Supreme Court Protects Doctors, Again

Generally, a constitution determines whether a statute is permissible, not the other way around. But, on Friday, the Supreme Court used a finding within statute in order to determine that it was constitutional. And, with that finding, the court protected a doctor and hospital by dismissing a malpractice claim stemming from profound birth injuries, even before the injured child turned 18 years old.

Children cannot file lawsuits. (Instead, suits can be filed for them by a parent or guardian.) Accordingly, historically, a statute of limitations could not bar the claim of a minor because limitations on the claim did not begin to run until the minor turned 18 years old. In practice, a minor's claim would not be barred until he or she turned 20 years old.

In 2003, saying that doctors had to pay too much money for insurance, the Legislature passed sweeping legislation that made it more difficult for patients to obtain justice when doctors and other health care providers negligently injured them. One of the provisions was a "statute of repose." It stated that any claim was barred 10 years after the malpractice, regardless of any other consideration. In the past few years, the Supreme Court ruled that this statute of repose barred a valid malpractice claim when a sponge left in a woman was undiscoverable and undiscovered for more than 10 years.

In Friday's case, a child was severely injured at the time of her birth in 1996. Accordingly, the child had a vested claim seven years later, when the Legislature changed the medical malpractice law in 2003; and, under then-existing law, she would have had until her 20th birthday to bring suit.

The Supreme Court, however, ruled that the statute of repose was constitutional, even though it barred the suit filed by her mother when the child was 15 years old (i.e., while the child was still a minor). The court stated that, because the child's mother had sent notice of the claim earlier, the mother was not diligent when she filed suit, and as a result she could not raise a claim on her child's behalf that the statute violated the constitution's guarantee of "open courts" to hear a valid claim.

The child's mother also argued that the statute was unconstitutional as a "retroactive" law because it divested her child of a vested right-in other words, the right the child enjoyed prior to the passage of the law to bring suit prior to her 20th birthday was being taken away from her. Nevertheless, the court ruled that there were still three years left under the statute of repose when it was passed in 2003 in which to file suit. The court further ruled that the statute was constitutionally permissible because it contained a provision claiming that there was an insurance "crisis" for health care providers. The effect is that a child's legal claim has been taken from her-without any compensation-because providing doctors a better price for insurance premiums constitutes a "compelling public purpose." Thus, the Legislature, by simply including as part of a statute a "finding" that a crisis existed, was able to enact legislation that would otherwise be unconstitutional. In this manner, the constitution was deprived of its ability to protect citizens from impermissible legislation.

If you or someone you know has been a victim of medical malpractice, contact the attorneys at Abraham, Watkins, Nichols, Sorrels, Agosto, and Friend by calling 713-222-7211 or 1-800-870-9584.

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