BY Mary M. Bearden and Jill S. Vogel, JD, RN, Brown & Fortunato , P.C.
On August 22, 2014, the Texas Supreme Court issued a ruling in the case Tenet Hospitals Limited, a Texas Limited Partnership d/b/a Providence Memorial Hospital, and Michael D. Compton, M.D. v. Elizabeth Rivera. The court, applying the statute of repose, found that a child’s parent had waited too long to bring a lawsuit on behalf of her child and rendered judgment in favor of the hospital and the physician. This case concerning Texas’ statute of repose injects some certainty into the often uncertain issue of when a health care claim is time barred under Texas law.
In 1996, Elizabeth Rivera was nine months pregnant with her daughter, M.R., when she visited the Providence Memorial Hospital in El Paso, Texas, with a cough and fever. Emergency room physician, Dr. Compton, assessed Ms. Rivera and discharged her home. The next day, Ms. Rivera returned to the hospital after she noticed decreased fetal movements; M.R. was delivered by emergency C-section. M.R. lacked oxygen and has permanent neurological disabilities. In August 2004, Ms. Rivera’s lawyer notified the hospital of M.R.’s claim. Inexplicably, however, no lawsuit was filed on M.R.’s behalf until March 2011.
Meanwhile, in 2003, the Texas legislature enacted a ten-year “statute of repose” for health care liability claims. The statute of repose requires that a health care liability claim be brought no later than ten years after the date of the event on which the claim is based. Otherwise, the claim is time barred.
The statute of repose should not be (but often is) confused with the “statute of limitations.” Texas’ statute of limitations for health care claims requires an adult claimant to bring suit no later than two years after the date of the event that is the basis of the claim. Although this seems straightforward, the date that the limitations clock starts ticking in a particular case is often the subject of intense debate. For example, one might argue that the clock should not start ticking until a claimant has proof that they have been injured in some way.
The beginning date of the limitations period in claims involving children is even murkier because children cannot bring lawsuits on their own behalf, but rather must rely on an adult. Often, litigants will argue that the limitations period for a child should not start until the child reaches adulthood and can sue on their own behalf. Under this logic, a health care provider might not know about a potential lawsuit for eighteen years. It is this uncertainty that spurred the legislature to enact the statute of repose.
The purpose of the statute of repose is to establish an absolute outer limit of time by which a health care lawsuit must be filed in order to give health care providers repose, or “peace of mind” that potential lawsuits will not linger for indefinite amounts of time. In Texas, that outer limit is ten years.
In M.R.’s case, the ten-year countdown began in 1996. Accordingly, when the repose statute became law, M.R.’s claim needed to be filed within three years—by 2006—to avoid the claim being time barred. Although Ms. Rivera notified health care providers of M.R.’s claims in 2004, she did not file suit until 2011 (five years after the repose statute barred the claim and six-anda- half years after she sent the pre-suit notice of claim).
The hospital and physician asked the court to dismiss the lawsuit as time barred because Ms. Rivera had waited too long to sue. Ms. Rivera argued that the statute of repose unconstitutionally deprived M.R. of her opportunity to sue. The Texas Supreme Court agreed with the hospital and the physician, pointing out that Ms. Rivera knew about M.R.’s claim at least as early as 2004 when she sent the pre-suit notice of M.R.’s claim, but nevertheless waited another six-and-a-half years to file suit. The court reasoned that Ms. Rivera’s lack of due diligence did not equate to M.R.’s lack of opportunity to sue.
Indeed, the court pointed out, M.R. still had three years to sue after the statute of repose was enacted in 2003. Under the circumstances, the ten-year repose period was not unconstitutional. Accordingly, the court decided in favor of the hospital and the physician.
Health care providers are understandably concerned about the uncertainty surrounding the indefiniteness of potential liability. The costs of this uncertainty are both tangible (e.g., increased insurance premiums) and intangible (e.g., increased stress). The Texas Supreme Court’s recent decision in the Rivera case will hopefully give health care providers some “peace of mind” in this area of the law.