Decision Date12 March 2010
Docket NumberNo. 08-0316.,08-0316.
Citation307 SW 3d 283
PartiesMETHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., L.L.P., W.C. Schorlemer, M.D., and Robert Schorlemer, M.D., Petitioners, v. Emmalene RANKIN, Respondent.
CourtTexas Supreme Court

Rosemarie Kanusky, Bertina Buran York, Charles A. Deacon, W. Wendell Hall, Fulbright & Jaworski L.L.P., San Antonio, for Petitioners, Methodist Healthcare System of San Antonio, Ltd.

R. Brent Cooper, Diana L. Faust, Devon J. Singh, Richard Clark Harrist, Cooper & Scully, P.C., Scot Tyler Scheuerman, Scheuerman Law Firm, San Antonio, for Petitioners, Robert Schorlemer, M.D.

Carl Robin Teague, David M. Adkisson, Begum & Tijerina, L.L., San Antonio, for Respondent.

Michael S. Hull, Hull Hendricks & MacRae, L.L.P., Austin, for Amicus Curiae Texas Alliance for Patient Access.

Lisa Bowlin Hobbs, Vinson & Elkins, LLP, Austin, for Amicus Curiae Texas Health Resources.

James C. Ho, Solicitor General of Texas, for Amicus Curiae State of Texas.

Justice WILLETT delivered the opinion of the Court.

This case pits the ten-year statute of repose for healthcare-liability claims1 against the Texas Constitution's Open Courts provision.2 We examine for the first time whether the latter saves a malpractice claim if the former has expired. The answer is no.

The Open Courts provision does not confer an open-ended and perpetual right to sue; it "merely gives litigants a reasonable time to discover their injuries and file suit."3 The Legislature may set an absolute cut-off point for healthcare suits, as it has for other suits,4 so long as the repose period is a reasonable exercise of the Legislature's police power to act in the interest of the general welfare. The ten-year statute of repose at issue adopts a constitutionally permissible policymaking judgment of the Legislature. Accordingly, we reverse the judgment of the court of appeals and render judgment for the petitioners.

I. Background

After experiencing abdominal pain, Emmalene Rankin consulted a physician in July 2006 and learned that a surgical sponge had been left inside her during a November 1995 hysterectomy. Rankin sued the hospital where the operation was performed, Southwest Texas Methodist Hospital, and two physicians, Robert and Wendell Schorlemer.

Rankin filed her suit, however, in October 2006, almost eleven years after the alleged negligence. The defendants moved for summary judgment, arguing that Rankin's claim was barred by section 74.251(b) of the Civil Practice and Remedies Code, the ten-year statute of repose for healthcare-liability claims. Rankin submitted evidence that she did not know of the sponge and could not have discovered it in the exercise of reasonable care prior to expiration of the ten-year repose period.

Section 74.251(b) provides:

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. This subsection is intended as a statute of repose so that all claims must be brought within 10 years or they are time barred.5

The trial court granted summary judgment, but the court of appeals reversed, holding the statute unconstitutional under the Open Courts provision.6 This appeal followed.

II. Analysis

When reviewing the constitutionality of a statute, we presume "that the Legislature has not acted unreasonably or arbitrarily; and a mere difference of opinion, where reasonable minds could differ, is not a sufficient basis for striking down legislation as arbitrary or unreasonable."7 "The burden is on him who attacks a law for unconstitutionality and courts need not exert their ingenuity to find reasons for holding the law invalid."8

Under the Open Courts provision, "all courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law."9 In Lebohm v. City of Galveston,10 the Court undertook its first in-depth analysis of the Open Courts provision. Justice Calvert, writing for a unanimous Court, formulated the test that we follow today:

Legislative action withdrawing common-law remedies for well established common-law causes of action for injuries to one's "lands, goods, person or reputation" is sustained only when it is reasonable in substituting other remedies, or when it is a reasonable exercise of the police power in the interest of the general welfare. Legislative action of this type is not sustained when it is arbitrary or unreasonable.11

We have quoted this language with approval in later decisions.12

The statute at issue is a statute of repose, not a statute of limitations, and our analysis must appreciate that the two are not synonymous. We recently recognized that "there are significant differences between the two."13 The Legislature stated explicitly that section 74.251(b) "is intended as a statute of repose" applicable to "all claims."

The term "statute of repose" may not submit to a simple, universal definition. Generally, a statute of repose specifies a longer period than that found in the statute of limitations applicable to the same cause of action.14 Statutes of repose begin to run on a readily ascertainable date, and unlike statutes of limitations, a statute of repose is not subject to judicially crafted rules of tolling or deferral.15

Indeed, the key purpose of a repose statute is to eliminate uncertainties under the related statute of limitations and to create a final deadline for filing suit that is not subject to any exceptions,16 except perhaps those clear exceptions in the statute itself.17 Without a statute of repose, professionals, contractors, and other actors would face never-ending uncertainty as to liability for their work. Insurance coverage and retirement planning would always remain problematic, as would the unending anxiety facing potential defendants.18 In recognizing the absolute nature of a statute of repose, we have explained that "while statutes of limitations operate procedurally to bar the enforcement of a right, a statute of repose takes away the right altogether, creating a substantive right to be free of liability after a specified time."19 The Legislature could reasonably conclude that the general welfare of society, and various trades and professions that serve society, are best served with statutes of repose that do not submit to exceptions even if a small number of claims20 are barred through no fault of the plaintiff, since "the purpose of a statute of repose is to provide `absolute protection to certain parties from the burden of indefinite potential liability.'"21 The whole point of layering a statute of repose over the statute of limitations is to "fix an outer limit beyond which no action can be maintained."22 One practical upside of curbing open-ended exposure is to prevent defendants from answering claims where evidence may prove elusive due to unavailable witnesses (perhaps deceased), faded memories, lost or destroyed records, and institutions that no longer exist.

Rankin argues that the statute is unreasonable, and thus unconstitutional, because it cut off her right to sue before she had an opportunity to discover her injury. But Open Courts analysis is not quite this myopic; focusing solely on Rankin's lost right to sue ignores the broader societal concerns that spurred the Legislature to act.

Section 74.251(b) was enacted in 2003 as part of House Bill 4, a top-to-bottom overhaul of Texas malpractice law to "make affordable medical and health care more accessible and available to the citizens of Texas,"23 and to "do so in a manner that will not unduly restrict a claimant's rights any more than necessary to deal with the crisis."24 The omnibus bill makes explicit findings describing the Legislature's concern that a spike in healthcare-liability claims had fueled an insurance crisis that was harming healthcare delivery in Texas.25 The Legislature specifically found that the crisis had often made insurance unavailable at any price.26 The Legislature made these findings after conducting hearings and amassing evidence of the problems facing healthcare providers as a result of enduring liability claims for indeterminate periods of time. We have recognized "that the length of time that insureds are exposed to potential liability has a bearing on the rates that insurers must charge."27

In enacting the repose piece of House Bill 4, lawmakers made a fundamental policy choice: the collective benefits of a definitive cut-off are more important than a particular plaintiff's right to sue more than a decade after the alleged malpractice. A few plaintiffs such as Rankin will encounter the Legislature's statutory roadblock, unable to bring claims through no fault of their own, but some defendants would likewise suffer unfortunate consequences were potential liability left indeterminate. The constitutional inquiry is whether the Legislature acted unreasonably or arbitrarily. We cannot brand as arbitrary lawmakers' policy rationales for granting healthcare providers a substantive right to be free from liability after ten years, even if a plaintiff could have discovered her injury no sooner.

Surveying legislation around the nation, repose statutes for medical-negligence cases are commonplace. Many jurisdictions have enacted such statutes for malpractice claims,28 and Texas' ten-year period is the longest of them all. Fourteen of these repose statutes are expressly inapplicable to foreign-object claims29 — not true of section 74.251(b) — and of twenty other statutes that apply equally to "sponge cases," no statute gives plaintiffs more time to sue than the Texas statute.30

Other jurisdictions have rejected constitutional challenges to repose statutes in medical-malpractice cases premised on open courts provisions or similar provisions guaranteeing the right to a remedy,31 with two inapposite exceptions.32 And most of the failed challenges...

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