It's risky to rely on an extra 75 days to file a Texas medical malpractice

It’s hard to overemphasize the importance of hiring an experienced medical malpractice lawyer quickly after experiencing a serious injury from a physician, nursing, or hospital medical error.

For a variety of reasons, some reasonable and others less so, some medical malpractice victims wait until the last minute to seek legal help. Generally speaking, the last minute is two years from when the negligence occurred. This is also called the statute of limitations.

Bear in mind that there’s a lot of work that has to be done to develop a Texas medical malpractice case for filing and compliance with mandatory early deadlines. Medical records need to be ordered and analyzed. A mandatory notice of healthcare liability claim letter and accompanying authorization for release of protected health information need to be sent to every potential defendant. Then, of course, the plaintiff must have all necessary medical expert reports served within 120 days of each defendant filing an answer in a medical malpractice lawsuit.

When new clients hire attorneys shortly before the two-year statute of limitations, there’s a temptation—particularly for lawyers inexperienced in Texas medical malpractice cases—to try and get extra time to file the lawsuit. Even though Texas Civil Practice and Remedies Code Section 74.051(c) expressly states that an additional 75 days are available when a notice letter and authorization are served, I consider it a Sirens’ song. On other occasions, I’ve described it is a veritable minefield to cross.

I can understand how an inexperienced eye can fall for the trick. After all, the statute flat-out 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.”

The danger for plaintiffs, though, is how Texas trial and appellate courts have interpreted the statutory meeting of the phrase “Notice given as provided in this chapter.” Chapter 74 requires healthcare liability notices of claim to be accompanied by authorization forms for the release of protected health information.

The authorization form is an exhaustive document that requires disclosure comprehensive lists of: (1) any healthcare provider (physician, clinic, hospital, or other facility) who treated the patient in the five years prior to the incident that are subject of the claim; and (2) any healthcare provider who treated the patient in conjunction with the claim.

In recent years, Texas courts have taken a strict viewpoint on the meaning of the statute, finding that an omission of a doctor or healthcare provider from either list means that notice was not given as provided in the chapter; therefore, no extra 75 days is provided to file a lawsuit timely.

Based on the direction of the trial and appellate courts, defendants have understandably taken an aggressive approach in pretty much any case where a plaintiff relies on the 75-day tolling provision. When a plaintiff files a medical malpractice lawsuit in Texas after the two-year statute of limitations, but before the additional 75 days has passed, a health care defendant will typically respond with a motion for summary judgment or to dismiss the lawsuit.

That’s what happened in a recent case that the Corpus Christi—Edinburg Court of Appeals considered. The case is styled Larry Mark Polsky v. Dr. Rick Bassett, No. 13-18-00553-CV, 13th Court of Appeals. You can read the court’s opinion here.

The facts of the case involved a patient’s complaint that his surgeon was negligent in performing a total knee replacement surgery at Valley Baptist Medical Center, in Harlingen, Texas. The lawsuit petition claims that the plaintiff was left pigeon towed after the procedure and that a CT scan of his knee demonstrated a significant misalignment.

The plaintiff filed his medical malpractice lawsuit after two years from the surgery, but before two years plus an additional 75 days for sending a notice of claim letter and statutory authorization.

Predictably, the surgeon filed an answer asserting the affirmative defense of limitations, followed by a motion for summary judgment on his defense that the statute of limitations had passed. Specifically, the motion for summary judgment argued that the limitations period was not tolled for an additional 75 days because the statutory medical authorization accompanying the notice letter left off the relevant list the hospital where the surgery took place, Valley Baptist Medical Center, as well as another Valley Baptist facility in Brownsville where a CT scan was later performed.

The 13th Court of Appeals noted that at the trial court level the plaintiff responded to the motion for summary judgment arguing that he wasn’t required to include those two facilities on the relevant list. His reasoning was that he didn’t have any follow-up care specifically connected to walking pigeon toed with his left foot.

The trial court granted the defendant’s motion for summary judgment and dismissed the case. The plaintiff took the case up on appeal.

At the appellate court level, the plaintiff made an additional argument that he substantially complied with the statute by serving the authorization that he attached to his notice letter. The court rejected this argument because it had been brought up at the trial court level.

Overall, I think it’s always a bad idea—unless there’s absolutely no way around it—to rely on the supposedly 75-day tolling provision of Chapter 74. If forced into this dilemma, though, and then responding to a motion for summary judgment, the substantial compliance argument is about as good of an argument as one can make. After all, some courts have granted an extra 75 days under certain case facts. Many others, though, have rejected tolling when the list of health care providers is incomplete—particularly when someone’s left out who provided care related to the claim.

The Corpus Christi—Edinburg Court of Appeals affirmed the trial court’s dismissal of the case on the ground that two facilities that should have been on the statutory authorization weren’t listed.

It’s sad to see these outcomes. They underscore to me the importance of filing a lawsuit within the general two-year statute of limitations, without relying on the so-called 75-day tolling provision of Chapter 74.

My take-home message to you is that if you’ve been seriously injured because of medical negligence in Texas, there is no time like the present when it comes to hiring an experienced medical malpractice attorney to help you.

Robert Painter
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Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys 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 for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.