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
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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 xrays; 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
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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 fiveto-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 presuit 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).
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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
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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,
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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
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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.
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(“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 fortythree 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.”).
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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.
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III. CONCLUSION
We reverse the trial court’s summary judgment and remand for further proceedings
consistent with this opinion.
Rebeca C. Martinez, Chief Justice
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