The Texas Supreme Court has granted the petition to review the 20-year-old medical malpractice tort reform statute because the intermediate appellate courts disagree on how to apply it.
Texas Civil Practice & Remedies Code Section 74.051 requires a medical malpractice plaintiff to serve a notice of claim on all defendants at least 60 days before filing a lawsuit. A valid notice of claim must include a comprehensive, executed statutory authorization for the release of healthcare information, which is codified at Section 74.052.
Notice of claim problems
Some medical malpractice plaintiffs and their inexperienced attorneys have encountered problems with their notice of claim letters because the authorization forms weren’t comprehensive. In some of those situations, they included a standard HIPAA release, but that’s not enough. Other times, they just left out some information.
The statutory authorization form requires the plaintiff to disclose two separate lists of healthcare providers:
• All physicians and healthcare providers who treated the patient in connection with the injuries that are the subject of the lawsuit.
• All physicians and healthcare providers who treated the patient for any reason during the five years prior to the incident leading to the lawsuit.
Extra time to file suit
In general, the Texas statute of limitations for negligence claims, including medical malpractice, is two years. This means that the general rule requires a case to be filed within two years of the incident or it is time-barred.
Section 74.051(c) of the tort reform statute says that a notice of claim tolls the statute of limitations for 75 days as to all parties and potential parties. In other words, the statute appears to make the statute of limitations two years plus 75 days.
While the language seems clear, the interpretation and application by trial and appellate courts has been anything but clear.
Dire consequences with a deficient authorization
Based on the current environment in Texas courthouses, I believe it’s dangerous to rely on the extra 75 days. The better practice, if it’s at all possible, is to file a medical malpractice lawsuit within the general two-year statute of limitations.
The reason is healthcare defendants and their attorneys are challenging the comprehensiveness of the statutory authorization, arguing that if it’s invalid, there’s no valid notice of claim. It then follows that without a valid notice of claim, the plaintiff doesn’t get an extra 75 days to file suit.
The statutory authorization form requires a plaintiff to disclose all physicians and healthcare providers who treated the patient for any reason in the five years before the incident leading to the lawsuit. Despite reasonable efforts, it would be easy to miss someone that should be on the list.
If that happens and it’s discovered during litigation, the defendant is free to pounce on it at any stage. It can happen within the first few months of the lawsuit. It can also happen after a jury verdict.
The 9th Court of Appeals (Beaumont) reversed and rendered a jury verdict based on a plaintiff’s failure to disclose prior medical providers that weren’t even relevant to the medical malpractice lawsuit.
Other appellate courts have applied a more rational analysis, trying to determine if a deficiency in the statutory authorization caused a defendant harm.
The Texas Supreme Court accepted the petition for review of the Beaumont case to sort out the disagreement among the intermediate appellate courts. We will be monitoring the case and will report back when the court enters its opinion.