Retroactivity and Repose

 Tenet Hospitals Ltd. v. Rivera, — S.W.3d — (Tex. 2014)

Texas’s repose provision for medical malpractice suits, enacted in 2003, mandates that “A claimant must bring a health care liability claim not later than 10 years after the date of the act or omission that gives rise to the claim.” To eliminate any doubt, the provision also clarifies that it is “intended as a statute of repose so that all claims must be brought within 10 years or they are time barred.”

Texas’s 10-year window for filing suit is much wider than the repose periods in other states: see, e.g., 735 ILCS 5/13–212(a) (setting a typical 4-year repose period for medical malpractice suits in Illinois). This fact did not prevent the plaintiffs in Tenet Hospitals Ltd. v. Rivera, — S.W.3d —- (Tex. 2014), from arguing that Texas’ repose statute was unconstitutional. Specifically, the plaintiffs claimed that the statute unconstitutionally blocked their access to open courts and was also retroactive.

In considering those claims, the Texas Supreme Court observed that the plaintiffs were able to file their suit in 2004. At that point in time, the suit was not time barred: the repose statute allowed the plaintiffs to file it by 2006. For that reason, the plaintiffs failed the diligence test, which prevented them from raising the “open courts” challenge.

The plaintiffs’ complaint about retroactivity was far more promising: it alleged that the repose statute fails to accommodate pre-adulthood rights. Specifically, the plaintiffs argued that the alleged malpractice occurred during the victim’s birth in 1996 and prior to the statute’s enactment in 2003. The victim—who sustained permanent neurological disabilities as a result of the malpractice—was therefore entitled to file his suit upon becoming an adult in the age of 18 (2014). The repose statute of 2003 purported to extinguish this right. Hence, it is retroactive vis-à-vis the victim.

The Court agreed with the victim that the statute was retroactive as applied to him. Ultimately, however, it dismissed the victim’s “unconstitutional as applied” claim as well. The Court justified that dismissal by the presence of a compelling governmental interest in limiting physicians’ exposure to suits. More contestably, the Court decided that the retroactivity problem is adequately remedied by a 3-year grace period that the statute afforded to plaintiffs with whose rights it interfered.

Justice Lehrmann wrote a dissent that was particularly compelling on the retroactivity issue.

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