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There's no time like the present: Texas law is unfriendly to extending the medical malpractice statute of limitations

Houston court of appeals refuses to apply 75-day tolling because of notice of claim authorization deficiencies

Here at Painter Law Firm, it’s not unusual for frantic injured patients or family members to call us on the cusp of the general two-year statute of limitations for medical malpractice claims in Texas.

Sometimes it’s because the patient has been recovering from a horrendous injury. Sometimes it’s because doctors peddled false hope, telling them that they should get better with time and sometimes it’s because they just decided to wait to the last minute.

Generally, we turn down these last-minute requests for representation because we take our professional responsibility seriously to review a potential case thoroughly before filing suit. On top of limited time left with in the statute of limitations, most potential clients don’t have complete sets the medical records, which means that additional time is necessary before we can even start looking at the case.

From time to time, people requesting to hire us reference an extra 75 days that they’ve heard is available if a notice letter is served. I want to be crystal-clear on this point: In the current state of Texas law, I’m not sure that any such tolling provision exists.

Where do the supposed 75 days come from?

Texas Civil Practice & Remedies Code Section 74.051 mandates that plaintiffs serve a written notice of claim by certified mail, return receipt requested, to each physician or health care provider at least 60 days before filing suit. The notice has to be accompanied by a statutory authorization form for release of protected health information, which is found at Section 74.052 of the same Code.

The statutory authorization requires the plaintiff to disclose two separate lists of physicians and health care providers. The first list must identify all doctors and health care providers who examined, evaluated, or treated the patient in connection with the injury made on the basis of the claim. The second list must identify all doctors and health care providers who saw examined, evaluated, or treated the patient for any reason during the five years before the claim.

Here’s the deceptive language that trips up some plaintiffs and inexperienced attorneys. Section 74.051(c) says that, “Notice given as provided in this 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.”

Where’s the catch?

The language sounds clear and on daunting. It’s the interpretation of that language by the courts, though, that’s troubling.

A recent case out of Houston’s 14th Court of Appeals illustrates the extreme danger to plaintiffs. The case is styled Donnie Heinzen v. Randolph Whitford, M.D., Eyes Over Texas Eye Care P.A., Memorial Hermann Health System, Individually and d/b/a Memorial Hermann Katy Hospital, Mikael Lucas, M.D, and Syed Madni, M.D.; No. 14-18-00830-CV. You can read the opinion here.

Here’s the relevant timeline for that case:

3/6/15: The patient was admitted to Memorial Hermann Katy Hospital, with complaints of a headache with pain around both eyes.

3/10/15: The patient was seen off-site by retina specialist Charles Wykoff, MD.

3/11/15: The patient was discharged from Memorial Hermann Katy Hospital.

3/3/17: The patient/plaintiff served a statutory notice of claim and authorization.

3/6/17: The two-year statute of limitations expired.

5/17/17: The plaintiff filed her lawsuit.

5/19/17: The two-year statute of limitations + 75 days deadline.

It didn’t take long for the defendants to jump on the situation and file a motion for summary judgment, alleging that the plaintiff’s lawsuit was barred by the statute of limitations. At this point in the opinion, I instantly knew what the argument would be.

Predictably, the defendants alleged that, although the plaintiff timely served a statutory notice of claim, the accompanying statutory authorization was incomplete and not comprehensive. The defendants pointed out that the Texas Legislature passed this statute to allow potential defendants a 60-day period to investigate and potentially settle claims. Without a comprehensive list of health care providers, their argument goes, the legislative purpose is thwarted.

In this case, the authorization had some very obvious omissions. The most significant doctor that was missing from the list, to me, was the retina specialist, Charles Wykoff, MD. He played a key role in the timeline. But others were missing, too. Other doctors who played a role in treating her eye condition, as well as some prior treaters whose medical records at least potentially may have contained some relevant information.

No 75 days, no excuses

Under these circumstances, I wasn’t surprised that the intelligent, experienced trial judge, The Honorable Michael Gomez, granted the defendants’ motion for summary judgment. I also wasn’t surprised that the Houston Court of Appeals agreed with Judge Gomez that the plaintiff didn’t get an extra 75 days to file suit because the statutory authorization accompanying the notice of claim was insufficient.

In the trial court and on appeal, the plaintiff argued that she had short-term memory loss that prevented her from remembering all of her health care providers. The courts rejected this argument, finding that medical malpractice and health care liability claims are governed by the tort reform statute, which trumps any other laws that may allow extension of time because of memory loss, and sound mind, or other disabilities.

The key message that I’d like to share with potential medical malpractice plaintiffs/clients and attorneys who don’t routinely handle these types of complex Texas lawsuits is that it’s extremely risky to rely on the illusory 75-day tolling provision. If you have any option whatsoever to file the case timely within the general two-year statute of limitations, it’s my opinion that it would certainly be the way to go.

Even better, if you have been seriously injured because of poor hospital, physician, or medical care, then immediately contact a skilled, top-rated Houston, Texas medical malpractice lawyer to discuss 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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