Weiner v. Wasson

• Decision Date: 21 July 1995
• Docket Number: No. 94-0541,94-0541
• Parties: 38 Tex. Sup. Ct. J. 750 Bruce WEINER, M.D., Petitioner, v. Emmanuel WASSON, Respondent.
• Court: Texas Supreme Court

Page 316

900 S.W.2d 316

38 Tex. Sup. Ct. J. 750

Bruce WEINER, M.D., Petitioner, v. Emmanuel WASSON, Respondent.

No. 94-0541.

Supreme Court of Texas.

Argued Jan. 5, 1995.

Decided June 8, 1995.

Rehearing Overruled July 21, 1995.

Sam A. Houston, Houston, for petitioner.

David W. Holman, Richard P. Hogan, Jr., Kevin H. DuBose, Richard W. Ewing, W. James Kronzer, Jr., Houston, for respondent.

CORNYN, Justice, delivered the opinion of the Court, joined by GONZALEZ, HIGHTOWER, GAMMAGE, ENOCH and SPECTOR, Justices.

OWEN, Justice, joined by PHILLIPS, Chief Justice, and HECHT, Justice, dissenting.

We granted the application for writ of error in this case to decide whether the statute of limitations contained in section 10.01 of the Medical Liability and Insurance Improvement Act (Medical Liability Act) ¹ can be constitutionally applied to the malpractice claim of a minor under the open courts provision of the Texas Constitution. The court of appeals, relying on our decision in Sax v. Votteler, 648 S.W.2d 661 (Tex.1983), held that section 10.01 of the Medical Liability Act is unconstitutional as applied to minors, who are under legal disability from bringing suit on their own behalf. 871 S.W.2d 542, 543. We affirm the judgment of the court of appeals, and remand this cause to the trial court for further proceedings consistent with this opinion.

In May 1988, Dr. Bruce Weiner performed surgery on Emmanuel Wasson, who was then fifteen years old. The surgery required insertion of surgical pins into Wasson's right femur. On his last visit in June 1988, Wasson complained to Weiner of constant pain in his hip and of his need for crutches. In August 1988, Wasson saw another physician, who took x-rays of his hip. The x-rays showed that one of the surgical pins was protruding into Wasson's right hip joint. Wasson later underwent two additional surgeries, but they did not relieve his constant pain. Wasson turned eighteen on December 16, 1990, and a few months later underwent surgery for the total replacement of his right hip.

On August 25, 1992, Wasson filed suit against Weiner, alleging that Weiner's negligence caused the painful destruction of his right hip joint and necessitated the hip replacement surgery. Weiner moved for summary judgment on two grounds. Weiner first urged that section 10.01 of the Medical Liability Act, which establishes a two-year statute of limitations for health care liability claims, barred Wasson's claim. Weiner also argued that even if the limitations period was tolled during Wasson's minority, Wasson's claim was nevertheless barred because Wasson failed to file suit within a "reasonable time" after attaining majority. The trial court granted Weiner's motion for summary judgment without specifying the grounds. The court of appeals reversed the trial court's judgment and remanded the case for further proceedings, holding that our opinion in Sax compels the conclusion that section 10.01 of the Medical Liability Act is unconstitutional as applied to minors. ²

I

We begin our inquiry by reviewing the history of the medical malpractice statute of limitations in Texas. In 1975, as part of the Professional Liability Insurance for Physicians, Podiatrists, and Hospitals Act, the Legislature enacted article 5.82, section 4, of the Texas Insurance Code, which purported to restrict the period available for minors to bring medical malpractice actions. See Sax, 648 S.W.2d at 663. Section 4 of article 5.82 provided:

Notwithstanding any other law, no claim against a [health care provider] ... 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.

TEX.INS.CODE art. 5.82, § 4 (emphasis added) (hereinafter, article 5.82). When article 5.82 was repealed on August 29, 1977, the Legislature replaced it with section 10.01 of the Medical Liability Act, which provides:

Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided, this subchapter applies to all persons regardless of minority or other legal disability.

