LEGAL GUIDE
Written by attorney James E. Girards | Apr 9, 2010

What is the Time Limit to File a Medical Malpractice Case in Texas?

This Legal Guide is not intended to be a substitute for legal advice or consultation. Instead, it is intended to provide a general background of the issues presented. One should always obtain a formal consultation with an appropriately Board Certified attorney before making any decision regarding one's legal rights.

The time deadline to file a lawsuit is called the "Statute of Limitations." In Texas, the current statute of limitations was determined by a statute created in 2003. It can be a bit complicated so be sure to be as conservative as possible when calculating the deadline. That is to say, it is always best to use the earliest date among any possible options.

In Texas, a health care liability claim must be commenced within two years from the negligent act or omission. Tex.Civ. Prac. & Rem. Code. § 74.251(a) (Westlaw 2007). There is a provision that says the last date of treatment or hospitalization can be used as the start date, but it is wise not to rely on this because it is ti be used only if the actual date of the negligence cannot be ascertained in any manner. Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001). So, again, it is always best to use the earliest possible date so that you do not run into trouble should a judge disagree with you. This medical malpractice statute, rather than the more liberal statute of limitations found in the Wrongful Death and Survival Act will apply in health care liability claims involving death. Bala v. Maxwell, 909 S.W.2d 889, 892-893 (Tex. 1995). Although the statute says that the two-year time period begins to run against minors at age twelve, the Texas Supreme Court has held that similar language in the predecessor statute was unconstitutional, allowing those whose claims accrued before their eighteenth birthdays to sue at any time until age twenty. Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995). This holding has been applied under the current statute. Adams v. Gottwald, 179 S.W.3d 101 (Tex. App. 2005, review denied).

Unfortunately, Texas Courts have decided that the time to file a lawsuit may begin to run even before an injury is discovered. Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex. 1997). However, the courts have held that in certain cases (not including death cases), application of the statute is unconstitutional if it would bar a claim before the claimant has a reasonable opportunity to discover the wrong and bring suit. Shah, 67 S.W.3d at 842; Neagle v. Nelson, 685 S.W.2d 11 (Tex. 1985).

For cases filed on or after September 1, 2003, a new statute of repose bars any claim filed more than ten years after the act or omission giving rise to the claim. Tex. Civ. Prac. & Rem. Code § 74.251(b) (Westlaw 2007). There are no reported decisions yet ruling on the constitutionality of the statute of repose in light of cases like Neagle.

When considering the Statute of Limitations in a Texas Medical Malpractice case, one might consider whether the case might be pursued under the Federal Anti-Dumping Statute if the medical treatment involves a patient evaluation in a hospital Emergency Department. In such a case, the deadline to file will be two years from the date of the improper emergency room discharge irrespective of a more liberal state statute of limitations

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