In Durham v. Children’s Medical Center of Dallas, a Texas appellate court considered whether the Texas Constitution’s Open Courts Clause stopped the statute of limitations from running in a deceased 12-year-old’s survival and wrongful death claims against her health care providers.
The case arose from the medical care of the decedent, a 12-year-old girl born in 1993. In 2006, she was seriously hurt in Hawaii. Among other things, the Hawaii doctors found that she had a dilation of the ascending aorta that was not trauma-related. They recommended she follow up with a Texas cardiologist.
She was transferred to the Children’s Medical Center of Dallas with the help of her general pediatrician. However, the pediatrician didn’t see her after her transfer or before she died. She was treated by a Dr. Rupp and a nurse practitioner, and then she was discharged on the same day and told to come back for follow-up orthopedic surgery. That day, she was evaluated by Dr. Copley and then operated on. She stayed at the Children’s Medical Center for a few weeks, receiving care also from Dr. Holland and Dr. Kines, and then she was transferred again to another hospital, Scottish Rite. Two years later, at age 15, she became ill and died of aortic rupture.
More than four years after the last date of treatment, the decedent’s mother and the administrator of the estate sent letters to the doctors who treated her under Chapter 74, giving them notice. Seventy-three days later, they sued the doctors, asserting wrongful death and survival claims in connection with the death. They sued on the grounds that the doctors had failed to act on information they had about her enlarged aorta and failed to treat her for that condition.
The defendants attacked the plaintiffs’ expert reports and filed summary judgment motions based on the statute of limitations and the punitive damages claim. The trial judge granted the motions, which resulted in a take-nothing judgment. The plaintiffs filed a motion for new trial, which was denied. They appealed.
The appellate court explained that Texas Civil Practice and Remedies code § 74.251 provides the statute of limitations, which runs for two years from the date of the breach or tort, or from the date of the medical care that is the subject of the claim. The exception is that minors under the age of 12 have until their 14th birthday to file a claim or have it filed on their behalf. The statute of limitations applies to wrongful death and survival claims, which are statutory claims (as opposed to common-law claims).
In an earlier case, the Texas Supreme Court held that the Texas Constitution’s Open Courts Clause, TEX. CONST. art. I, § 13, limited the statute of limitations’ impact on a minor’s personal injury claim, if the claim arose under common law. It held that a statute of limitations that cut off a minor’s cause of action before he reached the age of majority to sue on his own behalf was unconstitutional as applied to a minor.
The appellate court explained that the Open Courts Clause didn’t apply to statutory claims, such as survival and wrongful death claims. It held that under § 74.251(a), the statute of limitations began to run on any personal injury claim arising from the defendants’ conduct starting in 2006, which was the last date that the doctor defendants treated her. She was 12 at the time, so the tolling provision related to minors’ claims didn’t apply. Generally, § 74.251(a) overrides the wrongful death statute of limitations for medical malpractice, but since the Open Courts Clause didn’t apply to wrongful death claims, it didn’t affect the application of § 74.251(a). For these and other reasons, the trial court’s judgment was affirmed.
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