Texas court shoots down patient's argument that physician fraudulent concealment should extend statute of limitations

Every week, someone calls Painter Law Firm to ask for legal help for injuries from medical malpractice that occurred three, four, or even 10 years ago.

Most of the time, there’s nothing we can do to help them because the general statute of limitations for medical malpractice cases in Texas is two years. The two years starts running from the date of the negligence or from the last date of medical or healthcare treatment that’s the subject of the claim or hospitalization.

There are other special rules that modify the two-year rule for children, incapacitated individuals, and circumstances where the discovery rule applies or where there’s fraudulent concealment by the healthcare provider.

The take-home point is this: Don’t wait to call a Texas medical malpractice lawyer if you think something went wrong with your health care. As a new appellate court case shows, Texas courts resist efforts by plaintiffs to expand the statute of limitations in medical malpractice cases.

Fraudulent concealment—how it works & how it doesn’t

The Fort Worth Court of Appeals recently entered an opinion that analyzed what a medical malpractice plaintiff must prove to succeed in expanding the statute of limitations with a fraudulent concealment or discovery rule claim. The case is styled Stacey Burton v. Philips K. Labor, Individually, Eye Consultants of Texas, P.A. and Lonestar Ambulatory Surgical Center L.L.C., Cause No. 02-18-00179-CV, on appeal from the 153th District Court of Tarrant County.

The facts leading to this case started with a patient seeing an ophthalmologist, Dr. Philips K. Labor, because of problems reading fine print and with distance vision. Dr. Labor diagnosed her with an onset of cataracts and recommended an intraocular-lens replacement. They went forward with the surgery at an ambulatory surgical center that the physician also owned.

About a month after the surgery, the patient grew concerned that her right eye vision was not improving as expected. Dr. Labor tried additional procedures but was unsuccessful at addressing her reported problems.

On July 25, 2014, the patient requested that Dr. Labor’s office forward her medical records to another physician. Texas Occupations Code Section 159.006(d) only gives a medical provider 15 days to forward records. Despite repeated requests from the patient, Dr. Labor’s office didn’t forward the records until January 26, 2015.

Once her new physician reviewed Dr. Labor’s long-delayed medical records, he concluded that the problem was related to the fact that Dr. Labor “used incorrect lens calculations” for her right-eye cataract surgery.

The patient filed a lawsuit against Dr. Labor and his related businesses three years after her right-eye surgery. Predictably, Dr. Labor filed an affirmative defense that the case was barred by the statute of limitations. That’s when the patient claimed that the statute of limitations was tolled, or extended, because of Dr. Labor’s fraudulent concealment of her medical records.

Fraudulent concealment requires the plaintiff to prove: (1) actual knowledge of a mistake or negligent conduct; (2) a fixed purpose to conceal the mistake or negligence; (3) the mistake or negligence was in fact concealed; and (4) the plaintiff reasonably relied upon the facts that were concealed.

The Fort Worth Court of Appeals shot down the patient’s argument on fraudulent concealment. Here’s why.

At the patient’s deposition, she testified that within one month after her right-eye surgery, she was aware that the vision in her right eye was not improving as expected. In a written declaration, the patient said that her vision had become worse than before the surgery within four months.

That testimony was enough for the Fort Worth Court of Appeals to conclude that a reasonably prudent person aware of those facts would have diligently inquired and discovered the existence of her medical malpractice claim. The court noted that the patient’s “knowledge of these facts, as well as her failure to diligently investigate, equated to knowledge of her claim and rendered fraudulent concealment inapplicable as a matter of law.”

The appellate court didn’t stop there, though. The opinion found that any delay in forwarding the medical records is not evidence that the doctor, his office, or the surgery center had actual knowledge that a wrong occurred and had a fixed purpose to conceal it. The court concluded that, “And in any event, [the patient] possessed facts that should have led her to investigate her injury notwithstanding the delay in forwarding her medical records.”

We are here to help

If you or a loved one has been seriously injured by hospital or medical care, the time to call an experienced Texas medical malpractice attorney is now. Some people wait months or even more than a year to see if their injuries go away, but that’s an unwise and risky decision.

The experienced medical malpractice attorneys at Painter Law Firm, in Houston, Texas, are here to help. Click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.

All consultations are free and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case. We handle cases in the Houston area and all over Texas. We are currently working on medical malpractice lawsuits in Houston, The Woodlands, Sugar Land, Conroe, Dallas, Austin, San Antonio, Corpus Christi, and Waco.


Robert Painter is a 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 against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2018, by H Texas as one of Houston’s top lawyers. In May 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.

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.