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Texas SC dissenters argue malpractice decision could lead to more lawsuits

By Steve Korris | Feb 3, 2011


AUSTIN – State Supreme Court justices threw out a malpractice claim against two doctors because their patient waited too long to add them to a suit.

On Jan. 21, seven justices resolved a conflict between statutes of limitations in favor of Dr. Patrick Kimbrell and Dr. John Horan.

The court enforced a two-year limit against plaintiff Jeremy Molinet, who named Kimbrell and Horan as defendants in a suit two-and-a-half years after they treated him.

The majority followed a rule requiring them to apply plain language in legislation as long as it doesn't lead to an absurd or nonsensical result.

Justice Phil Johnson wrote that Molinet could have added the doctors within two years, just as he added other health care providers in timely fashion.

Johnson wrote, "He did not do so, however, and it is not absurd or nonsensical for him to bear the consequences of his decision."

Chief Justice Wallace Jefferson and Justices Nathan Hecht, Dale Wainwright, Paul Green, Don Willett and Eva Guzman agreed.

But Justices Debra Lehrmann and David Medina dissented, arguing that tort reforms in 2003 created an exception to the two-year limit.

Lehrmann wrote that she feared that "claimants will be motivated to sue every health care provider involved in the patient's care, no matter how minimal their involvement."

In her argument, Lehrmann quoted legislators in floor debate, but Johnson ignored them.

"Statements made during the legislative process by individual legislators or even a unanimous legislative chamber are not evidence of the collective intent of the majorities of both legislative chambers that enacted a statute," Johnson wrote.

"Moreover, the Legislature expresses its intent by the words it enacts and declares to be the law."

The tort reform law allows a malpractice defendant to reduce his liability by identifying a third party who shares responsibility for a patient's damages. A defendant's identification of a responsible third party doesn't add the third party to the suit, but a plaintiff can add the third party within 60 days.

Case background

In 2004, Molinet injured his Achilles tendon. Dr. Horan repaired it but Molinet injured it again. Surgeon Marque Allen performed a second repair, and Dr. Kimbrell treated the wound.

In 2005, Molinet sued Allen and others in Bexar County, but not Horan or Kimbrell.

He added defendants in 2006, but still did not add the two doctors.

Then in 2007, Allen identified Dr. Horan and Dr. Kimbrell as responsible third parties. Molinet amended his pleadings 23 days later, to add them.

Horan and Kimbrell moved for summary judgment, and Molinet argued that he acted within the 60-day limit.

District Judge Joe Brown agreed with Molinet and denied summary judgment.

Fourth District judges reversed Brown, finding the two-year limit trumped the contradictory 60-day limit.

The Texas Supreme Court affirmed the Fourth District, pointing out that the law setting the two-year limit begins with the words, "Notwithstanding any other law."

Johnson wrote that the effect of the tort reform law is not to determine when a suit is commenced against responsible third parties.

"The filing and granting of a motion for leave to designate a person as a responsible third party does not artificially establish the commencement of the case against a party as of some date before the party was in fact joined," Johnson wrote.

"Construing clear and unambiguous statutes according to the language actually enacted and published as law – instead of according to statements that did not pass through the law making process, were not enacted, and are not published as law – ensures that ordinary citizens are able to rely on the language of a statute to mean what it says.

"Molinet could have avoided the limitations difficulty in which he finds himself by taking actions such as seeking a scheduling order requiring responsible third parties to be designated in time to allow their joinder as parties before limitations expired," he wrote.

Lehrmann lamented that legislators crafted a scheme permitting defendants to minimize their liability while allowing plaintiffs to join third parties even if limitations have run.

She wrote that the majority placed defendants in position to force plaintiffs to prove liability of defendants while at the same time defending an "empty chair."

The justice predicted the decision would encourage lawsuits against health care providers.

Lehrmann wrote that "claimants will be motivated to sue every health care provider involved in the patient's care, no matter how minimal their involvement, in order to circumvent an empty chair defense by more likely responsible defendants."

Rosemary Hollan, Diana Faust, Brent Cooper and Devon Singh represented Kimbrell. Faust and Brett Rowe represented Horan.

Michelle Mei-Hsue Cheng, Bill Whitehurst, Eugene Brees II, Jon Powell and Brant Mittler represented Molinet.

Texas Supreme Court Case No. 09-0544

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