General Rule – Two Year Statute of Limitations
In general, there is a two year statute of limitations for medical malpractice claims in Texas. This means that a medical malpractice suit must be filed no later than two years after the negligent act or omission occurred, or it is barred by the statute of limitations and cannot be brought.
There are a few exceptions to the two year statute of limitations for Texas medical malpractice cases. However, the law regarding the statute of limitations is complicated, so it is always best to consult a qualified medical malpractice lawyer to determine the appropriate statute of limitations for your facts.
Injured Party is a Minor
As with many areas of the law, the law regarding statutes of limitations for minors is complicated and, in some instances, unsettled. The Texas medical malpractice statute provides that a minor has until age 14 to file suit. The Texas Supreme Court held in Weiner v. Wasson that the predecessor medical malpractice statute unconstitutionally barred minors from filing suit during their minority, thus giving minors until age 20 to file suit. But the Texas Supreme Court has not addressed the constitutionality of the current statutory provision which—like the predecessor statute—gave minors only until age 14.
In addition, Texas law also provides that a claim for a minor’s medical expenses before the minor turns age 18 belongs to the minor’s parents. This claim, which can be significant, is subject to the general two year statute of limitations. Further, Texas has a ten year statute of repose for medical malpractice claims, which is intended to be a complete bar on any medical malpractice claim that arose more than ten years before it was filed. So, as with all Texas medical malpractice claims, it is best and safest to consult a qualified medical malpractice lawyer as soon as possible regarding a minor’s potential claim.
Negligent Health Care Provider is a Government Employee
Texas law requires persons bringing lawsuits regarding government employees to give notice of their claim within six months after the injury occurred. Certain Texas hospitals and clinics are owned by governmental entities, so medical malpractice claims arising out of those entities may require notice of the claim in a very short period of time after the negligence occurred.
Negligence Not Discovered Until After Statute of Limitations Has Run
In limited circumstances, if an injured party discovers his or her injury after the two year statute of limitations has already run, they may be able to file a medical malpractice suit within a “reasonable time” after discovery of the wrong under the Open Courts provision of the Texas Constitution. The cases determining a “reasonable time” have varied widely. Thus, if you discover an injury that was caused by medical malpractice after the two year statute of limitations has expired, it is important that your claim be filed very quickly. If you discover the injury before your two year statute of limitations runs, even if it is a very short time before it runs, the Open Courts provision does not apply.
Continuing Course of Treatment
If the negligent health care provider treated the injured party over a period of time, the injured party can argue that the two year statute of limitations period began running toward the end of the course of treatment rather than at the beginning. However, the cases on this issue are inconsistent and very fact specific, so if a claim can be filed within two years of the beginning of the course of treatment, it is greatly preferred.
Tolling the Statute of Limitations by Giving Notice
An injured party can toll the medical malpractice statute of limitations by 75 days by sending a notice letter to the negligent health care provider within the two year limitations period. In order for the tolling provision to apply, notice must comply with the provisions of Chapter 74 of the Texas Civil Practice & Remedies Code.
Texas Statute of Repose
The Texas medical malpractice statute provides for a 10 year statute of repose on medical malpractice claims. Under the terms of the statute, any medical malpractice claim filed more than ten years after the negligent act or omission occurred is barred. This bar likely trumps any exception mentioned above.
As set forth above, the law regarding the statute of limitations for Texas medical malpractice claims is complex. It is always best to consult a qualified medical malpractice attorney sooner rather than later to ensure that any deadlines that might apply to your claim are timely met.