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Texas medical malpractice law survives challenge

  
     
by CHRIS RIZO
From: Legal Newsline, MONDAY, MARCH 15, 2010

AUSTIN, Texas (Legal Newsline) - The 10-year statute of repose on medical malpractice lawsuits in Texas is constitutional, the state Supreme Court has ruled, siding with state Attorney General Greg Abbott.

The high court ruled unanimously Friday that Texas's strict 10-year statute of repose -- passed by the state Legislature in 2003 -- doesn't interfere with an individual's right to file a medical malpractice lawsuit.

Writing for the court's majority, Supreme Court Justice Don Willett wrote that the state's tort reform law, passed to curb doctors' skyrocketing medical malpractice insurance rates, was "a reasonable exercise of the Legislature's police power to act in the interest of the general welfare."

In Abbott's brief to the Supreme Court, state Solicitor General James Ho noted that the statute was enacted because "the Legislature concluded that indeterminate and unpredictable liability regimes drive up the cost of health care and reduce access to physicians."

The attorney general's friend-of-the-court brief also argued that Texas's 10-year statute of repose does not interfere with an individual's right to file a medical malpractice lawsuit.

"The Legislature struck a fair balance between the rights of plaintiffs to obtain redress for injuries and the rights of physicians and other health care providers from having to litigate stale claims," the AG's amicus brief said. "The balance struck by the Legislature was reasonable -- and constitutional."

The case stemmed from a 2006 lawsuit Emmalene Rankin filed against two physicians and the Methodist Healthcare System of San Antonio 11 years after a surgical sponge was allegedly left behind in her body after her hysterectomy in 1995.

The sponge was found lodged in Rankin's abdomen more than a decade after the procedure, at Southwest Texas Methodist Hospital in San Antonio.

At trial, Rankin's lawyers said the state's statute of repose violated the Texas Constitution's Open Courts provision that provides that "all courts shall be open, and every person for an injury done to him, in his lands, goods, person or reputation, shall have remedy by due course of law."

The Bexar County district court found that Rankin's lawsuit exceeded the statute of limitations, but the decision was reversed last year by the Fourth Court of Appeals, which also struck down the statute of repose under the Open Courts provision.

"The Legislature is certainly entitled to set a period of time within which claims must be brought, but it may not deny a plaintiff a reasonable opportunity to discover the alleged wrong and bring suit," the appeals court ruled.

The case is Methodist Healthcare System of San Antonio v. Rankin.