On August 22, 2014, the Texas Supreme Court, in an 8-1 decision, upheld the Texas Medical Liability Act’s 10-year statute of repose as applied to minors and overruled constitutional challenges to the statute under both the open courts and retroactivity provisions of the Texas Constitution, effectively finding that a mother of a brain damaged child simply waited too long to bring suit on behalf of her minor daughter. See Tenet Hosps. Ltd. v. Rivera, No. 13-0096 (Tex. Aug. 22, 2014). This decision gives further force and effect to the strict statutory mandate: all healthcare liability claims (regardless of the age of the claimant) must be brought within 10 years after the date of the alleged negligent act or omission or they are time barred. However, it is important to note that the Supreme Court’s opinion is fairly narrow and only applies in circumstances where due diligence is lacking. The Supreme Court left open the possibility that it could reach a different result with its constitutional analysis if presented with different facts.
The underlying facts of this decision center around alleged negligence during Elizabeth Rivera’s care shortly prior to the delivery of her daughter (“M.R.”) in 1996. Ms. Rivera visited the emergency department of Tenet Hospitals Limited d/b/a Providence Memorial Hospital (“Tenet”) after experiencing a cough and fever; she was nine months pregnant at the time. Dr. Michael Compton evaluated Ms. Rivera and discharged her the same day. Ms. Rivera returned the next day after noticing decreased fetal movement, and M.R. was delivered by emergency caesarian section. Ms. Rivera alleged that the hospital and Dr. Compton failed to properly assess and monitor her condition and notify her OB/GYN, causing her daughter to be born with permanent neurological disabilities due to a lack of oxygen to her brain shortly prior to birth.
Seven years after M.R.’s birth, in 2003, the Legislature enacted a 10-year statute of repose, codified in Texas Civil Practice and Remedies Code § 74.251(b), which states:
A claimant must bring a health care liability claim 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.
At the time the 10-year statute of repose was enacted in 2003, Ms. Rivera had three years remaining to file her claim against Tenet and/or Dr. Compton based on their alleged negligent care and treatment in 1996.
Ms. Rivera’s lawyer sent Tenet notice of her intent to file a healthcare liability claim in August of 2004. However, Ms. Rivera waited to file suit on behalf of her daughter until March of 2011—fifteen years after the alleged negligent acts and omissions and five years after the repose statute barred the claim. Tenet and Dr. Compton moved for summary judgment in the trial court based on the statute of repose, and the trial court granted the motion. The Court of Appeals for the Eighth District of Texas reversed, finding that the 10-year statute of repose violated the open courts provision of the Texas Constitution as it applied to M.R. Specifically, the Court of Appeals held that “the Legislature acted unreasonably in enacting section 74.251(b) with no exception for the claims of minors who are injured before the age of eight because the statute effectively abolishes their right of redress before they are legally able to file suit on their own behalf without providing any adequate substitute.”Rivera v. Compton, 392 S.W.3d 326, 333 (Tex. App.—El Paso 2012). The Court of Appeals further held that any lack of due diligence on the part of the minor’s mother could not be attributed to the minor (who owned the claim).
On appeal to the Texas Supreme Court, Tenet argued that the Court of Appeals erred by failing to follow the 2010 Texas Supreme Court opinion in Methodist Healthcare Sys., Ltd., L.L.P. v. Rankin, 307 S.W.3d 283, 292 (Tex. 2010), which upheld the constitutionality of Section 74.251’s 10-year statute of repose in a situation where an adult plaintiff’s injury, resulting from a sponge left in her abdomen, could not even have been reasonably discovered during the 10-year repose period. The Texas Supreme Court reversed the decision of the Court of Appeals, rendered a take nothing judgment for the plaintiff, and upheld the constitutionality of the statute of repose as it specifically applied to minor M.R.
In its opinion, the Texas Supreme Court agreed with Tenet’s conclusion that the repose statute does not violate the open courts provision as applied to M.R., but for different reasons than those advanced by Tenet on appeal. Specifically, the Texas Supreme Court held that the open courts provision only applies to parties who “use due diligence” in bringing suit. Because Ms. Rivera’s lawyer sent pre-suit notice in 2004 prior to the expiration of the statute of repose yet waited over six-and-a-half years to file suit on behalf of M.R. without explanation for the delay in filing suit, the Texas Supreme Court found that Ms. Rivera failed to use due diligence in prosecuting her minor child’s claim. Based on that failure by Ms. Rivera, the Court held that the open courts provision could not revive M.R.’s time-barred claim.
However, the Texas Supreme Court left open the possibility that it may readdress the reasonableness of the statute of repose under the open courts provision at a later time if faced with a minor plaintiff who exercised due diligence in bringing his or her claim. In reaching its decision in this specific case, the Supreme Court acknowledged that it was not required to assess the reasonableness of Section 74.251(b) as applied to a minor who was injured before the age of 8. The Court held that only if a plaintiff had exercised due diligence and the repose statute still barred a minor’s claim would it then be required to assess the reasonableness of the law, a scenario the Court found lacking in Ms. Rivera’s case. The Court therefore left open the possibility that it may be required to further address the constitutionality of the statute of repose as applied to minors represented with diligence by their parents at a later date and that it could reach a different result if presented with a different set of facts.
The Texas Supreme Court also addressed the constitutionality of the statute of repose under the retroactivity provision of the Texas Constitution. All parties agreed that the statute was retroactive as applied to M.R. On appeal, Tenet asserted that the repose statute was not unconstitutionally retroactive because it afforded M.R. three years after the statute took effect to bring her claim through a next friend. The Texas Supreme Court agreed with Tenet and held that retroactive statutes may be constitutional if enacted with the intent to serve the public’s interest. In this case, “the Legislature’s findings in enacting the Medical Liability Act demonstrate its compelling purpose in lowering the cost of medical malpractice premiums and broadening access to health care.” In light of this compelling purpose and in light of the fact that the statute of repose gave M.R. a three-year-grace period to bring her claims against Tenet and Dr. Compton, the Texas Supreme Court agreed with Tenet and held that the statute was not unconstitutionally retroactive.