A Medical Malpractice Statute of Limitations Defense You Might Overlook

Friday, April 4, 2008
Contributed by: Mike H. Loftin

Health care liability claims filed after September 1, 2003 are governed by Chapter 74 of the Texas Civil Practice and Remedies Code. Chapter 74 provides a 2 year statute of limitations for health care liability claims. Section 74.051 requires a person asserting a health care liability claim to give written notice of the claim to each physician or health care provider against whom a claim is being made by certified mail, return receipt requested, at least sixty days before filing suit. The notice of claim must be accompanied by an authorization for the release of protected health care information.

When a person asserting a health care liability claim gives notice to a physician or health care provider in compliance with Chapter 74 then the statute of limitations is tolled for a period of 75 days following the giving of notice. Interestingly, giving notice of claim to one physician or health care provider tolls limitations for a period of 75 days as to all parties and potential parties. So, when suit is filed after the 2 year limitations period has run, but within 2 years and 75 days, the obvious question is whether your client, or another party or potential party, was given written notice of claim before the 2 year limitations period had run.

The defense you might overlook, particularly when written notice of claim was given to someone other than your client, is whether the written notice of claim was properly given in strict conformance with Chapter 74. Written notice must be given by certified mail, return receipt requested, and it must be accompanied by an authorization for the release of protected health information in the form set forth in Section 74.052.

Section 74.052 provides the exact form for the medical authorization. If the medical authorization which accompanies the notice of claim letter does not meet the requirements of Section 74.052, then written notice of claim has arguably not been given in compliance with Chapter 74. The first thing to consider is whether the medical authorization conforms to the form set forth in Section 74.052. The next thing to consider is whether the medical authorization form is properly completed. For example, does it list the physicians or health care providers who have examined, evaluated, or treated the plaintiff-patient in connection with the injuries alleged to have been sustained as a result of medical malpractice? If the language of the authorization does not track Section 74.052, or if the authorization form is not completed as required by Section 74.052, then your client may be able to successfully assert a statute of limitations defense.

So, if your client is sued after the 2 year limitations period has passed, but within 2 years and 75 days, be sure to examine the written notice of claim to determine whether or not it is in compliance with Chapter 74.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.