Justices uphold 10-year limit on malpractice claims

Steve Korris Apr. 15, 2010, 5:30am

AUSTIN � Texas legislators didn't violate their Constitution when they set an absolute 10-year limit on medical malpractice claims, according to the Supreme Court.

On March 12, all nine justices barred a suit over a surgeon's sponge that stayed in a patient 11 years.

They reversed appellate judges who didn't understand the difference between a statute of limitations and a 10-year statute of repose that legislators enacted in 2003.

Justice Don Willett explained that a statute of repose abrogates any exception to a statute of limitations.

"To hold that a statute of repose must yield to the plaintiff's inability to discover her injury would treat a statute of repose like a statute of limitations, and would effectively repeal this and all other statutes of repose," he wrote.

Legislators adopted the limit as part of medical malpractice reform.

"The Legislature considered competing public and private interests and determined that 10 years, the most generous repose period in the nation, is a reasonable final deadline regardless of accrual or discovery issues," Willett wrote.

"We have recognized that the length of time that insureds are exposed to potential liability has a bearing on the rates that insurers must charge," he wrote.

Plaintiff Emmalene Rankin underwent surgery in 1995, at Southwest Texas Methodist Hospital in San Antonio.

In 2006, she consulted a physician about abdominal pains and learned that a surgical sponge had been left inside her.

She sued the hospital and surgeons Wendell Schorlemer and Robert Schorlemer in Bexar County court.

District Judge Andy Mireles granted summary judgment to the hospital and the surgeons under the statute of repose.

Rankin appealed to the Fourth District in San Antonio, claiming the statute violated the Open Courts provision of the Texas Constitution.

It declares, "All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law."

The Fourth District declared the statute unconstitutional because it restricted Rankin's right to sue before she had a reasonable opportunity to discover the wrong.

The Supreme Court rejected that logic.

"The Open Courts provision confers a constitutional right of access but not an everlasting one," Willett wrote.

"A few plaintiffs such as Rankin will encounter the Legislature's statutory roadblock, unable to bring claims through no fault of their own, but some defendants would likewise suffer unfortunate consequences were potential liability left indeterminate," he wrote.

"We have never declared a statute of repose unconstitutional and decline to do so today," he wrote.

Charles Deacon, Bertina York and Rosemarie Kanusky represented the hospital.

Brent Cooper, Tyler Scheuerman, Diana Faust and Devon Singh represented the surgeons.

Carl Teague and David Adkisson represented Rankin.

In a decision the same day, the justices applied the statute of repose to revive a surgical sponge suit for a patient who filed it nine years and eight months after surgery.

They reversed a trial judge and appeals judges in Houston, who enforced a two-year statute of limitations against plaintiff Tangie Walters.

In 2005, her doctor traced her many ailments to a sponge from surgery at Cleveland Regional Medical Center in 1995.

Walters promptly sued the hospital, surgeon Keith Spooner and assistant Shirley Kiefer in Harris County court.

District Judge John Coselli granted summary judgment to defendants, and First District appeals judges affirmed him.

All nine justices agreed that the statute of repose saved the case.

They sent it back to Coselli.

More News