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At a Glance:
Weiner v. Wasson
June 8, 1995
900 S.W.2d 316
Texas Supreme Court
Published Opinion

Weiner v. Wasson

Supreme Court of Texas.

Bruce WEINER, M.D., Petitioner,


Emmanuel WASSON, Respondent.

No. 94–0541.


Argued Jan. 5, 1995.


Decided June 8, 1995.


Rehearing Overruled July 21, 1995.

Attorneys & Firms

*317 Sam A. Houston, Houston, for petitioner.

Richard W. Ewing, W. James Kronzer, Jr., Houston, for respondent.


CORNYN, Justice, delivered the opinion of the Court, joined by 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 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


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 *318 have filed on their behalf, such claim. Except as herein provided, this section applies to all persons regardless of minority or other legal disability.

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.

Nelson v. Krusen, 678 S.W.2d 918, 920 n. 1 (Tex.1984).

In 1983, this Court unanimously held that Sax, 648 S.W.2d at 665–666.

Thus, we first considered whether Sax, 648 S.W.2d at 667.

We then considered whether the legislative purpose of article I, section 13 of the Texas Constitution.


Applying the principles articulated in Sax to this case, the court of appeals held that 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 Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex.1971).

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.Id. at 673. Because Felderhoff remains Texas law, we reject Weiner’s argument that Sax does not control this case.

Additionally, arguing that Wasson had a parent who was capable of bringing suit within the two-year limitations period. Weiner urges us to either overrule Sax, or limit the holding to its facts. We decline to do so.

In Sax, a unanimous Court explicitly considered and rejected the argument that the ability of child’s parent to bring suit on behalf of the child was a reasonable substitute—the same argument made by Weiner in this case. See article 5.82 could not cut off the claim of a mental incompetent).

In short, Weiner presents no arguments that were not considered in Sax, nor does he demonstrate that Sax was wrongly decided. Of course, we have, on occasion and *320 for compelling reasons, overruled our earlier decisions, but undeniably, Sax has become firmly ensconced in Texas jurisprudence. Generally, we adhere to our precedents for reasons of efficiency, fairness, and legitimacy. First, if we did not follow our own decisions, no issue could ever be considered resolved. The potential volume of speculative relitigation under such circumstances alone ought to persuade us that stare decisis is a sound policy. Secondly, we should give due consideration to the settled expectations of litigants like Emmanuel Wasson, who have justifiably relied on the principles articulated in Vasquez v. Hillery, 474 U.S. 254, 265–66, 106 S.Ct. 617, 624, 88 L.Ed.2d 598 (1986) (“[Stare decisis] permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact.”). Accordingly, we decline to overrule Sax or somehow limit the holding of that case to its facts.

Although the dissenting justices agree with Weiner that Sax can be limited to its facts, we are unpersuaded. Based on the same principles we relied upon in Sax, just two years ago this Court held that even the commencement of a lawsuit by a mental incompetent and his wife did not affect the tolling of limitations during the period of the mental incompetent’s legal disability. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 756 (Tex.1993). In arriving at this holding, we relied upon a series of cases from this and other jurisdictions that treat tolling of limitations for minors and mental incompetents identically. We reasoned:

Access to the courts does not alone provide a legally incapacitated person a viable opportunity to protect his legal rights. The disability of a person of unsound mind is not only the lack of access to the courts, but also the inability to participate in, control, or even understand the progression and disposition of their lawsuit.... [T]he purpose and scope of the tolling provision as applied to minors and persons of unsound mind, extends beyond merely ensuring their access to the courts.

Appointment of Guardian for Incompetent or for Infant as Affecting Running of Statute of Limitations Against Ward, 86 A.L.R.2D 965, 976 (1962)).

