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Walters v. Cleveland Regional Medical Center

The Texas Constitution grants foreign-object claimants a reasonable opportunity to discover their injuries and file suit, even if the two-year limitations period has run (though not, as in a companion case, if the 10-year repose period has run). Texas Supreme Court, No. 08-0169, 03-12-2010

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Argued September 9, 2009

This is one of two “surgical sponge” cases decided today regarding the time limits placed on medical-malpractice suits.*fn1 The issue here: did Tangie Walters raise a fact issue as to whether she could avail herself of the Open Courts provision*fn2 as an exception to the two-year statute of limitations?*fn3 We answer the same way we did twenty-five years ago with regard to the claimant in Neagle v. Nelson: yes.*fn4 The Texas Constitution grants foreign-object claimants a reasonable opportunity to discover their injuries and file suit,*fn5 even if the two-year limitations period has run (though not, as in today’s companion case,*fn6 if the ten-year repose period has run). And here, Walters has raised a fact issue as to whether the Open Courts provision applies.

Sponge cases constitute a unique class of malpractice claims, thus meriting unique Open Courts treatment: (1) such injuries are notoriously hard to discover; (2) the existence of wrongdoing (and the identity of the wrongdoer) are usually undisputed; and (3) an absolute two-year cutoff would render superfluous the Legislature’s ten-year statute of repose.

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