One of the common questions we hear from potential clients is, “How long do I have to file a medical malpractice lawsuit under Texas law?” When it comes to children, the answer isn’t exactly straightforward.
First, though, let’s talk about adults. Generally speaking, the Texas statute of limitations in all negligence claims, including medical malpractice, is two years.
When the date of the negligence is easily identifiable, that’s when the statute of limitations starts running, or accrues. For example, when a patient is injured during the surgery, the date of the surgery would be when the statute of limitations starts ticking.
Sometimes, though, the precise date of the medical negligence is unknown.
Take for example a patient who had a lengthy hospitalization and was discharged with bedsores. Poor nursing documentation in the medical records may make it impossible to know the exact date that the pressure injuries developed. Under the continuing treatment doctrine, it may be possible to extend the statute of limitations accrual date to the last day of a hospitalization at issue.
There are other doctrines that, under some circumstances, may be used to extend the statute of limitations accrual date. We won’t discuss the rest of them here.
It’s time to move on to minors.
Texas Civil Practice & Remedies Code Section 74.251(a) says that minors under the age of 12 have until their 14th birthday to file a medical malpractice claim. Many potential plaintiffs and even some lawyers who are unfamiliar with medical malpractice cases read the statute allowing minors up to the age of 14 to file suit. That’s not exactly the whole story. In fact, most of the time it would be a profound mistake to wait that long to pursue litigation. Let me explain why.
Under Texas medical malpractice law, all claims for damages of the minor up to the age of 18 belong to the parents of the minor. That’s because the parents have legal responsibility to care and support children up to the age of 18.
Think about the significance of this when it comes to the statute of limitations.
If parents don’t file a birth injury medical malpractice lawsuit until after their child’s second birthday, then they’re barred by the statute of limitations from recovering any economic (medical bills and expenses) and noneconomic (pain and suffering, physical impairment, and mental anguish) damages up to the child's 18th birthday.
Sure, it’s still possible to pursue damages that will likely be incurred after the child's 18th birthday, but millions of dollars of expenses that could be used to meet the child’s medical, health, and therapy needs will be off the table.
If you or your family has faced a serious injury because of poor hospital or medical care in Texas, then I encourage you to contact a top-rated experienced Texas medical malpractice lawyer immediately for free consultation about your potential case.