code §§ 74.001–.551; Rogers v. Bagley, 623 S.W.3d 343, 349 (Tex. 2021) (setting
out the elements of a health care liability claim). The TMLA lists potential triggering
events for the two-year limitations period:
[N]o 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 . . . .
Tex. Civ. Prac. & Rem. Code § 74.251(a) (emphasis added); see Aldaco v. Wood, No. 24-1069, 2026 WL 1838585, at *2 (Tex. June 26, 2026); see also Flanigan v. Nekkalapu,
613 S.W.3d 361, 364 (Tex. App.—Fort Worth 2020, no pet.) (stating that health care
liability claims are subject to a two-year limitations period that commences on one of
three dates: (1) the date the breach occurred, (2) the last date of treatment, or (3) the
last date of hospitalization).
Despite the alternative dates, the Texas Supreme Court has made the following
principles clear:
• “A plaintiff may not choose the most favorable date that falls within [the] three
categories”;
8
• “[I]f the date the alleged tort occurred is ascertainable, limitations must begin
on that date”; and
• “[I]f the date is ascertainable, further inquiry into the second and third
categories is unnecessary.”
Pignano v. Cash, No. 02-21-00168-CV, 2022 WL 60737, at *6 (Tex. App.—Fort Worth
Jan. 6, 2022, pet. denied) (mem. op.) (quoting Shah v. Moss, 67 S.W.3d 836, 841 (Tex.
2001)). Section 74.251(a) contains no discovery rule, and the statute of limitations
begins to run from the dates specified in the statute, irrespective of the claimant’s
delayed knowledge that a departure from the standard of care has occurred. Id. While
the supreme court in Shah recognized that there may not be an exact date of accrual if
a patient is subject to a course of treatment, that is the exception rather than the rule.
Id. at *7; see Shah, 67 S.W.3d at 841 (“[I]f the defendant committed the alleged tort on
an ascertainable date, whether the plaintiff established a course of treatment is
immaterial because limitations begins to run on the ascertainable date.”).
Here, Medical City’s motion asserted that Larson “could not pinpoint the exact
day during the hospitalization when the alleged negligence occurred” but that she
“believe[d] it occurred on Saturday April 2 or 9, 2022.” However, according to the
motion, the “absolute latest day that the tort could have occurred would have been
the date of discharge from Medical City,” which was April 22, 2022. Medical City
attached Larson’s husband’s discharge summary, which confirmed that his discharge
date was April 22, 2022.
9
In her response to the motion, Larson argued that “the issue here is the
completion date of the treatment that is the subject of this claim.” Larson asserted
that her husband received “continuous wound care” from the date of admission and
was “overseen by Dr. Muhammad A. Khan . . . and Dr. Antonio Castaneda.”
According to Larson, her husband “was under the care of Dr. Khan specifically to
treat the wound from a previously botched surgery at least until June 21, 2022.”
Larson referenced the bottom of a partial document she attached to her response that
showed that Khan dictated and electronically signed it on June 20, 2022.6 Therefore,
she argued that her filing on June 21, 2024, was timely. Consistent with the records
attached to Medical City’s motion, other medical records attached to Larson’s
response showed that her husband was discharged on April 22, 2022.
Medical City filed an objection and reply, arguing that Larson’s response was
untimely and should not be considered by the trial court, as it was filed four days
before the hearing. See Tex. R. Civ. P. 166a(c) (stating that, except on leave of court,
the response must be filed “not later than seven days prior to the day of hearing”). In
addition, Medical City objected that the documents attached to the response were
“improper and inadmissible hearsay.” Specifically, it noted that the partial page of the
document showing that Khan had dictated and electronically signed it did not show
6
It is unclear why Larson argued that June 21, 2022, was the last date of treatment when the partial document she referenced was dictated and signed on June 20, 2022.
10
that it pertained to Larson’s husband, did not state where the care took place, and
“appear[ed] to be a screen shot of a document that is inadmissible hearsay.”
