Statute of limitations in Texas

The TMLT Claim Operations and Risk Management Departments often receive questions about the statute of limitations in Texas. The following summary provides general information on this complicated topic.

Introduction

The term “statute of limitations” refers to laws passed that set a timeframe for bringing certain kinds of legal action. In Texas, health care liability claims have their own statutes of limitations and how these laws are applied can be tricky.

The current statute of limitations for health care liability claims is found in Section 74.251 of the Texas Civil Practice and Remedies Code. It states:

1. “Notwithstanding any other law and subject to Subsection (b), no 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; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided this section applies to all persons regardless of minority or other legal disability.
    
2. A claimant must bring a health care liability claim not later than 10 years after the date of the act or omission that gives rise 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.” (1)

The current statute was passed in 2003 by the Texas legislature, as part of the ongoing battle between Texas courts and the legislature. Texas courts have repeatedly found that legislation defining the statute of limitations violates the “open courts” provision of the Texas Constitution.

That provision declares that “. . . all courts shall be open, and every person for an injury done him, his lands, goods, person or reputation, shall have remedy by due course of law.” (2)

A history of statutes of limitations

In Texas, medical liability claims were originally subject to a general two-year statute found in Article 5526 of the Texas Civil Statutes. In 1967 the Texas Supreme Court said this statute was unconstitutional if applied to an injury the claimant could not have discovered within the two years (the “discovery rule”).

During a malpractice insurance crisis in the 1970s, the legislature created a special statute for medical liability claims that set fixed dates and avoided the constitutional problem. The first was Article 5.82, Section 4 of the Texas Insurance Code, enacted in 1975. Yet, in 1983 the Texas Supreme Court held it was invalid as to minors, for whom limitations do not start to run until their 18^th birthday.

In 1977 the legislature tried again with Article 4590i, Section 10.01. However, in 1984 the Court — adopting the same reasoning as applied to Section 5.82 — held that the discovery rule applied. Rather than giving the plaintiff the full two years from learning of the injury, the Court said suit must be filed within a “reasonable time” from discovery.
 

Today’s statute

The current statute was enacted in 2003. Once again, the legislature tried to address the constitutional issues raised by previous versions. The second paragraph is new, creating a “statute of repose” cutting off all claims after 10 years. The statute has been ruled unconstitutional as applied to minors. (3) Adams v. Gottwald, 179 S.W.3d 101 (Tex. App. – San Antonio 2005, pet. denied).

The same appellate court decided the discovery rule trumped the statute in Rankin v. Methodist Health Care System of San Antonio (4), 261 S.W.3d 93 (Tex. App – San Antonio 2008). However, in 2014 the Texas Supreme Court overturned the Court of Appeals and ruled in this case, the “statute of repose applies because the plaintiff had knowledge of the claim, but did not timely pursue the claim before expiration of the statute of repose.

Texas courts have indicated the body of law surrounding earlier versions of statutes of limitations will continue to be applied.
 

Estimate of existing law

The following summary is an estimate of existing law, but each case must stand on its own facts, particularly if a minor is involved or if the facts support application of the discovery rule.

1. If an adult is involved, the limitations period is two years from (1) the date of the occurrence of the malpractice or (2) the date of completion of the medical care or hospitalization made the basis of the claim.
    
2. The continuing treatment rule only applies in situations where the date of the tort cannot be determined. But there must be continuing negligent treatment, as opposed to a case where care continued, but the subsequent care was not negligent.
    
3. If a specific date for the negligent act can be ascertained, the period of limitations starts then.
    
4. In cases involving an undiscoverable injury (such as a sponge left in the incision) the plaintiff gets a reasonable time to file suit after discovery. What is reasonable is decided on a case-by-case basis, although it is clear a plaintiff does not get the full two years in which to sue.
    
5. In cases involving injury to a minor, the child has until his or her twentieth birthday to file suit for injuries. The parents’ claim for medical expenses for the child is still subject to the two-year limitation.
    
6. Death claims and survival claims (claims the decedent could have brought if alive) are created by statute (as opposed to common law), and there are no constitutional issues involved in applying the statutory limitations to these claims. Common law is created by court decisions and provides that a cause of action for negligence ceases to exist when that person dies.  The Texas legislature has enacted Wrongful Death and Survival statutes, which provide for those causes of action to pass to the heirs. For example, the Section 74.251 limit of age 14 for minors would govern a suit for the death of a parent.
    
7. In a claim involving the death of a child, the survival claim (the claim that would otherwise “belong to” the child) has a two-year limitation, but it runs from the date of the death, not the date of the malpractice. The wrongful death claims (claims belonging to family members for the loss of the child) have a two-year limitation that runs from the date of the malpractice.
    
8. Mental incompetency can toll (suspend) the statute of limitations indefinitely if the incompetency is continuous. Like the situation with minors, the death of the incompetent person imposes the two-year limitation period on any wrongful death or survival claim.
    
9. Fraudulent concealment means that if a physician actively conceals a cause of action from the plaintiff, he will not be allowed to assert limitations as a defense. The plaintiff can extend limitations until he learns of facts that would cause a reasonable person to inquire and discover the concealed conduct.
    
10. The 10-year “statute of repose” in Section 74.251 is likely to be held unconstitutional if it cuts off claims of minors and undiscoverable injuries.

Finally, Section 74.051 of the Texas Civil Practice and Remedies Code that discusses notice requirements for bringing a claim provides:

3. Notice given as provided in the chapter shall toll the applicable statute of limitations 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.”