Archives for category: Medical Malpractice

When does a lawsuit have to be filed when a minor is the person who was injured by medical malpractice or negligence? The short answer is that a child’s claim can provided any lawsuit is filed within 10 years from the date of the healthcare that you complain about. While Section 74.251(a) of the Texas Civil Practice and Remedies Code provides that, “minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim,” this provision has been held by at least one court to be unconstitutional, meaning a minor would have until their 20th birthday to file suit. See generally, Adams v. Gottwald, 179 S.W.3d 101, 103 (Tex. App—San Antonio 2005, pet. denied)(interpreting Section 74.251(a)). See also, Weiner v. Wasson, 900 S.W.2d 316, 318 (Tex. 1995)(interpreting prior version of medical malpractice statute as being unconstitutional). Unfortunately, this is not the end of the inquiry. Subsection (b) of Section 74.251 provides, “A claimant must bring a health care liability not later than 10 years after the date of the act or omission that gives rise to the claim. This subsection is intended as a statute of repose so that all claims must be brought within 10 years or they are time barred.” TEX. CIV. PRAC. & REM. CODE at § 74.251(b)(Emphasis added). The Texas Supreme Court, in Tenet Hospitals, Ltd. v. Rivera, 2014 Tex. LEXIS 691 (Tex. 2014), held that this 10-year Statute of Repose applies to claims brought by adults and minors. The Court explained that the statute of repose “operates to bar claims not brought within ten years of the date of the medical treatment.” Id. This would appear to create two different rules: one for injured children who are under the age of 10; and the other for injured children who are 10 or older. For example, if the injury occurred at birth, then, because of the statute of repose, the child, through his or her next friend or legal guardian, would have to bring suit on or before the child’s 10th birthday or their claim would be barred. Conversely, assuming the “minors under the age of twelve” language in is unconstitutional as previously mentioned, then a child injured when they were 10 years old or older would have until their 20th birthday to file suit (in other words, the statute of limitations for the child would be their 20th birthday, and the statute of repose would not apply because the claim would still be filed before the 10-year statute of repose had expired). While there is more that the Court in Tenet held and explained, suffice it to say that you need to consult with a qualified attorney immediately to determine what your child’s rights, and your responsibilities are. I look forward to visiting with you next time. Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood& Cartwright, P.C., (940) 891-0003.

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Many people go to emergency rooms each year, only to receive care that they believe was substandard. While negligence is typically the standard of care for most healthcare providers in determining whether they can be held liable for the care they rendered, this is not typically true for emergency room medical care. If the care complained about occurred during a bona fide emergency, the Texas legislature elevated the standard for liability from simple negligence to willful and wanton–a near impossible standard to overcome. In this regard, Section 74.153 of the Texas Civil Practice & Remedies Code provides:
§ 74.153. STANDARD OF PROOF IN CASES INVOLVING EMERGENCY MEDICAL CARE. In a suit involving a health care liability claim against a physician or health care provider for injury to or death of a patient arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, the claimant bringing the suit may prove that the treatment or lack of treatment by the physician or health care provider departed from accepted standards of medical care or health care only if the claimant shows by a preponderance of the evidence that the physician or health care provider, with willful and wanton negligence, deviated from the degree of care and skill that is reasonably expected of an ordinarily prudent physician or health care provider in the same or similar circumstances.
Tex. Civ. Prac. & Rem. Code ann. § 74.153 (Vernon’s 2013)(emphasis added).
The key, of course, is a complete review of the facts and circumstances to determine that an actual emergency existed at the time the care was rendered. If not, then simple medical negligence should apply. I look forward to visiting with you next time. Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood& Cartwright, P.C.