It happens at least a few times every week—a potential client or attorney calls Painter Law Firm to discuss a potential case of clear medical malpractice that happened over a decade ago.
The facts are often terrible. They commonly involved surgical cases where an original procedure was botched years ago, but the negligence was undiscoverable until a more recent operation.
Statute of limitations v. statute of repose
It seems that most people are aware that the general medical malpractice statute of limitations in Texas is two years. When it comes to children under the age of 12 when the negligence occurred, they have until the 14th birthday to file a medical malpractice claim. These deadlines are set by statute at Texas Civil Practice & Remedies Code Section 74.251(a). (There are many important factors that affect the statute of limitations, which is why it’s important to hire an experienced Texas medical malpractice attorney to advise you about them).
What’s less known, though, is the statute of repose in Section 74.251(b), which provides that, “A claimant must bring a health care liability claim not later than 10 years after the date of the act or omission that gives rides to the claim. This subsection is intended as a statute of repose so that all claims must be brought within 10 years or they are time barred.”
The big picture is this: If you think the statute of limitations is bad, wait ‘til the statute of repose gets a hold of you!
To give you an idea of how the Texas Supreme Court has interpreted the statute of repose, have a look at this language from its opinion in Methodist Healthcare Sys. of San Antonio, Ltd. v. Rankin, 307 S.W.3d 283, 290 (Tex. 2010): “A statute of repose, by design, creates a right to repose precisely where the applicable statute of limitations would be tolled or deferred. More to the point, a statute of repose serves no purpose unless it has this effect. To hold that a statute of repose must yield to the plaintiff’s inability to discover her injury would treat a statute of repose like a statute of limitations, and would effectively repeal this and all other statutes of repose.”
“Open courts” arguments
Article 1, Section 13 of the Texas Constitution contains the open courts provision, which states that “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.”
In its opinion Stockton v. Offenbach, 336 S.W.3d 610, 617-18 (Tex. 2011), the Texas Supreme Court interpreted the open courts to provision to require a “a reasonable opportunity” to sue and can’t make a remedy contingent on “an impossible condition.”
Over the years, plaintiffs have challenged the constitutionality of statutes of limitations and repose based on the open courts provision.
But not too fast.
What’s reasonable is in the eyes of the beholder and, as you might expect in the current climate of the process of tort reform, the current Texas Supreme Court applies the open courts provision very narrowly when it comes to the medical malpractice tort reform statute of repose.
For instance, let’s consider the facts in the Rankin case.
A woman had a hysterectomy in 1995, but didn’t learn that a surgical sponge had been left inside her until 11 years later, in 2006, when she saw a physician because of abdominal pain. The Texas Supreme Court found that the10-year statute of repose was reasonable even in Rankin’s circumstances, commenting that “Texas’ ten-year repose period will weigh heavily on a small number of plaintiffs like Rankin, who belatedly discover” an injury caused by slam-dunk negligence.
In other words, in Texas, it’s more important to give potential defendants certainty that they’ll no longer face future liability under the statute of repose, than to give some patients their day in court.
When it comes to minors or incapacitated persons, though, it’s at least possible that an open courts provision challenge could be successful.
In these cases, it seems that the most important factor to the Supreme Court is whether the party exercised due diligence to discover the wrong and file suit within a reasonable time after discovering an injury.
Generally, courts expect due diligence of the plaintiff to be triggered the first time there is any sign or symptom that can point to a problem. In other words, the duty of due diligence doesn’t kick in when the full extent of the injuries or negligence are discovered. Then, the plaintiff must be prepared to explain essentially every day that passed until the lawsuit was filed.
In many of the appellate opinions, I was surprised to find that the plaintiffs offered no explanation for their delay in filing a lawsuit. The Texas Supreme Court has made it clear that the no-explanation gambit won’t fly, rejecting plaintiffs who were late in filing their negligence cases by four, 17, and 22 months.
In Tenet Hospitals Ltd. v. Rivera, 445 S.W.3d 698, 706 (Tex. 2014), the Texas Supreme Court gave some indication of what might be persuasive: “Had [the minor or next friend] exercised due diligence and the repose statute still barred her claim, we would then be required to assess the reasonableness of the law.” In contrast, the court explained, “The absence of due diligence means we need not reach this issue.”
We are here to help
If you or a loved one has been seriously injured because of poor medical or hospital care, click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.
All consultations are free, and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case. We handle cases in the Houston area and all over Texas. We are currently working on medical malpractice lawsuits in Houston, The Woodlands, Sugar Land, Conroe, Dallas, Austin, San Antonio, Corpus Christi, Beaumont, and Waco.
Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2018, by H Texas as one of Houston’s top lawyers. Also, in 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.