The trial court’s order did not contain a ruling on the objections. Rather, it
simply granted Medical City’s motion and ordered that all of Larson’s claims against
Medical City were dismissed with prejudice.
As noted above, the third provision of Section 74.251(a) permits the limitations
period to run from the date “the hospitalization for which the claim is made is
completed.” See Tex. Civ. Prac. & Rem. Code § 74.251(a). The purpose of the threedate scheme is “to aid the plaintiff who had difficulty ascertaining a precise date on
which his injury occurred, specifically in circumstances where the claim arose from a
course of treatment or a period of hospitalization that extended for a period of time.”
Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987); see Husain v. Khatib, 964 S.W.2d
918, 919 (Tex. 1998) (“In such a situation, the statute resolves doubts about the time
of accrual in the plaintiff’s favor by using the last date of treatment or hospitalization
as a proxy for the actual date of the tort.”).
Applying these principles here, the uncontradicted summary judgment evidence
established that the date of discharge—April 22, 2022—was the last day that Larson’s
husband could have received treatment from Medical City. While not alleging a
specific date, Larson’s pleadings stated that her husband’s injuries occurred sometime
during hospitalization due to the improper use of a wound vac. Therefore, the latest
possible date that Larson’s causes of action could have accrued was April 22, 2022.
11
See Tex. Civ. Prac. & Rem. Code § 74.251(a); see also Shield v. Bio-Synthesis, Inc., No. 02-21-00160-CV, 2022 WL 2840111, at *4 (Tex. App.—Fort Worth July 21, 2022, no
pet.) (mem. op.) (“[W]e assume without deciding, for purposes of determining the
accrual date, that the facts came into existence on the latest possible date . . . .”);
Patrick v. Howard, 904 S.W.2d 941, 944 n.4 (Tex. App.—Austin 1995, no writ) (“For
simplicity, we analyze the limitations issue using the latest possible date.”).
While Larson attached as summary judgment evidence a partial document
showing it was dictated and electronically signed by Khan on June 20, 2022, there was
no evidence showing that this document related to Larson’s husband’s care or that
Khan’s alleged treatment related to the claims Larson made against Medical City. In
fact, Larson’s pleadings did not mention Khan’s name.
Here, in order for Larson’s claims to be timely under Section 74.251(a), Larson
needed to file suit against Medical City no later than April 22, 2024. See Tex. Civ.
Prac. & Rem. Code § 74.251(a). However, Larson filed her suit on June 21, 2024,
almost two years and two months after the last date of hospitalization. Therefore, the
statute of limitations bars Larson’s claims unless a tolling provision applies. See Jordan,
2025 WL 3181154, at *5.
3. Fraudulent Concealment
On appeal, Larson argues that summary judgment was improper because
Medical City “withheld critical records” that “were not merely incomplete but
contained information central to understanding the nature and extent of the
12
deficiencies in care.” She contends that the records “showed critical deficiencies in
care—specifically, the absence of weekend wound care staffing and repeated wound
[vac] failures” and that the “concealment directly impacted [her] ability to timely assert
her claims.” Medical City responds that Larson waived this argument because she did
not raise it below in her response to its summary judgment motion. We agree.
The fraudulent concealment doctrine is an affirmative defense to the statute of
limitations. Markwardt v. Tex. Indus., Inc., 325 S.W.3d 876, 894 (Tex. App.—Houston
[14th Dist.] 2010, no pet.) (citing KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp.,
988 S.W.2d 746, 749 (Tex. 1999)). Once a defendant has conclusively established the
affirmative defense of limitations, the burden shifts to the plaintiff to produce
evidence of a defendant’s fraudulent concealment. Jordan, 2025 WL 3181154, at *5.
Fraudulent concealment is “a fact-specific, estoppel counter-defense to an assertion of
limitations with four elements: (1) actual knowledge that a wrong occurred, (2) a fixed
purpose to conceal the wrong, (3) that the wrong was in fact concealed, and (4) the
plaintiff’s reasonable reliance on the facts upon which fraudulent concealment is
premised.” Id.