Weiner notes that this Court has previously decided the constitutionality of section 10.01 was unconstitutional as applied to plaintiff because plaintiff had not discovered the cause of action within the two-year limitations period), and argues that we should do so here. We are of a contrary view. Weiner’s argument leads to the unworkable standard contended for by the dissent, which would inquire whether the minor’s parent was “incompetent” or had a “conflict of interest” that prevented the parent from acting in the minor’s best interests. We fail to see any benefit in requiring a minor to show that his or her parent was incompetent or failed to act in the minor’s best interests by not pursuing a medical malpractice claim, especially when the very failure of the parent to do so leaves the minor without any legal recourse. We accordingly decline the invitation to limit Sax to its facts.

*321 III

Having determined that Nelson v. Krusen, 678 S.W.2d at 923. Because Wasson did not bring suit until eighteen months after he attained age eighteen, Weiner argues that Wasson failed, as a matter of law, to bring suit within a reasonable time.

The reasonable-time rule is a court-made standard, which has heretofore been applied only in a limited number of cases involving adult plaintiffs who, because of the nature of their claim, did not have a reasonable opportunity to discover their injuries and bring suit within a prescribed limitations period. See Nelson v. Krusen, 678 S.W.2d at 921–22. The reasonable-time rule, in effect, allows certain adult plaintiffs two years plus a reasonable time to bring suit. Despite the fact that we have never applied the reasonable-time rule to cases other than those involving claims that are by their nature exceedingly difficult or impossible to discover, Weiner urges us to hold that minors have only a reasonable time after attaining age eighteen to bring suit. We decline to do so.

Rather than fashioning a rule of our own making and applying it to minor plaintiffs, we think it is more appropriate to look to the general limitations provisions enacted by the Legislature. 16.003 apply to Wasson’s claim.8

We therefore hold that Wasson had two years after attaining age eighteen to bring suit for the acts of medical malpractice allegedly committed during his minority. We affirm the judgment of the court of appeals and remand this cause to the trial court for further proceedings consistent with this opinion.

OWEN, J., joined by PHILLIPS, C.J., and HECHT, J., dissents.

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

I respectfully dissent. I would hold that as applied to the facts of this case, section 10.01 of the Medical Liability and Insurance Improvement Act does not violate the open *322 courts provision of the Texas Constitution. Requiring a medical malpractice suit to be brought on behalf of a minor within the time set forth in article 4590i, section 10.01, is not unconstitutional where the minor is at least twelve years of age, his or her parent knew of the injury and potential claim within the limitations period, and the parent or legal guardian was competent and had no conflict of interest that would preclude him or her from acting in the best interest of the child.

My principal concern is that the Court has taken such an expansive view of the scope of the open courts provision that no statute of limitations aimed at limiting the claims of minors can pass constitutional muster. The Court has tied the hands of the Legislature far beyond what was ever envisioned by the drafters of our Texas Constitution. It does so based on what I believe is an incorrect application of Sax v. Votteler, 648 S.W.2d 661 (Tex.1983).

The Legislature had the Sax decision before it in 1993 when it renewed and extended section 10.01 is constitutional. I would reverse the judgment of the court of appeals and remand the case to the trial court for any further development of facts in light of this holding.


At the time Weiner performed surgery on Emmanuel Wasson in May of 1988, Wasson was fifteen years old. Weiner last treated Wasson in June of 1988. In that same year, it is undisputed that Wasson was aware not only that the results of this treatment were unsatisfactory to him, but that he had a claim against Weiner. By August of 1988, Wasson was aware of each and every injury for which he now seeks recovery. Wasson and his mother knew that he would have to undergo section 10.01, Wasson’s mother retained an attorney to represent her son. Yet suit was not filed until August of 1992, more than four years after Weiner last saw Wasson. No explanation has been provided for this delay.

Weiner invoked the statute of limitations applicable to claims for medical malpractice, article 4590i.


The Court’s basis for striking down the statute before us is the open courts provision of the Texas Constitution. TEX. CONST. art. I, § 13. Over the years our Court gradually has expanded the reach of this provision.

