Generally, patients seeking to sue a hospital or healthcare provider have two years to bring forth a claim of medical malpractice. This is known as the statute of limitations. The two year statute begins running on the date the malpractice occurred.
However, that date is not always clear, and patients may not know malpractice has occurred until outside the two year statute of limitations. That is when the Texas Constitution’s Open Courts Provision becomes applicable.
The Open Courts Provision requires that a patient show two things in order to successfully bring forth a medical malpractice claim after the statute of limitations has expired. First, the patient must show that the medical malpractice was not discoverable within the two year statue, therefore making it impossible to bring forth the claim. Second, once the malpractice is discovered, the patient must bring forth the claim against the healthcare provider or hospital within a reasonable time following the discovery of malpractice.
For example, suppose a patient has abdominal surgery on January 1, 2010 and a surgical towel is left inside the abdomen. Typically, the patient’s right to bring forth a claim would expire January 1, 2012. Further suppose the patient recovered postoperatively and did not experience any signs or symptoms of the surgical towel being left inside until June 1, 2012. If the patient followed up with a physician and was found to have the retained surgical towel on June 10, 2012, the patient would have to bring forth the medical malpractice claim within a reasonable time following June 10, 2012.
Medical malpractice is a difficult area of law as it requires an understanding of both the legal practice and the mechanics of medicine. Abraham Watkins offers a free consultation to anyone wishing to pursue such claims.