Here at Painter Law Firm, we’re often asked by potential medical malpractice clients to explain how the statute of limitations applies to a particular claim.
The time is now
Before addressing this common question, I want to emphasize an important point. The best time to investigate a potential medical malpractice claim is always now. Here are some reasons why:
• Texas law requires medical malpractice victims (plaintiffs) to produce at least one medical expert report early in litigation. Specifically, they’re due no later than 120 days after a defendant (doctor or hospital) files an answer in court in response to a medical malpractice lawsuit.
• Depending on the facts of the case, the plaintiff may need to produce expert reports from multiple physicians, nurses, and other healthcare professionals. These experts have busy clinical schedules and will need ample time to review the file and prepare a report.
• Even before getting to an expert, though, the plaintiff needs to obtain all the relevant medical records. Sometimes this is straightforward. Other times there can be significant delays of months caused by hospitals, facilities, and physician offices. Without the records, it’s impossible to obtain expert opinions and reports.
• We’ve handled several cases where there appeared to be obvious surgical negligence, but surgeons urged patients to “give it time” (often a year or two) for the injuries, deficits, or impairments to heal. For some injuries, that may be good advice. For others, such as a nerve being cut or severed during surgery, experts will tell you that there’s not a chance it will get better.
What is the Texas statute of limitations for medical malpractice claims?
Texas law has a two-year statute of limitations for all negligence causes of action, including medical malpractice. In some cases, the timing of the negligence is easily known—for example, on the date of a surgery. In those cases, the statute of limitations will begin running on that date.
In other situations, though, it’s harder to nail down the precise time of the negligence. For example, it’s often difficult to identify the precise date of negligence for patient who developed a bedsore or pressure injury while admitted to a hospital or nursing facility. In those instances, the continuing treatment doctrine extends the accrual of the statute of limitations until the end of the relevant admission, or when the continuing treatment ends.
There are other doctrines and facts that apply to a statute of limitations analysis. Here are some of them:
• Children. There’s a longer statute of limitations that applies to children, but that comes with a big caveat. All claims for minors (up to the age of 18) under Texas law belong to the parents. Therefore, any claim for damages from birth up to the age of 18 will likely be governed by the two-year statute of limitations. If the parents of an infant with a profound birth-related brain injury wait until after the baby’s second birthday to hire a lawyer, the significant expenses up to the child’s 18th birthday likely won’t be able to be collected in a lawsuit.
• Hidden negligence. Texas law recognizes that some negligence may be unknown to a reasonably prudent patient. This applies to things like sponges or surgical instruments that are left inside a patient by mistake during a surgery or procedure. In these circumstances, Texas law provides that the statute of limitations doesn’t begin ticking until a reasonably prudent patient should have discovered that something was wrong.
• Fraudulent concealment. If a physician, hospital, or healthcare provider has actual awareness of negligently causing injury, but conceals it from the patient, Texas law may allow additional time under the statute of limitations for a claim to be filed.
Reminder: The time is now
Let’s end this article where we started it. The best time to contact a top rated, experienced Texas medical malpractice attorney about your potential claim is now. A qualified attorney can analyze your case, efficiently obtain the necessary evidence, and counsel you on how the statute of limitations applies to your situation.