A detailed history of the origins of the open courts provision and of our earliest decisions construing it can be found in LeCroy, 713 S.W.2d at 340 and cases cited therein in notes 5–7.

Just recently, this Court acknowledged that historically, the courts of Texas did not have an expansive view of the open courts provision. Houston Water–Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36, 37–38 (1888):

If ... the act of which the injury was the natural sequence was a legal injury,—by which is meant an injury giving cause of action by reason of its being an invasion of a plaintiff’s right,—then, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damages resulting from the act.... [A] mere want of knowledge by the owner of injury to his property does not prevent the running of the statute.

Id. at 236, 8 S.W. 36.

The import of this recognition in Trinity is that there can be no doubt that the Texas courts in the Kennedy era never contemplated that the open courts provision of our Constitution precluded the Legislature from implementing a statute of limitations applicable to the claims of minors.

As an historical note, the 1869 Reconstruction Constitution contained not only the open courts provision (as is the case with all six Texas Constitutions), but also included article XII, section 14, which afforded express protection for the rights of infants, married women, and insane persons. Limitations was not permitted to run until at least seven years after the removal of their “respective legal disabilities.” If the open courts provision was intended to provide essentially the same protection, the inclusion of this provision would have been unnecessary. However, I would not base the result in this case on such a slim reed, particularly in light of the subsequent decisions of our Court which have added more substance and contours to the open courts provision.

One of the earliest decisions of this Court to address the open courts provision in a context broader than physical access to the courts or unreasonable bond requirements was TEX.LAB.CODE § 401.001 et seq.)).

The United States Supreme Court affirmed Middleton, concluding that there had been no deprivation of due process or liberty under the United States Constitution. Id. at 163, 39 S.Ct. at 231. The United States Supreme Court did, however, indicate that a common-law claim or right could not be abrogated in its entirety unless “a reasonable substitute for the legal measure of duty and responsibility previously existing” was established. Id.

This Court next had occasion to consider Id. 111 S.W.2d at 694.

It was not until Id. at 954 (emphasis omitted).

In Lebohm, we capsulized the import of the open courts section of our state constitution as follows:

Thus it may be seen that 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.

Id. at 955.

In applying these principles to the charter provision in Lebohm, we held that no broad policy or general welfare considerations were advanced to justify the city’s complete bar of claims as a reasonable exercise of the police power. We observed that we “could think of none inasmuch as the effect of the provision extends only to the city limits of the City.” Importantly, however, we noted:

In this connection, we are not to be understood as holding that the Legislature could not by general law abolish all causes of actions against cities for injuries growing out of simple negligence in the maintenance of streets.


We thus recognized in Lebohm that there may be instances in which the state can abolish common-law causes of action altogether if broad public policy or general welfare considerations exist. We adhered to this statement of the law in Lebohm, supra. 561 S.W.2d at 774.

The decision in Sax, which the Court today finds dispositive, likewise relied on Lebohm, and quoted the passage from Lebohm which recognizes that even if no reasonable remedy is substituted, the Legislature may nevertheless withdraw common-law remedies in the exercise of the police power for the general welfare as long as the legislative action is not arbitrary or unreasonable. Hanks, Lebohm, and Waites, and stated:

We hold, therefore, 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. In applying this test, we consider both the general purpose of the statute and the extent to which the litigant’s right to redress is affected.

Id. at 665–66 (emphasis added).

However, subsequent decisions have focused more on the last sentence of the foregoing passage, “the extent to which the litigant’s right to redress is affected,” rather than focusing on whether the abolition of a common-law cause of action was a reasonable exercise of police power. Most notably, in the case of Id. at 716–17. In my view, Chief Justice Phillips correctly analyzed the open courts provision, and disapproved of the fact that

[w]hile Sax does not necessarily compel an incorrect analysis, in practice it has resulted in an almost exclusive focus on “the extent to which the litigant’s right to redress is affected,” with an almost total disregard of “the general purpose of the statute.”

Id. at 716.