Importantly, “a party asserting fraudulent concealment . . . has the burden to
raise it in response to the summary judgment motion and to come forward with
summary judgment evidence raising a fact issue on each element of the fraudulent
concealment defense.” KPMG, 988 S.W.2d at 749; see Tex. R. Civ. P. 166a(c) (“Issues
not expressly presented to the trial court by written motion, answer[,] or other
13
response shall not be considered on appeal as grounds for reversal.”). Larson did not
plead fraudulent concealment, nor did she raise the issue in response to Medical City’s
motion for summary judgment. See Woods v. William M. Mercer, Inc., 769 S.W.2d 515,
518 (Tex. 1988) (“A defendant who has established that the suit is barred cannot be
expected to anticipate the plaintiff’s defenses to that bar. A matter in avoidance of
the statute of limitations that is not raised affirmatively by the pleadings will,
therefore, be deemed waived.”). While Larson contends in her reply brief that she
“requested complete Medical City records, complained that the records produced
were incomplete, and sought court assistance to obtain the missing records,” her
summary judgment response said nothing about missing or incomplete records.
Therefore, we conclude that by failing to raise the issue before the trial court, Larson
waived any fraudulent concealment defense to the statute of limitations. See Phillips v.
Sharpstown Gen. Hosp., 664 S.W.2d 162, 167 (Tex. App.—Houston [1st Dist.] 1983, no
writ) (“No mention of fraudulent concealment was made in appellants’ response to
appellees’ motion for summary judgment and, therefore, the issue has been waived.”).
Even if it had not been waived, the summary judgment evidence did not
support the elements of fraudulent concealment. In fraudulent concealment cases,
the burden is on the plaintiff to provide evidence of specific acts that demonstrate a
defendant’s actual knowledge of a wrong and a fixed purpose to conceal it. See Scott v.
Kant, No. 14-98-01025-CV, 2000 WL 330088, at *4 (Tex. App.—Houston [14th Dist.]
Mar. 30, 2000, no pet.) (not designated for publication). Here, even if there was
14
summary judgment evidence showing that Medical City failed to timely provide
Larson a copy of her husband’s medical records, Larson offered no summary
judgment evidence to establish that Medical City had actual knowledge that a wrong
occurred or that there was any fixed purpose to conceal the wrong. See Casey v.
Methodist Hosp., 907 S.W.2d 898, 903 (Tex. App.—Houston [1st Dist.] 1995, no writ)
(holding that Casey failed to satisfy her burden to raise a fact issue regarding
fraudulent concealment; “[a]lthough the affidavit [of Casey’s attorney] shows that
Methodist [Hospital] failed to timely provide Casey with a copy of her medical
records, it wholly fails to establish that Methodist had actual knowledge that a wrong
occurred or there was any fixed purpose to conceal the wrong”); see also Burton v.
Labor, No. 02-18-00179-CV, 2019 WL 237736, at *4 (Tex. App.—Fort Worth Jan. 17,
2019, no pet.) (mem. op.) (“Appellees’ delay in forwarding [Appellant’s] medical
records does not show that Appellees actually concealed her healthcare-liability
claim. . . . [A]ny delay in forwarding [Appellant’s] medical records is not evidence that
Appellees had actual knowledge that a wrong occurred and had a fixed purpose to
conceal it.”).
Because the summary judgment evidence conclusively established that Larson
sued Medical City outside the TMLA’s two-year window and because the doctrine of
fraudulent concealment did not toll the running of the statute of limitations, the trial
court properly granted summary judgment for Medical City. See Jordan, 2025 WL
3181154, at *8. We overrule Larson’s sole issue.
15
IV. CONCLUSION
Having overruled Larson’s sole issue, we affirm the trial court’s order granting
Medical City’s motion for summary judgment.
/s/ Dana Womack
Dana Womack
Justice
Delivered: August 13, 2026
16