Painter Law Firm focuses on medical malpractice cases, representing patients and their families. In our type of practice, we hear from people who have gone through terrible medical ordeals from a botched surgery, anesthesia error, birth injury, medication mistake, infection, sepsis, or some other type of poor care.
Many people who have been severely injured by the medical negligence of a hospital, doctor, or nurse are completely consumed with their pain, loss of function, and financial pressure from not being able to work. While focusing on trying to survive, many months sometimes pass before they call a medical malpractice lawyer about their potential case.
One of the saddest things that we have to do each week is disappoint people who call our office by telling them that we cannot represent them because too much time has passed.
There are several deadlines that you should know about when it comes to medical malpractice cases. Because every situation involving medical malpractice has different facts, I do not intend to provide legal advice in this article for any particular case. For that type of conversation, call Painter Law Firm’s experienced medical malpractice lawyers, at 281-580-8800, for a complimentary consultation about your case.
Medical malpractice statute of limitations
Generally speaking, a statute of limitations is the deadline by which a particular type of lawsuit must be filed. If you miss the deadline by even one day, then your claim is barred if no exception applies.
Texas Civil Practice & Remedies Code Section 74.251(a) sets the general statute of limitations for medical malpractice or negligence cases at two years. Thus, a lawsuit has to be filed within two years: (1) from the date the malpractice occurred; (2) from the date of the last relevant course of treatment; or (3) from the last date of the relevant hospitalization.
The law makes it sound like a plaintiff can choose the most favorable date that falls within the three categories, but that it not the case. It the date of the negligence is clear, then that date is binding. The other two options only apply if the exact date of the medical error cannot be determined.
In my practice, I have found the safest way to proceed is to file the suit prior to the first day of the relevant treatment at issue. As the old saying goes, “It’s better safe than sorry.”
What exceptions may extend the statute of limitations?
While there are some exceptions to the statute of limitations that may apply in certain cases, it is always best to avoid having to depend on one, if at all possible. Any time a plaintiff on an exception to the statute of limitations, you can count on a lengthy fight from the defendants to try to get the court to throw out the case as being untimely filed.
What about minors?
Texas Civil Practice & Remedies Code Section 74.251(a) provides that minors under 12 years old at the time that the negligence occurred have until their 14th birthday to file a medical malpractice lawsuit. This is typically done through a parent or another competent adult. In the law, they are described as “next friends.”
Medical malpractice statute of repose
As part of the 2003 round of so-called “tort reform,” an unforgiving statute of repose was put on the books. Texas Civil Practice & Remedies Code Section 74.251(b) provides that no medical malpractice case can be filed more than 10 years after the date that the negligence occurred.
The statute of repose means is intended to slam shut any possible exception to the statute of limitations at the 10-year mark.
What is the discovery rule?
In general, a discovery rule tolls, or stops, the statute of limitations from running until a reasonable person would have discovered the injury. In medical malpractice cases, though, the legislature and courts really disfavor application of the discovery rule.
Under some rather narrow circumstances, it may be possible for a medical malpractice plaintiff to rely on the discovery rule, using what is called the “open courts” provision of the Texas Constitution. To do so, the plaintiff would have to show that she filed the suit within a “reasonable time” of discovering the injury.
This type of argument would likely be an uphill battle involving a lengthy legal battle with the defendants on this issue alone.
Watch out for public hospitals and doctors
While the statute of limitations is the same for public hospitals and doctors, you should know about another lightning-fast deadline that can be deadly to your medical malpractice case. You can read about it here.
We are here to help
If you or someone you care for has been injured by medical malpractice, we encourage you to get legal representation immediately. Call 281-580-8800 for a free consultation with our experienced medical malpractice lawyers, who keep their eyes on the statutes of limitations and other deadlines, to protect our clients’ rights.