He noted that in Sax and its progeny, this Court has emphasized the nature and extent of the restriction on common-law causes of action to the virtual exclusion of other factors. “[T]he Court’s ‘first concern’ has been the absence of adequate substitute remedies.” Nelson v. Krusen, 678 S.W.2d 918, 922 (Tex.1984).

Chief Justice Phillips advocated that the Court return to the language of Lebohm and separate the issue of a reasonable alternative remedy from the issue of a reasonable exercise of police power:

If the Legislature has provided or left in place a reasonable alternative remedy, judicial scrutiny is at an end, and properly so. The Legislature should have absolute discretion to substitute one adequate remedy for another, without its choice being subjected to judicial re-evaluation. If the Legislature has not provided or left in place a reasonable alternative remedy, however, the Constitution requires a second, separate inquiry. The courts must independently determine if the legislative action constitutes a reasonable exercise of the police power.

Lucas, 757 S.W.2d at 718.

Chief Justice Phillips correctly concluded that the determination of whether there had been a reasonable exercise of police power would not be satisfied by a mere finding that *326 the statute is rationally related to a legitimate state interest:

A “reasonable exercise of the police power in the interest of the general welfare” thus requires that the statute address an important, not merely a legitimate, state interest, that such interest be perceived and articulated by the state, and that the remedies provided bear a real relationship to the social evil being addressed.


I would apply the test found in Lebohm and in Chief Justice Phillips’ dissent in Lucas, which is not at odds with the test set out in Sax. To do otherwise is to restrict the Legislature unduly in carrying out its obligations under our Constitution: to exercise its police power where necessary to “ameliorat[e] a rationally perceived social evil.” section 10.01 is not a reasonable exercise of the police power.

I turn to the questions to be answered under the test set forth in Lebohm and in Sax: 1) if a common-law cause of action has been restricted or withdrawn by the Legislature, does section 10.01 nevertheless a reasonable exercise of police power by the Legislature.



The linchpin of the Court’s holding today is that because of Wasson’s legal disability as a minor, he could not bring suit in his own right until he reached majority. Accordingly, the Court concludes that the open courts provision would be violated if section 10.01 cut off his cause of action before he had the legal capacity to bring suit. There is no contention that Wasson otherwise would have been incompetent to bring suit.

It is beyond dispute that the Legislature has the power to remove the legal disability of a minor such as Wasson. The legal disability is itself a statutory creation, TEX.PROB.CODE § 118(a). In many instances, requiring a minor to bring a medical malpractice claim by age fourteen would not be unreasonable or arbitrary, particularly in light of the ways in which the law differentiates between children of various ages.

An argument can be mounted that TEX.REV.CIV.STAT. art. 4590i, § 10.01 (Vernon Supp.1994) (emphasis added).

The Court in Sax did not consider whether there had been a removal of disability by the Legislature for purposes of instituting medical malpractice actions. Sax appears to have assumed that minors could not bring suit on their own behalf. See Barlow v. Humana, Inc., 495 So.2d 1048, 1051 (Ala.1986) (distinguishing Sax on the basis that in Alabama, a minor does not lack capacity to sue).

However, I do not believe it is reasonable to construe section 10.01 as lowering the age of a minor’s disability. The practical problems inherent in such a construction include the fact that the legal disability was not expressly removed for purposes of entering into a contract, which presumably would be necessary to enable a minor personally to *327 engage counsel to bring suit. The statute should be construed, however, to require suit to be brought on behalf of the minor, or in his or her name as the real party in interest.

Nevertheless, the fact that the Legislature could have removed the legal disability of a minor such as Wasson and accordingly, could have removed any open courts question is highly significant. The Legislature unmistakably indicated in section 10.01. We did not consider this point in Sax.

Moreover, the statute before the Court in Sax, section 10.01, the Legislature rejected the lower age of eight set forth in the Sax statute. In most cases, by the time a child attains the age of twelve, a competent parent or legal guardian should be able to determine if an injury to the child has occurred as a result of negligent medical treatment.

