If enough time elapses, we can easily forget how good we had it. Put another way, children may have faced more risks before 2000, but they also had more rights.
On Aug. 22, the Texas Supreme Court reversed a decision from the Eighth Court of Appeals in El Paso. The El Paso court said the 10-year limit for filing a lawsuit was unconstitutional when applied to injured children, because they should be able to wait until they reach 18 to sue as an adult.
The case: Tenet Hospitals Ltd., d/b/a Providence Memorial Hospital, and Michael Compton M.D. v. Elizabeth Rivera, as next friend for M.R.
Writing for the majority, Supreme Court Justice Eva Guzman said the Eighth Court was wrong to find in favor of Elizabeth Rivera, the mother of M.R., and that Rivera should “take nothing.”
This was a dispute between the way civil law used to be, (and still is in many states), and how the law treats minors in Texas today.
Dates to keep in mind:
- 1996–M.R. is born with permanent neurological disabilities because the child was oxygen deprived during the 24 hours before and during her emergency C-section.
- 2003–the Legislature passed a new version of the Medical Liability Act that required claims be brought no later than 10 years after date of the act or omission, this supposedly left M.R. three years to file, according to the Court majority.
- 2004–The mother gets an attorney who sends pre-suit notice to the hospital of a pending claim.
- 2006–M.R.’s claim hits the deadline under the new MLA.
- 2011–M.R.’s attorney files the medical malpractice lawsuit, alleging Dr. Michael Compton failed to properly assess and monitor the mother when she came in the day before her C-section with a cough and fever; also, he did not notify her obstetrician.
Elizabeth had to mount an “open courts” challenge. The Texas Constitution says citizens should be protected from legislative acts that cut off a person’s right to sue before there is a reasonable opportunity to discover the wrong.
When considering the concept of “a reasonable opportunity to discover the wrong,” it might be instructive to consider the example of Judith Leekin. She was a Queens woman who ran an adoption scam on the city of New York. Tapping into the city’s foster parent program, she used various aliases and other false documentation to adopt 11 children with special needs in the 1980s and early 1990s. She preferred special needs children because the city paid more to assist with their care.
Leekin moved with these children to Florida and for years she kept them imprisoned, beat them, starved them. One child died and the body was never recovered. She used the money the city and its affiliated agencies sent her to live lavishly and the children were left confined, growing up without an education or medical care or therapy for their disabilities.
By the time Leekin was discovered and the children were removed, they were adults and so physically, mentally and emotionally damaged that most of them would be wards of some trustee forever. Civil suits were brought because New York and its affiliated agencies were grossly negligent in reviewing and monitoring Leekin as a foster parent and through the subsequent adoptions. The city and its affiliated agencies claimed the statute of limitations had expired.
This case was tried in federal court in the Brooklyn district, with South Florida attorneys representing plaintiffs that were by then in their 20s or early 30s. District Judge Eric Vitaliano ruled the clock didn’t start on their claims until they became aware of the culpability of the city and its child care agencies.
Since they were adopted as infants and toddlers, most of the children did not even know Leekin wasn’t their real mother, let alone how they ended up in her custody. This kept their case alive and the city and its agencies ended up settling for over $27 million.
But that case was in New York, in federal court, and the plaintiffs traveled under U.S. Code-Section 1983: Civil Action for Deprivation of Rights, not the Texas Medical Liability Act.
It’s the mother’s fault
Over and over, Guzman blames the mother.
“Open-courts challengers must themselves be diligent in bringing suit. The mother cannot meet this requirement because she was aware of the claim one year into her three-year period to bring the claim, but waited over six additional years to file suit,” Guzman said.
Guzman referred to Yancy v. United Surgical Partners Int’l Inc., a 2007 open-courts challenge case involving a woman, Carletha Yates, left comatose after a surgical procedure. Eula Yancy was the mother of Yates and guardian of her estate, and Yancy also waited too long to file a petition.
“We acknowledged precedent indicating that a statute requiring an incapacitated plaintiff to give pre-suit notice would ‘require an impossible thing.’ But we concluded the limitations statute there did not require an impossible thing of Yates, who had a guardian, retained a lawyer, and filed suit within the limitations period,” Guzman said.
After citing a couple of other cases, Guzman said the Court would not treat the parent of a minor any differently than it would treat the appointed guardian of a legally incompetent person.
The Court vote was 8-to-1. Justice Debra Lehrmann dissented:
“In my view, attributing Rivera’s lack of due diligence to her daughter is both fundamentally unfair and contrary to our decisions in Sax v. Votteler (1983), and Weiner v. Wasson (1995).
“In Sax, we evaluated the two-year statute of limitations on medical malpractice claims contained in a prior version of the Medical Liability Act,” Lehrmann said.
Before that statute was enacted, the limitations period on all tort actions by minors was delayed until two years after they reached the age of majority. The prior MLA law removed that delaying provision, with the exception that minors under the age of six had until their eighth birthday to file such claims.
The parents in Sax sued a doctor more than two years after she was treated and the defendant argued the statute of limitations barred her claim. The Court held that while the legitimate purpose of the law was to increase the availability of medical malpractice insurance by curtailing the time period of exposure to liability, this did not justify “the effective abrogation of a child’s right to redress.”
Twelve years later, Sax was reaffirmed in Weiner, Lehrmann noted.
Responding to the majority’s reliance on Yancy v. United Surgical, Lehrmann noted a key difference.
“The Court applies this reasoning to a parent’s lack of diligence in pursing a minor child’s claims; I would not. The Court recognizes the strict legal procedures applicable to guardians, such as the fact that they are court-appointed, act as fiduciaries on behalf of their wards, must post a bond, and must report annually to the court,” Lehrmann said of legal guardians.
These statutory requirements help minimize the possibility that guardians may be “ignorant, lethargic or lack concern,” the very concern that led the Court in Sax to reject the presumption that parents will act diligently, she said.
From Sax v. Votteler: “It is neither reasonable nor realistic to rely upon parents, who may themselves be minors, or who may be ignorant, lethargic, or lack concern, to bring a malpractice lawsuit action within the time provided.”
Rivera was represented on appeal by John P. Mobbs of El Paso. Also on her case were Alfonso Melendez and Enrique Moreno, both of El Paso.
The Texas Alliance for Patient Access, Texas Medical Association, Texas Hospital Association, American Congress of Obstetricians and Gynecologists, Texas Children’s Hospital and Texas Osteopathic Medical Association jointly submitted a friend of the court brief on behalf of the hospital. It was prepared by Michael Hull of Hull Henricks in Austin.
The hospital was represented by Ken Slavin, Jason Hungerford and J. Scott Mann of Kemp Smith in El Paso, and by P. Michael Jung of Strasburger & Price in Dallas.