Written by attorney Linda Laurent Thomas

Discovery rule in medical malpractice cases

There is a strict two year statute of limitations in all medical malpractice cases inTexas. There is a narrow exception – specifically where the plaintiff could not have discovered his or her injury within the two year period. That exception falls under the “open courts" provision found in the Texas Constitution. When an open courts challenge preserves a plaintiff’s claim for an exception to the two-year statute of limitations, the plaintiff must still demonstrate he or she investigated, prepared, and filed suit after discovering his or her injury within a "reasonable time". In other words, the plaintiff does not have an automatic two years after he or she discovers his or her claim to file suit, but must file suit within a “reasonable time".

“Reasonable time" is a question of fact for the jury. There is no clear cut authority as to what constitutes “reasonable time" but cases have held that filing suit 17 months, without facts explaining the length of the delay, is not a reasonable time. See Thompson v. Pate, 69 S.W.3d 743 (Tex. App.-- El Paso 2002) (affirming summary judgment and holding that “17 months, without facts explaining the length of delay" is not a reasonable time.)

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