Requiring suit to be brought on behalf of the minor is a reasonable substitute for removing the right of a fifteen year old to bring suit in his or her own capacity after reaching majority, provided that the minor has a legally competent parent or legal guardian who has no conflict of interest that would preclude him or her from acting in the best interests of the minor. Compare Mominee v. Scherbarth, 28 Ohio St.3d 270, 28 OBR 346, 503 N.E.2d 717, 739 (1986) (Wright, J., dissenting).

I recognize that in Sax, the Court declined to accept suit by a parent or guardian as a reasonable substituted remedy. On this point, I fundamentally disagree with the assumption in Sax that competent parents cannot be trusted to act in the best interest of their child. TEX.FAM.CODE § 12.04. In the area of child custody, this Court has explained that the presumption that a child is best served by awarding custody to his or her natural parents is

based upon a logical belief that the ties of the natural relationship of parent and child ordinarily furnish strong assurance of genuine efforts on the part of the custodians to provide the child with the best care and opportunities possible, and, as well, the best atmosphere for the mental, moral and emotional development of the child.

Sax, 648 S.W.2d at 667.

This conclusion in Sax is one aspect of our decision which should be reconsidered. In cases involving guardians for the mentally incompetent, this Court has intimated that the rights of one under a legal disability might be cut off by the action or inaction of a legal guardian. Most recently, in Tzolov v. International Jet Leasing, Inc., 232 Cal.App.3d 117, 283 Cal.Rptr. 314, 317–18 (1991)) (emphasis added). In Ruiz, we expressly left open the question of whether an action commenced on behalf of a legally disabled individual could operate as a bar:

This does not mean that an action commenced by, or on behalf of, a legally disabled individual can never be given preclusive effect.

868 S.W.2d at 756.

In Tinkle v. Henderson, 730 S.W.2d 163 (Tex.App.—Tyler 1987, writ ref’d), which was decided on an open courts issue, it was specifically noted that Tinkle, who became mentally incompetent following medical treatment, did not have a guardian at the time of the claimed injury. It was held that limitations had not run against him.

Earlier decisions in our state recognized that in some instances, rights of the mentally incompetent can be lost due to the passage of time, notwithstanding the legal disability. In Broussard Trust v. Perryman, 134 S.W.2d 308, 313 (Tex.Civ.App.—Beaumont 1939, writ ref’d).

Our Court indicated in Id. 167 S.W.2d at 166.

More recently, at least one court of appeals has held that the notice provisions under our previous Workmen’s Compensation Act applied to a minor, and the minor’s claim for common-law negligence was barred because the minor did not give notice. Whitehead v. American Indus. Transp., Inc., 746 S.W.2d 273, 274–75 (Tex.App.—Texarkana 1988, writ denied). In Whitehead, a minor was killed on the job. He had failed to give written notice to his employer that he was reserving his rights to a common-law negligence action. As applied to the deceased minor, who was seventeen at the time he began his employment, the court held there was no constitutional violation:

[W]e would be required to find that persons under eighteen, regardless of their age or experience, are incapable as a matter of law of making an intelligent choice concerning their right to compensation for injuries. This we are unwilling to do. The Legislature may exempt all persons under eighteen years from the waiver provisions of the Act if it desires, but the Constitution, in our judgment, does not require it.

Id. at 275.

The notice requirements of the Texas Tort Claims Act, 468 S.W.2d at 591.

In other jurisdictions, the general rule is that if the disability statute is a general one, and the statute of limitations is likewise a general one, limitations will not run against a minor or an incompetent simply because a parent or next friend could have brought suit. See, e.g., Baker v. Binder, 34 Mass.App.Ct. 287, 609 N.E.2d 1240, 1243 (1993) (father automatically appointed next friend when he filed suit on behalf of minor; limitations ran from that date as to minor’s claims).

