Wednesday, November 18, 2009

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Attorney General Abbott Defends Medical Malpractice Reform Law’s Constitutionality

AUSTIN - Texas Attorney General Greg Abbott took legal action Tuesday to defend the state’s recently enacted medical malpractice reform laws.

In 2003, the Texas Legislature responded to a lack of physicians and doctors’ rising medical malpractice insurance premiums by imposing a 10-year statute of repose on medical malpractice lawsuits. That provision prohibits plaintiffs from filing medical malpractice lawsuits more than a decade after the act that forms the basis of their lawsuit. In the state’s brief to the Supreme Court, Solicitor General James Ho explained that the 2003 law was enacted because “the Legislature concluded that indeterminate and unpredictable liability regimes drive up the cost of healthcare and reduce access to physicians."

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Attorney General's brief filed with the Texas Supreme Court

The state’s brief further explains that House Bill 4’s 10-year statute of repose does not interfere with an individual’s common law right to commence a medical malpractice lawsuit. Rather, the brief argues, “the Legislature struck a fair balance between the rights of plaintiffs to obtain redress for injuries and the rights of physicians and other health care providers from having to litigate stale claims. The balance struck by the Legislature was reasonable – and constitutional.”

As the brief explains, Texas has a long history of imposing limitations periods: “The enforcement of rules governing the timing of the suit is a centuries-old tradition under our legal system. This tradition exists because our legal system does not remedy injuries in perpetuity. Evidence grows stale; eyewitnesses move; records become lost; and parties receive assurances that courts will not reexamine acts from the distant past that have long since faded from memory. The rule of law is served by clear rules – and that includes traditional rules governing the timing of suit.”

The state’s brief, which was filed in a case styled Methodist Healthcare System of San Antonio v. Rankin, stems from a lawsuit that Emmalene Rankin filed against two physicians and the Methodist Healthcare System of San Antonio 11 years after a surgical sponge was allegedly left in her body. Rankin argued that the statute of repose violated the Texas Constitution’s Open Courts provision, which provides that “all courts shall be open, and every person for an injury done to him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Although the district court found that Rankin’s lawsuit exceeded the repose period, the Fourth Court of Appeals reversed the trial judge and struck down the statute of repose under the Open Courts provision.