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The 75-day tolling period that Texas law suggests is available after sending a notice of claim letter is a hollow promise Contact Now

Dallas court of appeals opinion highlights statute of limitations dangers for Texas medical malpractice plaintiffs

The 75-day tolling period that Texas law suggests is available after sending a notice of claim letter is a hollow promise

The general statute of limitations in Texas for medical malpractice cases is two years. From time to time, victims of medical malpractice and even attorneys who don’t often handle these complex cases suggest that they can get an extra 75 days by sending a notice letter.

Even though Texas Civil Practice & Remedies Code Section 74.051 states that a 75 day tolling period is available, the way appellate courts have interpreted this make it fraught with peril and, in my opinion, nothing more than a mirage.

I’ve previously written about how Texas appellate courts have frequently dismissed plaintiffs’ medical malpractice cases because they were dissatisfied with the comprehensiveness of the statutory authorization/release form that must accompany the notice of claim letter.

A recent Dallas Court of Appeals opinion highlights another potential explosion in the 75-day tolling minefield that can kill a plaintiff’s medical malpractice case. The case is styled Thornton v. Columbia Medical Center of Plano Subsidiary, L.P. d/b/a Medical City of Plano, Formerly Known As Medical Center of Plano; No. 05-18-01010-CV, On Appeal from the 429th District Court of Collin County, Texas.

The plaintiff’s attorney sent a pre-suit notice of healthcare liability claim letter addressed to Medical Center of Plano, which is the former name of Columbia Medical Center of Plano Subsidiary, L.P., which does business under the name Medical City of Plano. The envelope was addressed to the hospital’s physical address, with the word “Refused” on the envelope and a label that said “Return to Sender, Refused, Unable to Forward.”

The plaintiff filed a medical malpractice suit two years and 62 days after the alleged negligence. Clearly, the plaintiff intended to take advantage of the 75-day tolling provision, which, if applicable, would make the statute of limitations 2 years + 75 days.

The hospital filed a motion for summary judgment alleging that the case was barred by limitations.

In my experience as a Houston, Texas medical malpractice lawyer, any time that a plaintiff tries to use the statutory tolling provision, there’s a virtual guarantee that substantial time and resources will be wasted on fighting defendants’ efforts to have that the lawsuit dismissed.

On appeal, the plaintiff argued that the obligation to send a notice of claim was complete when it was deposited in the mail, and the fact that it was rejected is immaterial.

The Dallas Court of Appeals declined to buy into this argument, pointing out that Texas Rule of Civil Procedure 21a requires a document to be “properly addressed” and sending the notice letter to the former name, Medical Center of Plano, at the correct physical address wasn’t enough.

The outcome? The medical malpractice victim lost and the case was dismissed.

I can’t emphasize enough how I think it’s a bad idea to put all your eggs in one basket, relying on an extra 75 days to file your lawsuit. You can avoid unnecessary risk, time, and expense by sticking to the general statute of limitations.

If you’ve been seriously injured because of medical malpractice in Texas, contact a top-rated Houston, Texas medical malpractice lawyer for help in evaluating your potential case.

Robert Painter is an award-winning 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 all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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