The draconian Texas statute of limitations for minors' medical malpractice claims
After the Texas tort reform laws of 2003, minors' medical malpractice claims are barred if they wait until age 18 or 20 to file
As a Texas medical malpractice lawyer, I frequently have calls from prospective clients who have questions about how the statute of limitations applies to minors in medical malpractice cases. It is not uncommon that I have to tell surprised parents that they waited too long to file a medical malpractice lawsuit under Texas law.
Generally speaking, medical malpractice cases have a two-year statute of limitations. Although some narrow exceptions may expand that time period, this broadly means that a lawsuit is typically barred if it is not filed within two years from the date of the negligence occurred.
Under Texas law, for the purposes of bringing a medical malpractice lawsuit, a minor is a person who is under 18 years old. Prior to 2003, the statute of limitations clock did not begin ticking for medical malpractice minor plaintiffs until they reached their 18th birthday.
After the so-called tort reform law of 2003 became effective, medical malpractice lawsuits involving a minor plaintiffs became more complicated, and the rights of minors were drastically reduced.
Two types of claims involving minors
Under Texas law, if a minor is a victim of medical malpractice, there are two sets of claims for damages that must be considered, for purposes of analyzing the statute of limitations.
The first category is for past and future damages from the minor’s date of birth until his or her 18th birthday. Significantly, this category includes potentially big-ticket items like past medical bills and future medical expenses, up to the age of 18. These claims belong to the minor’s parents, rather than to the minor, which means that the strict two-year statute of limitations applies.
The second category is for all damages after the minor’s 18th birthday. These claims belong to the minor. Texas Civil Practice & Remedies Code Section 74.251(a) allows minors under the age of 12 to have until their 14th birthday to file, or have filed on their behalf, a medical malpractice suit.
Unfortunately, some people stop reading there and think that all minors have until age 14 to file a medical malpractice lawsuit. The statute, though, is more draconian and complicated. Texas Civil Practice & Remedies Code Section 74.251(b) superimposes a 10-year statute of repose on top of the general statutes of limitations, which requires all medical malpractice cases, under any circumstances, to be filed within 10 years of the date of the medical negligence.
Under the statute of repose, is easy to see how a minor’s claim for a birth injury would be barred after the age of 10, rather than the age of 14.
How it impacts a potential case
By far, the best way for parents to protect a child’s legal rights is to retain an experienced medical malpractice attorney quickly after the child is injured. Many potential clients that I have spoken with explained to me that they felt overwhelmed in taking care of their child, which explained the delay in calling a lawyer.
When parents hire an attorney two years after their child was injured by medical negligence, the analysis is more complicated. For example, if a child had a profound birth or brain injury that caused a diminished life expectancy involved, most of the anticipated medical expenses could occur prior to the child’s 18th birthday.
In such a case, any claim for those monetary damages in a medical malpractice lawsuit would be barred by a combination of the statute of limitations and statute of repose. Even in situations where it was possible to proceed with a lawsuit, based on projected damages after the age of 18, defendants would strenuously argue that those damages would be speculative based on a diminished life expectancy.
A competent and experienced medical malpractice lawyer will be able to step in and take off your shoulders the burden of investigating what happened and pursuing a potential claim, leaving you with a time to focus on your child’s health care and recovery.
If your child has been seriously injured as a result of medical malpractice, I encourage you to contact an attorney with extensive experience in Texas medical malpractice matters and understanding of how our complex statutes of limitations and repose impact minors. Call 281-580-8800 for a free consultation about your potential case with an experienced medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas.
Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. Since 1999, he has focused his law practice on medical and health care negligence cases. In 2017 alone, Attorney Robert Painter has been recognized by H Texas Magazine as one of Houston’s top lawyers and a top lawyer by Houstonia Magazine.
Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.
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This article was originally published in the September/October 2017 edition of "The Houston Lawyer" magazine
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