The statute of limitations is the period within which a plaintiff must file their claim. If a claim is not filed within the limitations period, it may be dismissed. The statute of limitations for medical malpractice cases is its own animal and a rather unforgiving one.
The Basics of the Statute of Limitations in Medical Malpractice Cases
Two Year Statute - No medical malpractice action may be brought more than two years from the date of the neglect or the completion of treatment. Tex. Civ. Prac. & Rem. Code Section 74.251 (a). This means that the two-year statute of limitations begins to run from the date of the botched surgery, missed diagnosis or drug overdose.
Statute Begins to run from an Identifiable Date - In Kimball v. Brothers, 712 S.W.2nd 538 (Tex. App.-Waco 1986), Aff’d 741 S.W.2nd 370 (Tex 1987) the Texas Supreme Court held the when date of the neglect is identifiable, for example, the date of a surgical procedure or the an unreported test result, the limitation period begins to run from that date.
Statue runs from Date of Injury, not Date of Death - The medical malpractice statute of limitations (2 years from the injury), not the wrongful death statute of limitations, (2 years from death) applies to medical malpractice cases where the patient dies. Bala v. Maxwell, 909 S.W. 2d 889 (Tex. 1995).
The Discovery Rule is Limited in Medical Malpractice Claims - The medical malpractice statute of limitations applies, even if the injury was not discovered in time to bring a cause of action. This is a departure from the common law “discovery rule” which says the statute of limitations period begins when the injury is discovered or should have been discovered, as opposed to when the negligence occurred. However, if the plaintiff can prove that the doctor or hospital hid the neglect the statute of limitations may be extended. Earle v. Ratliff, 998 S.W.2d 882 (Tex. 1999). This means that a medical malpractice plaintiff may be precluded from bringing their claim, even if they were unable to discover the neglect. For example, in the case of a surgical device left inside of a patient that was discovered until later.
75 Day Tolling - The statute of limitations can be extended 75 days upon providing a target defendant notice of intent to assert a claim. Tex. Civ. Prac. & Rem. Code Section 74.051.
Hire a Houston Medical Malpractice Attorney
If you or a loved one has been injured in a medical malpractice action, contact an attorney experienced in medical malpractice cases and familiar with the specifics of the statute of limitations for these cases. Contact Chelsie King Garza for a free consultation today.