Sax v. Votteler

Citation26 Tex. Sup. Ct. J. 316,648 S.W.2d 661
Decision Date06 April 1983
Docket NumberNo. C-1457,C-1457
PartiesBernard SAX, et ux., a/n/f of Lori Beth Sax, Petitioners, v. T.P. VOTTELER, Respondent.
CourtSupreme Court of Texas

John E. Collins and Joseph Jamail, Houston, for petitioners.

Thompson & Knight, John H. Martin, Dallas, for respondent.

KILGARLIN, Justice.

The parents of Lori Beth Sax brought a medical malpractice suit against Dr. T.P. Votteler, alleging that he mistakenly removed one of Lori Beth's fallopian tubes, instead of her appendix, during an operation that occurred on May 10, 1976. Dr. Votteler continued to treat Lori Beth until August 5, 1976, at which time she was eleven years of age. The Saxes' suit against Dr. Votteler was filed on February 20, 1979. Dr. Votteler filed a motion for summary judgment, claiming Lori Beth's cause of action was barred by the two-year statute of limitations contained in Texas Insurance Code, article 5.82, section 4 (hereinafter referred to as article 5.82, section 4). The trial court granted the motion and the court of appeals affirmed. 636 S.W.2d 461 (Tex.App.1982). We reverse in part and affirm in part the judgments of the courts below and remand this cause for trial on the merits.

Historically, in Texas, minors have had varying periods of time after reaching their majority to bring an action in tort. As early as pre-statehood, Texas tolled limitations for minors until two years after their attaining majority. Act of February 5, 1841, § 11, 1841 Laws of the Republic of Texas, at 166, 2 H. GAMMEL, Laws of Texas 630 (1898). Thereafter, for a brief time, the Texas Constitution tolled limitations for minors for seven years after removal of disabilities. Tex. Const. art. XII § 14 (1869). Prior to the enactment of article 5.82, section 4, Texas law allowed for a tolling of limitations in all tort actions by minors until two years after attaining majority or removal of disabilities. Tex.Rev.Civ.Stat.Ann. art. 5535 [derived from Tex.Rev.Civ.Stat. art. 5708 (1911) ].

In 1975, however, by enacting the Professional Liability Insurance for Physicians, Podiatrists, and Hospitals Act (Ch. 330, 1975 Tex.Gen.Laws 864), the Texas Legislature amended Chapter 5 of the Insurance Code by adding article 5.82, which changed the law with respect to limitations for minors in medical malpractice actions. Section 4 of article 5.82 provided:

Notwithstanding any other law, no claim against a person or hospital covered by a policy of professional liability insurance covering a person licensed to practice medicine or podiatry or certified to administer anesthesia in this state or a hospital licensed under the Texas Hospital Licensing Law, as amended (Art. 4437f, Vernon's Texas Civil Statutes), whether for breach of express or implied contract or tort, for compensation for a medical treatment or hospitalization may be commenced unless the action is filed within two years of the breach or the tort complained of or from the date the medical treatment that is the subject of the claim or the hospitalization for which the claim is made is completed, except that minors under the age of six years shall have until their eighth birthday in which to file, or have filed on their behalf, such claim. Except as herein provided, this section applies to all persons regardless of minority or other legal disability. 1

As the date of Lori Beth's last treatment from Dr. Votteler occurred in 1976, the statute of limitations in article 5.82 is applicable to the filing of her suit. It is the constitutionality of that provision which is under attack here. The Saxes urge that by removing the tolling provision after age six Lori Beth is being denied her rights to due process and equal protection of the law as guaranteed her by the fourteenth amendment of the United States Constitution. Further, the Saxes urge that article 5.82, section 4, violates the equal protection guarantee, article I, section 3, and the due process guarantees, article I, section 13, and article I, section 19, of the Texas Constitution.

While it is true that state constitutional protections cannot subtract from those rights guaranteed by the United States Constitution, there certainly is no prohibition against a state providing additional rights for its citizens. See, e.g., PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). Because we are of the opinion that the Texas Constitution, article I, section 13, does accord Texas citizens additional rights, we choose not to decide this case on the basis of the United States Constitution or the equal protection provision of the Texas Constitution.

What remains for our determination is whether article 5.82, section 4, is violative of article I, section 13, of the Texas Constitution. The court of appeals' opinion concluded that article I, section 13, "was not raised as a ground of defense to the motion for summary judgment and cannot be considered." 636 S.W.2d at 465. We disagree. The Saxes' response to Dr. Votteler's motion for summary judgment states as follows:

Defendant relies upon section 4 of art. 5.82 of the Insurance Code of the State of Texas. Plaintiffs say that if that particular section does apply to this cause of action that said law is unconstitutional since it provides a shorter statute of limitations for minor medical malpractice plaintiffs than other minor plaintiffs and thus violates the equal protection and due process provisions of the United States and Texas Constitutions.