*330 Section 10.01 is not a general statute, and it is not merely permissive. It is very specific in directing that suit must be brought on behalf of a minor within certain time limits. It should be given effect by this Court.

A different result may obtain if a plaintiff demonstrates that he or she had no parent or legal guardian who was competent to bring suit, or that his or her parents or legal guardian had a conflict of interest that prevented them from acting in the minor’s best interests. In such circumstances, the statute of limitations may well be unconstitutional as applied to such a plaintiff. But requiring a competent parent or legal guardian to bring suit does not constitute “an impossible condition” prohibited by the open courts provision.

The concept of an “impossible condition” was explained in 730 S.W.2d at 166.

Under standard principles of statutory construction, this Court must construe the statute to render it constitutional, if possible. See Key Western Life Ins. Co. v. State Bd. of Ins., 163 Tex. 11, 350 S.W.2d 839, 849 (1961). It is to be presumed that the Legislature has not acted arbitrarily or unreasonably:

In 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. The wisdom or expediency of the law is the Legislature’s prerogative, not ours.

Smith v. Davis, 426 S.W.2d 827, 831 (Tex.1968)).

In the case before the Court today, Wasson was fully cognizant of his injury and of his potential claim, as was his mother. There is no indication that his mother or his father could not have instituted suit within the limitations period. Under these circumstances, the substituted procedure in section 10.01 which requires suit to be brought on behalf of Wasson within certain time limits is reasonable.


The inquiry is not at an end even if one were to conclude that the legislative scheme of allowing suit to be brought on behalf of a minor is not a reasonable substitute for limiting a minor’s right to sue. The Legislature has the power to abrogate common-law causes of action altogether in the proper exercise of its police power. See discussion of Middleton and Lebohm, supra. I would hold that the exercise of legislative power was constitutional here.

The Legislature articulated its findings and the basic purposes of section 10.01, a physician could be forced to defend a claim arising out of injuries incurred during childbirth up to twenty years after the occurrence. Page Keeton explained in his memorandum to the Texas Medical Professional Liability Study Commission that a medical malpractice statute of limitations is aimed at “the prevention of the bringing of stale claims or claims that are made so long after the so-called negligent event occurred as to make it virtually impossible to ascertain the facts.”

Significantly, the statute at issue in Sax contained no such findings. The Court in Sax did not consider these public policy concerns or whether the legislative scheme bears a real relationship to the social evils being addressed. Taken in tandem with the Legislature’s adoption of a higher threshold age at which limitations begins to run, the legislative findings support the constitutionality of this statute, and there is a valid basis for drawing distinctions between the statute under scrutiny in Sax and section 10.01.

Admittedly, the findings and stated purposes of Id. This Court held:

In the context of persons catastrophically injured by medical negligence, we believe it is unreasonable and arbitrary to limit their recovery in a speculative experiment to determine whether liability insurance rates will decrease.... In any event, we hold it is unreasonable and arbitrary for the legislature to conclude that arbitrary damages caps, applicable to all claimants no matter how seriously injured, will help assure a rational relationship between actual damages and amounts awarded.

757 S.W.2d at 691 (emphasis omitted).

The statute of limitations in section 10.01 did not cut off claim for sponge left in abdomen).

While a number of other decisions of our Court and the courts of appeals have considered whether a statute can cut off the claims of a minor, the propriety of Legislature’s purported exercise of its police power was not presented. See, e.g., *332 City of Houston v. Bergstrom, 468 S.W.2d 588, 591 (Tex.App.—Houston 1971, writ ref’d n.r.e.) (minority alone will excuse compliance with notice requirement).

Looking to other jurisdictions, many courts have upheld statutes of limitation applicable to the claims of minors against due process and open courts challenges. See Whitlow v. Board of Educ., 190 W.Va. 223, 438 S.E.2d 15, 23 (1993) (equal protection).

Although I would not hold that Section 10.01. Wasson was not the plaintiff the Court was concerned about in Sax. His right to pursue his claim was not precluded by the statute, but rather because he slept on his rights.

