In general, the Texas statute of limitations for medical malpractice claims is two years from the date of the alleged negligence.
There are statutes and numerous appellate cases that deal with how to interpret when the two-year clock starts ticking and potential ways to toll or pause the limitations clock. I’ve written about some of these before, including the discovery rule and continuing treatment doctrine.
Although there some situations where the plaintiff has no choice but to try and rely on one of these exceptions or loopholes to get more time to file a medical malpractice suit, I’m a big believer that the safest course of action is to file within the general two-year statute of limitations if it’s at all possible. After all, many Texas appellate courts have essentially done backflips to find ways to prevent medical malpractice plaintiffs from getting extra time or tolling of the statute of limitations.
That’s why I shook my head in disbelief at the Texas Supreme Court’s first emergency order regarding the COVID-19 state of disaster, which was entered on March 13, 2020. Paragraph three of the order states: “All courts in Texas may extend the statute of limitations in any civil case for a stated period ending no later than 30 days after the Governor’s state of disaster has been lifted” (emphasis added).
In my view, this order has “disaster” written all over it, but not in the coronavirus sense. Instead of issuing a clear order that provides some certainty during a time when it’s in short supply, the Texas Supreme Court has likely added to the problems. The court’s order gives individual trial courts the option, but not obligation, to extend the statute of limitations for civil cases during the coronavirus pandemic.
I bet that the majority of judges will extend the statute of limitations under the circumstances, as allowed by the Supreme Court order. On the other hand, I would be shocked if some other trial judges use their discretion to extend limitations despite this emergency coronavirus order.
If you have a potential medical malpractice case, the take-home message is that your safest course of action is to hire a top-rated skilled Houston, Texas medical malpractice lawyer now. Don’t unnecessarily take on the risk associated with waiting or relying on any case law or statute that may potentially give you more time to file. There’s no time like the present.
April 1, 2020 Update: In response to requests by plaintiffs' and defense attorneys, the Texas Supreme Court entered a new emergency order that clarifies its emergency order regarding tolling of the statute of limitations. The new order is much better and removes any ambiguity, stating: "Any deadline for the filing or service of any civil case is tolled from March 13, 2020, until June 1, 2020, unless extended by the Chief Justice of the Supreme Court."
