Dallas Lawyer Michael Grossman


The Time Limit on Filing a Lawsuit (Statute of Limitations) and the Discovery Rule in a Texas Medical Malpractice Case

The experienced medical malpractice attorneys at Grossman Law Offices are available to assist you if you think that you’ve been injured by your healthcare provider’s malpractice. It’s important that you know that medical malpractice takes several forms when assessing your legal options, including misdiagnosis of your injuries or ailments, performing unwarranted or unnecessary medical treatment, or by failing to warn of risks associated with treatment.

Please note that it is extremely important that you contact our attorneys quickly to avoid having your case barred under Texas law. As a general rule and absent an exception, Texas law requires courts to refuse to hear a medical malpractice lawsuit if the injuries from malpractice occurred more than two years before a lawsuit is filed. These laws are called “statutes of limitations” and apply throughout the spectrum of state and federal law. While arguably unfair, the Texas legislature has prescribed statutes of limitations in medical malpractice cases to prevent evidence from being corrupted, forgotten, lost, or destroyed.

Details of Texas’ Medical Malpractice Statue of Limitations

Medical malpractice cases are “healthcare liability claims” governed by Texas’ Medical Liability and Insurance Improvement Act, which requires that all medical malpractice claims be brought within two years from the date when the injury occurred, from the completion of treatment, or when the patient leaves the hospital. Unfortunately, injured patients can’t choose the most favorable date for the purposes of satisfying the statute of limitations. If the date of the injury can be ascertained, that’s the date that must be used for calculating the time period for bringing a lawsuit has expired. For example, assume that a patient is injured by medical malpractice in 2007, is hospitalized as a result until 2009, and undergoes outpatient treatment until 2011. Because the patient knew of his injuries in 2007, that is the date that will be used for calculating the statue of limitations, and a medical malpractice lawsuit must be brought by 2009. If a lawsuit is filed after 2009, the defense will be able to have the case dismissed, and avoid liability for the injuries they caused. Unfortunately, a patient that fails to file a lawsuit within the appropriate statute of limitations period is usually precluded from filing a lawsuit, and can’t file a claim against the party that caused his injuries. However, a glimmer of hope may exist for parties that have failed to file before limitations expired as the prescribed time period may be extended, or “tolled” in certain circumstances.

Tolling the Statute of Limitations and How the Discovery Rule Applies to Medical Malpractice Cases

The statute of limitations may only be extended for a limited period of time in limited circumstances prescribed by Texas law. Specifically, limitations may be tolled in circumstances where the injured patient didn’t have the mental ability or knowledge necessary to file a lawsuit, such as where the patient was a minor, was incapacitated, or the treating physician fraudulently concealed the facts of one’s case or the long-term side effects of one’s injuries. You should note that doctors and their malpractice insurance companies may employ a variety of tactics to ensure the statute of limitations are not tolled. For that reason, you need an experienced attorney that is familiar with their tricks and will fight to get obtain a full recovery for your injuries.

Unfortunately, for patients injured by a medical professional’s malpractice, the “discovery rule,” or the principle that tolls the statute of limitations until a person learns or should have learned of their injuries, does not apply in medical malpractice cases. Thus, a person who discovers their injuries more than two years after malpractice occurs will be unable to bring a case for medical malpractice. However, if the injured patient can prove that the healthcare professional actively concealed the details of his injury, then the statute of limitations may be tolled. As you might imagine, this is another fact-intensive inquiry that necessitates retaining an experienced medical malpractice attorney like those at Grossman Law Offices.

Importantly, if the patient was under 18 years old at the time of malpractice, the statute of limitations will be tolled until he becomes 18. Thus, under the tolling theory, an injured child will be able to bring a lawsuit for medical malpractice until his 20th birthday, unless prevented by the statute of repose (discussed below).

In all cases – regardless of fraudulent concealment, lack of capacity, or where someone is a minor – Texas law requires a medical malpractice lawsuit to be filed within 10 years after the date the injury occurred. The Texas Supreme Court upheld this seemingly unfair rule in 2009, reasoning that the Texas Legislature acted within its authority in requiring all medical malpractice lawsuits to be brought within 10 years, specifically citing the legislature’s reasoning of eliminating uncertainty for lawsuits for professionals as valid, and that they should be free from liability after a certain period of time.

The Effect of Medical Malpractice Statute of Limitations on Wrongful Death Cases that are Caused by Medical Practice

A wrongful death claim that results from medical malpractice is governed by the statutes of limitations for medical malpractice, not the statutes of limitations for wrongful death claims.

Thus, although someone filing a wrongful death claim would normally be able to do so for 2 years after the date the patient died, a surviving family member will not be able to file a wrongful death claim unless the patient died within two years of the date of malpractice. This may also lead to confusing results as a minor child could toll the statute of limitations for a wrongful death lawsuit when their parent dies after suffering malpractice before the statute of limitations period expired until the child’s 20th birthday, minus the time the parent survived after the malpractice.

As you can see, determining if your medical malpractice case fits within the statute of limitations can be a very complicated and arduous process. Thankfully, the attorneys at Grossman Law Offices may be able to help. Our attorneys have more than two decades of experience in medical malpractice cases, and are available any time, day or night, to provide a free consultation of your potential medical malpractice case at 1-855-326-0000.


Do you have a legal question?

Enter your phone number in the boxes above and we will call you immediately.

Call us anytime Toll Free:


- -