It is not necessary to decide whether the exercise of the Legislature’s police power would be proper as applied to different facts, such as a case where the minor’s parent was incompetent. In this regard, it should be noted that the result I would reach as to Wasson is not necessarily at odds with Tinkle, supra, which held section 10.01 unconstitutional as applied to the mentally incompetent. It was noted in that decision that no guardian had been appointed, and the court did not engage in any analysis of the police power of the Legislature to abrogate common-law causes of action.


A fundamental tenet in our jurisprudence is the recognition of the need for consistency and predictability in the decisions of our courts. This Court should be loath to overrule its prior decisions, particularly where an opinion has been cited and relied upon as frequently and as recently as has Sax. Our Court should not succumb to a temptation to continually revisit prior decisions as new fact situations arise or the concerns of the public shift. The Court similarly stresses the importance of stare decisis, but misapprehends the application of that doctrine to the case before us. The Court concludes that in order to uphold the constitutionality of section 10.01. The application of the rationale of Sax to this case leads only to a different result, not to a departure from the essence of Sax or from the decisions of this Court on which it was based.

The Court concludes that Wasson and his parents, and those similarly situated, may justifiably rely on Sax and wait well beyond the statutory limitation period before bringing suit. In support of this premise, the Court cites Justice Scalia’s concurring opinion in 504 U.S. at 321, 112 S.Ct. at 1916 (emphasis in original). The balance of that quote, omitted by the Court, notes “reliance alone may not always carry the day.” The most important aspect of Justice Scalia’s comment, however, is its context. Justice Scalia observed:

Congress has the final say over regulation of interstate commerce, and it can change the rule of Bellas Hess [the Supreme Court’s longstanding decision] by simply saying so. We have recognized that the doctrine of stare decisis has “special force” where “Congress remains free to alter what we have done.”

504 U.S. at 320, 112 S.Ct. at 1916.

That principle applies with force here. Sax was decided before Section 10.01 has never been held unconstitutional as applied to minors by this or any other court since its enactment in 1977, until today’s decision. It is dangerous precedent indeed to hold that reliance by a party on his or her extrapolation of what this Court has held in other cases is a justification for striking down an otherwise valid act of the Legislature.

* * * * * *

Because I would conclude that section 10.01 of the Medical Liability Act does not violate the open courts provision of the Texas Constitution under the facts of this case, I respectfully dissent.



TEX.REV.CIV.STAT.ANN. art. 4590i, § 10.01 (Vernon Supp.1994).


When a trial court grants summary judgment without specifying the grounds, the summary judgment must be affirmed on appeal if any of the theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). The court of appeals, however, did not address Weiner’s second ground for summary judgment. We address both grounds below.


The open courts provision states:

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.

TEX. CONST. art I, § 13.


Under both Jilani and Felderhoff, the parent-child immunity doctrine prevents suits by a child against a parent with respect to “alleged acts of ordinary negligence which involve a reasonable exercise of parental authority or the exercise of ordinary parental discretion with respect to provisions for the care and necessities of the child.” Felderhoff, 473 S.W.2d at 933.


These provisions date back to at least 1911. See Sax, 648 S.W.2d at 663.


Section 16.003 provides:

(a) A person must bring suit for ... personal injury ... not later than two years after the day the cause of action accrues.

TEX.CIV.PRAC. & REM.CODE § 16.003.


Section 16.001 provides:

(a) For purposes of this subchapter, a person is under a legal disability if the person is:

(1) younger than 18 years of age, regardless of whether the person is married; or

(2) of unsound mind.

(b) If a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in a limitations period.

TEX.CIV.PRAC. & REM.CODE § 16.001.


We note that when faced with the unconstitutionality of medical malpractice statutes similar to Barrio v. San Manuel Div. Hosp., 143 Ariz. 101, 692 P.2d 280, 286 (1984).

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