Teeing up a Texas medical malpractice case isn’t simple. In fact, for those inexperienced with a specialized area of law, it’s fraught with perils. I’ve often described it as the Texas medical malpractice minefield.
From a practical perspective, investigating a potential medical malpractice claim and preparing it for filing in court revolves around acquiring all the relevant medical records and obtaining opinions from physicians, nursing, and other experts.
Are Pre-Suit Notices a Double-Edged Sword for Medical Malpractice Cases?
Procedurally, though, one of the first steps is meeting the unique pre-suit notice requirement. I call it unique because it’s not something that plaintiffs must do in other types of cases. If someone is injured in a car wreck today, he or she can file a lawsuit tomorrow. Not so for medical malpractice claims.
The 2003 round of Texas tort reform requires medical malpractice plaintiffs to send a written notice of claim to defendants, accompanied by a specific statutory authorization for the release of health information, at least 60 days before filing a lawsuit.
Can Imperfect Forms Still Trigger Tolling of Statute of Limitations?
That seems pretty straightforward. It isn’t.
Texas Civil Practice & Remedies Code Section 74.051(c) has some dangerous language that has led to the dismissal of many medical malpractice lawsuits. In fact, this language has been the most fertile field for motions to dismiss and appellate court challenges by defendants in medical malpractice cases.
Unraveling the 75-Day Tolling Provision: Legal Hurdle or Mirage?
The statute says, “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.”
Again, that seems pretty simple. The statute seems to say that if a plaintiff sends a notice of claim, then the plaintiff gets an extra 75 days added to the statute of limitations. Generally, medical negligence claims have a two-year statute of limitations, so if the tolling provision were to apply, the new deadline to file the lawsuit would be two years plus 75 days.
Texas appellate courts have stayed busy for years deciding whether the 75-day tolling provisions applies, based on arguments that various notices of claims were insufficient because the accompanying statutory authorizations were incomplete. Read more about Texas Supreme Court rulings about medical malpractice, including Texas Supreme Court Raises Bar on ER Malpractice Cases, Leaving Victims with Limited Options.
The statutory authorization isn’t a regular HIPAA release. The tort reform statutory authorization requires a plaintiff to disclose two separate healthcare provider lists. The first list is for every hospital in treater who provided care related to the negligence. The second list is for every hospital or treater involved in the patient’s care for any reason during the five years before the alleged negligence.
Many health care defendants and their attorneys have used this 75-day tolling provision as a trap. It’s been so bad that I formed the opinion that, despite the statutory language, the 75 days is merely a siren’s song that doesn’t really exist. Let me explain why.
If a plaintiff files a lawsuit after the two-year statute of limitations, but before two years plus 75 days, then the trial court’s jurisdiction depends on the sufficiency of the plaintiff’s pre-suit notice and authorization. At any point during the litigation, defendant could argue that the plaintiff intentionally or accidentally omitted healthcare provider from one of the two lists required for the statutory authorization. The court agrees with the defendant, then the court must dismiss the case under the statute of limitations. Read more about Texas Supreme Court rulings about medical malpractice, including Texas Supreme Court sides with plaintiffs in important birth injury medical malpractice case.
In my book, that’s just too risky. I’ve advocated for just filing the lawsuit within the two-year statute of limitations, ignoring the siren’s song of 75 extra days. This is true even in those situations when a plaintiff hires an attorney so close to the statute of limitations that it’s impossible to send the mandatory notice of claim letter 60 days before filing suit.
After all, the consequences of not serving the notice letter are mild. A defendant can file a motion requesting that the trial court abate, or pause, the lawsuit until 60 days after the plaintiff complies with the statute by serving a notice of claim and statutory authorization. When having to choose between a short abatement versus the risk of having the case dismissed because the plaintiff left a name off the healthcare provider list, I’ll take the abatement every time.
Texas Supreme Court Ruling: The End of Gamesmanship or New Legal Battles?
On March 8, 2024, the Texas Supreme Court finally waded into this mess and entered a common-sense opinion that should end this gamesmanship. The case is styled Hampton v. Thome, No. 22-0435.
The procedural history that brought the case to the Texas Supreme Court is familiar to this type of dispute. The plaintiff filed suit outside the two-year statute of limitations, but within the 75-day tolling period referenced by the tort reform law. Read more about Texas Supreme Court rulings about medical malpractice, including Texas Supreme Court defines how medical malpractice defendants must pay future health care expenses.
Following filing of the lawsuit and a year of discovery, the defendant filed a motion for summary judgment based on the statute of limitations. The defendant contended that the plaintiff’s authorization form accompanying the pre-suit notice of claim left out some of the required healthcare providers. The trial court rejected the defense argument, but the intermediate appellate court overturned the decision.
The supreme court concluded, “We hold that in imperfect medical authorization form is nevertheless a medical authorization form, which is sufficient to toll the statute of limitations for 75 days under section 74.051(c).”
Wow! There’s no doubt that this opinion takes away one of the favorite “gotcha” tricks of health care defendants and their insurance companies and lawyers. There are some additional things to consider, though.
The court elaborated that, “A mistake or omission . . . is not without consequence, and courts should certainly never deliberate defiance of a statute’s clear commands.” In balancing the interests, though, the court sided with “bright-line rules that enable parties and courts to know with certainty—as early in litigation as possible—whether the suit is time-barred.”
The supreme court noted that trial courts retain the authority to sanction deliberate or bad faith omissions from the pre-suit statutory authorization by sanctions up to and including dismissal. For accidental or good faith mistakes, though, courts can order abatement and allow additional discovery to ensure that no party is prejudiced.
Another interesting comment in this opinion is the supreme court’s observation that, “We begin by noting that Hampton’s [the plaintiff’s] lawyer could have insulated his client’s claims from any question of timeliness by filing suit within the usual two-year statute of limitations period rather than relying on the statute’s 75-day tolling provision.”
This has long been my practice and despite this new opinion, I will continue to be skeptical of the 75-day tolling provision. By not relying on the 75-day siren’s song, plaintiffs can avoid the extra time and expense of fighting off arguments that the tolling provisions weren’t properly preserved, and, of course, the risk of dismissal.
If you’ve been seriously injured because of poor medical or hospital care in Texas, then contact a top-rated experienced Texas medical malpractice law firm for a free consultation about your potential case.