TEX.REV.CIV.STAT.ANN. art. 4590i, § 10.01 (emphasis added) (hereinafter, section 10.01). As we have observed before, other than specifying different ages by which minors must bring claims, section 10.01 and article 5.82 are substantially the same. See Sax, 648 S.W.2d at 663 n. 1; Nelson v. Krusen, 678 S.W.2d 918, 920 n. 1 (Tex.1984).

In 1983, this Court unanimously held that article 5.82 was unconstitutional as applied to minors under the open courts provision of article I, section 13 of the Texas Constitution. ³ Sax, 648 S.W.2d at 665-667. We held that the open courts provision guarantees that "the right to bring a well-established common law cause of action cannot be effectively abrogated by the legislature absent a showing that the legislative basis for the statute outweighs the denial of the constitutionally-guaranteed right of redress." Sax, 648 S.W.2d at 665-666.

Thus, we first considered whether article 5.82 "effectively abrogated" a child's right to bring a medical malpractice cause of action. Under article 5.82, the limitations period was tolled until a child reached age six, and upon reaching age six, a child, like an adult, was required to bring suit within two years. We observed, however, that a child lacks legal capacity to bring suit during minority unless the minor's legal disability has been removed. Although parents, guardians, or next friends may as adults be legally capable of bringing suit on a child's behalf during minority, we held that the possibility that an adult might act on the child's behalf did not vindicate the total abrogation of the child's cause of action. Sax, 648 S.W.2d at 667.

We then considered whether the legislative purpose of article 5.82 outweighed the deprivation of a child's rights under the open courts provision. Although the Legislature enacted article 5.82 for the legitimate purpose of restraining the escalating cost of liability insurance for health care providers, we concluded that the means used to achieve this purpose were not "reasonable when they [were] weighed against the effective abrogation of a child's right to redress." Sax, 648 S.W.2d at 667. We accordingly held that, as applied to minors, article 5.82 violated article I, section 13 of the Texas Constitution.

II

Applying the principles articulated in Sax to this case, the court of appeals held that section 10.01, like its predecessor article 5.82, is unconstitutional as applied to minors because it purports to cut off Wasson's cause of action before he reaches majority, an age at which he may lawfully sue on his own behalf. 871 S.W.2d at 543. We agree. As previously noted, the only significant difference between article 5.82 and section 10.01 is that section 10.01 extends the tolling period from age six to age twelve. This one change in section 10.01 does not cure the constitutional infirmity that we identified in article 5.82 in Sax. Whether a statute compels a child to bring suit by age eight or by age fourteen is inconsequential because in either instance a minor child is legally disabled from pursuing a suit on his own. We do not doubt the Legislature's power to remove a minor's legal disabilities and thus lower below eighteen the age at which a person may sue on his or her own behalf, but the Court unanimously agrees that the Legislature did not do so in section 10.01. 900 S.W.2d 326. Consistent with Sax, therefore, we hold that section 10.01 is unconstitutional when applied to a minor because it violates article I, section 13 of the Texas Constitution.

Weiner contends that Sax does not control this case, pointing to the following excerpt from the Court's opinion in an attempt to distinguish it:

If the parents, guardians, or next friends of the child negligently fail to take action in the child's behalf within the time provided by article 5.82, the child is precluded from asserting his cause of action under that statute. Furthermore, the child is precluded from suing his parents on account of their negligence, due to the doctrine of parent-child immunity. Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex.1971).

Sax, 648 S.W.2d at 667. Weiner maintains that Felderhoff v. Felderhoff is no longer the law in Texas, and that this Court's subsequent decision in Jilani v. Jilani, 767 S.W.2d 671 (Tex.1988), expanded the exceptions to the parent-child immunity doctrine upon which Felderhoff was based. Under Jilani, Weiner argues that a child now has the right to sue a parent who negligently fails to bring suit on the child's behalf within the prescribed limitations period. Therefore, the argument goes, a minor child whose parent fails to assert a medical malpractice claim within the limitations period provided by section 10.01 may sue the parent for negligence. This, it is contended, provides the adequate substitute remedy we found lacking in Sax. We disagree.

Jilani did not change the law governing parent-child immunity articulated in Felderhoff. To the contrary, the Jilani court applied the Felderhoff test. ⁴ The Court's opinion expressly states, "[w]e continue to adhere to the principles and policy expounded in Felderhoff." Jilani, 767...