The Texas Constitution contains two separate due process provisions. Article I, section 19, is the traditional due process guarantee, which states: "No citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land." Article I, section 13, provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. 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." While it is true that this provision is sometimes referred to as the "Open Courts Provision," it is, quite plainly, a due process guarantee. See Hanks v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944, 945 (1932); 1 Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 50 (1977). Both provisions of the Texas Constitution have their origin in Magna Carta. See Tex. Const. art. I, §§ 13, 19, comment. In any event, the language in the Saxes' response is sufficient to preserve for review all allegations of unconstitutionality under the due process clauses of the Texas Constitution, and more particularly, article I, section 13. See generally The City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979).

We recognize that "[i]n passing upon the constitutionality of a statute, we begin with a presumption of validity. It is to be presumed 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." Smith v. Davis, 426 S.W.2d 827, 831 (Tex.1968).

Legislative action, however, is not without bounds. As early as 1932, this Court recognized that article I, section 13, of the Texas Constitution ensures that Texas citizens bringing common law causes of action will not unreasonably be denied access to the courts. Hanks v. City of Port Arthur, supra. In Hanks, this Court was confronted with an ordinance that exempted Port Arthur from liability for injuries caused by defective streets unless the city had received notice of the defect twenty-four hours prior to the accident. The ordinance was challenged as being violative of article I, section 13. In holding that the ordinance was unconstitutional, this Court reasoned As written ... [the ordinance] applies to all persons who may be upon the streets; to children ... [who] have the right to use the sidewalks.... Are we to say that a small child running an errand, or a small boy selling newspapers to help make the family living, who is injured by reason of a defective sidewalk, due to the negligence of the city, or by reason of otherwise actionable negligence of the city, cannot recover because the infant, or some one for him, has not notified one of the city commissioners twenty-four hours before the accident of the existence of the defect? Would that be reasonable? Is the requirement of a thing impossible from an infant, or one incapacitated for any other reason, due process? We think not; and yet it is a condition precedent to a recovery....

Id. 48 S.W.2d at 948 (emphasis added). See McCrary v. City of Odessa, 482 S.W.2d 151 (Tex.1972). In conclusion, the Court set out the test for analyzing future violations of the open courts-due process provision: A statute or ordinance that unreasonably abridges a justiciable right to obtain redress for injuries caused by the wrongful acts of another amounts to a denial of due process under article I, section 13, and is, therefore, void. 48 S.W.2d at 948.

The rule in Hanks has been considered dispositive in at least two other cases decided by this Court. In Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951 (1955), an ordinance similar to the one in Hanks exempted Galveston from liability for injuries caused by defective streets. In striking down the ordinance on the basis of article I, section 13, this Court stated:

[L]egislative 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...

To continue reading

Request your trial
354 cases
  • American Bank & Trust Co. v. Community Hospital
    • United States
    • United States State Supreme Court (California)
    • July 9, 1984
    ...Ill.2d 313, 347 N.E.2d 736, 742-743) and a statute of limitations applicable only to malpractice victims who are minors (Sax v. Votteler (Tex.1983) 648 S.W.2d 661, 667.) Although the hospital claims that periodic payments are fair to the malpractice victim because damages are paid out as th......
  • Nelson v. Krusen
    • United States
    • Supreme Court of Texas
    • October 17, 1984
    ...by Dr. Krusen or on the date of Mark's birth and barred the Nelsons' claims two years later. Under our holding in Sax v. Votteler, 648 S.W.2d 661 (Tex.1983), the statute cannot cut off Mark's cause of action before he reaches the age of legal capacity. If applied literally, the statute woul......
  • Moreno v. Sterling Drug, Inc.
    • United States
    • Supreme Court of Texas
    • March 28, 1990
    ...when balanced against the purpose and basis of the statute. Lucas v. United States, 757 S.W.2d 687, 690 (Tex.1988); Sax v. Votteler, 648 S.W.2d 661, 666 (Tex.1983). Moreno contends that if section 16.003(b) does not provide for application of the discovery rule, it is unconstitutional becau......
  • Whitlow v. Board of Educ. of Kanawha County
    • United States
    • Supreme Court of West Virginia
    • November 23, 1993
    ...... For example, Missouri and Texas have utilized their constitutional provisions forbidding denial of access to the courts. See Strahler v. St. Luke's Hosp., 706 S.W.2d 7 (Mo.1986); Sax v. Votteler, 648 S.W.2d 661 (Tex.1983). .         The Supreme Court of Arizona in Barrio v. San Manuel Division Hospital for Magma Copper Co., supra, recognized that a cause of action to recover damages is a fundamental right guaranteed by its constitution. According to the Arizona court, "Article ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT