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Unknowingly Late for a Very Important Medical Malpractice Date in Texas

Unlike the white rabbit in “Alice in Wonderland,” most people do not constantly think they are late for very important dates, especially deadlines for filing medical malpractice claims in Texas. However, the Texas Supreme Court recently reaffirmed that when it comes to suing a doctor for medical errors, timing is everything.

Even though a patient has potentially 10 years in Texas to file a medical malpractice claim, which sounds long enough, a patient may not discover his or her injury until this term has already expired. This is especially true when misplaced sponges are recklessly left in a person’s body during a surgical procedure. Some states exclude surgical-sponge cases from statutory time limits for filing medical malpractice suits, but not Texas.

Recent Texas Supreme Court Rulings

It is difficult to imagine the frustration Emmalene Rankin must have felt following the recent Texas Supreme Court opinion barring her from suing her doctor for malpractice.  In 2006 she sought treatment for chronic illness and infection. Through exploratory surgery, Rankin’s physician found a sponge left in Rankin’s body during a 1995 operation, just over 10 years earlier.

Regardless of the original doctor’s negligence, the validity of Rankin’s lawsuit or the medical issues she endured until the sponge was removed, the court voted 9-0 against allowing Rankin to proceed with her claim. Their decision rested on the fact that her complaint was filed outside the 10-year limit for medical malpractice lawsuits in the Texas statute of repose. For the court, it all came down to a simple matter of time and Rankin was too late.

Around the same time as Rankin’s ruling, the Texas Supreme Court decided a similar case when it voted 9-0 in favor of permitting a patient to continue with a foreign-object medical malpractice claim, despite similar, but just different enough, statutory timing issues. For Tangie Walters, who also had a sponge abandoned in her body, the detection of her injury occurred nine years after the original surgery. The hospital and her doctor used the fact that she had filed her claim after the two-year statute of limitations on malpractice lawsuits had run to try to defeat her case, but she was still within the 10-year statute of repose deadline.

The court advised that even though it took nine years to find the sponge, this period was reasonable under the state constitution for medical negligence cases relating to foreign-object discovery. It was also just in the nick of time for Walters’ claim to be preserved under the same 10-year statute of repose that prevented Rankin’s right to sue. Laws like these that impose seemingly arbitrary deadlines on claims often pit public policy against individual rights unfairly.

Time Limits in Texas

The laws that include time limits for filing medical malpractice claims in Texas include both the state’s two-year statute of limitations and 10-year statute of repose. In general, a statute of limitations is a law that sets a deadline by which a person must file a lawsuit following a certain event or injury that is the source of the claim. A defendant may be able to evade a lawsuit because a statute of limitations expired, but a plaintiff may seek an exception to this argument, like fraud or delayed discovery of an injury, known as the discovery rule. However, a violation of a statute of limitations does not render a claim invalid, which was the issue in the Walters opinion.

A statute of repose is a law that specifies a strict date after which a cause of action disappears, even if the injury has not yet been discovered, which absolutely eliminates a plaintiff’s right to sue after the deadline. The current Texas statute of repose was enacted in 2003 to prevent the filing of any lawsuits when more than 10 years had passed after a medical procedure or event that injured a patient, even if the existence of the injury is not apparent until after the 10 years have passed. The Texas Supreme Court pointed out in Rankin’s case that statutes of repose are meant to protect various professionals from prolonged liability exposure, even in scenarios where the source of injuries, such as foreign objects, may take many years to discover.

Exceptions for Foreign Objects

There is a reason why surgery personnel count instruments, sponges and other medical equipment before, during and after an operation. Many surgeries involve inserting sponges or gauze pads into various body cavities, such as the abdominal or thoracic cavities, to absorb blood or fluids during surgery. If sponges are left behind, because they were overlooked or became lodged in a body cavity, they may cause serious internal harm. Injuries range from organ damage to infections, inflammations, abscesses or fibrous buildup, which all create pain and suffering.

Because locating a sponge can be difficult and sometimes invasive, many states create statute of repose exceptions for surgery cases involving sponges or other foreign objects. Over half of U.S. states have statute of repose laws with limits from 3 to 10 years on filing malpractice lawsuits. Most of these states allow exceptions for patients with sponge or foreign-body claims under the discovery rule, because locating these items can take many years. For sponge victims in Texas, however, the constitutional right to have their day in court and recover for medical errors can be trumped by the 10-year statute of repose deadline.

Biological Clocks

The purposes behind many laws that set time limits on legal claims, like statutes of limitations and statutes of repose for medical negligence lawsuits, seem to promote the protection of guilty or negligent parties over the rights of their victims. The legislative intent behind these laws may be to encourage timely lawsuit filings and lower malpractice insurance rates, but it seems unfair to make patients reliant on their bodies to show signs and symptoms of foreign objects within a certain time frame or suffer the consequences. It is unfortunate that Texans are not equipped with biological clocks to tell them when it is time to file legal claims for medical malpractice.

If you or a loved one has been the victim of medical malpractice in Texas, such as the abandonment of a sponge or other foreign object in your body, contact a local personal injury attorney as soon as possible. A lawyer with direct experience in handling cases that result from previous medical errors or negligence may be able to help you determine the deadlines for your claim so you can file your lawsuit in time and get the financial support you deserve. No victim of medical malpractice in Texas should be unknowingly late for a very important filing date.


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