From time to time we get questions here at Painter Law Firm from other lawyers about medical malpractice cases. Frequent topics include medical and legal theories, case strategies, and expert witnesses.
The most common question of all, though, is one that I heard repeated today. I get at least a few times a week. It always starts about how they’ve heard that it’s possible to get an extra 75 days beyond the normal statute of limitations by sending a notice letter in the medical malpractice case. It ends with either asking us to handle the case or explaining to them what to do to get this extra time.
Invariably, my advice is that it’s a bad idea to rely on the statutory 75-day tolling provision of Texas Civil Practice & Remedies Code 74.351, which 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.”
Even though it sounds great, to me it’s simply a siren song. Just like the mythological creatures, I don’t believe the 75-day tolling really exists.
The reason and problem are found in the next part of the statute, Section 74.052, which requires that, “Notice of a health care claim under Section 74.051 must be accompanied by a medical authorization in the form specified by this section. Failure to provide this authorization along with the notice of health care claim shall abate all further proceedings against the physician or health care provider receiving the notice until 60 days following receipt by the physician or health care provider of the required authorization.”
The authorization form requires the plaintiff to list all health care providers who treated the patient within five years before the incident made the basis of the lawsuit, as well as all health care providers who treated the patient as result of the incident.
Together, a notice and statutory authorization seems and daunting. However, Texas appellate courts of sustained objections and motions to dismiss by health care defendant even when there are minor omissions of health care providers from the statutory authorization form.
In short, in a time crunch it’s exceedingly possible that a plaintiff may forget a healthcare provider. Leaving someone off the list opens the door for a challenge by defendant much later in the litigation. And the stakes are high. If there’s a defect in the authorization form, then the pre-suit notice is inadequate. If the notice is inadequate, there is no tolling provision of 75 days. Without the extra time, the lawsuit is rendered untimely and will be dismissed.
These are the reasons why I believe the better course of action is, whenever possible, to file a lawsuit within the statute of limitations.
If you’ve been seriously injured because of poor health care in Texas, then contact a top-rated experienced Houston, Texas medical malpractice lawyer for help in evaluating your potential case.
